MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2016	ME	154	
Docket:	   Cum-15-635	
Argued:	   September	15,	2016	
Decided:	  October	18,	2016	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                  STATE	OF	MAINE	
                                          	
                                         v.	
                                          	
                                  JASON	M.	FOSTER	
	
	
SAUFLEY,	C.J.	

      [¶1]		Jason	M.	Foster	was	charged	by	indictment	with	eighteen	criminal	

counts	 based	 on	 allegations	 that	 he	 had	 pretended	 to	 be	 a	 police	 officer	 in	

order	to	compel	or	induce	four	women	who	were	engaged	in	prostitution	to	

have	 sex	 with	 him	 as	 he	 demanded.	 	 Foster	 appeals	 from	 a	 judgment	 of	

conviction	entered	by	the	court	(Cumberland	County,	 Warren,	J.)	after	a	jury	

found	 him	 guilty	 of	 two	 counts	 of	 gross	 sexual	 assault	 (Class	 B),	 17-A	 M.R.S.	

§	253(2)(B)	 (2015);	 four	 counts	 of	 impersonating	 a	 public	 servant	 (Class	 E),	

17-A	 M.R.S.	 §	457(1),	 (3)	 (2015);	 and	 two	 counts	 of	 engaging	 a	 prostitute	

(Class	 E),	 17-A	 M.R.S.	 §	853-B(1)(A)	 (2015),	 based	 on	 his	 conduct	 toward	

three	 of	 the	 four	 women	 identified	 by	 initials	 in	 the	 indictment.	 	 He	 argues	

that	he	was	deprived	of	due	process	because	the	indictment	and	jury	verdict	
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form	 did	 not	 adequately	 distinguish	 among	 separate	 allegations	 involving	

each	victim.		We	affirm	the	judgment.	

                                 I.		BACKGROUND	

	     [¶2]	 	 Foster	 was	 charged	 with	 eighteen	 crimes	 involving	 four	 victims	

through	an	indictment	signed	on	November	7,	2014.		For	each	count,	he	was	

charged	with	a	crime	alleged	to	have	occurred	“between	October	9,	2013	and	

October	9,	2014.”		Although	the	indictment	did	not	specify	the	victims	for	the	

counts	 of	 impersonating	 a	 public	 servant,	 the	 organization	 of	 the	 indictment	

and	 the	 specificity	 in	 the	 jury	 verdict	 form	 make	 clear	 which	 counts	 are	

associated	 with	 each	 alleged	 victim.	 	 The	 indictment	 charged	 four	 counts	 of	

gross	sexual	assault	(Counts	1	through	4)	and	four	counts	of	impersonating	a	

public	servant	(Counts	5	through	8)	with	respect	to	one	woman;	two	counts	of	

engaging	a	prostitute	(Counts	11	and	12)	and	two	counts	of	impersonating	a	

public	 servant	 (Counts	 13	 and	 14)	 with	 respect	 to	 a	 second	 woman;	 two	

counts	 of	 gross	 sexual	 assault	 (Counts	 15	 and	 16)	 and	 two	 counts	 of	

impersonating	 a	 public	 servant	 (Counts	 17	 to	 18)	 with	 respect	 to	 a	 third	

woman;	and	single	counts	of	theft	by	extortion	(Class	C),	17-A	M.R.S.	§	355(1),	

(3)	 (2015),	 (Count	 9)	 and	 impersonating	 a	 public	 servant	 (Count	 10)	 with	

respect	to	a	fourth	woman.		
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	      [¶3]		In	April	2015,	Foster	moved	for	a	bill	of	particulars	regarding	the	

counts	 charging	 him	 with	 gross	 sexual	 assault	 and	 impersonating	 a	 public	

servant.		He	argued	that	duplicative	language	in	the	indictments	and	the	broad	

date	range	failed	to	provide	him	sufficient	notice	of	the	basis	for	each	charge	

against	 him,	 thereby	 depriving	 him	 of	 the	 opportunity	 to	 prepare	 a	 defense,	

and	failed	to	protect	him	from	double	jeopardy.		A	month	later,	after	further	

discovery,	 Foster	 withdrew	 his	 motion	 for	 a	 bill	 of	 particulars	 without	

prejudice.		He	did	not	file	another	motion	for	a	bill	of	particulars.		

       [¶4]		The	court	held	a	jury	trial	on	August	18,	19,	and	20,	2015.		Foster	

did	not	request	jury	instructions	explaining	the	requirement	of	unanimity	as	

to	each	specific	charged	crime.		Nor	did	Foster	seek	further	clarification	of	the	

nature	 of	 each	 alleged	 crime	 in	 the	 jury	 verdict	 form.	 	 The	 verdict	 form	

identified,	for	each	charged	crime,	the	name	of	the	alleged	victim.		No	further	

specificity	 was	 provided	 in	 the	 form,	 except	 to	 require	 the	 jury	 to	 find	

whether,	if	Foster	engaged	a	prostitute,	he	did	so	after	the	date	at	the	start	of	

the	date	range	for	the	charged	crimes.			

       [¶5]		The	jury	found	Foster	guilty	of	eight	of	the	eighteen	charges,	which	

involved	 three	 of	 the	 four	 alleged	 victims.	 	 The	 jury	 found	 him	 guilty	 of	 the	

third	listed	count	of	gross	sexual	assault	of	one	victim	(Count	3)	and	the	third	
4	

listed	 count	 of	 impersonating	 a	 public	 servant	 with	 respect	 to	 that	 victim	

(Count	7).		It	also	found	that	he	was	guilty	of	both	counts	of	engaging	another	

victim	as	a	prostitute	(Counts	11	and	12)	and	both	counts	of	impersonating	a	

public	servant	with	respect	to	that	victim	(Counts	13	and	14).		Finally,	the	jury	

found	 Foster	 guilty	 of	 the	 second	 listed	 count	 of	 gross	 sexual	 assault	 (Count	

16)	and	the	second	listed	count	of	impersonating	a	public	servant	(Count	18)	

with	respect	to	the	third	victim.1			

	        [¶6]	 	 The	 court	 sentenced	 Foster	 to	 eight	 years	 in	 prison	 for	 the	

conviction	 of	 gross	 sexual	 assault	 alleged	 in	 Count	 3,	 to	 be	 served	

consecutively	 to	 concurrent	 four-month	 sentences	 for	 his	 convictions	 of	

Counts	 11,	 12,	 13,	 14,	 and	 18.	 	 The	 court	 imposed	 a	 six-month	 sentence	 for	

impersonating	 a	 public	 servant	 with	 respect	 to	 the	 victim	 of	 Count	 3	 (Count	

7),	 to	 be	 served	 concurrently	 with	 the	 sentence	 for	 Count	 3;	 a	 seven-year	

sentence,	 all	 suspended,	 for	 the	 other	 gross	 sexual	 assault	 conviction	 (Count	

16),	to	run	consecutively	to	the	sentence	for	Count	3;	and	a	three-year	term	of	

probation.		The	court	also	ordered	Foster	to	pay	a	fine	of	$1,150	and	to	pay	up	




     1		Foster	does	not	contest	the	sufficiency	of	the	evidence	to	establish	the	crimes	of	which	he	was	

convicted,	 and	 “there	 was	 ample	 evidence	 upon	 which	 the	 jury	 could	 find	 [him]	 guilty	 beyond	 a	
reasonable	 doubt	 of	 each	 element	 of	 the	 crimes	 charged.”	 	 State	 v.	 Poulin,	 2016	 ME	 110,	 ¶	 39,	 ---	
A.3d	---.			
                                                                                           5	

to	 $500	 to	 reimburse	 the	 victims’	 compensation	 fund	 for	 restitution	

benefitting	one	of	the	victims.			

	      [¶7]	 	 Foster	 timely	 appealed	 from	 the	 judgment	 of	 conviction	 and	

applied	 for	 leave	 to	 appeal	 from	 his	 sentence.	 	 See	 15	 M.R.S.	 §§	 2115,	 2151	

(2015);	M.R.	App.	P.	2,	20.		The	Sentence	Review	Panel	denied	his	application	

for	 sentence	 review,	 see	 15	 M.R.S.	 §	 2152	 (2015);	 M.R.	 App.	P.	20(f),	 and	 we	

now	consider	his	appeal	from	the	judgment	of	conviction.			

                                     II.		DISCUSSION	

	      [¶8]		If	a	defendant	files	and	pursues	a	motion	for	a	bill	of	particulars	to	

challenge	 the	 sufficiency	 of	 an	 indictment,	 we	 review	 a	 denial	 of	 the	 motion	

for	 an	 abuse	 of	 discretion.	 	 See	 State	 v.	 Flynn,	 2015	 ME	 149,	 ¶	 27,	 127	 A.3d	

1239.	 	 We	 do	 not,	 however,	 review	 the	 issue	 at	 all	 when	 a	 defendant	 has	

knowingly	and	voluntarily	waived	the	issue	of	an	indictment’s	sufficiency	by	

declining	to	request	a	bill	of	particulars	or	otherwise	challenge	the	indictment	

in	the	trial	court.		See	M.R.U.	Crim.	P.	12(b)(2);	State	v.	Clarke,	2015	ME	70,	¶	5	

n.2,	 117	 A.3d	 1045	 (declining	 to	 review	 the	 sufficiency	 of	 an	 indictment	 to	

inform	the	defendant	of	a	charge	when	he	neither	challenged	the	indictment	

before	the	trial	court	nor	sought	a	bill	of	particulars);	State	v.	Shea,	588	A.2d	

1195,	1195	(Me.	1991)	(concluding	that	a	defendant	waived	a	challenge	to	the	
6	

indictment	 by	 failing	 to	 move	 for	 a	 bill	 of	 particulars	 or	 object	 to	 the	

indictment	before	trial).	

      [¶9]	 	 Foster	 was	 aware	 that	 the	 State	 had	 charged	 him	 with	 multiple	

crimes	 against	 each	 alleged	 victim	 during	 the	 same	 time	 range.	 	 He	 filed	 a	

motion	 for	 a	 bill	 of	 particulars	 based	 on	 assertions	 of	 vagueness	 in	 the	

indictment	 but	 then	 withdrew	 the	 motion.	 	 Thus,	 despite	 a	 demonstrated	

awareness	of	the	procedural	mechanism	available	to	challenge	the	indictment,	

Foster	 voluntarily	 withdrew	 his	 motion	 for	 a	 bill	 of	 particulars	 and	 thereby	

waived	any	issue	of	a	vagueness	defect	in	the	indictment.		See	Clarke,	2015	ME	

70,	¶	5	n.2,	117	A.3d	1045.		Foster	also	elected	not	to	request	a	specific	jury	

instruction	regarding	the	requirement	of	unanimity	for	each	convicted	count,	

see	Me.	Const.	art.	I,	§	7,	and	not	to	request	further	clarification	in	the	verdict	

form	identifying	which	alleged	incident	corresponded	with	each	count	on	the	

jury	verdict	form.			

      [¶10]		Although	Foster	now	argues	that	he	did	not	receive	due	process,	

was	deprived	of	a	fair	trial,	and	may	be	exposed	to	double	jeopardy,	he	did	not	

seek	further	process	to	address	the	specificity	of	charges	in	the	trial	court.		See	

Clarke,	2015	ME	70,	¶	5	n.2,	117	A.3d	1045;	State	v.	Bilynsky,	2008	ME	33,	¶	7,	

942	 A.2d	 1234.	 	 “[A]	 party	 must	 pursue	 the	 process	 that	 is	 available	 before	
                                                                                         7	

complaining	 of	 a	 procedural	 inadequacy”	 for	 purposes	 of	 a	 due	 process	

challenge.		Marshall	v.	Town	of	Dexter,	2015	ME	135,	¶	28,	125	A.3d	1141.		We	

will	not	review	an	issue—even	for	obvious	error—when	a	party	has,	as	a	trial	

strategy,	openly	acquiesced	to	the	process	employed.		See	State	v.	Ford,	2013	

ME	96,	¶¶	15-17,	82	A.3d	75.	

      [¶11]	 	 Ultimately,	 Foster’s	 trial	 strategy	 was	 relatively	 effective,	

resulting	 in	 his	 acquittal	 on	 ten	 of	 the	 eighteen	 charged	 counts.	 	 The	 jury’s	

verdict	 demonstrates	 that,	 after	 it	 heard	 testimony	 and	 arguments,	 and	

received	agreed-upon	instructions	from	the	court,	it	considered	the	evidence	

of	multiple	incidents	to	determine	which	crimes	the	State	had	proved	beyond	

a	 reasonable	 doubt	 and	 which	 it	 had	 not.	 	 It	 then	 presented	 its	 verdict	 by	

completing	a	jury	verdict	form	that	was	agreed	upon	by	Foster	and	the	State.		

A	 review	 of	 the	 numerical	 design	 and	 the	 jury’s	 answers	 on	 the	 completed	

verdict	 form	 indicates	 that	 the	 jury	 found	 that	 the	 State	 had	 proved	 specific	

incidents	and	had	not	proved	others.		Given	the	record	of	the	proceedings	in	

this	case,	we	consider	the	due	process	and	double	jeopardy	issues	that	Foster	

now	 asserts	 to	 have	 been	 waived.	 	 We	 will	 not	 disturb	 the	 judgment	 of	

conviction.	
8	

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	     	        	   	      	
	
On	the	briefs:	
	
      Jamesa	J.	Drake,	Esq.,	Drake	Law,	LLC,	Auburn,	for	appellant	
      Jason	M.	Foster	
      	
      Stephanie	 Anderson,	 District	 Attorney,	 and	 Jennifer	 F.	
      Ackerman,	 Dep.	 Dist.	 Atty.,	 Prosecutorial	 District	 Two,	
      Portland,	for	appellee	State	of	Maine	
      	
      	
At	oral	argument:	
      Jamesa	J.	Drake,	Esq.,	for	appellant	Jason	M.	Foster	
      	
      Jennifer	 F.	 Ackerman,	 Dep.	 Dist.	 Atty.,	 for	 appellee	 State	 of	
      Maine	
	
	
	
Cumberland	County	Unified	Criminal	Docket	docket	number	CR-2014-7356	
FOR	CLERK	REFERENCE	ONLY	
         	
