MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	3	
Docket:	   Aro-17-66	
Argued:		  September	14,	2017	
Decided:	  January	18,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                        STATE	OF	MAINE	
                                               	
                                              v.	
                                               	
                                         DYLAN	FULTON	
	
	
HJELM,	J.	

        [¶1]	 	 Dylan	 Fulton	 appeals	 from	 a	 judgment	 adjudicating	 him	 of	 the	

juvenile	 crime	 of	 gross	 sexual	 assault	 (Class	 A),	 17-A	 M.R.S.	 §	 253(1)(C)	

(2017);	 see	 also	 15	 M.R.S.	 §	 3103(1)	 (2017)	 (defining	 “juvenile	 crime”),	

entered	 by	 the	 Juvenile	 Court1	 (Presque	 Isle,	 O’Mara,	 J.)	 following	 an	

adjudicatory	hearing.		We	affirm	the	judgment.	

        [¶2]		Contrary	to	Fulton’s	contention,	the	evidence—viewed	in	the	light	

most	 favorable	 to	 the	 State,	 see	 State	 v.	 Milliken,	 2010	 ME	 1,	 ¶	 19,	 985	 A.2d	

1152—was	 sufficient	 for	 the	 court	 to	 rationally	 find	 beyond	 a	 reasonable	

doubt	 that	 the	 State	 proved	 every	 element	 of	 the	 offense	 and	 that	 the	 crime	



    1		When	exercising	its	jurisdiction	over	juvenile	matters,	the	District	Court	is	referred	to	as	the	

Juvenile	Court.		See	15	M.R.S.	§	3101(1),	(2)(A)	(2017).	
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occurred	 within	 the	 period	 of	 limitations,	 see	 17-A	 M.R.S.	 §	 101(1)	 (2017);	

15	M.R.S.	§	3105-A	(2017).		

         [¶3]	 	 Fulton	 also	 asserts	 that	 the	 court	 deprived	 him	 of	 due	 process	

when	it	denied	his	motion	for	production	of	Department	of	Health	and	Human	

Services	records	without	conducting	an	in	camera	review.		The	court	did	not	

abuse	 its	 discretion	 denying	 Fulton’s	 motion,	 see	 State	v.	 Dube,	 2014	 ME	 43,	

¶	8,	 87	 A.3d	 1219,	 because	 even	 if	 Fulton	 had	 filed	 the	 motion	 pursuant	 to	

M.R.U.	Crim.	P.	17A(f),2	rather	than	22	M.R.S.	§	4008(3)(A-1)	(2017),	he	would	

not	 have	 made	 the	 preliminary	 showing	 of	 relevancy,	 admissibility,	 and	

specificity	 required	 by	 Rule	 17A(f).	 	 See	 also	 State	 v.	 Marroquin-Aldana,	

2014	ME	47,	¶	34,	89	A.3d	519;	Dube,	2014	ME	43,	¶	9,	87	A.3d	1219	(when	a	

defendant	does	not	satisfy	the	requirements	of	Rule	17A(f),	“a	trial	court	may	

restrict	 [the	 defendant’s]	 right	 to	 compulsory	 process	 without	 impairing	 his	

constitutional	rights	to	due	process	and	to	confront	witnesses.”).	

         [¶4]	 	 Finally,	 Fulton	 argues	 that	 the	 investigative	 and	 adjudicatory	

processes	and	the	outcome	of	this	case	do	not	comport	with	the	policies	of	the	

Juvenile	Code.		See	15	M.R.S.	§	3002	(2017).		Because	this	argument	was	not	



     2		The	Maine	Rules	of	Unified	Criminal	Procedure	apply	to	proceedings	involving	juvenile	crimes.		

See	15	M.R.S.	§	3309	(2017);	M.R.U.	Crim.	P.	1(b)(3).	
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raised	in	the	Juvenile	Court,	we	review	for	obvious	error	and	find	none.		See	

State	v.	Corrieri,	654	A.2d	419,	422	(Me.	1995).	

        [¶5]		Although	we	summarily	dispose	of	Fulton’s	essential	challenges	on	

appeal,	we	write	to	address	one	aspect	of	the	latter	argument:	that	the	reach	

of	 the	 juvenile	 offense	 of	 gross	 sexual	 assault	 at	 issue	 here	 is	 too	 broad	

because	it	allows	for	the	prosecution	of	minors	who	may	be	too	young	to	be	

appropriately	subject	to	the	juvenile	justice	system.			

        [¶6]	 	 As	 Fulton	 acknowledges,	 thirty	 years	 ago	 we	 rejected	 a	 similar	

challenge	 to	 the	 since-repealed	 crime	 of	 gross	 sexual	 misconduct,	 see	

17-A	M.R.S.	 §	 253(1)(B)	 (1983),3	 which	 criminalized	 a	 sexual	 act	 committed	

against	 a	 person	 younger	 than	 fourteen	 years	 old	 and	 not	 the	 offender’s	

spouse,	 but	 without	 setting	 a	 minimum	 age	 of	 the	 offender.	 	 See	 State	 v.	

Edward	 C.,	 531	A.2d	 672	 (Me.	 1987).	 	 In	 that	 case,	 the	 juvenile—who	 was	

thirteen	 years	 old	 at	 the	 time	 of	 the	 offense—argued	 that	 the	 Legislature’s	

purpose	 underlying	 that	 statute	 was	 to	 “criminalize	 the	 exploitation	 of	

children,	not	to	penalize	the	children	themselves.”		Id.	at	673.		We	concluded	

that	 there	 was	 “much	 merit	 in	 this	 argument”	 but	 that	 the	 plain	 language	 of	
   3		Title	17-A	M.R.S.A.	§	253(1)(B)	(1983)	was	repealed	and	replaced	by	P.L.	1989,	ch.	401,	§	A-4	

(effective	Sept.	30,	1989)	(codified	at	17-A	M.R.S.	§	253(1)(B)	(2017)),	which	designated	the	same	
conduct	 as	 a	 form	 of	 gross	 sexual	 assault,	 and	 that	 replacement	 statute	 has	 since	 been	 amended,	
most	 recently	 by	 P.L.	 2003,	 ch.	 711,	 §	 B-2	 (effective	 July	 30,	 2004)	 (codified	 at	 17-A	 M.R.S.	
§	253(1)(A),	(B),	(C)	(2017)).			
4	

the	 statute	 could	 not	 be	 read	 to	 set	 a	 minimum	 age	 of	 the	 accused.	 	 Id.	 at	

673-74.			

         [¶7]	 	 The	 same	 is	 true	 with	 respect	 to	 the	 definition	 of	 gross	 sexual	

assault	 found	 in	 section	 253(1)(C),	 which	 states:	 “A	 person	 is	 guilty	 of	 gross	

sexual	 assault	 if	 that	 person	 engages	 in	 a	 sexual	 act	 with	 another	 person	

and	.	.	.	 [t]he	 other	 person,	 not	 the	 actor’s	 spouse,	 has	 not	 in	 fact	 attained	

12	years	of	age.”		By	the	plain	terms	of	this	statute,	any	person—regardless	of	

age—can	be	prosecuted	for	this	crime.4		Thus,	the	concern	we	acknowledged	

in	Edward	C.	persists	and	may	call	for	an	examination	of	whether	parameters	

should	 be	 legislatively	 imposed	 on	 the	 universe	 of	 juveniles	 who	 may	 be	


     4
      In	 this	 way,	 Title	 17-A	 M.R.S.	 §	 253(1)(C)	 (2017)	 stands	 in	 marked	 contrast	 to	 many	 of	 the	
sexual	offenses	established	in	Title	17-A.		For	example,	a	number	of	the	other	definitions	of	gross	
sexual	 assault	 are	 directed	 against	 persons	 who	 are	 in	 adult	 employment	 or	 in	 adult	 familial	 or	
professional	 relationships	 with	 the	 victim	 at	 the	 time	 of	 the	 offense.	 	 See,	 e.g.,	 17-A	M.R.S.	
§	253(2)(E-G)	(2017)	(applicable	to	teachers,	supervisors,	or	other	adults	with	authority	over	the	
victim);	 17-A	 M.R.S.	 §	253(2)(H)	 (2017)	 (applicable	 to	 parents,	 step-parents,	 or	 guardians);	
17-A	M.R.S.	 §	 253(2)(I)	 (2017)	 (applicable	 to	 mental	 health	 physicians	 or	 licensed	 social	 workers	
where	the	victim	is	a	patient	or	client	of	that	person);	17-A	M.R.S.	§	253(2)(J)	(2017)	(applicable	to	
owners	or	operators	of	specific	facilities	or	institutions	from	which	the	victim	receives	services	and	
is	 recognized	 as	 having	 an	 intellectual	 disability	 or	 autism);	 17-A	 M.R.S.	 §	 253(2)(K)	 (2017)	
(applicable	to	owners,	operators,	or	employees	of	specific	facilities	from	which	the	victim	receives	
mental	disability	services	or	care	and	the	mental	disability	is	reasonably	apparent	or	known	to	that	
person);	 and	 17-A	 M.R.S.	 §	 253(2)(L)	 (2017)	 (applicable	 to	 a	 caregiver	 employed	 to	 care	 for	 the	
victim	who	is	of	advanced	age	or	suffers	from	a	physical	or	mental	disease,	disorder	or	defect,	and	is	
unable	 to	 care	 for	 him-	 or	 herself).	 	 This	 contrast	 is	 further	 demonstrated	 by	 a	 number	 of	
formulations	of	the	crime	of	sexual	abuse	of	minors,	such	as	those	directed	against	persons	who	are	
at	 least	 five	 or	 ten	 years	 older	 than	 their	 victims,	 see,	 e.g.,	 17-A	 M.R.S.	 §	254(1)(A)	 (2017)	
(applicable	to	offenders	at	least	five	years	older	than	their	victims	who	are	either	fourteen	or	fifteen	
years	of	age);	17-A	M.R.S.	§	254(1)(A-2)	(2017)	(applicable	to	offenders	who	are	at	least	ten	years	
older	than	the	victim,	who	is	either	fourteen	or	fifteen	years	of	age);	or	against	persons	who	are	at	
least	twenty-one	years	old	and	employed	at	an	educational	facility	where	the	victim,	either	sixteen	
or	seventeen	years	old,	is	enrolled,	17-A	M.R.S.	§	254(1)(C),(E)	(2017).			
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considered	truly	culpable	for	the	conduct	proscribed	by	section	253(1)(C)	and	

brought	into	the	juvenile	justice	system.	

        [¶8]	 	 The	 concern	 is	 particularly	 acute	 because	 section	 253(1)(C)	

criminalizes	the	conduct—the	actus	reus—by	itself.		Therefore,	unlike	nearly	

all	 other	 statutes	 that	 define	 major	 crimes,	 this	 offense	 is	 nominally	 a	 strict	

liability	 crime	 because	 it	 does	 not	 require	 the	 State	 to	 prove	 any	 culpable	

mental	state.		See	State	v.	Proia,	2017	ME	169,	¶	11	n.3,	168	A.3d	798;	State	v.	

Morrison,	2016	ME	47,	¶	4	n.1,	135	A.3d	343.		The	absence	of	an	explicit	mens	

rea	 requirement	 in	 section	 253(1)(C)	 does	 not	 mean,	 however,	 that	 the	

Legislature	intended	the	statute	to	apply	even	when	the	proscribed	conduct	is	

not	accompanied	by	culpability.		To	the	contrary,	sexual	offenses	that	do	not	

include	an	explicit	mens	rea	element	are	still	intended	to	criminalize	conduct	

that	is	inherently	aberrant	and,	at	least	impliedly,	signifies	fault.		See	State	v.	

Saucier,	421	A.2d	57,	59	(Me.	1980)	(recognizing	that	the	former	gross	sexual	

misconduct	 statute,	 which	 had	 no	 mens	 rea	 requirement,	 was	 “based	 on	 the	

premise	 that	 one	 person	 cannot	 accidentally	 or	 innocently	 induce	 another	

person	to	engage	in	sexual	intercourse	by	means	of	a	threat”).5	


   5	 	 This	 observation	 should	 not	 be	 seen	 as	 an	 assertion	 that	 the	 State	 is	 required	 to	 prove	 a	

culpable	state	of	mind	an	as	element	of	a	sexual	offense	that,	as	defined	by	statute,	does	not	include	
such	an	element.		Rather,	the	discussion	in	the	text	relates	to	the	reasons	why	the	Legislature	has	
enacted	those	statutes	as	it	has.	
6	

         [¶9]		Not	every	child,	however,	who	engages	in	the	conduct	proscribed	

by	 section	 253(1)(C)—something	 that	 is	 sufficient	 for	 a	 prosecution	 and	

adjudication	 of	 that	 crime—does	 so	 with	 the	 fault	 that	 the	 Legislature	 has	

impliedly	 attributed	 to	 that	 conduct.	 	 As	 was	 explained	 at	 Fulton’s	

dispositional	 hearing	 by	 the	 forensic	 psychologist	 who	 performed	 a	

court-ordered	 evaluation	 of	 him,	 see	 15	 M.R.S.	 §	 3309-A(4)	 (2017),	

considerations	of	human	sexual	development	allow	a	distinction	to	be	drawn	

between	 juveniles	 who	 are	 at	 least	 twelve	 to	 fourteen	 years	 old,	 and	 those	

who	 are	 younger,6	 because	 there	 are	 material	 differences	 between	 those	

groups	 in	 terms	 of	 motivation,	 intent,	 and	 responsiveness	 to	 treatment	 for	

inappropriate	sexual	behavior.		The	psychologist	explained	that	although	age	

is	a	factor	relevant	to	the	question	of	culpability	and	risk	of	re-offense,	there	

are	 other	 material	 factors	 to	 be	 considered	 such	 as	 exposure	 to	 domestic	

violence,	 emotional	 or	 mental	 health	 issues,	 and	 a	 history	 of	 other	 sexual	

misconduct.7		


     6		The	evidence	indicated	that	Fulton	was	approximately	ten	to	twelve	years	old	at	the	time	of	

the	offense.			

     7		In	its	dispositional	order,	the	court	did	not	state	whether	it	accepted	the	analysis	offered	by	

the	forensic	evaluator,	and	Fulton	did	not	move	for	the	court	to	issue	findings	beyond	the	limited	
explanation	it	provided	for	the	disposition	imposed,	which	was	an	indeterminate	and	fully	probated	
commitment	 to	 the	 Department	 of	 Corrections	 until	 age	 twenty-one.	 	 See	 M.R.U.	 Crim.	 P.	 23(c).		
Therefore,	our	reference	to	several	portions	of	the	expert’s	testimony	presented	in	this	case	should	
not	be	seen	either	as	an	adoption	of	her	opinion	or	a	diminishment	of	differing	views	regarding	the	
                                                                                                       7	

        [¶10]	 	 Section	 253(1)(C),	 however,	 does	 not	 account	 for	 any	 of	 those	

developmental	 considerations	 that	 are	 central	 to	 the	 question	 of	 juvenile	

culpability	 for	 conduct	 that,	 depending	 on	 the	 particular	 circumstances,	 can	

range	 from	 benign	 to	 dangerous	 and	 damaging.	 	 This	 raises	 the	 question	 of	

whether	 the	 Legislature	 in	 fact	 intended	 section	 253(1)(C)	 to	 apply	 even	

against	 a	 child	 who	 engages	 in	 the	 conduct	 prohibited	 by	 that	 statute,	 but	

whose	 age	 and	 other	 characteristics	 do	 not	 properly	 warrant	 a	 prosecution	

and	 adjudication	 because	 of	 the	 absence	 of	 culpability.	 	 These	 and	 other	

factors,	 such	 as	 the	 profound	 impact	 a	 sexual	 assault	 can	 have	 on	 a	 victim,	

illustrate	 the	 complex	 and	 dynamic	 nature	 of	 the	 matrix	 that	 the	 Legislature	

may	 choose	 to	 identify	 in	 its	 determination	 of	 who	 should	 be	 subject	 to	 a	

juvenile	adjudication	pursuant	to	section	253(1)(C),	which	presently	provides	

no	limitations.	

        [¶11]	 	 For	 these	 reasons,	 the	 Legislature	 may	 wish	 to	 review	 section	

253(1)(C)	 to	 consider	 how	 that	 statute	 is	 most	 effectively	 and	 appropriately	

applied	 in	 juvenile	 cases	 to	 achieve	 the	 purposes	 of	 the	 Juvenile	 Code,	 see	

15	M.R.S.	§	3002.	


measure	 of	 culpability	 that	 should—or	 should	 not—be	 attached	 to	 juvenile	 sexual	 misconduct	 in	
various	circumstances.		We	describe	this	testimony	merely	to	explain,	as	we	discuss	in	the	text,	that,	
at	least	in	the	view	of	some	experts,	the	question	of	juvenile	culpability	rests	on	considerations	that	
may	be	different	from	those	that	are	germane	to	adult	prosecutions.	
8	

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	      	      	      	      	
	
Tina	 Heather	 Nadeau,	 Esq.	 (orally),	 The	 Law	 Office	 of	 Tina	 Heather	 Nadeau,	
PLLC,	Portland,	for	appellant	Dylan	Fulton	
	
Todd	 R.	 Collins,	 District	 Attorney,	 and	 Carrie	 L.	 Linthicum,	 Dep.	 Dist.	 Atty.	
(orally),	Prosecutorial	District	8,	Presque	Isle,	for	appellee	State	of	Maine		
	
	
Presque	Isle	Juvenile	Court	docket	number	JV-2014-49	
FOR	CLERK	REFERENCE	ONLY	
