MAINE SUPREME JUDICIAL COURT                                                 Reporter of Decisions
Decision: 2015 ME 15
Docket:   Was-14-65
Argued:   December 9, 2014
Decided:  February 12, 2015

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



                                     STATE OF MAINE

                                               v.

                               CLIFFORD W. THORNTON

GORMAN, J.

         [¶1] Clifford W. Thornton appeals from a judgment of conviction for one

count of unlawful sexual contact (Class B), 17-A M.R.S. § 255-A(1)(E-1) (2014);

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

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

(Supp. 2000); one count of unlawful sexual contact (Class C), 17-A M.R.S.A.

§ 255(1)(C) (Supp. 1999); and one count of unlawful sexual contact (Class C),

17-A M.R.S.A. § 255(1)(C) (Supp. 1996), entered by the court (Hunter, J.) after a

jury trial.1 Thornton challenges the court’s decision to allow the amendment of the

indictment, as well as the admission of certain evidence at trial. We amend the

judgment to correct a scrivener’s error, and affirm the conviction as amended.

  1
      Title 17-A M.R.S.A. § 255 was repealed and replaced as of 2003. P.L. 2001, ch. 383, §§ 22-23
(effective Jan. 31, 2003) (codified at 17-A M.R.S. § 255-A (2014)).
2

                                        I. BACKGROUND

        [¶2] On January 14, 2013, a Washington County grand jury issued an

indictment against Thornton that charged him with nine counts involving three

different victims: Count I—gross sexual assault (Class A), 17-A M.R.S.

§ 253(1)(C) (2014); Count II—unlawful sexual contact (Class B), 17-A M.R.S.

§ 255-A(1)(E-1) (2014); Count III—unlawful sexual contact (Class C),

17-A M.R.S.A. § 255(1)(C) (Supp. 1999); Count IV—unlawful sexual contact

(Class C), 17-A M.R.S.A. § 255(1)(C) (Supp. 1996); Count V—unlawful sexual

contact (Class C), 17-A M.R.S.A. § 255(1)(C) (Supp. 2000); Count VI—unlawful

sexual contact (Class C), 17-A M.R.S.A. § 255(1)(C) (Supp. 2000); Count VII—

unlawful sexual contact (Class C), 17-A M.R.S. § 255-A(1)(E); Count VIII—

unlawful sexual contact (Class B), 17-A M.R.S. § 255-A(1)(E-1); and Count IX—

unlawful sexual contact (Class B), 17-A M.R.S. § 255-A(1)(E-1).2 With respect to

Count IX in particular, the State alleged that Thornton had committed the offense

of unlawful sexual contact between the dates of September 17, 2005, and

March 24, 2006, and alleged that, at the time of this offense, the victim was not yet

twelve years old. Thornton pleaded not guilty to all nine counts.

    2
      Counts II and IV through IX alleged crimes against one victim, Count I alleged crimes against a
second victim, and Count III alleged crimes against a third victim. Count II was dismissed by the State as
duplicative of Count VIII, and Thornton was ultimately found not guilty of Counts I and III. Thornton’s
appeal therefore concerns only Counts IV through IX, which all related to a single victim. Thus,
references to “the victim” in this opinion are to that victim alone.
                                                                                 3

      [¶3] The court conducted a five-day jury trial in November of 2013, during

which the State established, beyond a reasonable doubt, that the victim was born

on March 25, 1993, and from the time that she was three until she turned thirteen

years old on March 25, 2006, Thornton periodically subjected the victim to sexual

contact, including touching her genitals and forcing her to touch his genitals.

See State v. Severy, 2010 ME 126, ¶ 8, 8 A.3d 715.

      [¶4]   After both sides had rested, as the parties were discussing jury

instructions, the prosecutor noticed that although Count IX purported to charge

Thornton with a Class B offense based on the victim’s age—less than twelve years

old—the time frame included in the portion of the indictment that described

Count IX actually alleged that the victim had been twelve or thirteen years old on

the relevant dates. Over Thornton’s objection, the court granted the State’s motion

to amend the indictment to allege that the victim was less than fourteen years old,

thereby reducing the offense to a Class C unlawful sexual contact.

See 17-A M.R.S. § 255-A(1)(E).

      [¶5] After deliberation, the jury found Thornton guilty of Counts IV through

IX. The court entered a judgment on the verdict and sentenced Thornton to ten

years in prison with all but six years suspended and twelve years of probation for

Count VIII, the Class B unlawful sexual contact conviction.        The court also

sentenced Thornton to three years in prison for each of the five Class C unlawful
4

sexual contact convictions, ordering that those sentences be served concurrently

with each other and with the ten-year sentence. Thornton appeals.3

                                         II. DISCUSSION

        [¶6] Thornton contends that the court erred in permitting the State to amend

Count IX of the indictment. We review de novo the court’s compliance with the

applicable constitutional and rule provisions, and otherwise evaluate the grant of a

motion to amend an indictment for an abuse of discretion.                           State v. Bailey,

2010 ME 15, ¶ 16, 989 A.2d 716; State v. Czerwinski, 544 A.2d 332, 334

(Me. 1988).

        [¶7] The State may charge a person with murder or any Class A, B, or C

crime only through indictment by a grand jury.4 Me. Const. art. I, § 7 (“No person

shall be held to answer for a capital or infamous crime, unless on a presentment or

indictment of a grand jury . . . .”); M.R. Crim. P. 7(a) (“All proceedings in which

the crime charged is a Class A, Class B, or Class C crime shall be prosecuted by

indictment, unless indictment is waived . . . .”); M.R.U. Crim. P. 7(a) (same). The

indictment—“a plain, concise and definite written statement of the essential facts

constituting the crime charged,” M.R. Crim. P. 7(c); see M.R.U. Crim. P. 7(c)—is
    3
      We denied Thornton’s petition for review of his sentence. State v. Thornton, No. SRP-14-66
(Me. Sent. Rev. Panel June 16, 2014); see 15 M.R.S. § 2151 (2014); M.R. App. P. 20.
    4
     Except as to a charge of murder, M.R. Crim. P. 7(b) and M.R.U. Crim. P. 7(b) allow defendants an
opportunity to waive the grand jury process, in which case the prosecution may proceed by complaint or
information. Thornton, however, did not waive his right to have the new charge presented to a grand jury.
                                                                                    5

meant to allow “an accused [person] of reasonable and normal intelligence” to be

sufficiently informed about the charges against him such that he can both

adequately prepare his defense and avoid double jeopardy. State v. Gauthier,

2007 ME 156, ¶ 17, 939 A.2d 77. Thus, “[a]n indictment must allege every

element of the offense charged.” State v. Corliss, 1998 ME 36, ¶ 6, 706 A.2d 593;

see 17-A M.R.S. § 32 (2014) (defining “[e]lement of the crime” as “the forbidden

conduct; the attendant circumstances specified in the definition of the crime; the

intention, knowledge, recklessness or negligence as may be required; and any

required result.”); cf. State v. Langill, 567 A.2d 440, 443 (Me. 1989) (noting that

the statutory citation to the crime charged will not supplement a missing element

not otherwise alleged).

      [¶8] Although a grand jury must issue every indictment, M.R. Crim. P. 7(e)

sets out circumstances in which an indictment may be amended without

resubmission to the grand jury: “The court may permit the amendment of an

indictment charging a crime other than a Class D or Class E crime at any time

before verdict or finding if the amendment does not change the substance of the

crime.” See M.R.U. Crim. P. 7(e); Gauthier, 2007 ME 156, ¶ 18, 939 A.2d 77.

Thus, if the indictment works a “substantive change,” it must be resubmitted to the

grand jury; if it is an amendment only as to “form,” the trial court has the authority
6

to allow the amendment without resubmission to the grand jury.               Gauthier,

2007 ME 156, ¶ 18, 939 A.2d 77

      [¶9]    Related to Rule 7’s instructions concerning the amendment of

indictments is the body of law allowing or requiring the jury to consider a crime

not charged in the indictment if that offense is a “lesser included offense” of a

crime that is charged in the indictment.        See 17-A M.R.S. § 13-A (2014).

Section 13-A defines a lesser included offense as one that carries a lesser penalty

and that, “[a]s legally defined, must necessarily be committed when the offense or

alternative thereof actually charged, as legally defined, is committed.”

17-A M.R.S. § 13-A(2)(A). Section 13-A further provides that “[i]f the lesser

offense is defined in a manner that it may be committed in alternative ways, each

alternative which meets the above definition shall be deemed to be a lesser

included offense” and that “[f]acts which are a basis for sentencing classification

of either the crime charged or the lesser crime shall be considered alternatives of

those crimes.” 17-A M.R.S. § 13-A(2)(A).

      [¶10] Pursuant to section 13-A, a jury must consider a lesser included

offense if either the State or the defendant requests it and there is a “rational basis

for finding the defendant guilty of that lesser included offense.” 17-A M.R.S.

§ 13-A(1). Even without a party’s request, the trial court may, in its discretion,

instruct a jury to consider a lesser included offense when a rational basis exists in
                                                                                  7

the evidence. 17-A M.R.S. § 13-A(1). In State v. Gantnier, we summarized the

criteria for consideration of a lesser included offense when requested by the State

or the defense as follows:

             In order to assess [a defendant’s] contention that he was entitled
      to lesser-included-offense instructions, we must resolve three distinct
      issues: first, whether the formal charge of unlawful sexual contact
      contains the lesser-included offenses, such that the included offenses,
      as legally defined, are necessarily committed when the offense
      charged, as legally defined, is committed; second, whether the
      included offenses carry a lesser penalty than the offense charged;
      [and] third, whether the lesser-included-offense instructions were
      required under the facts of [the] case. . . .

2012 ME 123, ¶ 9, 55 A.3d 404 (citations omitted). Addressing in detail the

requirement that the lesser included offense must necessarily be committed by the

commission of the greater offense, we further explained that

        [a] lesser-included offense is one that has no elements different from
        or in addition to the elements of the charged offense, making it
        impossible to commit the greater offense without having committed
        the lesser. However, every distinct method of committing the
        greater offense need not include every element of the lesser offense.

Id. ¶ 10 (alteration omitted) (citation omitted) (quotation marks omitted).

      [¶11] As legally defined, the Class C version of unlawful sexual contact, of

which Thornton was convicted in Count IX pursuant to section 255-A(1)(E), is a

lesser included offense of the Class B version of unlawful sexual contact, with

which Thornton was charged in Count IX pursuant to section 255-A(1)(E-1). The

two crimes both require the identical proof that the defendant “intentionally
8

subject[ed the victim] to any sexual contact” and the defendant was “at least 3

years older” than the victim. 17-A M.R.S. § 255-A(1)(E), (E-1). The additional

element for the Class C version of the offense—that the victim was less than

fourteen years old—is also necessarily committed when the Class B version of the

offense—that the victim was less than twelve years old—is committed. Compare

17-A M.R.S. § 255-A(1)(E), with 17-A M.R.S. § 255-A(1)(E-1). It is indeed

impossible to commit the greater offense without having committed the lesser

offense.

      [¶12] The Class C version of unlawful sexual contact also carries a lesser

penalty than the Class B version, i.e., up to five years in prison as opposed to up to

ten years in prison, see 17-A M.R.S. § 1252(2)(B)-(C) (2014), and a fine of up to

$5000 rather than up to $20,000, see 17-A M.R.S. § 1301(1-A)(B)-(C) (2014).

      [¶13] Finally, the evidence at trial reveals a rational basis on which the jury

could find Thornton guilty of the lesser included Class C offense, and the State

indeed requested that the jury consider the lesser included Class C offense. In

these circumstances, not only was the jury allowed to consider the Class B version

of the offense, but more significantly, the court was required to instruct the jury to

do so. See 17-A M.R.S. § 13-A(1).

      [¶14] With the clarity of the evidence developed during Thornton’s trial, the

State determined that it could not prove that the victim was less than twelve years
                                                                                                       9

old at the time of the events alleged in Count IX. Rather than pressing on to seek

the Class B conviction, perhaps by utilizing the “on or about” language of the

indictment, the State acted ethically5 by addressing the problem with the court and

requesting an amendment of the indictment so that only the lesser Class C

alternative was presented to the jury.                 Although the State did not refer to

section 13-A or use the phrase “lesser included offense,” the result was the same in

that the jury was directed to consider whether the State had proved, beyond a

reasonable doubt, that Thornton had committed the Class C version of the Class B

offense with which Thornton was charged in the indictment.6 The trial court

committed no error and we affirm the judgment as amended to correct the

scrivener’s error.7




   5
      Maine Rule of Professional Conduct 3.8(b) obligates a prosecutor, when aware of evidence or
information that tends to mitigate the degree of the offense or reduce the punishment, to disclose such
information.
   6
      The court’s actions prevented the traverse jury from considering and possibly making the same
arithmetic error that apparently led a grand jury to charge Thornton with the Class B offense.
   7
      Both the judgment of conviction and the docket record contain a scrivener’s error in that each
reflects that Thornton was found guilty of Count IX as a Class B offense, rather than as the Class C
offense. The record makes clear that Thornton was in fact found guilty of Count IX as a Class C offense.
We amend the judgment to correct this error.

   Thornton’s remaining challenges—to the admission of (1) the victim’s testimony regarding Thornton’s
expression of remorse, (2) a page omitted from the trial exhibit containing the victim’s 2013 written
statement, and (3) the victim’s testimony regarding the events at a camp owned by friends—are not
persuasive and we do not address them further. There is also sufficient evidence in the record to support
Thornton’s conviction for the remaining counts (Counts IV-VIII). See State v. Mercier, 2014 ME 28, ¶ 6
n.1, 87 A.3d 700.
10

        The entry is:

                           Judgment amended to reflect that the conviction as
                           to Count IX was for the Class C offense of
                           unlawful sexual contact. Judgment affirmed as
                           amended.



On the briefs:

        Joseph Mekonis, Esq., Saco, for appellant Clifford Thornton

        Carletta Bassano, District Attorney, and Paul Cavanaugh II,
        First Asst. Dist. Atty., Prosecutorial District VII, Ellsworth, for
        appellee State of Maine


At oral argument:

        Joseph Mekonis, Esq., for appellant Clifford Thornton

        Paul Cavanaugh II, First Asst. Dist. Atty., for appellee State of
        Maine



Washington County Superior Court docket number CR-2011-181
FOR CLERK REFERENCE ONLY
