MAINE SUPREME JUDICIAL COURT                                                   Reporter of Decisions
Decision: 2020 ME 53
Docket:   Yor-19-234
Argued:   February 12, 2020
Decided:  April 23, 2020

Panel:       MEAD, GORMAN,* JABAR, and HUMPHREY, JJ.**



                                       STATE OF MAINE

                                                 v.

                                       RONALD PAQUIN


MEAD, J.

         [¶1] Ronald Paquin appeals from a judgment of conviction for eleven

counts of gross sexual misconduct (Class A), 17-A M.R.S.A. § 253(1)(B)

(Supp. 1985),1 entered by the trial court (York County, Douglas, J.) following a

jury trial. Paquin contends that the court erred in (1) declining his request to

compel the State to obtain the victim’s criminal history on the second day of the

trial; (2) admitting expert testimony concerning the phenomenon of delayed




   *
    Although not available at oral argument, Justice Gorman participated in the development of this
opinion. See M.R. App. P. 12(a) (“A qualified justice may participate in a decision even though not
present at oral argument.”).

   ** Although Chief Justice Saufley participated in this appeal, she resigned before this opinion was
certified.

   1 Title 17-A M.R.S.A. § 253 has been amended many times since the criminal conduct at issue
occurred and is codified in its current version at 17-A M.R.S. § 253 (2018).
2

reporting by male victims of sexual abuse; (3) failing to rule sua sponte that the

Double Jeopardy Clause barred convictions on both Counts 5 and 30; (4) giving

a deficient “on or about” jury instruction on Count 31; (5) declining to allow a

police detective to testify about whether he perceived any inconsistencies

between two alleged victims’ respective versions of events; and (6) allowing

the State to dismiss Counts 27, 28, and 29 during the trial without his consent

rather than entering a judgment of acquittal on those counts.

      [¶2] We agree with Paquin that the convictions on both Counts 5 and 30

violated his double jeopardy protections and we remand for dismissal of

Count 30. We also agree that the court erred in allowing the State to dismiss

Counts 27, 28, and 29 during the trial and therefore remand for entry of a

judgment of acquittal on those counts. In all other respects, we affirm the

judgment.

                                I. BACKGROUND

      [¶3] Viewing the evidence in the light most favorable to the jury’s verdict,

see State v. Marble, 2019 ME 157, ¶ 7, 218 A.3d 1157, the jury rationally could

have found the following facts. In the early 1980s the victim was an altar boy

at the Roman Catholic Church in Haverhill, Massachusetts, where Paquin was a

priest. When the victim was nine or ten years old, Paquin, while discussing with
                                                                                              3

the victim a human sexuality class that Paquin was taking, told the victim that

“it was perfectly normal for men to touch each other.” At some point Paquin

committed a sexual act against the victim in Haverhill.

       [¶4] Beginning in the winter of 1985, and continuing until just before he

turned fourteen, the victim made numerous trips to Kennebunkport with

Paquin, staying at a campground in Paquin’s camper or in the motel associated

with the campground. On those trips Paquin routinely provided the victim with

alcohol and committed sexual acts against him.

       [¶5] In February 2017 the grand jury returned an indictment against

Paquin; as later amended, the indictment charged Paquin with fifteen counts

(Counts 1-13, 30-31) of gross sexual misconduct (Class A), 17-A M.R.S.A.

§ 253(1)(B), against the victim; and sixteen counts (Counts 14-29) of gross

sexual misconduct (Class B), 17-A M.R.S.A. § 253(2)(A) (Supp. 1985), against a

second alleged victim.2 The case was tried to a jury on November 26-29, 2018.

During the trial, the court granted Paquin’s motion for a judgment of acquittal

on Counts 10-13, and the State dismissed Counts 27-29. The jury returned

verdicts of guilty on the remaining counts concerning the victim (Counts 1-9,




  2  The convictions at issue in this appeal resulted from Paquin’s crimes committed against one
person, referred to in this opinion as “the victim.”
4

30-31) and not guilty on the remaining counts concerning the second alleged

victim (Counts 14-26). The court denied Paquin’s motion for a new trial.

      [¶6] At the sentencing hearing, the court entered judgment in accordance

with the verdict and sentenced Paquin on each count to concurrent terms of

twenty years’ imprisonment, with all but sixteen years suspended, and three

years of probation. Paquin timely appealed and filed an application to appeal

from the sentence. On August 7, 2019, the Sentence Review Panel denied

Paquin leave to appeal from his sentence.

                                  II. DISCUSSION

      [¶7] We discuss Paquin’s six assertions of error in turn.

A.    Victim’s Criminal History

      [¶8] In a chambers conference on the second day of the trial, Paquin’s

counsel raised the issue of his wish to cross-examine the victim using

nonspecific criminal history that the victim had disclosed in an arbitration

statement as part of his civil lawsuit against the Catholic Church. Counsel

acknowledged that all Paquin knew about the criminal history was based on

the arbitration statement. When the State objected, the court advised defense

counsel that “[y]ou can’t go on a fishing expedition before the jury. . . . I have to
                                                                                            5

base my ruling on [M.R. Evid.] 609,3 so do you know what [the victim’s]

conviction history is, what he was convicted of and for what?”                      Counsel

answered, “No.”

       [¶9] Defense counsel then requested that the State produce the victim’s

criminal history as “something that should be discoverable in this case,

something that they should provide us.” The State objected on the ground that

it had already provided in discovery all of the information it had, and argued

that a request for discovery on the second day of trial concerning information

previously known to Paquin was “not appropriate.” The court sustained the

State’s objection and ruled that Paquin would not be allowed to inquire on

cross-examination about the victim’s self-reported convictions “unless

[counsel has] some specific information about his . . . criminal history.”

       [¶10] Paquin acknowledges that “Maine’s discovery rules contain no

provision specifically requiring the production of the criminal history record of

a complaining witness who testifies at trial,” and he does not assert that the

State failed to produce any discovery explicitly required by M.R.U. Crim. P. 16

or by Brady v. Maryland, 373 U.S. 83 (1963),4 and its progeny. Rather, Paquin



  3  Maine Rule of Evidence 609 governs the impeachment of a witness by evidence of a criminal
conviction.
6

urges us to hold that Rule 16 implicitly requires the State to produce the

criminal history of a complaining witness who testifies at trial because, he

argues, the State is always in constructive possession of that information and it

“is potentially impactful on the outcome of [the] trial.”5

        [¶11] “We afford the trial court substantial deference in overseeing the

parties’ discovery . . . .” State v. Silva, 2012 ME 120, ¶ 8, 56 A.3d 1230. “Only

when the defendant can establish that the effect [of an alleged discovery

violation] is so significant as to deprive him of a fair trial will we vacate on that

basis.” Id. Furthermore, in considering Paquin’s discovery request made

during trial concerning a matter of which he was aware, the court was entitled

to consider the potential delay involved. See id. ¶¶ 5, 9. Without deciding if or

when the State is ever required to do so, we conclude that on this record the

trial court did not err in ruling that the State was not required to produce the

victim’s criminal history mid-trial.

        [¶12] Maine Rule of Evidence 16(a)(2)(D), the automatic discovery rule

invoked by Paquin, requires the State to produce “[a] statement describing any


    4We recently explained that “[t]he due process concepts articulated in Brady require the State to
disclose to the defendant evidence that is favorable to the accused, either because it is exculpatory,
or because it is impeaching.” State v. Reed-Hansen, 2019 ME 58, ¶ 13, 207 A.3d 191 (quotation marks
omitted).

    Paquin does not argue “that the State is required to produce such records of every witness, only
    5

those, such as [the victim in this case], on [whose] testimony its case depends.”
                                                                                                    7

matter or information known to the attorney for the State that may not be

known to the defendant and that tends to create a reasonable doubt of the

defendant’s guilt as to the crime charged.” (Emphasis added.) Here, Paquin

knew prior to trial that the victim had a self-reported criminal history. When

the court inquired: “And this was information that you received in discovery

earlier in the case?” counsel answered, “Sure.”

       [¶13] Furthermore, Paquin made no showing that he requested from the

State or otherwise attempted to obtain the victim’s criminal record prior to

trial,6 and he proffered no specific dates of conviction or other information that

would allow the court to determine the admissibility of the purported

convictions pursuant to M.R. Evid. 609(a)-(b), such as whether they were

punishable by imprisonment for more than one year or whether their elements

established dishonesty, see M.R. Evid. 609(a).

       [¶14] In sum, given this record the court did not abuse its discretion in

declining to compel the State to obtain the victim’s criminal history during the

trial, nor in ruling that Paquin could not cross-examine the victim concerning


   6  Paquin points to M.R.U. Crim. P. 16(c)(1), which requires the State to produce, upon the
defendant’s written request, specified items “that are material and relevant to the preparation of the
defense.” The record does not contain any such request from Paquin. Had he timely requested the
victim’s criminal history pursuant to the rule and the State declined to comply, the court would have
had the authority, in its sound discretion, to issue an appropriate order. See Corey v. Norman, Hanson
& DeTroy, 1999 ME 196, ¶ 17, 742 A.2d 933 (noting “the considerable discretion vested in the judge”
in making a discovery ruling (quotation marks omitted)).
8

his nonspecific, self-reported criminal history. See Silva, 2012 ME 120, ¶ 8,

56 A.3d 1230.

B.    Expert Testimony

      [¶15] The victim testified to sexual abuse that occurred between 1985

and 1988, more than thirty years before the charges resulting from that abuse

went to trial. He reached a settlement with the Catholic Church in 2010, and in

2011 he reported to the Maine Attorney General’s Office what had happened.

      [¶16] At trial, the State sought to call an expert witness to testify that

victims of sexual abuse, particularly male victims, often disclose the abuse long

after it occurred, and to explain why that is so. Following a lengthy voir dire,

Paquin’s objection to the expert’s testimony, primarily on the ground that it

unfairly bolstered the victim’s credibility, was overruled. The court satisfied

itself that the State was not seeking to elicit the expert’s opinion concerning

why the alleged victims in this particular case delayed reporting, and it

excluded, pursuant to M.R. Evid. 403, any reference by the expert, while

discussing delayed disclosure, to the abuser being a member of the clergy. The

expert then testified that “delayed disclosure is actually the norm . . . . It’s
                                                                                                    9

almost expected given the statistics. . . . [M]en actually wait a great deal longer

to disclose abuse.” Paquin’s renewed objected was overruled.

         [¶17] “Whether proffered evidence requires expert explanation is a

question left to the discretion of the trial court.” State v. Wyman, 2015 ME 1,

¶ 26, 107 A.3d 641. Maine Rule of Evidence 702 allows “[a] witness who is

qualified as an expert by knowledge, skill, experience, training, or education

[to] testify in the form of an opinion or otherwise if such testimony will help the

trier of fact to understand the evidence or to determine a fact in issue.”

         [¶18] We discern no abuse of discretion in the court’s determination that

the expert was qualified and could testify concerning a matter that would assist

the jury in understanding the evidence. See id.; Wyman, 2015 ME 1, ¶ 26,

107 A.3d 641. Furthermore, the court limited the risk of unfair prejudice to

Paquin by restricting the expert’s testimony to the subject of delayed disclosure

in general—as opposed to an opinion as to why the victim in this case may have

made a late disclosure—and excluding from the expert’s opinion the effect of

an abuser being a member of the clergy.7 See M.R. Evid. 403.

         [¶19] That said, “[a]n expert opinion must be relevant to an issue in the

case.”    State v. Napier, 1998 ME 8, ¶ 5, 704 A.2d 869.                       The trial court’s


   The expert testified that her employer “coordinate[s] . . . investigations of child sexual abuse in
   7

Cumberland County.” We reject Paquin’s assertion that this testimony unfairly bolstered the victim’s
10

determination of relevancy is reviewed for clear error. Id. In this case, the

expert’s testimony regarding the phenomenon of delayed disclosure was not

relevant if, as Paquin contends, “There is no evidence that [the victim] delayed

disclosing his abuse.”

       [¶20] We agree that the evidence does not establish as a certainty when

or to whom the victim made a first disclosure, but establishes only that he first

disclosed the abuse to Maine law enforcement authorities in 2011, and that he

had reached a settlement with the Church in 2010. However, at trial Paquin

accepted the premise that the victim had in fact made a delayed disclosure, and

he asserted it as a fact in objecting to the expert’s testimony:

       [PAQUIN]: You know, we haven’t made an issue of the late
       disclosure. Obviously, it’s out there . . . .

       ....

             And so given that we didn’t highlight that, that we didn’t call
       into question the late report, we don’t really think that it’s incredibly




credibility because the expert’s tangential connection to law enforcement “allowed [her] to sit as a
sort of human polygraph,” and the victim “[a]pparently . . . passed those truth-telling tests.” The
expert went on to say that her duties involved “forensic interviews of children” (emphasis added);
here, the expert testified that she had never met the victim, who, in any event, was forty-four years
old at the time of the trial. Given that evidence, we cannot conclude that the jury was led to believe
that the expert was vouching for the victim’s personal credibility.
                                                                              11

      probative at this point to have someone come in and testify as to a
      late disclosure.

      ....

             We want to avoid the suggestion that because of this failure
      to disclose or delayed disclosure that there were other victims out
      there in . . . this particular case.

(Emphasis added.)

      [¶21] When the court ruled on his objection, Paquin did not take issue

with the court’s statement that

      [b]ased on the testimony of both [alleged victims], it is clear there
      has been a substantial delay in reporting these alleged events.
      They . . . allegedly occurred in the late 1980s. The disclosure was
      not made at the time. It was made a number of years later.

             That delay has been referenced by counsel, by the defense
      both in opening statement and as part of cross-examination of at
      least [a detective who testified].

      [¶22] Pursuant to M.R. Evid. 104(a), “[t]he court must decide any

preliminary question about whether . . . evidence is admissible.” Like the

court’s relevancy determination, a Rule 104(a) decision is reviewed for clear

error. Walton v. Ireland, 2014 ME 130, ¶ 12, 104 A.3d 883; see Napier,

1998 ME 8, ¶ 5, 704 A.2d 869. Here, the court’s finding that “there has been a

substantial delay in reporting these alleged events,” a precursor to the expert’s

opinion being relevant and therefore admissible, was not clearly erroneous
12

given the evidence establishing when the abuse occurred and when the victim

first reported it to Maine authorities, coupled with Paquin’s implicit admission

that the victim’s report had been substantially delayed.

C.    Double Jeopardy

      [¶23] Paquin contends that the court’s entry of judgment on both

Counts 5 and 30 violates his constitutional double jeopardy protections.

U.S. Const. amend. V; Me. Const. art. I, § 8. Reviewing for obvious error because

this issue was not raised at trial, see M.R.U. Crim. P. 52(b), we agree.

      [¶24] In State v. Martinelli, discussing the constitutional double jeopardy

bar against “multiple punishments for the same offense,” 2017 ME 217, ¶ 5,

175 A.3d 636 (quotation marks omitted), we explained that


      [b]ecause a person, by one act or transaction, may violate multiple
      criminal laws, courts apply the Blockburger test to determine
      whether the crimes enumerated by those multiple statutes are the
      same offense for purposes of double jeopardy protections. See
      Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180,
      76 L. Ed. 306 (1932). The test asks whether each statutory
      provision requires proof of a fact that the other does not. If each
      statutory provision requires a unique proof of fact, the Blockburger
      test is satisfied and there is no double jeopardy violation by
      subsequent prosecutions or multiple punishments.

Id. ¶ 7 (emphasis added) (quotation marks omitted).
                                                                              13

      [¶25] The indictment against Paquin charged:

      Count 5: On or about between November 1, 1986 and
      February 28, 1987, in Kennebunkport, YORK County, Maine,
      RONALD PAQUIN, did engage in a sexual act with [the victim] . . . ,
      not his spouse, who had not in fact attained his fourteenth birthday.

      Count 30: On or about between December 1, 1986 and
      December 31, 1986, in Kennebunkport, YORK County, Maine,
      RONALD PAQUIN, did engage in a sexual act with [the victim] . . . ,
      not his spouse, who had not in fact attained his fourteenth birthday.
      To wit: Engaging in a sexual act in the form of direct physical
      contact between the genitals of [the victim] . . . and the mouth of
      RONALD PAQUIN.

      [¶26] Paquin argues that although Count 30 requires proof of a specific

type of sexual act whereas Count 5 is satisfied by proof of any sexual act, the

two counts do not each “require[] proof of a fact that the other does not,” id.

(quotation marks omitted), because the jury could find that a single sexual

act—Paquin putting his mouth on the victim’s genitals in December 1986—

satisfied the State’s burden of proof on both counts. Put another way, only

Count 30 required proof of a unique fact, and if Paquin committed the crime

charged in Count 30, then he necessarily committed the crime charged in

Count 5.

      [¶27] Accordingly, applying Martinelli, a judgment of conviction on both

counts violates the Double Jeopardy Clause unless the State proved at trial that

the convictions did not arise from “the same act or transaction.” Id. ¶ 9
14

(quotation marks omitted). As Paquin notes, the State did not. Although the

jury might have found that separate incidents formed the basis of its verdicts

on Counts 5 and 30, we cannot know that, and will not assume it.

      [¶28] The trial court’s instruction following a note from the jury during

deliberations confirms this analysis. The note read: “Could we please get

clarification of the difference between charges 1 through 9 and charge

number 30 and then charge number 31?” The court answered the jury: “[A]ll

of those charges, Counts 1 through 9 and Counts 30 and 31, charge the same

offense. . . . So all of those charges involve the same crime.” (Emphasis added.)

Specifically concerning Count 30, the court correctly instructed that “the State’s

burden is to prove beyond a reasonable doubt that [the] particular type of

sexual act occurred and that it occurred within the date range specified in Count

30.” The double jeopardy problem arises because if the jury found that the State

met that exact burden of proof, nothing more was required for it to find Paquin

guilty on Count 5 as well.

      [¶29] Because the Double Jeopardy Clause directs that Paquin cannot

stand convicted of both Counts 5 and 30, we remand for the dismissal of

Count 30. Resentencing on Count 5, as urged by Paquin, is not required because
                                                                             15

each of the remaining ten convictions is for the same crime and resulted in

identical concurrent sentences.

D.    Jury Instruction

      [¶30] Count 31 charged:

      On or about between June 1, 1988 and August 21, 1988 . . . RONALD
      PAQUIN, did engage in a sexual act with [the victim] . . . , not his
      spouse, who had not in fact attained his fourteenth birthday. To
      wit: Engaging in a sexual act in the form of direct physical contact
      between the anus of [the victim] . . . and the genitals of RONALD
      PAQUIN.

The victim’s fourteenth birthday was the day following the last day charged in

Count 31. Consequently, in order to return a verdict of guilty on Count 31 the

jury was required to find beyond a reasonable doubt that direct physical

contact between the genitals of Paquin and the anus of the victim occurred on

or before August 21, 1988.

      [¶31] Concerning the indictment generally, the court instructed:

            The indictment alleges that each offense was committed on
      or about a specific period of time in each particular count. The
      specific date of the alleged crime need not be proven. It is enough
      if the State proves beyond a reasonable doubt that the offense
      charged was committed by the defendant and it happened
      sometime within the dates suggested by the evidence of the case
      with respect to each count.

           The question of whether the offense was committed, not
      when it happened, must be the principal focus of your inquiry;
      however, you may consider any evidence of uncertainty as to the
16

      dates of the alleged offense in deciding whether the offense was
      proven beyond a reasonable doubt . . . .

      [¶32] Paquin contends that the instruction was erroneous because it

allowed the jury to return a guilty verdict even if it found that a sexual act

occurred after August 21, 1988, when the victim had reached age fourteen.

Because Paquin did not object to the instruction at trial, we review it for

obvious error. State v. Williams, 2020 ME 17, ¶ 24, --- A.3d ---. The obvious

error standard requires Paquin to show that “there is (1) an error, (2) that is

plain, and (3) that affects substantial rights. Even if these three conditions are

met, we will set aside a jury’s verdict only if we conclude that (4) the error

seriously affects the fairness and integrity or public reputation of judicial

proceedings.” Id. n.6 (quotation marks omitted). We have said that

      [a]n error regarding jury instructions is plain if that error is so clear
      that the trial judge and prosecutor were derelict in countenancing
      it, even absent the defendant’s timely assistance in detecting it. An
      error affects a criminal defendant’s substantial rights if the error
      was sufficiently prejudicial to have affected the outcome of the
      proceeding. In reviewing for obvious error, our ultimate task is to
      determine whether the defendant received a fair trial.

State v. Lajoie, 2017 ME 8, ¶ 15, 154 A.3d 132 (citations and quotation marks

omitted).

      [¶33] In State v. Hodgdon, we found that an instruction functionally

identical to the one at issue in this case did not rise to the level of obvious error,
                                                                                          17

“considering the instructions as a whole, as we must do,” because “[t]he court

on several occasions informed the jury of the requirement that to return a guilty

verdict . . . [it] must find that the victim was under the age of fourteen years at

the time the offenses occurred.” 2017 ME 122, ¶¶ 11, 16, 164 A.3d 959. Here,

as in Hodgdon, the trial court repeatedly instructed the jury, both orally and in

its written instructions, and specifically concerning Count 31, that it must find

beyond a reasonable doubt that the victim was under the age of fourteen in

order to return a verdict of guilty. When the jury sent out a note asking about

Count 31, the court reemphasized that the State was required to prove beyond

a reasonable doubt that the victim “had not yet attained his 14th birthday.”

As we did in Hodgdon, we conclude that there is no obvious error demonstrated

on this record. See id. ¶ 16.

        [¶34] That said, we noted in Hodgdon that the “on or about” instruction

commonly used in Maine courts8 is problematic, standing alone, when the

applicable statute requires the State to prove that the crime charged occurred

on or before a specific date in order to avoid a judgment of acquittal. Id. Such

is the case here, where the jury was required to return a verdict of not guilty if

it found that the sexual act charged in Count 31 occurred on or after



  8   See Alexander, Maine Jury Instruction Manual § 6-30 at 6-61 (2018-2019 ed. 2018).
18

August 22, 1988—the victim’s fourteenth birthday. Although we conclude that

the court’s instructions were not clearly erroneous when considered as a

whole, a better approach would have been for the court to make the specific

date limitation clear in its “on or about” instruction, in addition to stating the

“under age fourteen” requirement elsewhere in its instructions.9

E.       Inconsistent Witness Statements

         [¶35] When Paquin cross-examined a Kennebunkport police detective,

he asked, “When you interviewed the two alleged victims, did you notice any

inconsistencies in their stories? Did they match?” The State objected and the

following exchange took place at sidebar:

         [PAQUIN]: Judge, he’s a trained detective. He can—he’s got the
         ability to judge whether someone’s credible or not.

         [STATE]: So, Judge, the State’s objection is he absolutely cannot
         judge someone’s credibility. That’s the purview of the jury and the
         jury alone. . . .



    For example, without requiring that trial courts employ any particular language, the court in this
     9

case could have made its instruction concerning Counts 1-9 and 30-31 more complete by saying
(modification in italics):

         The indictment alleges that each offense was committed on or about a specific period
         of time in each particular count. The specific date of the alleged crime need not be
         proven. It is enough if the State proves beyond a reasonable doubt that the offense
         charged was committed by the defendant and that, concerning Counts 1-9 and Counts
         30-31, each offense was committed before the alleged victim reached his fourteenth
         birthday.

See supra ¶ 31.
                                                                               19

      [PAQUIN]: I’m asking for factual information regarding visits and
      times and when people were there.

      COURT: Is there a specific statement that you are seeking to
      illuminate as inconsistent, or are you just asking generally?

      [PAQUIN]: Kind of asking generally.

      COURT: The objection’s sustained.

      [¶36] “We review a trial court’s ruling on the admissibility of evidence

for clear error or abuse of discretion.” State v. Tieman, 2019 ME 60, ¶ 12,

207 A.3d 618. It is well established that credibility determinations are within

the sole province of the jury. See State v. Sweeney, 2004 ME 123, ¶ 11,

861 A.2d 43 (“Questions that ask a witness to give an opinion of another

witness’s veracity are improper because determining the credibility of a

witness is the sole province of the fact-finder.”). Paquin argues that the

credibility of the alleged victims was not implicated by his question because he

was not asking the detective whether he believed one or the other, but rather

whether there were any inconsistencies in their accounts as a factual matter.

      [¶37] Setting aside the issue of whether Paquin’s question called for an

improper credibility opinion, the court did not abuse its discretion in sustaining

the State’s objection because whether the detective discerned any

inconsistencies in the alleged victims’ accounts was of limited relevance given
20

Paquin’s opportunity to cross-examine them. See id. (“One witness’s opinion of

another witness’s truthfulness is not helpful to the jury when the jury has the

opportunity to hear both witnesses.”); M.R. Evid. 403. Paquin was then free to

highlight any perceived inconsistencies in their respective accounts during his

closing argument.

F.    Dismissal of Counts 27-29

      [¶38] Paquin finally contends that the court erred in allowing the State

to dismiss Counts 27-29 during the trial rather than entering a judgment of

acquittal on those counts. Those counts concerned the second alleged victim;

the jury returned verdicts of not guilty on all counts concerning the second

alleged victim that were submitted to it (Counts 14-26).

      [¶39] After the second alleged victim testified, the State advised the court

in chambers that it would be dismissing Counts 27-29 “with regard to [the

second alleged victim] based on his testimony of not recalling.” The court

replied, “All right. Then Counts 27, 28 and 29 are dismissed.” When Paquin’s

counsel raised the question of whether Paquin’s consent to the dismissal was

required, the court advised: “[T]he State anticipated my thinking on this

because I would be disposed, unless they present a witness . . . to fill in the

blanks on Counts 27, 28 and 29, I would be dismissing those counts on a
                                                                                21

judgment in response to [a motion for a judgment of acquittal] anyway, so it’s

sort of moot.” The court deferred ruling pending Paquin’s response to the

proposed dismissal, but said, “I’ve already indicated I’m likely to grant the

motion for judgment of acquittal on those three counts anyway. Whether

[Paquin] agrees or not, the evidence is not in the record at this point.”

      [¶40] After the State rested its case-in-chief on the third day of the trial,

Paquin moved for a judgment of acquittal on all counts. In ruling on the motion,

the court again stated that “with respect to Counts 27, 28 and 29 . . . I would be

inclined to grant the motion for acquittal.” This exchange followed:

      [STATE]: Judge, would have [sic] the Court consider it moot, then I
      think we were waiting in chambers to determine if there would be
      an objection to those dismissals, and I just want to make sure the
      record’s clear that’s mooted then.

      COURT: I haven’t heard an objection, so either way, 27 either—
      either dismissal without objection or on the basis of [M.R.U.
      Crim. P. 29]. Counts 27, 28 and 29 are dismissed.

      [STATE]: Judge, the State would move orally to dismiss those
      without objection.

      COURT: 27, 28 and 29 are dismissed without objection.

The court later summarized its ruling, saying in part that the motion for

judgment of acquittal “is moot with respect to [Counts] 27, 28 and 29 and those

counts have been dismissed by agreement.”
22

      [¶41] The State later filed a written dismissal for the stated reason:

“Probable cause established but insufficient evidence to establish guilt beyond

a reasonable doubt on those Counts.” The written dismissal inaccurately stated

that “[c]ounsel for the Defendant indicated on the record that the Defendant

does not object to the dismissal of these Counts.”

      [¶42] Contrary to the written dismissal and the State’s expressed wish

“to make sure the record’s clear,” neither of Paquin’s attorneys ever expressly

said whether Paquin did or did not consent to the dismissals, although the State

is correct in arguing that they had multiple opportunities to do either. Pursuant

to M.R.U. Crim. P. 48(a), “a dismissal may not be filed during the trial without

the consent of the defendant.” The reason for the rule is that “dismissal of

charges after jeopardy has attached without the consent of the defendant raises

a serious double jeopardy problem.” 2 Cluchey & Seitzinger, Maine Criminal

Practice § 48.2 at IX-102 (Gardner ed. 1995).

      [¶43] Beyond the potential violation of Rule 48(a), we conclude that

Paquin was in fact acquitted on Counts 27-29. “[A] defendant once acquitted

may not be again subjected to trial without violating the Double Jeopardy

Clause.” United States v. Scott, 437 U.S. 82, 96 (1978). The Double Jeopardy

Clause is implicated “when it is plain that the [trial court] evaluated the
                                                                                23

[prosecution’s] evidence and determined that it was legally insufficient to

sustain a conviction.” Id. at 97 (quotation marks omitted).

      [¶44]    The Supreme Court said in Scott that “the trial judge’s

characterization of his own action cannot control the classification of the

action,” and explained that “a defendant is acquitted . . . when the ruling of the

judge, whatever its label, actually represents a resolution in the defendant’s

favor, correct or not, of some or all of the factual elements of the offense

charged.” Id. at 96-97 (alteration and quotation marks omitted). Applying

Scott, the trial court’s characterization of its action on Counts 27-29 as a

dismissal does not control our analysis, see id. at 96; rather, we consider that

after the State proposed a dismissal due to insufficient evidence, the court

repeatedly said that absent a dismissal it would grant Paquin’s motion for

acquittal on those counts. The State then filed a written dismissal for the

explicit reason that there was insufficient evidence to support them.

      [¶45] Because “the ruling of the judge . . . actually represent[ed] a

resolution in the defendant’s favor . . . of some or all of the factual elements of

the offense[s] charged” in Counts 27-29, the court’s action—although termed a

dismissal—acquitted Paquin on those counts.           Id. at 97 (alteration and

quotation marks omitted).         Accordingly, we vacate the dismissal of
24

Counts 27-29 and remand with instructions to enter a judgment of acquittal on

those counts.

G.      Conclusion

        [¶46] For the reasons set forth in this opinion, we (1) vacate the

judgment of conviction on Count 30 and remand for a dismissal of that count,

and (2) vacate the dismissal of Counts 27, 28, and 29 and remand for entry of a

judgment of acquittal on those counts. In all other respects we affirm the

judgment.

        The entry is:

                           Dismissal of Counts 27, 28, and 29 vacated;
                           remanded with instructions to enter a judgment
                           of acquittal on Counts 27, 28, and 29. Judgment
                           of conviction on Count 30 vacated; remanded
                           with instructions to dismiss Count 30 with
                           prejudice. In all other respects, judgment
                           affirmed.



Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Ronald
Paquin

Kathryn L. Slattery, District Attorney, and Justina McGettigan, Dep. Dist. Atty.
(orally), Prosecutorial District #1, Alfred, for appellee State of Maine


York County Unified Criminal Docket docket number CR-2017-109
FOR CLERK REFERENCE ONLY
