MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	83	
Docket:	      Han-16-269	
Submitted	
  On	Briefs:	 February	10,	2017	
Decided:	     May	4,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                        STATE	OF	MAINE	
                                               	
                                              v.	
                                               	
                                       ROGER	E.	GRINDLE	
	
	
SAUFLEY,	C.J.	

        [¶1]		Roger	E.	Grindle	appeals	from	a	judgment	of	conviction	for	gross	

sexual	assault	(Class	A),	17-A	M.R.S.	§	253(1)(A)	(2016);	assault	(Class	D),	17-A	

M.R.S.	 §	 207(1)(A)	 (2016);	 domestic	 violence	 criminal	 threatening	 (Class	 C),	

17-A	 M.R.S.	 §	 209-A(1)(B)(1)	 (2016);	 and	 criminal	 restraint	 (Class	 D),	 17-A	

M.R.S.	 §	 302(1)(B)(1)	 (2016),	 entered	 by	 the	 trial	 court	 (Hancock	 County,	

Murray	J.)	after	a	jury	trial.		He	challenges	the	court’s	exclusion	of	one	of	his	

statements	from	a	recorded	interview	with	police	that	was	admitted	at	trial.1		

We	affirm	the	judgment.	


    1		We	have	carefully	considered	Grindle’s	argument	that	the	verdict	form	used	by	the	court	allowed	

the	jury	to	convict	him	of	assault	without	considering	whether	the	State	met	its	burden	to	disprove	
self-defense.		We	discern	no	error	in	the	jury	instructions	or	the	court’s	use	of	a	verdict	form,	and	we	
do	not	discuss	this	argument	further.	
2	

                                  I.		BACKGROUND	

      [¶2]		“Viewing	the	evidence	in	the	light	most	favorable	to	the	State,	the	

jury	 could	 rationally	 have	 found	 the	 following	 facts	 beyond	 a	 reasonable	

doubt.”	 	 See	 State	 v.	 Begin,	 2015	 ME	 86,	 ¶	 2,	 120	 A.3d	 97	 (quotation	 marks	

omitted).	

      [¶3]		Grindle	and	the	victim	were	involved	in	a	domestic	relationship	and	

were	 living	 together.	 	 During	 an	 argument	 in	 their	 bedroom	 on	 January	 31,	

2015,	Grindle	grabbed	the	victim’s	hand	and	burned	it	with	a	lighter.		The	victim	

hit	him	in	his	side,	and	he	struck	her	across	the	face.		Grindle	then	started	hitting	

her	and	punching	her	in	the	chest.		The	victim	tried	to	get	away,	but	Grindle	

threw	her	down	on	the	bed	and	the	floor	several	times.		While	the	victim	was	

on	the	floor,	Grindle	kicked	her	in	her	side.			

      [¶4]		At	some	point,	the	victim	tried	to	collect	her	things	so	that	she	could	

leave.		Grindle	blocked	the	door	and	told	her	that	if	she	“tried	to	leave,	he	would	

drag	[her]	out	in	the	snow,	put	[her]	in	[her]	car,	and	watch	[her]	burn	alive.”		

The	victim	went	into	the	bathroom,	and	Grindle	followed	her.		He	told	her	that	

she	was	not	going	to	leave;	that	he	had	no	recollection	of	scratching	or	bruising	

her;	that	he	“blacks	out	when	he	gets	angry”;	and	that	if	she	had	“shut	up	when	

he	told	[her]	to,	then	it	could	all	have	been	avoided.”			
                                                                                                    3	

       [¶5]		Grindle	begged	the	victim	to	lie	down	in	the	bedroom	and	watch	a	

movie,	which	she	did.		Grindle	lay	down	with	her	and	started	rubbing	her	back	

and	trying	to	put	his	hands	down	her	pants.		The	victim	moved	his	hand	away	

and	told	him	to	stop.		He	told	her	that	they	“had	to	have	sex	because	it	could	be	

[their]	last	time.”		He	continued	trying	to	put	his	hands	down	her	pants,	and	she	

kept	trying	to	get	his	hand	away.		Finally,	he	pulled	her	pants	down	and	“put	his	

penis	inside	of	[her]	vagina.”		The	victim	was	crying,	and	Grindle	told	her	that	

she	 “needed	 to	 stop	 crying	 because	 [she]	 was	 making	 him	 feel	 like	 he	 was	

raping	[her].”		Grindle	had	his	hand	around	her	throat	and	was	“pulling	[her]	

hair.”		Grindle	“finished	the	sex	act”	at	around	5:45	a.m.	on	February	1,	2015,	

and	told	the	victim	to	go	to	sleep.			

       [¶6]		Several	days	later,	the	victim	went	to	the	police	and	made	a	written	

report.	 	 Police	 conducted	 a	 recorded	 interview	 with	 Grindle	 on	 February	 7,	

2015,	 at	 the	 end	 of	 which	 they	 arrested	 him.	 	 Two	 days	 later,	 Grindle	 was	

charged	by	complaint,	and	on	August	6,	2015,	he	was	indicted	for	gross	sexual	

assault	(Class	A),	17-A	M.R.S.	§	253(1)(A);	aggravated	assault	(Class	B),	17-A	

M.R.S.	§	208(1)(C)	(2015);2	domestic	violence	criminal	threatening	(Class	C),	


   2		An	amendment	to	17-A	M.R.S.	§	208(1)(C)	that	is	not	relevant	to	our	analysis	took	effect	two	

months	after	Grindle	was	indicted.		See	P.L.	2015,	ch.	358,	§	1	(effective	Oct.	15,	2015)	(codified	at	
17-A	M.R.S.	§	208(1)(C)	(2016)).	
4	

17-A	 M.R.S.	 §	 209-A(1)(B)(1);	 and	 criminal	 restraint	 (Class	 D),	 17-A	 M.R.S.	

§	302(1)(B)(1).		He	pleaded	not	guilty	to	the	charges	on	August	14,	2015,	and	

nine	months	later,	in	May	2016,	the	court	conducted	a	jury	trial.			

      [¶7]		At	trial,	a	video	recording	of	Grindle’s	interview	with	the	State	Police	

was	 admitted	 in	 evidence.	 	 Grindle	 originally	 sought	 the	 admission	 of	 the	

interview,	and	the	State	eventually	indicated	that	it	was	offering	the	recording	

as	well.		The	State	objected	only	to	the	admission	of	a	single	statement	in	the	

recorded	 interview	 in	 which	 Grindle	 told	 the	 interviewing	 officer	 that	 “[the	

victim]	likes	it	rough.”		See	M.R.	Evid.	412.		The	court	admitted	the	entire	video	

with	that	single	statement	redacted,	and	it	was	played	for	the	jury.			

      [¶8]		As	the	jury	heard	in	the	thirty-minute	recording,	Grindle	accused	

the	victim	of	beating,	scratching,	and	pushing	him,	saying	that	she	was	“violent”	

and	“a	drunk.”		He	told	officers	that	she	had	been	breaking	and	throwing	things.		

Grindle	 denied	 that	 he	 and	 the	 victim	 had	 sex	 that	 night.	 	 In	 response	 to	 a	

question	about	the	couple’s	sexual	behavior,	he	told	the	interviewing	officers,	

“That	is	her	thing.		The	whole	slapping	in	the	face	thing,”	but	he	acknowledged	

that	it	was	not	a	“regular	thing”	that	they	did.		

      [¶9]	 	 The	 jury	 found	 Grindle	 guilty	 of	 gross	 sexual	 assault,	 domestic	

violence	criminal	threatening,	and	criminal	restraint.		On	the	aggravated	assault	
                                                                                                        5	

charge,	the	jury	found	Grindle	guilty	of	the	lesser	included	offense	of	assault	

(Class	D),	17-A	M.R.S.	§	207(1)(A).		The	court	entered	a	judgment	on	the	verdict,	

sentencing	Grindle	to	eleven	years’	imprisonment	for	the	gross	sexual	assault,	

with	all	but	four	years	suspended	and	six	years’	probation.		Sentences	for	the	

remaining	 three	 convictions	 were	 to	 run	 concurrently.	 	 Grindle	 timely	

appealed.		See	15	M.R.S.	§	2115	(2016);	M.R.	App.	P.	2(b)(2)(A).	

                                          II.		DISCUSSION	

        [¶10]		Grindle	contends	that	the	court’s	exclusion	from	evidence	of	his	

statement	 that	 the	 victim	 “likes	 it	 rough”	 was	 not	 required	 by	 Rule	 412	 and	

violated	his	procedural	due	process	rights	by	denying	him	the	ability	to	present	

an	 effective	 defense.	 	 We	 review	 rulings	 admitting	 or	 excluding	 evidence	 for	

clear	error	or	abuse	of	discretion.		State	v.	Drewry,	2008	ME	76,	¶	24,	946	A.2d	

981.	

        [¶11]		Contrary	to	the	position	taken	by	Grindle’s	trial	counsel,	Grindle	

had	no	“right”	to	present	his	defense	through	his	own	out-of-court	statements,	

absent	exceptions	to	the	hearsay	rule	that	are	not	applicable	here.3		Pursuant	


   3		In	response	to	the	State’s	objection	to	playing	the	recording	rather	than	offering	the	transcript,	

defense	counsel	asserted	in	chambers	proceedings,	“The	defendant’s	statements	can	come	in	without	
the	defendant	testifying	.	.	.	that’s	pretty	much	black	letter.”		Despite	that	obvious	misstatement	of	the	
law,	the	State	did	not	make	a	hearsay	objection,	and	the	court	concluded	that	it	was	not	“persuaded	
that	the	State	has	presented	a	legal	basis	on	which	[the	recording]	.	.	.	would	be	precluded	from	being	
admitted	into	evidence.”		(Emphasis	added.)	
6	

to	 the	 Maine	 Rules	 of	 Evidence,	 unless	 an	 exception	 applies,	 a	 nontestifying	

party	 cannot	 offer	 that	 party’s	 own	 out-of-court	 statements	 as	 substantive	

evidence.		See	M.R.	Evid.	801,	802.		Such	statements	are	hearsay	and	are	not	

excluded	from	the	definition	of	hearsay	by	Rule	801(d)(2),	which	allows	their	

admission	only	when	offered	against	the	party	that	made	the	statement.4	

         [¶12]	 	 Grindle,	 apparently	 having	 nevertheless	 persuaded	 the	 State	 to	

offer	the	police	interview	in	evidence,	obtained	the	opportunity	to	admit	much	

more	than	was	allowed	by	the	rules.		The	admission	of	the	recorded	interview	

allowed	 the	 jury	 to	 hear	 Grindle’s	 version	 of	 the	 events	 without	 his	 being	

subjected	 to	 cross-examination	 by	 the	 State.	 	 In	 this	 context,	 the	 court’s	

exclusion	 of	 a	 single	 statement	 from	 the	 recorded	 interview	 was	 in	 no	 way	

prejudicial	to	his	defense	and	did	not	violate	his	right	to	due	process.		See	M.R.	

Evid.	412(b)(1)(C);	see	also	Drewry,	2008	ME	76,	¶¶	27-28,	946	A.2d	981.	

         [¶13]	 	 We	 are	 also	 unpersuaded	 by	 Grindle’s	 contention	 that	 the	

statement	was	admissible	pursuant	to	Rule	412(b).		Grindle	sought	to	introduce	

his	own	hearsay	opinion	of	the	victim’s	sexual	predisposition	whereas	the	rule	

permits,	 in	 limited	 circumstances,	 evidence	 only	 of	 specific	 instances	 of	 an	


     4		Pursuant	to	Rule	801(d)(2)	of	the	Maine	Rules	of	Evidence,	a	statement	is	not	hearsay	if	it	is	

“offered	against	an	opposing	party”	and	“[w]as	made	by	the	party	in	an	individual	or	representative	
capacity.”	
                                                                                          7	

alleged	 victim’s	 sexual	 behavior.	 	 See	 M.R.	 Evid.	 412(b)(1)(A)-(B);	 cf.	 State	 v.	

Arnold,	421	A.2d	932,	937-38	(Me.	1980)	(holding	that	opinion	testimony	was	

inadmissible	to	prove	a	person’s	character	or	character	trait	when	Maine	Rule	

of	Evidence	405	permitted	only	evidence	of	reputation	or	specific	instances	of	

conduct).	 	 The	 court	 did	 not	 abuse	 its	 discretion	 in	 excluding	 Grindle’s	

statement.		See	Drewry,	2008	ME	76,	¶¶	24,	28,	946	A.2d	981.			

         The	entry	is:	

                            Judgment	affirmed.		
	
	      	     	      	     	     	
	
Rory	A.	McNamara,	Esq.	(orally),	Drake	Law,	LLC,	Berwick,	for	appellant	Roger	
E.	Grindle	
	
Toff	Toffolon,	Asst.	Dist.	Atty.	(orally),	Office	of	the	District	Attorney,	District	
VII,	Ellsworth,	for	appellee	State	of	Maine	
	
	
Hancock	County	Unified	Criminal	Docket	docket	number	CR-2015-172	
FOR	CLERK	REFERENCE	ONLY	
	
