MAINE	SUPREME	JUDICIAL	COURT	                                                         Reporter	of	Decisions	
Decision:	 2017	ME	202	
Docket:	   Aro-16-188	
Argued:	   February	8,	2017		
Decided:	  October	5,	2017	
	
Panel:	        SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                         STATE	OF	MAINE	
                                                	
                                               v.	
                                                	
                                        ANDREW	J.	LEGASSIE	
	
	
HUMPHREY,	J.	

          [¶1]		In	this	appeal,	we	address	the	intersection	of	the	digital	world	of	

social	media	and	our	criminal	statutes	and	rules	of	evidence.	

          [¶2]	 	 The	 victims	 of	 the	 charges	 at	 issue	 here	 are	 five	 teenage	 girls,	

designated	in	the	trial	court’s	order	as	Victims	A,	B,	C,	D,	and	E.1		At	the	time	of	

the	alleged	offenses,	the	victims	ranged	in	age	from	fourteen	to	seventeen	years	

old.	 	 Each	 victim	 received	 from	 the	 defendant	 explicit	 digital	 images,	 which	

were	admitted	in	evidence	as	State’s	Exhibits	2,	5,	6,	and	7,	and	digital	messages.		

The	 trial	 court	 found	 that	 the	 defendant	 confessed	 to	 creating	 those	 digital	

images	and	sending	them	by	social	media	to	many	young	girls,	including	the	


    1	 	 The	 trial	 court	 order	 indicates	 that	 the	 defendant	 was	 originally	 charged	 with	 committing	

offenses	against	eight	teenage	girls.		The	trial	court	entered	convictions	regarding	only	five	victims,	
and	those	convictions	are	at	issue	in	this	appeal.			
2	

victims.		There	is	no	evidence	of	any	in-person	contact	that	formed	the	basis	of	

the	alleged	crimes.			

         [¶3]	 	 We	 must	 decide	 if	 the	 crime	 of	 indecent	 conduct	 (Class	 E),	

17-A	M.R.S.	§	854(1)(B)	(2016),	can	be	committed	solely	through	the	electronic	

transmission	of	images	of	one’s	genitals.		We	must	also	decide	if	M.R.	Evid.	1002,	

requiring	 introduction	 of	 original	 writings,	 recordings	 or	 photographs,	 when	

available,	 requires	 the	 exclusion	 of	 the	 victims’	 testimony	 about	 digital	

messages	that	they	received	from	the	defendant.	

         [¶4]		Andrew	J.	Legassie	appeals	from	a	judgment	of	conviction	of	three	

counts	 of	 attempted	 sexual	 exploitation	 of	 a	 minor	 (Class	 C),	 17-A	 M.R.S.	

§	 152(1)(C)	 (2016);	 17-A	 M.R.S.	 §	 282(1)(A)	 (2014),	 one	 count	 of	 sexual	

exploitation	 of	 a	 minor	 (Class	 B),	 17-A	 M.R.S.	 §	 282(1)(A),2	 one	 count	 of	

attempted	sexual	abuse	of	a	minor	(Class	E),	17-A	M.R.S.	§	152(1)(E)	(2016);	

17-A	M.R.S.	§	254(1)(A)	(2016),	and	five	counts	of	indecent	conduct	(Class	E),	

17-A	 M.R.S.	 §	 854(1)(B),	 following	 a	 bench	 trial	 in	 the	 Superior	 Court	




     2		Title	17-A	M.R.S.	§	282(1)(A)	(2014)	has	since	been	amended	to,	among	other	things,	lower	the	

age	 at	 which	 a	 target	 of	 the	 exploitation	 ceases	 to	 be	 a	 “minor”	 for	 purposes	 of	 the	 statute	 from	
eighteen,	see	17-A	M.R.S.	§	281(2)	(2016);	17-A	M.R.S.	§	282(1)(A)	(2014),	to	sixteen.		See	P.L.	2015,	
ch.	 394,	 §	 1	 (effective	 July	 29,	 2016)	 (codified	 at	 17-A	 M.R.S.	 §	 282(1)(A)	 (2016)).	 	 The	 criminal	
conduct	occurred	before	the	effective	date	of	the	amendment,	and	thus	the	prior	version,	17-A	M.R.S.	
§	282(1)(A)	(2014),	which	imported	the	definition	of	“minor”	from	17-A	M.R.S.	§	281(2)	as	a	person	
under	eighteen,	applied.	
                                                                                              3	

(Aroostook	County,	Hunter,	J.).		For	the	reasons	set	forth	below,	we	affirm	in	

part	and	vacate	in	part	and	remand	for	further	proceedings.	

                                       I.		BACKGROUND	

       [¶5]	 	 In	 December	 2013,	 Legassie	 added	 Victim	 A	 as	 a	 “friend”	 on	 the	

social	 media	 platform	 Facebook	 and	 began	 sending	 her	 messages	 through	

Facebook	 Messenger.3	 	 At	 that	 time,	 Legassie	 was	 twenty-one	 years	 old	 and	

Victim	A	was	fifteen.		Legassie	purported	to	know	her	from	working	as	a	referee	

for	her	high	school	team’s	basketball	games.		In	the	beginning,	the	messages	

concerned	basketball,	but	Legassie	gradually	steered	the	conversation	toward	

sex.		He	began	by	complimenting	Victim	A	on	her	appearance,	moved	to	asking	

whether	she	had	ever	had	sex,	and	then	progressed	to	implying	and	eventually	

stating	explicitly	that	they	should	have	sex.		He	stated	in	several	messages	that	

they	should	meet.		Legassie	asked	Victim	A	for	pictures	of	herself,	asking	her	to	

put	on	a	jersey	“and	have	nothing	else	one	[sic]	and	send	me	a	pic”	and	“let	me	

see	 them	 legss	 [sic]	 and	 behind.”	 	 Legassie	 later	 sent	 Victim	 A	 a	 picture	 of	

himself	 in	 his	 bedroom	 exposing	 his	 genitals.	 	 A	 computer	 printout	 of	 the	




   3		Facebook	Messenger	is	the	messaging	application	associated	with	the	Facebook	social	media	

platform.		The	format	of	the	messages	is	analogous	to	a	text	message.	
4	

Facebook	messages	exchanged	between	Legassie	and	Victim	A	was	produced	

and	admitted	in	evidence.4		

         [¶6]		Legassie	also	added	fifteen-year-old	Victim	B	as	a	Facebook	friend	

and	 sent	 her	 messages.	 	 Legassie’s	 messages	 advanced	 to	 sexual	 topics;	

Legassie	asked	Victim	B	for	“naked	pictures”	of	herself	and	told	her	he	wanted	

to	have	sex	with	her.		Legassie	sent	her	the	same	picture	of	himself	exposing	his	

genitals.		After	Victim	B	received	the	nude	picture	of	Legassie,	she	removed	him	

as	a	friend	on	Facebook	and	deleted	the	messages	that	they	had	exchanged.		

         [¶7]		Legassie	continued	a	similar	pattern	of	behavior	on	Facebook	with	

other	teenage	girls	during	the	same	period.		Legassie	added	seventeen-year-old	

Victim	 C	 as	 a	 friend	 on	 Facebook	 and	 sent	 her	 four	 nude	 photos	 of	 himself	

through	Facebook	Messenger.		He	added	fourteen-year-old	Victim	D	as	a	friend,	

sent	her	messages	asking	for	pictures	and	eventually	for	sex,	and	sent	her	the	

same	nude	photos.		Legassie	also	added	Victim	E	as	a	friend,	sent	her	messages,	

and	asked	her	for	nude	photos,	and	she	sent	him	two	photos:	one	of	her	breasts	

and	one	of	her	genitals.		Victim	E	was	sixteen	at	the	time.		After	Victim	E	sent	

photos	 of	 herself,	 Legassie	 sent	 her	 three	 of	 the	 nude	 photos	 of	 himself,	

including	the	photo	of	him	exposing	his	genitals	in	his	bedroom.			


     4		Other	victims	testified	about	the	messages	from	memory.		The	State	did	not	obtain	originals	or	

copies	of	the	messages	Legassie	exchanged	with	the	other	victims.	
                                                                                      5	

      [¶8]	 	 On	 July	 11,	 2014,	 the	 State	 charged	 Legassie	 by	 indictment	 with	

seven	 counts	 of	 attempted	 sexual	 exploitation	 of	 a	 minor	 (Counts	 1-7),	 one	

count	of	attempted	sexual	abuse	of	a	minor	(Count	8),	twelve	counts	of	indecent	

conduct	(Counts	9-18,	26,	28),	seven	counts	of	violating	a	condition	of	release	

(Counts	19-25),	and	two	counts	of	sexual	exploitation	of	a	minor	(Counts	27	

and	29).		

      [¶9]		The	court	held	a	bench	trial	on	October	13,	2015.		During	the	trial,	

Legassie	 objected	 to	 testimony	 by	 each	 victim	 about	 the	 content	 of	 the	

Facebook	messages	on	the	basis	that	the	evidence	contravened	M.R.	Evid.	1002,	

the	“Requirement	of	the	Original”	rule,	also	referred	to	as	the	“best	evidence”	

rule.	 	 In	 a	 memorandum	 submitted	 after	 trial,	 Legassie	 also	 argued	 that	 the	

evidence	 of	 photographs	 was	 insufficient	 to	 support	 his	 convictions	 for	

indecent	 conduct	 because	 the	 statute	 requires	 that	 the	 exposure	 of	 genitals	

occur	in	the	physical	presence	of	another.			

      [¶10]	 	 In	 a	 written	 decision	 dated	 February	 25,	 2016,	 the	 court	

determined	 that	 the	 best	 evidence	 rule	 did	 not	 apply	 because	 the	 specific	

content	of	the	messages	was	not	material	to	the	charges;	rather,	the	court	found	

that	the	State’s	proof	relied	on	“the	general	import”	of	what	Legassie	wanted	

from	 the	 victims	 and	 what	 he	 sent	 to	 them.	 	 The	 court	 further	 found	 that	
6	

Legassie	exposed	his	genitals	while	in	a	private	place,	took	a	picture,	and	sent	

that	picture	to	the	victims	with	the	intent	that	they	see	his	genitals.		It	concluded	

that	he	was	therefore	guilty	of	the	indecent	conduct	charges.		The	court	noted	

that	the	indecent	conduct	statute’s	plain	language	does	not	“restrict	or	limit	the	

manner	in	which	[indecent	conduct]	can	be	committed.”		The	court	thus	found	

Legassie	guilty	of	three	counts	of	attempted	sexual	exploitation	of	a	minor,	one	

count	of	sexual	exploitation	of	a	minor,	one	count	of	attempted	sexual	abuse	of	

a	 minor,	 and	 five	 counts	 of	 indecent	 conduct.	 	 The	 court	 found	 Legassie	 not	

guilty	of	the	remaining	counts	charged	in	the	indictment.	

      [¶11]		On	March	24,	2016,	the	court	sentenced	Legassie	to	the	following:		

          • four	years,	all	but	nine	months	and	one	day	suspended	with	three	
            years	of	probation,	on	Count	27;		

          • thirty	days	on	Count	26,	ninety	days	on	Count	6,	and	thirty	days	on	
            Count	 12,	 to	 be	 served	 concurrently	 with	 each	 other	 and	
            consecutive	to	the	other	sentences;		

          • sixty	days	on	Count	1,	thirty	days	on	Count	8,	and	thirty	days	on	
            Count	 9,	 to	 be	 served	 concurrently	 with	 each	 other	 and	
            consecutively	to	Counts	26,	6,	and	12;		

          • sixty	days	on	Count	2	and	thirty	days	on	Count	10,	concurrent	with	
            each	other	and	consecutive	to	the	other	sentences;	and		

          • thirty	days	on	Count	11,	to	be	served	consecutively	with	the	other	
            sentences.			
                                                                                         7	

Following	the	entry	of	the	judgment,	Legassie	timely	appealed.		See	15	M.R.S.	

§	2115	(2016);	M.R.	App.	P.	2.	

                                    II.		DISCUSSION	

A.	   Indecent	Conduct	

      [¶12]		Legassie	argues	that	the	court	erred	in	interpreting	the	indecent	

conduct	statute,	17-A	M.R.S.	§	854.		The	statutory	provision	pursuant	to	which	

Legassie	was	convicted	provides	that	“[a]	person	is	guilty	of	indecent	conduct	

if	.	.	.	[i]n	a	private	place,	the	actor	exposes	the	actor’s	genitals	with	the	intent	

that	 the	 actor	 be	 seen	 from	 a	 public	 place	 or	 from	 another	 private	 place.”		

17-A	M.R.S.	§	854(1)(B).			

      [¶13]		The	interpretation	of	17-A	M.R.S.	§	854	is	a	question	of	law	that	we	

review	de	novo.		State	v.	Pinkham,	2016	ME	59,	¶	14,	137	A.3d	203.		We	first	

look	to	the	statutory	language	to	discern	the	Legislature’s	intent.		Id.		“We	look	

to	 legislative	 history	 and	 other	 extraneous	 aids	 in	 interpretation	 of	 a	 statute	

only	when	we	have	determined	that	the	statute	is	ambiguous.”		Carrier	v.	Sec’y	

of	State,	2012	ME	142,	¶	12,	60	A.3d	1241	(quotation	marks	omitted).		“A	statute	

is	 ambiguous	 if	 it	 is	 reasonably	 susceptible	 to	 different	 interpretations.”	 Id.	

(quotation	 marks	 omitted).	 	 “[W]e	 must	 construe	 a	 statute	 to	 preserve	 its	

constitutionality,	or	to	avoid	an	unconstitutional	application	of	the	statute,	if	at	
8	

all	possible.”		Nader	v.	Me.	Democratic	Party,	2012	ME	57,	¶	19,	41	A.3d	551.		In	

the	 context	 of	 criminal	 statutes,	 our	 interpretation	 is	 also	 “guided	 by	 two	

interrelated	rules	of	statutory	construction:	the	rule	of	lenity,	and	the	rule	of	

strict	 construction	 .	 .	 .	 .	 	 Pursuant	 to	 each	 of	 these	 rules,	 any	 ambiguity	 left	

unresolved	 by	 a	 strict	 construction	 of	 the	 statute	 must	 be	 resolved	 in	 the	

defendant’s	favor.”		State	v.	Lowden,	2014	ME	29,	¶	15,	87	A.3d	694	(citations	

omitted)	(quotation	marks	omitted).			

       [¶14]		Title	17-A	M.R.S.	§	854	provides	in	relevant	part:	

       1.		A	person	is	guilty	of	indecent	conduct	if:		
	
              A.	In	a	public	place:		
       	
                          (1)	 The	 actor	 engages	 in	 a	 sexual	 act,	 as	 defined	 in	
                          section	251.	Violation	of	this	subparagraph	is	a	Class	E	
                          crime;		
       	
                          (2)	 The	 actor	 knowingly	 exposes	 the	 actor’s	 genitals	
                          under	 circumstances	 that	 in	 fact	 are	 likely	 to	 cause	
                          affront	 or	 alarm.	 Violation	 of	 this	 subparagraph	 is	 a	
                          Class	E	crime;		
              	.	.	.	.	
       	
              B.	 In	 a	 private	 place,	 the	 actor	 exposes	 the	 actor’s	 genitals	
              with	the	intent	that	the	actor	be	seen	from	a	public	place	or	
              from	another	private	place.	Violation	of	this	paragraph	is	a	
              Class	E	crime;		
              	
              C.	 In	 a	 private	 place,	 the	 actor	 exposes	 the	 actor’s	 genitals	
              with	the	intent	that	the	actor	be	seen	by	another	person	in	
              that	private	place	under	circumstances	that	the	actor	knows	
                                                                                      9	

             are	 likely	 to	 cause	 affront	 or	 alarm.	 Violation	 of	 this	
             paragraph	is	a	Class	E	crime	.	.	.	.		
      	
      [¶15]		Legassie	argues	that	to	prove	that	his	conduct	met	the	statutory	

definition	of	indecent	conduct,	the	State	must	prove	that	he	exposed	himself	in	

the	physical	presence	of	the	victim.		Legassie	therefore	contends	that	proof	that	

he	 merely	 transmitted	 a	 digital	 photograph	 of	 himself	 to	 the	 victims	 in	 a	

Facebook	message	is	legally	insufficient	to	support	the	convictions.	

      [¶16]	 	 Although	 “expose[]”	 and	 “see[]”	 could,	 construed	 very	 broadly,	

apply	to	Legassie’s	conduct,	a	narrower	construction	of	those	same	terms	could	

be	interpreted	to	fall	outside	the	scope	of	the	statute.		The	terms	are	undefined.		

The	 Legislature	 neither	 expressly	 extended	 the	 statute	 to	 cover	 an	 exposure	

depicted	in	a	photograph	and	later	seen	by	the	victim,	nor	specifically	restricted	

its	 scope	 to	 an	 in-person	 exposure.	 	 Because	 different	 reasonable	

interpretations	of	the	statute	both	do	and	do	not	cover	Legassie’s	conduct,	we	

conclude	that	the	statute	is	ambiguous	and	thus	look	to	legislative	history	and	

other	extraneous	aids	to	discern	the	Legislature’s	intent.		See	Carrier,	2012	ME	

142,	¶	12,	60	A.3d	1241.		Because	we	must	construe	section	854(1)(B)	in	the	

context	of	the	entire	statutory	scheme,	see	Carr	v.	Bd.	of	Trs.,	643	A.2d	372,	375	

(Me.	 1994),	 and	 legislative	 intent	 relevant	 to	 the	 meaning	 of	 “expose[]”	 and	

“see[]”	may	be	revealed	by	reference	to	the	amendments	to	other	subsections	
10	

that	contain	the	same	terms,	we	consider	the	legislative	history	of	section	854	

as	a	whole.	

      [¶17]	 	 Indecency	 statutes	 can	 be	 traced	 to	 the	 common	 law	 criminal	

offense	of	“public	indecency.”		See	Barnes	v.	Glen	Theatre,	Inc.,	501	U.S.	560,	568	

(1991)	 (“Public	 indecency	 statutes	 such	 as	 the	 one	 before	 us	 reflect	 moral	

disapproval	 of	 people	 appearing	 in	 the	 nude	 among	 strangers	 in	 public	

places.”).		“Indecent	exposure”	has	been	defined	specifically	by	reference	to	the	

public	nature	of	the	act.		See	Indecent	Exposure,	Black’s	Law	Dictionary	(10th	ed.	

2014)	(“An	offensive	display	of	one’s	body	in	public,	esp.	of	the	genitals;	specif.,	

the	crime	of	deliberately	showing	one’s	sex	organs	in	a	place	where	this	action	

is	 likely	 to	 offend	 people.”).	 	 Consistent	 with	 the	 foregoing,	 Maine’s	 indecent	

conduct	statute	has	historically	been	employed	to	prosecute	in-person	public	

exposures.	 	 See	 State	 v.	 Robbins,	 666	 A.2d	 85,	 86	 (Me.	 1995);	 State	 v.	 Long,	

577	A.2d	765,	765	(Me.	1990);	State	v.	Works,	537	A.2d	221,	221-22	(Me.	1988);	

State	v.	Smith,	437	A.2d	639,	640-41	(Me.	1981).			

      [¶18]	 	 In	 1995,	 the	 Legislature	 changed	 the	 title	 of	 the	 offense	 from	

“public	 indecency”	 to	 “indecent	 conduct”	 and	 added	 subsection	 (C).	 	 See	 P.L.	

1995,	 ch.	 72,	 §	 2	 (effective	 Sept.	 29,	 1995).	 	 Section	 854(1)(C)	 provides,	 in	

relevant	part,	that	a	person	commits	indecent	conduct	if	“[i]n	a	private	place,	
                                                                                    11	

the	actor	exposes	the	actor’s	genitals	with	the	intent	that	the	actor	be	seen	by	

another	person	in	that	private	place	under	circumstances	that	the	actor	knows	

are	likely	to	cause	affront	or	alarm.”		17-A	M.R.S.	§	854(1)(C).		The	Legislature	

thereby	extended	the	reach	of	the	statute	from	exposures	by	an	actor	visible	to	

the	 outside	 domain—from	 a	 public	 place	 or	 another	 private	 place—to	

exposures	 in	 the	 private	 domain	 where	 the	 actor	 and	 the	 victim	 were	 in	 the	

same	private	place.		Legislative	testimony	by	the	representative	who	proposed	

the	1995	amendment	suggests	that	the	Legislature	intended	to	criminalize	an	

in-person	exposure	that	would	otherwise	escape	prosecution	because	the	actor	

and	the	victim	were	in	the	same	private	place.		See	An	Act	to	Prohibit	Private	

Indecency:	Hearing	on	L.D.	179	Before	the	J.	Standing	Comm.	on	Criminal	Justice,	

117th	Legis.	(1995)	(testimony	of	Rep.	William	F.	Reed).		The	legislative	record	

further	indicates	that	the	“affront	or	alarm”	requirement	was	included	to	avoid	

criminalizing	 consensual	 private	 exposures.	 	 See	 id.	 (testimony	 of	 Marty	

McIntyre,	Maine	Coalition	Against	Sexual	Assault).			

      [¶19]	 	 Except	 for	 minor	 revisions	 not	 relevant	 here,	 section	 854(1)(B)	

has	 remained	 unchanged	 since	 its	 initial	 enactment.	 	 Compare	 P.L.	 1975,	

ch.	 499,	 §	 1	 (effective	 Mar.	 1,	 1976),	 with	 17-A	 M.R.S.	 §	 854(1)(B).	 	 The	

legislative	 history	 contains	 no	 affirmative	 indication	 that	 the	 Legislature	
12	

contemplated	or	intended	that	the	indecent	conduct	statute	could	be	used	to	

prosecute	an	individual	for	distributing	a	nude	photograph.			

       [¶20]	 	 The	 Legislature	 has,	 however,	 specifically	 criminalized	 the	

dissemination	 of	 obscene	 photographs	 to	 minors—a	 Class	 C	 offense	 that	

appears	more	directly	applicable	to	Legassie’s	conduct	and	weighs	against	the	

State’s	proposed	interpretation.		See	17	M.R.S.	§	2911(1)(C),	(D)	(2016);	see	also	

State	v.	Ray,	1999	ME	167,	¶	7,	741	A.2d	455	(stating	that	undefined	statutory	

terms	 must	 be	 construed	 “consistent	 with	 the	 overall	 statutory	 context”	

(quotation	marks	omitted)).		

       [¶21]		We	also	note	that	the	State’s	interpretation	of	section	854(1)(B),	

which	could	subject	to	criminal	liability	any	individual	seen	exposing	his	or	her	

genitals	 by	 another	 in	 person	 or	 in	 a	 photograph,	 would	 present	 serious	

constitutional	 problems	 because	 section	 854(1)(B)	 contains	 no	 “affront	 or	

alarm”	 requirement.5	 	 The	 State’s	 construction	 of	 section	 854(1)(B)	 could	

therefore	not	only	criminalize	private	behavior	between	consenting	adults,	but	

also	 subject	 to	 prosecution	 individuals	 who	 appear	 in	 photographs,	 which	


   5		Although	indecency	statutes	have	generally	withstood	constitutional	challenges,	those	statutes	

include	elements	that	consider	state	of	mind	or	consent—generally	that	the	defendant’s	exposure	
cause	offense,	annoyance,	or	alarm.		See	State	v.	Whitaker,	793	P.2d	116,	118	(Ariz.	Ct.	App.	1990);	
People	v.	Randall,	711	P.2d	689,	691-93	(Colo.	1985)	(en	banc);	State	v.	Bauer,	337	N.W.2d	209,	210	
(Iowa	1983);	State	v.	Bergen,	677	A.2d	145,	146	(N.H.	1996);	Commonwealth	v.	Allsup,	392	A.2d	1309,	
1312	(Pa.	1978);	State	v.	Knight,	285	S.E.2d	401,	404	(W.	Va.	1981).		Such	provisions	have	been	held	
to	remedy	constitutional	infirmities.		See,	e.g.,	Whitaker,	793	P.2d	at	120.	
                                                                                                  13	

could	 burden	 well-established	 free	 speech	 and	 due	 process	 rights.	 	 See	

Lawrence	v.	Texas,	539	U.S.	558,	578	(2003)	(recognizing	two	consenting	adults’	

due	 process	 right	 to	 engage	 in	 homosexual	 acts	 in	 their	 private	 lives	 and	

striking	 down	 a	 criminal	 sodomy	 statute);	 Reno	 v.	 ACLU,	 521	 U.S.	 844,	 874	

(1997)	 (“In	 evaluating	 the	 free	 speech	 rights	 of	 adults,	 we	 have	 made	 it	

perfectly	 clear	 that	 [s]exual	 expression	 which	 is	 indecent	 but	 not	 obscene	 is	

protected	by	the	First	Amendment.”	(alteration	in	original)	(citation	omitted)	

(quotation	 marks	 omitted));	 Miller	 v.	 California,	 413	 U.S.	 15,	 26	 n.8	 (1973)	

(“[T]he	States	have	greater	power	to	regulate	nonverbal,	physical	conduct	than	

to	suppress	depictions	or	descriptions	of	the	same	behavior.”).	

       [¶22]		Ultimately,	because	we	conclude	that	the	statute	does	not	apply	to	

Legassie’s	 conduct,	 it	 is	 unnecessary	 to	 speculate	 about	 the	 various	 ways	 in	

which	an	individual	could	commit	the	crime	of	indecent	conduct.		We	simply	

conclude,	considering	the	ambiguous	legislative	history,	the	rules	of	lenity	and	

strict	construction	applicable	to	criminal	statutes,	and	our	obligation	to	avoid,	

if	possible,	an	unconstitutional	interpretation	of	a	statute,	that	as	reprehensible	

as	Legassie’s	behavior	was,	section	854(1)(B)	cannot	be	stretched	to	meet	the	

facts	 of	 this	 case.6	 	 We	 hold	 that	 a	 digital	 photograph	 transmitted	 over	 the	


   6		Whether	Legassie	could	have	legitimately	been	charged	with	disorderly	conduct,	17-A	M.R.S.	

§	501-A	(2016),	or	disseminating	obscene	materials	to	a	minor,	17	M.R.S.	§	2911	(2016),	is	not	before	
14	

internet	is	legally	insufficient	to	constitute	an	“exposure”	pursuant	to	section	

854(1)(B)	and	accordingly	vacate	the	convictions	for	Counts	9,	10,	11,	12,	and	

26.		We	remand	for	entry	of	a	judgment	of	acquittal	as	to	those	counts.		

B.	     Best	Evidence	Rule	

        [¶23]		Legassie	also	argues	that	the	court	erred	in	allowing	the	victims	to	

testify	from	memory	about	the	digital	messages	he	sent	them	over	Facebook	

Messenger.7		He	argues	that	the	State	should	have	introduced	the	messages	in	

evidence	 if	 available,	 and	 the	 failure	 to	 do	 so	 contravened	 the	 best	 evidence	

rule,	rendering	the	victims’	testimony	inadmissible.	

	 	     [¶24]		The	trial	court	concluded	that	the	best	evidence	rule	did	not	apply	

to	the	messages	because	the	State	was	not	required	to	prove	the	specific	words	

or	content	of	the	messages,	but	rather	the	“tone,”	“type,”	and	“general	import”	

of	Legassie’s	communications	with	the	victims.		We	disagree	and	begin	with	an	

analysis	 of	 the	 best	 evidence	 rule,	 and	 then	 we	 consider	 the	 implications	 for	

each	of	the	remaining	convictions	at	issue.		



us.	 	 The	 State	 represented	 at	 oral	 argument	 that	 Legassie	 was	 not	 charged	 with	 visual	 sexual	
aggression	against	a	minor	because	the	victims	were	fourteen	years	of	age	or	older.		See	17-A	M.R.S.	
§	256	(2016).		
    	
    7		In	light	of	our	conclusion	vacating	the	indecent	conduct	convictions,	our	analysis	here	is	limited	

to	 the	 remaining	 convictions	 for	 attempted	 sexual	 exploitation	 of	 a	 minor	 (Counts	 1,	 2,	 and	 6),	
attempted	sexual	abuse	of	a	minor	(Count	8),	and	sexual	exploitation	of	a	minor	(Count	27)	involving	
Victim	A,	Victim	B,	Victim	D,	and	Victim	E.	
                                                                                 15	

	 	   [¶25]		“An	original	writing	.	.	.	is	required	in	order	to	prove	its	content	

unless	these	rules	or	a	statute	provides	otherwise.”		M.R.	Evid.	1002.	

      An	 “original”	 of	 a	 writing	 or	 recording	 means	 the	 writing	 or	
      recording	itself	or	any	counterpart	intended	to	have	the	same	effect	
      by	the	person	who	executed	or	issued	it.		For	electronically	stored	
      information,	 “original”	 means	 any	 printout—or	 other	 output	
      readable	by	sight—if	it	accurately	reflects	the	information.		
	
M.R.	Evid.	1001(d).	

      [¶26]		There	are	thus	two	requirements	for	the	rule	to	apply:	first,	that	

the	evidence	sought	to	be	proved	is	a	“writing”	and,	second,	that	the	contents	

of	that	writing	are	at	issue.		See	M.R.	Evid.	1002,	1004(d)	(stating	that	the	rule	

does	not	apply	where	the	writing	“is	not	closely	related	to	a	controlling	issue”).		

The	content	is	at	issue	if	“the	party	seeking	to	prove	a	fact	is	trying	to	prove	

what	a	particular	writing,	recording	or	photograph	says	or	shows.”		3	Francis	

Wharton,	Wharton’s	Criminal	Evidence	§	15:4	(Barbara	E.	Bergman	et	al.	eds.,	

15th	 ed.	 2016).	 	 “Whether	 the	 content	 is	 at	 issue	 is	 determined	 on	 a	

case-by-case	basis.”		Lorraine	v.	Markel	Am.	Ins.	Co.,	241	F.R.D.	534,	578	(D.	Md.	

2007)	 (interpreting	 the	 similarly-worded	 best	 evidence	 rule	 of	 the	 Federal	

Rules	of	Evidence,	Fed.	R.	Evid.	1002).			

      [¶27]		The	justification	for	the	best	evidence	rule	is	that	it	“lessens	the	

probability	 of	 inaccuracy	 through	 human	 or	 mechanical	 error	 and	 that	 it	
16	

promotes	prevention	of	fraud.”		Field	&	Murray,	Maine	Evidence	§	1002.1	at	562	

(6th	ed.	2007);	see	also	Dalton	v.	Commonwealth,	769	S.E.2d	698,	703	(Va.	Ct.	

App.	2015)	(“As	a	legal	term	of	art,	the	best	evidence	rule	requires	that	where	

the	contents	of	a	writing	are	desired	to	be	proved,	the	writing	itself	must	be	

produced	or	its	absence	sufficiently	accounted	for	before	other	evidence	of	its	

contents	can	be	admitted.”	(quotation	marks	omitted)).		

      [¶28]	 	 The	 best	 evidence	 rule	 applies	 not	 only	 to	 documents	 that	 are	

required	 to	 be	 in	 writing,	 such	 as	 a	 will,	 but	 also	 applies	 to	 acts	 with	

independent	 significance	 voluntarily	 performed	 in	 a	 writing—for	 example,	

when	 the	 claim	 or	 matter	 sought	 to	 be	 proved	 occurred	 solely	 in	 writing.		

See	 M.R.	 Evid.	 1002	 advisers’	 note	 to	 1976	 amend.	 (“Many	 situations	 arise	

where	the	parties	choose	to	perform	the	event	in	writing	although	the	law	does	

not	require	it.		For	example,	a	contract	may	be	made	or	a	notice	given	in	writing.		

Here	also	the	original	must	be	produced	or	accounted	for.”).	

      [¶29]	 	 The	 rule	 has	 exceptions	 that	 relieve	 a	 party	 of	 the	 obligation	 to	

produce	the	original	writing	to	prove	its	content.		See	M.R.	Evid.	1004.		“[T]he	

original	is	not	required	if	it:	(1)	was	lost	or	destroyed,	absent	bad	faith;	(2)	is	

unobtainable;	(3)	is	in	the	control	of	the	party	against	whom	the	document	is	

offered;	 or	 (4)	 relates	 to	 a	 collateral	 matter.”	 	 LDC	 Gen.	 Contr.	 v.	 LeBlanc,	
                                                                                                              17	

2006	ME	106,	¶	7,	907	A.2d	802.		We	review	the	court’s	application	of	the	best	

evidence	 rule	 for	 an	 abuse	 of	 discretion.	 	 See	 id.	 ¶	 8.	 	 We	 conclude	 that	 the	

Facebook	messages	were	“writings,”	that	the	State	sought	to	prove	the	content	

of	those	messages,	and	that	the	messages	received	by	the	Victims	constituted	

“originals.”	

        1.	      The	Messages	Are	“Writings”	

        [¶30]		The	messages	clearly	fit	within	the	broad	definition	of	a	“writing.”8		

See	M.R.	Evid.	1001(a)	(“A	‘writing’	consists	of	letters,	words,	numbers,	or	their	

equivalent	 set	 down	 in	 any	 form.”);	 M.R.	 Evid.	 1001	 advisers’	 note	 to	 1976	

amend.	 (“[T]he	 rule	 includes	 sophisticated	 methods	 of	 data	 compilation,	

storage,	and	retrieval.”);	2	McCormick	on	Evidence	§	233	&	n.9	(7th	ed.	2016)	


   8	 	 A	 majority	 of	 state	 and	 federal	 courts,	 applying	 similarly-worded	 versions	 of	 the	 rule,	 have	

concluded	 that	 electronically-transmitted	 communications	 such	 as	 emails	 or	 text	 messages	
constitute	writings	and	that	when	a	party	seeks	to	prove	at	trial	what	the	communication	said,	the	
original	or	a	copy	must	be	produced	or	accounted	for	before	secondary	evidence	may	be	admitted.		
See	United	States	v.	Harry,	927	F.	Supp.	2d	1185,	1194-99,	1227	(D.N.M.	2013)	(holding	that	the	best	
evidence	rule	applied	to	text	messages	sent	by	the	defendant	to	a	witness	containing	admissions	that	
he	committed	an	assault	the	previous	night),	modified	on	other	grounds	by	No.	CR	10-1915	JB,	2013	
U.S.	Dist.	LEXIS	74272	(D.N.M.	May	13,	2013);	Rodriguez	v.	State,	449	S.W.3d	306,	311-13	(Ark.	Ct.	
App.	2014)	(concluding	that	a	picture	of	a	text	message,	where	there	was	evidence	from	the	victim	
that	 the	 message	 had	 been	 deleted	 and	 testimony	 from	 a	 cellular	 representative	 that	 the	 original	
message	contents	were	not	stored	by	the	company,	complied	with	the	rule);	State	v.	Espiritu,	176	P.3d	
885,	892-93	(Haw.	2008)	(holding	that	threatening	text	messages	sent	by	the	defendant	to	the	victim	
were	a	writing,	but	allowing	testimony	as	to	their	content	because	evidence	supported	the	conclusion	
that	the	messages	were	unavailable);	Laughner	v.	State,	769	N.E.2d	1147,	1159	(Ind.	Ct.	App.	2002)	
(holding	that	the	best	evidence	rule	applied	to	messages	sent	in	an	internet	chat	room	supporting	a	
charge	for	attempted	child	solicitation),	abrogated	on	other	grounds	by	Fajardo	v.	State,	859	N.E.2d	
1201,	 1206	 n.9	 (Ind.	 2007)	 (superseded	 by	 statute,	 Ind.	 Code	 §	 35-34-1-5	 (2007));	 Dalton	 v.	
Commonwealth,	 769	 S.E.2d	 698,	 703-04	 (Va.	 Ct.	 App.	 2015)	 (holding	 that	 the	 best	 evidence	 rule	
applied	to	a	text	message	arranging	a	drug	transaction).	
18	

(stating	that	“writing”	is	broadly	defined	to	include	digital	evidence	such	as	text	

messages).		

        2.	     The	Content	of	the	Messages	

        [¶31]	 	 In	 this	 case,	 the	 nature	 of	 Legassie’s	 conduct	 and	 the	 evidence	

adduced	at	trial	lead	us	to	the	inescapable	conclusion	that	the	State	sought	to	

prove	the	content	of	the	messages.		Legassie	is	alleged	to	have	committed	the	

crimes	with	which	he	was	charged	entirely	through	the	words	communicated	

in	the	messages;	it	was	therefore	only	by	proving	the	content	of	the	messages	

that	 the	 State	 could	 prove	 that	 Legassie	 “[k]nowing	 or	 intending	 that	 the	

conduct	 will	 be	 photographed	 .	 .	 .	 intentionally	 or	 knowingly	 employ[ed],	

solicit[ed],	 entice[d],	 persuade[d],	 use[d]	 or	 compel[led]	 another	 person,	 not	

that	 person’s	 spouse,	 who	 is	 in	 fact	 a	 minor,	 to	 engage	 in	 sexually	 explicit	

conduct.”		17-A	M.R.S.	§	282(1)(A);	cf.	Laughner	v.	State,	769	N.E.2d	1147,	1159	

(Ind.	Ct.	App.	2002)	(holding	that	the	best	evidence	rule	applied	to	messages	

sent	 in	 an	 internet	 chat	 room	 supporting	 a	 charge	 for	 attempted	 child	

solicitation).9	

        [¶32]	 	 At	 trial,	 although	 the	 State	 did	 not	 have	 to	 prove	 that	 Legassie	

employed	any	particular	legally	operative	words	to	prove	each	element	of	the	


   9	 	 Laughner	 was	 abrogated	 on	 other	 grounds	 by	 Fajardo	 v.	 State,	 859	 N.E.2d	 1201,	 1206	 n.9	

(Ind.	2007).		Fajardo	was	itself	later	superseded	by	statute,	Ind.	Code	§	35-34-1-5.	
                                                                                      19	

offenses,	 the	 evidence	 supporting	 the	 convictions—the	 victims’	 testimony—

derived	entirely	from	the	victims’	knowledge	and	recollection	of	the	content	of	

the	 messages.	 	 Cf.	 3	 Francis	 Wharton,	 Wharton’s	 Criminal	 Evidence	 §	 15:4	

(illustrating	 that	 the	 best	 evidence	 rule	 does	 not	 bar	 testimony	 by	 a	 witness	

about	 facts	 set	 forth	 in	 a	 writing	 if	 the	 witness	 has	 independent	 personal	

knowledge	of	those	facts	that	is	not	derived	from	a	review	of	the	writing).		In	

other	words,	without	describing	the	very	content	of	the	messages	Legassie	sent,	

the	victims	would	not	have	been	able	to	testify	about	what	he	communicated	to	

them	in	the	messages.	

      3.	    The	Messages	are	“Originals”	

      [¶33]		Each	of	the	messages	that	the	victims	received	is	an	“original”	as	

set	 forth	 in	 M.R.	 Evid.	 1001(d)	 in	 two	 respects.	 	 First,	 each	 message	 was	 a	

“counterpart	intended	to	have	the	same	effect	by”	the	author,	Legassie.		M.R.	

Evid.	1001(d).		Second,	because	each	message	constituted	“electronically	stored	

information,”	the	rule	treats	“any	printout”	of	such	data	as	an	“original,”	so	long	

as	 the	 content	 of	 the	 printout	 “accurately	 reflects	 the	 information.”	 	 Id.	

(emphasis	added);	see	also	Bank	of	Am.	v.	Barr,	2010	ME	124,	¶	21	&	n.4,	9	A.3d	

816	 (concluding	 that	 electronically-stored	 records	 created	 by	 a	 bank	 and	
20	

printed	 out	 by	 a	 third-party	 contractor	 met	 the	 definition	 of	 an	 “original”	

pursuant	to	Rule	1001).10	

       [¶34]		Depending	on	the	content	sought	to	be	proved	and	the	nature	of	

the	writing,	multiple	“originals”	can	be	at	issue	in	a	single	case.		See	LeBlanc,	

2006	ME	106,	¶	9,	907	A.2d	802	(concluding	that	both	an	“original”	credit	card	

bill	and	annotated	copies	of	the	bill	constituted	an	“original”	because	both	were	

sought	 to	 be	 proved).	 	 The	 fact	 that	 Legassie	 created	 the	 messages	 does	 not	

mean	 that	 the	 messages	 created	 and	 perhaps	 stored	 in	 Legassie’s	 Facebook	

account	 are	 the	 only	 “originals.”	 	 As	 stated	 in	 Maine’s	 leading	 treatise	 on	

evidence,	“[t]he	nature	of	an	original	in	the	sense	used	in	the	best	evidence	rule	

may	 be	 very	 different	 from	 the	 ordinary	 lay	 usage.	 	 The	 layperson	 calls	 the	

paper	 first	 produced	 in	 chronological	 succession	 the	 original	 and	 later	

reproductions	of	the	paper	copies	or	duplicates.		Under	the	rule,	the	chronology	

is	 not	 decisive.	 	 An	 original	 is	 the	 document	 the	 contents	 of	 which	 are	 to	 be	

proved.”		Field	&	Murray,	Maine	Evidence	§	1001.1	at	559	(emphasis	added).			

       [¶35]	 	 The	 focus	 of	 the	 State’s	 proof,	 as	 elicited	 from	 the	 victims’	

testimony,	 was	 what	 Legassie	 communicated	 through	 written	 text	 in	 the	



   10		Accordingly,	because	Legassie	does	not	dispute	the	accuracy	of	the	printout	of	messages	that	

Victim	A	received	from	Legassie	that	were	admitted	as	Exhibit	1,	the	printout	was	an	“original”	for	
the	purposes	of	the	rule.	
                                                                                                     21	

messages	that	the	victims	received	through	Facebook.		Although	it	is	accurate	

to	state	that	the	messages	originated	from	Legassie’s	Facebook	account,	once	

the	messages	were	sent,	two	“originals”	were	generated	simultaneously—one	

retrievable	from	the	sender’s	Facebook	account	and	one	retrievable	from	the	

recipient’s	 account.11		At	the	time	that	the	messages	were	sent	and	received,	

they	would	have	been	electronically	stored	and	accessible	on	any	device	with	

an	internet	connection	with	access	to	either	Legassie’s	or	the	victims’	Facebook	

accounts.			

	 	         [¶36]	 	 An	 “original	 writing”	 is	 simply	 a	 shorthand	 term	 for	 the	 best	

evidence	 to	 prove	 the	 contents	 of	 a	 writing,	 when,	 as	 here,	 the	 contents	 are	

being	challenged	or	questioned.		At	trial,	the	State	offered	the	testimony	of	the	

victims’	recollection	of	the	content	of	the	messages	that	the	victims	received	to	

establish	 that	 Legassie	 “intentionally	 or	 knowingly	 employ[ed],	 solicit[ed],	

entice[d],	 persuade[d],	 use[d]	 or	 compel[led]”	 them	 “to	 engage	 in	 sexually	

explicit	conduct.”		17-A	M.R.S.	§	282(1)(A).		The	victims’	testimony,	recounted	


      11	
       	 A	 number	 of	 courts	 have	 concluded	 that	 an	 electronic	 communication	 received	 from	 an	
opposing	party	is	not	merely	a	copy	or	duplicate,	but	rather	constitutes	an	“original”	unto	itself.		See	
Greco	v.	Velvet	Cactus,	LLC,	No.	13-3514,	2014	U.S.	Dist.	LEXIS	87778,	at	*8	(E.D.	La.	June	27,	2014)	
(treating	 email	 printouts	 that	 reproduced	 text	 messages	 exchanged	 between	 the	 parties	 as	 an	
“original”	for	purposes	of	the	rule);	Espiritu,	176	P.3d	at		892	(holding	that	text	messages	received	by	
a	victim	that	were	sent	by	the	defendant	constituted	an	“original”);	Laughner,	769	N.E.2d	at	1159	
(concluding	that	internet	chat	room	messages	received	by	an	undercover	police	officer	posing	as	a	
child,	 which	 were	 copied	 into	 a	 word	 processing	 document	 and	 printed,	 constituted	 “original”	
writings).	
22	

in	 their	 recollections	 nearly	 two	 years	 after	 Legassie	 sent	 and	 the	 victims	

received	and	read	the	messages,	was	clearly	not	the	best	evidence	to	prove	their	

content.			

	 	    [¶37]	 	 Because	 Legassie’s	 messages	 constituted	 writings	 and	 the	 State	

sought	to	prove	their	content,	the	State	was	required	to	introduce	the	original	

messages	if	available,	or,	in	the	alternative,	make	a	showing	that	the	messages	

could	not	be	obtained	before	offering	secondary	evidence	in	the	form	of	witness	

testimony.		See	M.R.	Evid.	1004.	

	 	    4.	    Exception	to	the	Rule:	M.R.	Evid.	1004(c)	

       [¶38]	 	 An	 original	 writing	 is	 not	 required	 to	 prove	 its	 content	 where	

“[t]he	 party	 against	 whom	 the	 original	 would	 be	 offered	 had	 control	 of	 the	

original;	 was	 at	 that	 time	 put	 on	 notice,	 by	 pleadings	 or	 otherwise,	 that	 the	

original	would	be	a	subject	of	proof	at	the	trial	or	hearing;	and	fails	to	produce	

it	 at	 the	 trial	 or	 hearing.”	 	 M.R.	 Evid.	 1004(c).	 	 We	 have	 applied	 M.R.	 Evid.	

1004(c)	where	the	“original”	writing	is	in	the	physical	control	of	the	party	that	

lodges	 an	 objection	 based	 on	 the	 best	 evidence	 rule	 to	 secondary	 evidence	

regarding	the	writing’s	content.		See	Graybar	Elec.	Co.	v.	Sawyer,	485	A.2d	1384,	

1387	 (Me.	 1985).	 	 In	 Sawyer,	 the	 defendant	 objected	 to	 the	 admission	 of	 a	

carbon	copy	of	a	letter	that	the	plaintiff	had	purportedly	sent	to	the	defendant.		
                                                                                      23	

See	 id.	 	 We	 concluded	 that	 the	 trial	 court	 did	 not	 abuse	 its	 discretion	 in	

admitting	a	carbon	copy	of	the	letter	because	the	“original”	letter	was	sent	to	

the	defendant,	and	assuming	that	he	received	it,	the	defendant	had	control	of	

the	only	original,	warranting	application	of	the	Rule	1004(c)	exception,	which	

allowed	 the	 content	 of	 the	 letter	 to	 be	 proved	 by	 the	 carbon	 copy.	 	 Id.	 at	

1387-88.		

      [¶39]	 	 “All	 preliminary	 matters	 which	 must	 be	 established	 to	 make	

secondary	evidence	admissible	[pursuant	to	Rule	1004]	are	questions	of	fact	

for	the	[trial]	court	.	.	.	.”		State	v.	Lewis,	373	A.2d	603,	611	(Me.	1977).		The	

burden	of	proof	to	establish	that	a	Rule	1004	exception	applies	is	on	the	party	

seeking	to	prove	the	content	of	the	original,	here,	the	State.		See	Barrows	v.	IRS,	

231	B.R.	446,	450	(D.N.H.	1998).		The	State	thus	had	the	burden	to	establish	

that	(1)	Legassie	had	“control	of	the	original,”	and	that	(2)	he	was	placed	on	

notice	 “by	 pleadings	 or	 otherwise”	 that	 the	 State	 would	 seek	 to	 prove	 the	

content	of	the	original	at	trial.		See	M.R.	Evid.	1004(c).	

      [¶40]		Rule	1004(c)	does	not	apply	in	this	case	as	a	matter	of	fact	and	law,	

for	several	reasons.		First,	the	trial	court	did	not	make	the	necessary	findings	

for	that	exception	to	apply,	and	even	if	those	findings	were	made,	they	would	

lack	record	support.		Additionally,	unlike	in	Sawyer,	Legassie	was	not	in	control	
24	

of	the	only	“original.”		See	Sawyer,	485	A.2d	at	1387.		The	State	sought	to	prove	

the	content	of	the	messages	that	the	victims	received	from	Legassie,	and	those	

messages	 also	 meet	 the	 definition	 of	 an	 “original.”	 	 See	 M.R.	 Evid.	 1001(d).		

Consistent	with	the	plain	language	of	the	Maine	Rules	of	Evidence,	the	State	was	

required	to	produce	the	original	messages	or	demonstrate	an	exception	to	the	

best	evidence	rule	to	be	able	to	try	to	prove	the	content	of	the	messages	through	

the	 victims’	 testimony.	 	 Finally,	 given	 the	 burden	 of	 proof	 and	 discovery	 in	

criminal	 cases,	 and	 the	 constitutional	 protections	 against	 self-incrimination,	

Legassie	 was	 not	 obligated	 to	 produce	 his	 messages	 before	 asserting	 an	

objection	based	on	the	best	evidence	rule.	

       [¶41]		In	sum,	the	State	sought	to	prove	the	content	of	the	messages	that	

the	 victims	 received.	 Those	 messages	 constituted	 “originals,”	 see	 M.R.	

Evid.	1001(d),	that	were	not	in	Legassie’s	“control.”			

       5.	     Application	to	Victim	A,	Victim	B,	Victim	D,	and	Victim	E12	

       [¶42]		The	best	evidence	rule	applies	to	the	Facebook	messages,	but	the	

consequences	with	respect	to	each	conviction	vary.		The	State	introduced,	and	

the	court	admitted,	a	printout	from	Victim	A’s	computer	of	the	messages	that	



   12		We	do	not	analyze	the	trial	court’s	application	of	the	best	evidence	rule	as	to	Victim	C	because	

the	only	conviction	involving	messages	Legassie	sent	to	her	was	for	indecent	conduct	(Count	11).		See	
supra	n.7.	
                                                                                       25	

Victim	 A	 exchanged	 with	 Legassie.	 	 At	 trial,	 Legassie	 used	 the	 messages	 to	

cross-examine	 and	 impeach	 Victim	 A’s	 testimony.	 	 Legassie	 argues	 that	 the	

State	 was	 required	 to	 produce	 the	 “original”	 messages	 from	 his	 device	 or	

Facebook	account,	and	that	Victim	A	should	not	have	been	permitted	to	testify	

about	the	content	of	the	messages.		As	we	have	already	discussed,	the	message	

on	 Victim	 A’s	 device	 is	 an	 “original”	 of	 the	 content	 of	 the	 message	 that	 she	

received.	 	 To	 the	 extent	 that	 Legassie	 argues	 that	 the	 printout	 is	 not	 an	

“original”	and	the	trial	court	should	not	have	admitted	it,	there	was	no	error	

because	Legassie	does	not	dispute	the	accuracy	of	the	content	of	the	printout	of	

the	messages.		See	State	v.	Degen,	552	A.2d	2,	4	(Me.	1988)	(holding	that	the	

admission	of	testimony	that	violated	the	best	evidence	rule	was	harmless	error	

because	the	defendant	did	not	allege	that	the	photocopied	notes	summarizing	

test	results	were	inaccurate).		In	contrast,	with	respect	to	the	other	victims,	the	

messages	were	not	produced	and	admitted	in	evidence,	and	Legassie	disputes	

their	contents.		

      [¶43]		As	to	Victim	B,	although	the	court	ultimately	concluded	that	the	

rule	did	not	apply,	the	court	also	found	that	the	messages	were	no	longer	in	

existence	 or	 available	 and	 stated	 that	 Victim	 B’s	 testimony	 was	 admissible	
26	

pursuant	to	M.R.	Evid.	1004.13		Because	there	was	competent	record	evidence	

to	support	the	conclusion	that	the	messages	met	the	exception	for	writings	that	

are	 “lost	 or	 destroyed,”	 see	 M.R.	 Evid.	 1004(a),	 the	 court	 did	 not	 abuse	 its	

discretion	in	permitting	Victim	B	to	testify	about	the	content	of	the	messages.		

See	State	v.	Robinson,	2015	ME	77,	¶	23,	118	A.3d	242	(“Once	the	requirements	

of	 M.R.	 Evid.	 1004	 [are]	 met,	 any	 type	 of	 secondary	 evidence,	 not	 otherwise	

inadmissible,	 becomes	 admissible.”	 (alteration	 in	 original)	 (quotation	 marks	

omitted));	State	v.	Young,	560	A.2d	1095,	1096-97	(Me.	1989)	(affirming	a	trial	

court’s	 admission	 of	 testimony	 about	 the	 contents	 of	 love	 letters	 sent	 by	

defendant	 to	 victim	 because	 the	 evidence	 met	 the	 M.R.	 Evid.	 1004(a)	

exception).	

       [¶44]	 	 The	 court’s	 admission	 of	 Victim	 A’s	 messages	 and	 Victim	 B’s	

testimony	 complied	 with	 M.R.	 Evid.	 1002	 and	 1004.	 	 There	 was	 therefore	

sufficient	competent	evidence	for	the	court	to	find	Legassie	guilty	of	Counts	1,	

2,	and	8.		

       [¶45]	 	 We	 reach	 a	 different	 conclusion	 as	 to	 Victims	 D	 and	 E.	 	 Each	

testified	 from	 memory	 about	 the	 content	 of	 the	 messages	 that	 she	 received	



   13		The	court	stated	“[i]n	the	event	one	might	conclude	that	the	‘best	evidence	rule’	was	implicated,	

the	court	is	satisfied	that	the	‘second	best	evidence’	of	content	that	[Victim	B]	provided	would	be	
admissible	pursuant	to	M.R.	Evid.	1004.”		
                                                                                     27	

from	Legassie.		Legassie	made	a	timely	objection	under	the	best	evidence	rule	

in	 each	 instance,	 and	 the	 trial	 court	 overruled	 the	 objections.	 	 Unlike	 with	

Victim	A,	printouts	of	Legassie’s	messages	received	by	Victims	D	and	E	were	not	

produced	or	admitted	in	evidence,	and	unlike	with	Victim	B,	the	court	did	not	

expressly	 find	 that	 those	 messages	 were	 “lost	 or	 destroyed.”	 	 See	 M.R.	

Evid.	1004(a).		The	trial	court	instead	concluded	that	the	rule	did	not	apply	at	

all,	 and	 made	 no	 preliminary	 factual	 findings	 that	 would	 excuse	 the	 State’s	

failure	 to	 introduce	 the	 messages	 and	 permit	 the	 use	 of	 secondary	 evidence.		

See	M.R.	Evid.	1004(a);	Lewis,	373	A.2d	at	611	(“All	preliminary	matters	which	

must	be	established	to	make	secondary	evidence	admissible	[pursuant	to	Rule	

1004]	are	questions	of	fact	for	the	[trial]	court	.	.	.	.”).		

       [¶46]		As	a	general	rule,	where,	as	here,	neither	party	requested	further	

findings	of	fact,	we	will	assume	that	the	trial	court	made	any	findings	necessary	

to	 support	 the	 judgment,	 provided	 that	 the	 findings	 are	 supported	 by	

competent	record	evidence.		See	M.R.U.	Crim.	P.	23(c);	State	v.	Brown,	2017	ME	

59	¶	17,	158	A.3d	501.		The	circumstances	of	this	case,	however,	prevent	us	

from	 assuming	 that	 such	 findings	 were	 made	 as	 to	 the	 availability	 of	 the	

messages	received	by	Victims	D	and	E.		Because	the	court	expressly	concluded	

that	the	best	evidence	rule	did	not	apply,	which	would	necessarily	include	any	
28	

exception	under	M.R.	Evid.	1004,	we	can	only	assume	that	the	court	chose	not	

to	consider,	and	thus	would	not	have	made,	any	findings	that	the	messages	sent	

by	Legassie	to	Victims	D	and	E	were	lost,	destroyed	or	otherwise	unavailable.		

See	 M.R.	 Evid.	 1004(a);	 cf	 Spangler	 v.	 Memel,	 498	 P.2d	 1055,	 1063	 n.10	 (Cal.	

1972)	(“Since	we	have	concluded	that	section	580b	[of	the	California	Code	of	

Civil	Procedure]	does	not	apply,	we	need	not	consider	possible	exceptions	to	its	

applicability.”);	Pa.	Mfrs.	Indem.	Co.	v.	Air	Power,	Inc.,	No.	1:13CV217,	2014	U.S.	

Dist.	LEXIS	52343,	at	*25	(M.D.N.C.	Apr.	16,	2014)	(“Because	the	.	.	.	rule	does	

not	apply	in	this	case,	the	Court	need	not	consider	whether	the	.	.	.	exception	to	

the	.	.	.	rule	applies.”).		

       [¶47]		Even	if	the	application	of	Rule	23(c)	is	appropriate	here	because	a	

request	for	further	findings	was	not	made,	a	close	review	of	the	record	reveals	

that	 there	 is	 insufficient	 evidence	 to	 support	 an	 express	 or	 implied	 finding,	

pursuant	to	M.R.	Evid.	1004(a),	that	the	messages	Victim	D	allegedly	received	

from	Legassie	were	lost	or	destroyed.		Because	the	testimony	of	Victim	D	was	

the	 only	 direct	 evidence	 that	 Legassie	 committed	 the	 offenses	 of	 sexual	

exploitation	 of	 a	 minor	 and	 attempted	 sexual	 exploitation	 of	 a	 minor,	 and	

because	 that	 testimony	 was	 admitted	 in	 contravention	 of	 the	 best	 evidence	

rule,	 the	 State	 failed	 in	 its	 proof.	 	 We	 accordingly	 vacate	 the	 remaining	
                                                                                                                29	

conviction	 involving	 Victim	 D,	 attempted	 sexual	 exploitation	 of	 a	 minor	

(Count	6)	and	remand	for	entry	of	a	judgment	of	acquittal	as	to	that	conviction.		

See	State	v.	Sudsbury,	2016	ME	25,	¶	5,	132	A.3d	863;	State	v.	Howes,	432	A.2d	

419,	425-26	(Me.	1981).	

           [¶48]	 	 In	 contrast,	 there	 is	 some	 evidence	 in	 the	 record	 that	 may	 bear	

upon	the	availability	of	the	messages	sent	to	Victim	E.14		However,	because	the	

court	 affirmatively	 determined	 that	 the	 best	 evidence	 rule	 did	 not	 apply,	 we	

cannot	 speculate	 whether,	 had	 it	 applied	 the	 Rule,	 the	 court	 would	 have	

permitted	the	use	of	secondary	evidence	or	whether	it	would	have	reached	a	

different	decision	as	to	the	charge	of	sexual	exploitation	of	a	minor	(Count	27).		

Accordingly,	 we	 vacate	 the	 remaining	 conviction	 on	 that	 charge	 involving	

Victim	 E	 and	 remand	 to	 the	 trial	 court	 to	 review	 the	 record	 in	 this	 case	 to	

determine	 whether,	 applying	 the	 best	 evidence	 rule,	 M.R.	 Evid.	 1001,	 1002,	

1004,	the	State	met	its	burden	to	prove	that	Legassie	committed	that	offense.			

C.	        Sentencing	

           [¶49]		Because	we	vacate	the	convictions	on	Counts	6,	9,	10,	11,	12,	and	

26	and	remand	for	entry	of	a	judgment	of	acquittal	on	those	counts,	and	also	



      14	 	 That	 evidence	 included	 testimony	 that	 Victim	 E,	 assisted	 by	 a	 law	 enforcement	 officer,	 had	

attempted	and	failed	to	recover	her	messages	with	Legassie	from	her	cell	phone,	and	that	Victim	E	
discovered	that	Legassie	had	blocked	her	access	to	his	messages.	
30	

vacate	 the	 conviction	 on	 Count	 27	 and	 remand	 for	 the	 court	 to	 review	 the	

record	 and	 determine	 whether	 the	 State	 met	 its	 burden	 as	 to	 the	 charge	 in	

Count	 27,	 we	 also	 remand	 this	 case	 with	 instructions	 for	 the	 trial	 court	 to	

determine	 whether	 those	 convictions	 may	 have	 influenced	 the	 court’s	

sentencing	 as	 to	 Counts	 1,	 2,	 and	 8.	 	 If	 so,	 we	 further	 direct	 the	 court	 to	

resentence	 Legassie	 “after	 a	 new	 sentencing	 proceeding	 at	 which	 both	

[Legassie]	and	the	State	may	be	heard.”		State	v.	Lacourse,	2017	ME	75,	¶	17,	

159	A.3d	847	(quotation	marks	omitted).			

       The	entry	is:	

                     Judgment	affirmed	as	to	Counts	3,	4,	5,	7,	13,	14,	
                     15,	16,	17,	18,	19,	20,	21,	22,	23,	24,	25,	28,	and	
                     29.		Judgment	vacated	as	to	Counts	6,	9,	10,	11,	
                     12,	 26	 and	 27.	 	 The	 matter	 is	 remanded	 with	
                     instructions	to	(i)	enter	a	judgment	of	acquittal	
                     as	to	Counts	6,	9,	10,	11,	12	and	26;	(ii)	enter	a	
                     judgment	as	to	Count	27	after	reviewing	the	trial	
                     record	 applying	 the	 best	 evidence	 rule	 to	
                     determine	 whether	 the	 State	 met	 its	 burden	 of	
                     proof	as	to	the	offense	charged	in	Count	27;	and	
                     (iii)	 reconsider	 the	 sentence	 and,	 if	 warranted,	
                     resentence	 defendant	 on	 Counts	 1,	 2,	 and	 8	
                     consistently	with	this	opinion.	
	
	      	      	      	      	      	
	
	                           	
                                                                                    31	

Alan	F.	Harding,	Esq.	(orally),	Hardings	Law	Office,	Presque	Isle,	for	appellant	
Andrew	J.	Legassie	
	
James	 Mitchell,	 Assistant	 District	 Attorney	 (orally),	 Prosecutorial	 District	 8,	
Caribou,	for	appellee	State	of	Maine	
	
	
Aroostook	County	Superior	Court	docket	number	CR-2014-190	
FOR	CLERK	REFERENCE	ONLY	
