MAINE SUPREME JUDICIAL COURT                                               Reporter of Decisions
Decision: 2019 ME 132
Docket:   Fra-18-444
Argued:   June 12, 2019
Decided:  August 13, 2019

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



                                     STATE OF MAINE

                                               v.

                                      ROSS S. ADAMS


HJELM, J.

         [¶1] In 2018, Ross S. Adams was convicted of unlawful sexual contact

(Class A), 17-A M.R.S. § 255-A(1)(F-1) (2018), in the Unified Criminal Docket

(Franklin County, Mullen, J.) after a jury trial.               During the State’s direct

examination of the victim at the trial, the court admitted in evidence as past

recollection recorded, see M.R. Evid. 803(5), a video recording of a forensic

interview that had been conducted of the victim shortly after the crime

occurred in 2014, when she was seven years old. On appeal, Adams asserts that

the court’s evidentiary ruling was erroneous because the State had not

established the proper foundation required by that exception to the hearsay


  *
     Although not present at oral argument, Justice Hjelm participated in the development of this
opinion. See M.R. App. P. 12(a)(2).
2

rule and because the admission of the video violated his constitutional right to

confront the witness, see U.S. Const. amend VI.1 We affirm the judgment.

                                       I. BACKGROUND

        [¶2] We draw the following account of this case from the evidence as

seen in the light most favorable to the State, see State v. Pelletier, 2019 ME 112,

¶ 2, --- A.3d ---, and from the procedural record.

        [¶3] In the fall of 2013, the victim was six years old and lived in

Massachusetts with her mother. The mother became romantically involved

with Adams, and shortly after that relationship began, Adams moved into the

mother and victim’s home and, around the same time, started sexually abusing

the victim.

        [¶4] In July of 2014, Adams, the mother, and the victim moved to

Farmington. From that time until October 9, 2014, Adams repeatedly sexually

assaulted the victim, sometimes inside the house and other times outside, by

touching her genitals and digitally penetrating her.



    1Adams also contends that the evidence is insufficient to support the verdict. For reasons that
are evident in this opinion, we are not persuaded by that contention and do not discuss it further.
See State v. Moores, 2006 ME 139, ¶ 7, 910 A.2d 373 (stating the standard of review on a challenge to
the sufficiency of the evidence supporting a guilty verdict); see also State v. Hodgdon, 2017 ME 122,
¶ 21, 164 A.3d 959 (“A jury is permitted to draw all reasonable inferences from the evidence, and
decide the weight to be given to the evidence and the credibility to be afforded to the witnesses.”
(quotation marks omitted)).
                                                                                          3

        [¶5] On October 10, 2014, the victim travelled to Florida to visit her

father. A few days later, she disclosed the abuse to her father. He contacted

Florida’s child services agency, which opened an investigation that led to a

forensic interview conducted of the victim on October 20, 2014. The victim

remained with her father in Florida and was still living with him when the trial

was held in 2018.

        [¶6] In November of 2014, Adams was charged with one count of

unlawful sexual contact of a child under the age of twelve, with penetration,

17-A M.R.S. § 255-A(1)(F-1). After he was indicted for that charge several

months later, he pleaded not guilty.

        [¶7] The court conducted a two-day jury trial in June of 2018.2 On the

first day of the trial, the State presented the testimony of the victim’s mother

and the victim, who then was eleven years old. During the State’s examination

of the victim, she testified that Adams had abused her a “lot” of times and that

the incidents occurred both inside and outside the house where they were

living. The victim recalled one specific incident that had occurred outside the

house; she testified to conduct by Adams that would satisfy the elements of the

charge, and she also described some of the surrounding circumstances. When


  2   The case remained pending for more than three years due to multiple continuances.
4

asked about incidents of abuse that had occurred inside the house, the victim

testified that there had been more than one such incident, that she thought that

one had occurred in a bedroom, but that she did not have a specific memory of

a particular incident. When the State inquired about the forensic interview, the

victim testified that she remembered talking to the interviewer in Florida, that

she had a clear memory of the abuse then, and that she had told the interviewer

the truth.

        [¶8] Based on that testimony, the State offered in evidence the video

recording of the forensic interview.3 The court viewed the recording out of the

jury’s presence, heard argument from the parties, and, over Adams’s objection,

determined that the State had developed a proper foundation for the portions

of the recording relating to incidents of abuse inside the house to be admitted

as past recollection recorded. See M.R. Evid. 803(5).

        [¶9] Given that ruling and after carefully preserving his objection to it,

Adams agreed that most of the remaining portions of the recording could be


    3On the first day of the trial, before the jury was sworn, Adams sought permission from the court
to use portions of the recording during his cross-examination of the victim. The State asserted that,
if Adams did so, the rule of completeness would allow the whole recording to be published to the
jury. See M.R. Evid. 106 (“If a party utilizes in court all or part of a writing or recorded statement, an
adverse party may require the introduction, at that time, of any other part—or any other writing or
recorded statement—that in fairness ought to be considered at the time.”). The court deferred ruling
on the issue until later in the trial but, given the developments at trial that are the subject of this
appeal, did not need to address the issue.
                                                                              5

admitted in evidence. This approach allowed Adams to cross-examine the

victim about potential inconsistencies between her testimony and her

statements on the recording. The recording was played for the jury while the

victim, by agreement of the parties, remained outside the courtroom. In the

recording, the then-seven-year-old victim told the interviewer details about the

abuse that had taken place inside the house—what Adams did to her, where it

happened, where her mother was at the time, and how it made her feel. The

victim told the interviewer that the last time Adams had abused her was the

day before she left Maine to visit her father in Florida.

      [¶10] After the video was played for the jury, the victim resumed her

testimony and was cross-examined by Adams, during which he replayed parts

of the recording to set up some of his questions. While testifying, the victim

could not remember saying certain things to the forensic interviewer four years

earlier, and she was unable to recall details of the incidents of abuse about

which Adams was questioning her.

      [¶11] The jury found Adams guilty of the single count of unlawful sexual

contact. The court later denied Adams’s motion for a new trial, see M.R.U.

Crim. P. 33, or judgment of acquittal, see M.R.U. Crim. P. 29(b), and sentenced
6

Adams to a seventeen-year prison term with all but ten years suspended and

ten years’ probation. This appeal followed. See 15 M.R.S. § 2115 (2018).

                                        II. DISCUSSION

        [¶12] Adams asserts that, for two reasons, the court erred by admitting

evidence of the victim’s out-of-court statements contained in the recording.

First, Adams argues that the State failed to develop a proper foundation for past

recollection recorded as required by Maine Rule of Evidence 803(5) and our

interpretive caselaw.4 Second, Adams contends that even if the recording were

admissible pursuant to the Maine Rules of Evidence, its admission violated his

Sixth Amendment right to confront a witness against him because, given the

victim’s limited memory at trial, he was unable to “reasonably cross-examine”

her about her recorded statements. See U.S. Const. amend. VI. We address these

contentions in turn.5




    4 Adams’s argument regarding the foundational elements of Rule 803(5) is based on the rule as
it appeared before the Maine Rules of Evidence were restyled in 2015. Because the trial was held
after the Rules were restyled and, in any event, the restyling was not intended to make any
substantive changes to the Rules, see M.R. Evid. Advisory Committee’s Note to 2015 amend., we
address his argument as framed by the restyled Rule 803(5).

    5After the court ruled, over Adams’s objection, that portions of the recording would be admitted
in evidence, Adams agreed that much of the remainder of the recording could be admitted as well.
We address only the admissibility of the statements to which Adams objected.
                                                                                                 7

A.       Maine Rule of Evidence 803(5)

         [¶13] “We review the court’s foundational findings or implicit findings

to support admissibility of evidence for clear error, and we will uphold those

findings unless no competent evidence supports the findings.”                           State v.

Cruthirds, 2014 ME 86, ¶ 16, 96 A.3d 80 (quotation marks omitted). The court’s

ultimate determination that evidence is “admissible as a recorded recollection

is deferentially reviewed for an abuse of its considerable discretion.” Id. ¶ 17

(quotation marks omitted). Here, the court did not make explicit foundational

findings and was not asked to do so, although the court’s ruling followed an

extended colloquy with counsel during which the applicable legal principles

were explicitly articulated by both the court and the parties.

         [¶14] Pursuant to the recorded recollection exception to the hearsay

rule, evidence is not excluded by the general rule barring the admission of

hearsay when the out-of-court statement satisfies the following requirements:

(1) it relates to a matter the witness once knew about but cannot recall well

enough at trial to testify fully and accurately; (2) it was made or adopted by the

witness when the matter was fresh in the witness’s memory; and (3) it is an

accurate record of the witness’s past knowledge.6 See M.R. Evid. 803(5); see


     The recorded recollection exception to the hearsay rule also provides that “[i]f admitted, the
     6

record may be read into evidence but may be received as an exhibit only if offered by an adverse
8

also State v. Gorman, 2004 ME 90, ¶ 27, 854 A.2d 1164. These foundational

criteria may be established “independent of the declarant’s testimony as to

present memory.” Gorman, 2004 ME 90, ¶ 29, 854 A.2d 1164. When the

witness is unable or unwilling to testify from present memory, “it is within the

discretion of the trial court to determine whether the foundational

requirements of Rule 803(5) have been satisfied on a case-by-case basis,

whether by direct or circumstantial evidence.” Id. ¶ 28 (quotation marks

omitted).

       [¶15] The first foundational element as stated above actually has two

components that focus on different timeframes: the predicate evidence must

show that, at the time the declarant made the out-of-court statement, she knew

about the subject of the statement, and it must show that, at the time the



party.” M.R. Evid. 803(5). Because the out-of-court statements were contained in a video recording,
the appropriate way for the evidence to be presented to the jury was for the recording to be played
for the jury, which is what happened here. See M.R. Evid. 1002 (“An original writing, recording, or
photograph is required in order to prove its content unless these rules or a statute provides
otherwise.”). Once the court ruled that many of the victim’s hearsay statements were admissible,
Adams did not object to the State playing the video recording for the jury, as opposed to a transcript
of the video being “read into evidence,” and Adams confirmed at oral argument that, compared to the
use of a transcript, using the recording at trial had strategic benefits for him.

   We also note that, pursuant to that aspect of Rule 803(5), the court correctly directed that, even
though the recording was admitted in evidence, it was to be played for the jury in the courtroom and
would not accompany the jury into the jury room during deliberations. See United States v. Dazey,
403 F.3d 1147, 1168 (10th Cir. 2005) (stating that the “rationale . . . for requiring that [recorded
hearsay statements] be read aloud into the record rather than received into evidence is so that the
‘past recollection recorded’ evidence is treated on par with the oral testimony presented at trial.”).
                                                                                 9

declarant testifies at trial, her recollection has failed to the point where she is

unable to testify about the matter fully and completely.                 See M.R.

Evid. 803(5)(A). Here, the court did not err by implicitly finding that both of

these circumstances existed. In the video, the victim, who then was seven years

old, told the interviewer about her life in Maine, about the acts that Adams

committed against her while she was living there, and specifically and in detail

about the assaults that took place inside the house. Further, at trial the victim

testified that, although Adams had sexually assaulted her numerous times

inside the house, she generally could not remember where the abuse had

occurred and did not have a clear or specific memory of the other aspects of

that abuse. The record supports the court’s implicit foundational findings that

the victim’s recorded descriptions of Adams’s assaults against her were of

matters she once knew about but, at trial, could not recall well enough to testify

fully and accurately.

      [¶16] The court was also entitled to find that the State had presented

evidence to satisfy the second criterion for admission of the recording, namely,

that the victim had made the statements when her memory of the abuse was

fresh. See M.R. Evid. 803(5)(B). As described in the interview, the sexual

assaults occurred from July to October of 2014—a span of approximately three
10

months ending eleven days before the victim was interviewed. As we note

above, in her hearsay statements the victim demonstrated a strong memory of

Adams’s conduct committed against her inside the house. And during the

State’s direct examination, the victim testified that when she talked to the

interviewer, her memory of the abuse was better than it was at the time of the

trial, and she agreed that, at the time of the interview, she had “a clear memory

of what had happened in Maine.” Consequently, the trial court did not clearly

err in its determination that when the victim was interviewed, her memory of

Adams’s assaults against her in the house was fresh. See Gorman, 2004 ME 90,

¶ 33, 854 A.2d 1164 (concluding that statements made about an event two

months after it occurred were made when the witness’s memory was fresh);

see also United States v. Smith, 197 F.3d 225, 231 (6th Cir. 1999) (stating that

“[s]ome courts have found periods from ten months to three years to be

‘fresh’”).

       [¶17] Finally, the trial court was entitled to find that the State had

demonstrated the third condition for the hearsay to be admissible—that the

victim’s statements during the interview accurately reflected her knowledge of

the matter as of the time of the interview. See M.R. Evid. 803(5)(C). This

foundational element is intended, in part, to ensure that the declarant was
                                                                                                    11

speaking truthfully when she made the out-of-court statements.7 See Gorman,

2004 ME 90, ¶¶ 36-40, 854 A.2d 1164. In this case, the victim confirmed at trial

that she remembered that she “went and talked to a lady in a room, and [the

lady] asked [the victim] the kind of questions” the State was asking her at trial

and that she had told the interviewer the truth. At the beginning of the

interview, which was well-structured and featured nonleading questions, in

several different ways the interviewer discussed with the victim what “the

truth” is, ensured that the victim understood that they “were going to talk about

things that are true,” and emphasized that they would “talk about only the

truth.” For foundational purposes—leaving the ultimate question of credibility

for the jury to decide—these statements and the victim’s responses, which

indicated her understanding of what it means to tell the truth, along with other


   7  An additional purpose of this criterion is to establish the authenticity of the record presented.
See State v. Gorman, 2004 ME 90, ¶¶ 36, 40, 854 A.2d 1164 (affirming a court’s determination that a
transcript and audio recording of prior grand jury testimony had sufficient indicia of accuracy after
a court reporter testified and “identified [the declarant] as the person who gave the testimony, and
established that the transcript and the audiotape accurately recorded her testimony”). Adams
asserts on appeal that the State failed to provide any evidence that the video recording used at trial
showed the same interview that the victim described in her testimony. Adams did not raise this issue
during the trial and therefore has not preserved it for appellate review. See State v. Jones, 2019 ME
33, ¶ 23, 203 A.3d 816. Beyond that, on this record the authenticity of the recording is not called into
question. For example, before the trial began, Adams received permission from the court to be able
to use the recording during his cross-examination of the victim, and when he played a portion of the
recording during his cross-examination of the victim, he referred to it as “part of the recording of the
interview that took place in Florida on October 20, 2014.” Furthermore, the video recording itself is
time-stamped as October 20, 2014, which is within the period when the father testified that he took
the victim to the forensic interview after learning about the abuse from her a week earlier. And there
is no indication in the record that there was more than one interview of the victim.
12

indicia of truthfulness, constituted a sufficient predicate demonstration that the

victim’s out-of-court statements accurately described the assaults committed

against her by Adams and were worthy of a jury’s consideration. See State v.

Discher, 597 A.2d 1336, 1342 (Me. 1991) (explaining that indicia of reliability

include the likelihood that the witness would have lied during the earlier

created record, or the witness’s current motivation to forget earlier made

statements that could now prove incriminating).

      [¶18] In sum, acting in its gatekeeping role, the court did not err by

determining that the State had satisfied the foundational elements of the

recorded recollection exception to the hearsay rule.

B.    Right of Confrontation

      [¶19] Adams also contends that the victim’s memory of the forensic

interview and the incidents of abuse she described there was so limited at trial

that he was unable to “reasonably cross-examine” her, and thus the admission

of the recorded interview violated his constitutional right to confront a witness

brought against him. See U.S. Const. amend. VI. “We review application of the

Confrontation Clause de novo.” State v. Gagne, 2017 ME 63, ¶ 32, 159 A.3d 316

(quotation marks omitted).
                                                                                                   13

       [¶20]       The Confrontation Clause provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. Const. amend. VI. Pursuant to this constitutional

protection, if a witness does not testify at trial, a court may admit that witness’s

testimonial out-of-court statements “only where the defendant has had prior

opportunity to cross-examine” the declarant. Gorman, 2004 ME 90, ¶ 50, 854

A.2d 1164 (quotation marks omitted).8 For that reason, statements that are

admissible pursuant to the rules of evidence—such as the recorded recollection

exception at issue here—“may be inadmissible when tested against the

Confrontation Clause.” Id. ¶ 46.

       [¶21] When the declarant is available for cross-examination at trial,

however, a defendant’s Sixth Amendment right to confront the witness is not

compromised, regardless of the strength of the declarant’s memory. Gagne,

2017 ME 63, ¶ 35, 159 A.3d 316; Gorman, 2004 ME 90, ¶¶ 52-55, 854 A.2d 1164.

             When the declarant is available for cross-examination, “the
       Confrontation Clause includes no guarantee that every witness
       called by the prosecution will refrain from giving testimony that is

   8 For purposes of the Confrontation Clause, testimonial statements are out-of-court statements
made primarily “to establish or prove past events potentially relevant to later criminal prosecution.”
Davis v. Washington, 547 U.S. 813, 822 (2006); see also State v. Metzger, 2010 ME 67, ¶ 15, 999 A.2d
947. The victim’s out-of-court statements here were in response to questions posed during a forensic
interview and are clearly testimonial. See State v. Jones, 2018 ME 17, ¶ 9, 178 A.3d 481; see also
Michigan v. Bryant, 562 U.S. 344, 355-71 (2011) (discussing the primary purpose determination).
The State does not contend otherwise.
14

         marred by forgetfulness, confusion, or evasion.” United States v.
         Owens, 484 U.S. 554, 558, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). The
         Clause guarantees “an opportunity for effective cross-examination”
         but does not guarantee that the cross-examined witness will have
         full memory. Id. at 559-60, 108 S.Ct. 838. “A witness is not
         constitutionally unavailable for purposes of Confrontation Clause
         analysis when a witness who appears and testifies is impaired.”
         State v. Gorman, 2004 ME 90, ¶ 52, 854 A.2d 1164. “‘When the
         declarant appears for cross-examination at trial, the Confrontation
         Clause places no constraints at all on the use of his prior testimonial
         statements.’” Id. ¶ 55 (quoting Crawford [v. Washington, 541 U.S.
         36], 59 n.9, 124 S.Ct. 1354 [(2004)]).

Gagne, 2017 ME 63, ¶ 33, 159 A.3d 316 (alterations omitted).

         [¶22] That is the case here. The victim testified at trial and was available

for Adams to cross-examine her about the statements she had made during the

interview. Therefore, despite the victim’s imperfect memory at trial, Adams’s

rights under the Confrontation Clause were not offended by the admission of

the victim’s prior testimonial statements made during the recorded forensic

interview.9



     9 Adams also asserts that because he was unable to cross-examine the interviewer in the video
about her methods, his rights under the Confrontation Clause were violated. Adams failed to raise
this particular argument to the trial court and thus has not preserved the issue for review. See State
v. Ngo, 2007 ME 2, ¶ 7, 912 A.2d 1224. Nonetheless, Adams’s contention is unavailing. The
Confrontation Clause “bars admission of testimonial statements of a witness who did not appear at
trial.” Davis, 547 U.S. at 821 (quotation marks omitted). While the recording contains statements
made by the interviewer, who was not called to testify at trial, the interviewer’s statements were not
testimonial but merely provided a context to understand the victim’s statements. See King v.
Kentucky, 554 S.W.3d 343, 362-63 (Ky. 2018) (holding that the interviewer’s statements, made
during a recorded forensic interview of an abused child, were nontestimonial because they were
meant to “encourage [the victim] to give more detail without asserting independent knowledge”);
Arizona v. Martin, 235 P.3d 1045, 1049-50 (Ariz. Ct. App. 2010) (holding that the questions of an
                                                                                           15

                                      III. CONCLUSION

        [¶23] The court did not err when it admitted in evidence as past

recollection recorded the video recording in which the victim described

Adams’s assaults of her inside the home. Furthermore, Adams’s constitutional

right of confrontation was not violated by the admission of that evidence

because he was provided the opportunity to cross-examine the victim about her

out-of-court statements.

        The entry is:

                           Judgment affirmed.



John Scott Webb, Esq. (orally), and Katherine M. Campbell, Esq., Saco, for
appellant Ross S. Adams

James A. Andrews, Dep. Dist. Atty. (orally), Franklin County District Attorney
Office, Farmington, for appellee State of Maine


Franklin County Unified Criminal Docket docket number CR-2014-1059
FOR CLERK REFERENCE ONLY




interviewer of a child sexual abuse victim, heard on a video recording, were not testimonial).
Adams’s Sixth Amendment rights were not implicated by the absence of the interviewer at trial.
