MAINE SUPREME JUDICIAL COURT                                           Reporter of Decisions
Decision: 2013 ME 69
Docket:   Lin-12-334
Argued:   April 9, 2013
Decided:  July 30, 2013

Panel:       SAUFLEY, C.J., and SILVER, MEAD, GORMAN, and JABAR, JJ.



                                 STATE OF MAINE

                                           v.

                             GREGORY W. VROOMAN

SAUFLEY, C.J.

         [¶1] Gregory W. Vrooman appeals from judgments of conviction on four

counts of unlawful sexual contact (Class C), 17-A M.R.S. § 255-A(1)(E) (2012),

four counts of unlawful sexual touching (Class D), 17-A M.R.S. § 260(1)(C)

(2012), and four counts of assault (Class D), 17-A M.R.S. § 207(1)(A) (2012)

entered by the court (Hjelm, J.) after a jury trial. Vrooman challenges the court’s

denial of his motion to suppress evidence obtained during the execution of a search

warrant on his home computer.          He also contests the court’s admission of

testimony concerning sexually suggestive websites that he viewed on his home and

work computers. We affirm the judgment.

                                 I. BACKGROUND

         [¶2] In February 2011, the State indicted Vrooman for multiple offenses of

unlawful sexual contact, unlawful sexual touching, and assault, as well as one
2

count of tampering with a witness or informant (Class C), 17-A M.R.S.

§ 454(1)(A)(2) (2012), all related to allegations that he had sexually assaulted his

fiancée’s daughter. Vrooman pleaded not guilty to all charges. He filed a motion

to suppress and a motion in limine seeking to prevent the admission of evidence

obtained through a warrant-based search of his computer and other evidence

related to his viewing of pornography. The court denied the motion to suppress. It

granted in part and denied in part the motion in limine. A three-day jury trial was

held in April 2012. The jury acquitted Vrooman on the tampering charge and

found him guilty on all other charges.

        [¶3] Viewed in the light most favorable to the State, the following facts

rationally support the verdict. State v. Dolloff, 2012 ME 130, ¶ 3, 58 A.3d 1032.

Vrooman first met Angela Harrison, the mother of the victim, in Rockland in 2005.

Soon thereafter, they began dating, and they became engaged in 2008. Harrison

had two children from a prior marriage: the victim and her younger brother. At the

time that Vrooman and Harrison began their relationship, Harrison’s children were

in foster care in Massachusetts.1

        [¶4] In October 2006, Harrison successfully reunified with her children,

who moved to Maine to live with her. When Harrison regained custody, her

daughter, the victim, was nine years old, and her son was six years old. Harrison
    1
     The Massachusetts Department of Health and Human Services took custody of the victim and her
brother in 2001.
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and Vrooman eventually decided to build a house and move in together with the

children. The victim was twelve years old when the family moved into the new

house in mid-October 2009. The victim and her brother each had their own rooms,

which were located at the opposite end of the house from the master bedroom

where Vrooman and Harrison slept.

      [¶5]    Vrooman would sometimes look at pornography on the desktop

computer located in the master bedroom.           Vrooman’s “porn issue” bothered

Harrison and resulted in personal tension between them. On one occasion, the

victim’s brother walked into the master bedroom and witnessed Vrooman looking

at pornography on the desktop computer. Vrooman, a Maine State Police Trooper,

also viewed sexually suggestive websites on his State Police laptop. In early

November 2010, Vrooman conducted Internet searches on his desktop computer

using the search term “Teen Dancing” and on his laptop using the terms “You

Tube Teen” and “Teen Dancing.” He viewed webpages, with web addresses that

included terms such as “Hot-Slutty-Teen-Dancing,” that depicted, among other

things, sixteen- to twenty-five-year-old females dancing provocatively in their

underwear.

      [¶6] Soon after moving into the new house in October 2009, Vrooman

began visiting the victim’s bedroom wearing only his underwear and a T-shirt.

Describing the first incident, the victim testified that, while she was sitting or lying
4

face-up on her bed, Vrooman straddled her and put his hands under her bra and

underwear and touched her breasts and genitals.

      [¶7] The victim testified that these incidents occurred five or six times while

she lived at the new house. During the subsequent incidents, the victim attempted

to stop Vrooman from touching her by lying on her stomach.                 She was

unsuccessful because, as she testified, he would “forcefully shove his hands under

me and then put them in my pants.” His hands would go under the victim’s shirt

and bra, touching or grabbing her breasts. Vrooman would tell the victim to be

quiet to prevent Harrison from hearing anything or waking up. These incidents

made the victim feel “[u]ncomfortable, confused, scared,” and “lost.”

      [¶8] The victim’s younger brother saw Vrooman on top of the victim in the

victim’s bed on two occasions. On one occasion, the boy looked through an

opening in his sister’s closed door and saw Vrooman on top of his sister’s waist

with his “knees . . . on her arms so they couldn’t move.” He believed that

Vrooman was tickling his sister. When he opened the door, Vrooman “pulled his

hands away really fast.” On another occasion, the victim’s brother witnessed

Vrooman on top of the victim and the victim’s “shirt was pulled up and his hands

were on her stomach.”

      [¶9] In November 2010, the victim told a friend about Vrooman’s actions.

The friend shared the victim’s account of the events with her counselor, who then
                                                                                   5

reported this conversation to the Department of Health and Human Services. That

report led to the charges and Vrooman’s eventual convictions. The court sentenced

Vrooman to five years’ incarceration with all but twenty-one months suspended

and four years of probation on the counts of unlawful sexual contact. Vrooman

also received a concurrent sentence of 364 days in jail on the counts of unlawful

sexual touching and assault. Vrooman appeals from those convictions.

                                 II. DISCUSSION

A.    Motion to Suppress

      [¶10] Vrooman first challenges the court’s denial of his motion to suppress

the evidence obtained from his computer pursuant to a search warrant issued on

December 8, 2010. He argues that the warrant was not supported by probable

cause and that the jurat of the warrant affidavit was defective.

      [¶11] We review the court’s denial of Vrooman’s suppression motion “for

clear error as to factual issues and de novo as to issues of law.” State v. Gurney,

2012 ME 14, ¶ 30, 36 A.3d 893. “We uphold the court’s denial of a motion to

suppress if any reasonable view of the evidence supports the trial court’s decision.”

State v. Drewry, 2008 ME 76, ¶ 19, 946 A.2d 981 (quotation marks omitted).

      [¶12] We first address Vrooman’s probable cause challenge, reviewing

directly “the finding of probable cause made by the judicial officer who issued the

warrant, affording that finding great deference,” and drawing all reasonable
6

inferences to support that finding. State v. Nigro, 2011 ME 81, ¶ 26, 24 A.3d 1283

(quotation marks omitted). “Probable cause is established when, given all the

circumstances set forth in the affidavit before [the judicial officer], including the

veracity and basis of knowledge of persons supplying hearsay information, there is

a fair probability that contraband or evidence of a crime will be found in a

particular place.” Id. (alteration in original) (quotation marks omitted). “Technical

requirements of elaborate specificity once exacted under common law pleadings

have no proper place in this area.” State v. Ward, 624 A.2d 485, 487 (Me. 1993)

(quotation marks omitted).

      [¶13] The affidavit in support of the warrant included representations that

Vrooman claimed that he unintentionally touched the victim’s breasts and put his

hand down her pants only to give her a “wedgie”; that he used his home and work

computers to view sexually suggestive images of young women, including some

who appeared to be teenagers; and that he had an issue with pornography and had

obtained counseling to address it. The motion court reasoned that, even if the

images viewed by Vrooman on his home computer were not “inherently illegal,”

those images were “arguably probative of the absence of mistake or accident” as

required for the admission of evidence of past wrongful conduct pursuant to Maine

Rule of Evidence 404(b).
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      [¶14]    Contrary to Vrooman’s argument, the search warrant affidavit

contained evidence sufficient to support a finding that there was a fair probability

that evidence of the alleged crimes—specifically, evidence that Vrooman acted

intentionally when he touched the victim—would be found on Vrooman’s home

computer. See 17-A M.R.S. §§ 207(1)(A), 255-A(1)(E), 260(1)(C); Gurney, 2012

ME 14, ¶ 32, 36 A.3d 893; Nigro, 2011 ME 81, ¶ 26, 24 A.3d 1283.

      [¶15] Turning to the defective jurat, Vrooman did establish that the affidavit

contained an error in its identification of the officer who swore to the information

articulated in the affidavit. Specifically, the identification of the averring officer

was at odds with the affiant named in the jurat. The introductory portion of the

affidavit indicated that Detective Peter Lizanecz swore under oath to the facts

supporting probable cause, and the signature on the affidavit appears to be that of

Detective Lizanecz. The jurat, however, reads, “Appeared before me under oath

on this date the above-named Sgt. Glenn Lang and signed and swore to the truth of

the facts contained in the foregoing instrument.” (Emphasis added.)

      [¶16]   The court held a nontestimonial hearing on the challenge to the

warrant raised in the motion to suppress, and neither party asked the court to take

testimony on the apparent error in the jurat. The best practice would be to offer the

brief testimony of the swearing detective or an affidavit from him indicating that

the signature was his and not the signature of Lang. However, neither party
8

actually challenged the fact that Lizanecz signed the affidavit. Accordingly, the

court found that Lizanecz, not Lang, was the affiant who swore to the truth of the

information supporting the warrant application. There is no error in that finding,

and once the court determined that the person who was initially named as the

affiant and the person who swore to the truth of the facts in the affidavit were the

same person, it did not err in concluding that the clerical error in the jurat did not

affect the validity of the warrant. See Gurney, 2012 ME 14, ¶ 30, 36 A.3d 893;

Drewry, 2008 ME 76, ¶ 19, 946 A.2d 981; Ward, 624 A.2d at 487; cf. State v.

Johnson, 2009 ME 6, ¶¶ 7, 18, 962 A.2d 973 (holding that an imperfect property

description did not undermine the validity of a warrant); Herrick v. Theberge, 474

A.2d 870, 874 (Me. 1984) (upholding the validity of an affidavit in support of

attachment despite a “sloppily prepared” jurat).

      [¶17] Thus, the court did not err in denying Vrooman’s motion to suppress.

B.    Evidentiary Rulings

      1.     Pretrial Motions

      [¶18] Both parties filed motions in limine in early April 2012. The State

sought to offer testimonial and visual evidence of Internet searches and websites

visited by Vrooman on his home and work computers.              Vrooman moved to

exclude, pursuant to Maine Rule of Evidence 403, any evidence of him having an

“issue with” or viewing pornography. Pursuant to Maine Rules of Evidence 401,
                                                                                  9

403, and 404(b), he also requested that the court exclude evidence pertaining to

images taken by police from his “workplace or home computers showing teenage

girls either partially nude or otherwise.”

      [¶19] At a consolidated nontestimonial hearing, the State argued that the

evidence gathered from the home and work computers should be admitted—

primarily through the testimony of Special Agent Matt Fasulo, who conducted the

forensic investigation of the computers—to show Vrooman’s motive, lack of

misunderstanding or mistake, and intent to commit the charged offenses. Fasulo

would testify that the images found on Vrooman’s computers depicted what

appeared to be teenage girls, and the State would offer further evidence of the lack

of mistake by publishing to the jury an image entitled “Teen Dancing” that showed

a young female dancing in her underwear and appeared to have been filmed by a

webcam in a bedroom.

      [¶20] Vrooman argued that the evidence of Internet searches and images

was highly prejudicial and unrelated to the victim and the alleged conduct

underlying the charged offenses. Vrooman also argued against admitting evidence

that he generally had an “issue with pornography” or that he had agreed to attend

counseling with Harrison because this issue bothered her.

      [¶21] The court determined that the specific evidence regarding images of

teens or young women was relevant and admissible pursuant to Rules 401 and
10

404(b) to show absence of mistake and intent. Performing a pretrial Rule 403

analysis, the court limited the evidence to a testimonial recitation regarding the

images of teenagers or young women. To minimize the potential prejudice, the

court ruled that the actual website images would not be allowed in evidence unless,

at trial, a significant question arose about the nature of the searches or the material

found on the computer.

      [¶22] Ultimately, in its pretrial ruling, the court noted that the images

themselves were “not inherently illegal,” which reduced their prejudicial effect,

and the court concluded that the testimonial evidence was not unfairly prejudicial

pursuant to Rule 403. Making clear the preliminary nature of its pretrial rulings,

the court explained to the parties, “[W]e may have to fine tune [the evidentiary

rulings] as we go along,” although “as a general matter the State’s evidence would

be admissible.” The court also informed the parties that, if requested, it would be

receptive to giving the jury a limiting instruction concerning the Internet searches.

      [¶23] At the conclusion of the pretrial hearing, the State agreed to limit its

questioning to instances that were relevant to the charged conduct, and Vrooman’s

attorney informed the court that he was willing to work with the State to resolve

his objection to this evidence.

      [¶24] We discern no error in the court’s pretrial rulings. The limited

testimony allowed by the court was directly relevant to refute Vrooman’s claim
                                                                                11

that his repeated touching of the victim’s breasts was a mistake. Evidence of other

bad acts is admissible if “probative of motive or intent rather than propensity to

commit crime.” State v. Lemay, 2012 ME 86, ¶ 26, 46 A.3d 1113. The court did

not err in determining, pursuant to Rules 401 and 404(b), that the evidence of

Vrooman viewing teenage girls or young women in suggestive and provocative

settings was admissible because it was directly relevant to his intentions and

assertions of mistake in his conduct with the twelve-year-old victim.

      [¶25] We further conclude that the court acted within its discretion in

determining that the probative value of the testimony was not substantially

outweighed by the danger of unfair prejudice. See M.R. Evid. 403. The court’s

Rule 403 analysis, carefully undertaken, balanced the relevance of the evidence

against the potential prejudice to Vrooman by limiting the evidence to testimony

about his viewing of images of teenage girls or young women, rather than

pornography generally. The court’s ruling that the evidence would be presented

through testimony rather than publication of the specific images further reduced

the risk of prejudice to Vrooman.

      2.    Trial Rulings

      [¶26] Although Vrooman did not object at trial to testimony that differed

from the expected testimony described at the pretrial conference, we take this

opportunity to address this not-unusual circumstance in criminal proceedings when
12

a defendant has raised a Rule 403 issue in limine. As is often the case in trials, not

all of the evidence described to the court before trial came in exactly as anticipated

at the pretrial hearing. The record indicates that Harrison made statements to

police before trial that Vrooman had a “porn issue.” Vrooman objected in limine

to the admission of evidence regarding a generalized issue with pornography.

Harrison also told the police before trial that Vrooman viewed pornography

portraying young women or teenage girls. The State indicated at the in limine

hearing that it expected to focus its questions on the more specific teen and young

adult pornography that the court had determined was relevant. At trial, however,

Harrison testified only regarding her more general observation that Vrooman “had

a porn issue.”2

         [¶27] Vrooman could have objected to Harrison’s testimony about him

having “a porn issue,” arguing that the probative value of evidence that he looked

at pornography, without more, was substantially outweighed by the risk of unfair

prejudice. See M.R. Evid. 403. However, likely for tactical reasons, Vrooman

chose not to object. 3 This situation—illustrating the unpredictable nature of

     2
     Fasulo did testify as anticipated. He described the evidence found on Vrooman’s home and work
computers, which included Internet searches using search terms such as “Teen Dancing” that led to
websites that contained sexually suggestive videos purporting to depict teenage girls.
     3
      Vrooman, after waiving his Fifth Amendment right not to testify, took the stand and admitted to
viewing provocative images depicting teens on his home and work computers. He testified that he did not
find the images showing teenagers sexually arousing but “would get a kick out of watching these kids
prancing around trying to imitate their favorite singers or whatever on MTV and trying to act all big and
                                                                                                    13

trials—exemplifies why pretrial Rule 403 rulings are generally preliminary and

why, if the unanticipated testimony is considered damaging, counsel must be

prepared to object when testimony offered at trial differs from, or goes beyond,

what the court allowed in an earlier ruling or when the context for the ruling has

changed.

        [¶28] In the context of Vrooman’s trial, we conclude that the admission of

Harrison’s testimony regarding a general pornography problem did not result in an

obvious error. See M.R. Crim. P. 52(b); State v. Pabon, 2011 ME 100, ¶ 18, 28

A.3d 1147 (characterizing “obvious error as a seriously prejudicial error tending to

produce manifest injustice” (quotation marks omitted)). Her testimony was brief

and was accompanied by the testimony of others—including Harrison’s son,

Fasulo, and Vrooman himself—all of whom focused on the specific images

purportedly depicting teenage girls or young women. The admission of the more

general testimony concerning “a porn issue” did not affect Vrooman’s substantial

rights because he has not shown a reasonable probability that, but for the

admission of that testimony, the result of the proceeding would have been

different. See M.R. Crim. P. 52(b); Pabon, 2011 ME 100, ¶¶ 29, 34-35, 28 A.3d

1147.

grown up.” According to his testimony, it was possible that he viewed such images before going into the
victim’s bedroom. Vrooman admitted that he did touch the victim’s breasts on “a couple of occasions.”
He also conceded, “There were probably times . . . that I would straddle her to hold her down to tickle
her. . . . I never touched her inappropriately intentionally anyway. But would I hold her down? Yes.”
14

        The entry is:

                           Judgment affirmed.

_____________________________________



On the briefs:

        Stephen C. Peterson, Esq., West Rockport, for appellant Gregory W.
        Vrooman

        Janet T. Mills, Attorney General, and Deborah P. Cashman, Asst. Atty.
        Gen., Office of Attorney General, Augusta, for appellee State of Maine


At oral argument:

        Stephen C. Peterson, Esq., for appellant Gregory W. Vrooman

        Deborah P. Cashman, Asst. Atty. Gen., for appellee State of Maine


Lincoln County Superior Court docket number CR-2010-387
FOR CLERK REFERENCE ONLY
