MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2015 ME 85
Docket:   Kno-14-348
Argued:   June 16, 2015
Decided:  July 14, 2015

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



                                 STATE OF MAINE

                                          v.

                                 ERIK L. VULTEE


GORMAN, J.

         [¶1] Erik L. Vultee appeals from a judgment of conviction following a jury

trial for one count of unlawful sexual contact (Class A), 17-A M.R.S.

§ 255-A(1)(F-1) (2014); nine counts of unlawful sexual contact (Class B),

17-A M.R.S. § 255-A(1)(E-1) (2014); one count of criminal attempt (Class B),

17-A M.R.S. § 152(1)(B) (2014); one count of visual sexual aggression against a

child (Class C), 17-A M.R.S. § 256(1)(B) (2014); one count of sexual misconduct

with a child under twelve (Class C), 17-A M.R.S. § 258(1-A) (2014); and one

count of unlawful sexual touching (Class D), 17-A M.R.S. § 260(1)(C) (2014),

entered by the Superior Court (Knox County, Hjelm, J.). Vultee contends that the

court erred in admitting and excluding various pieces of evidence. Vultee also
2

contends that the court abused its discretion in denying his motion for a new trial.

We disagree and affirm.

                                        I. BACKGROUND

        [¶2] On February 11, 2013, Vultee was indicted for five counts of unlawful

sexual contact with penetration (Class A), 17-A M.R.S. § 255-A(1)(F-1); five

counts of unlawful sexual contact without penetration (Class B), 17-A M.R.S.

§ 255-A(1)(E-1); gross sexual assault (Class A), 17-A M.R.S. § 253(1)(C) (2014);

visual sexual aggression against a child (Class C), 17-A M.R.S. § 256(1)(B);

sexual misconduct with a child under twelve (Class C), 17-A M.R.S. § 258(1-A);

and unlawful sexual touching (Class D), 17-A M.R.S. § 260(1)(C). Vultee pleaded

not guilty to all charges, and the court held a jury trial from June 16, 2014, to

June 18, 2014.1

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

following facts were established beyond a reasonable doubt at trial.

See State v. Reed, 2013 ME 5, ¶ 9, 58 A.3d 1130. Vultee is the husband of the

victim’s great-aunt. Between 2008 and 2010, when she was eight to ten years of

    1
      Based on the evidence that the State presented at trial and in response to Vultee’s motion for
acquittal, the court permitted the State to amend the indictment, after the State rested, to charge Vultee
with one count of unlawful sexual contact with penetration (Class A), 17-A M.R.S. § 255-A(1)(F-1)
(2014); nine counts of unlawful sexual contact without penetration (Class B),
17-A M.R.S. § 255-A(1)(E-1) (2014); one count of criminal attempt (Class B), 17-A M.R.S. § 152(1)(B)
(2014); one count of visual sexual aggression against a child (Class C), 17-A M.R.S. § 256(1)(B) (2014);
one count of sexual misconduct with a child under twelve (Class C), 17-A M.R.S. § 258(1-A) (2014); and
one count of unlawful sexual touching (Class D), 17-A M.R.S. § 260(1)(C) (2014).
                                                                                    3

age, the victim regularly spent time with Vultee at his house while her mother went

out to play bingo with Vultee’s wife. Although the victim’s sister sometimes

stayed with the victim at Vultee’s home, there were times when the victim was left

alone with Vultee. During this timeframe, on more than ten occasions, Vultee

brought the victim to his bedroom, where he showed her pornographic videos,

made her take off her clothing, and exposed his penis to her. During most of these

incidents, Vultee touched the victim’s breasts and genitals, or made the victim

touch his penis. On one occasion, Vultee penetrated the victim’s genitals with his

hand. Another time, Vultee attempted to penetrate the victim’s genitals with his

penis, but the victim pushed him away. Vultee told the victim that he would hurt

her if she told anyone about his actions. Despite this threat, the victim did tell her

sister that Vultee “touched her in ways that were not okay.” The sister told the

victim not to tell their mother because their mother worked with Vultee’s wife.

      [¶4] Around 2012, when the victim was eleven, she began cutting her arms

and legs with a razor. Although the victim refused to tell her mother why she was

cutting, she did agree to speak with her mother’s friend. After the victim disclosed

the sexual abuse to her mother’s friend, she and her mother’s friend shared this

information with the victim’s mother, and then with Detective Jason Andrews of

the Maine State Police. At trial, the victim’s mother, the victim’s sister, the
4

victim’s mother’s friend, and Detective Andrews all testified that the victim had

told them about Vultee’s actions.

        [¶5] On June 18, 2014, after listening to two days of trial testimony and

deliberating for several hours, the jury found Vultee guilty of all counts. On

August 7, 2014, the court sentenced Vultee to twenty-two years in prison, with all

but fourteen years suspended, to be followed by fourteen years of probation for

Count I, unlawful sexual contact (Class A).2 Vultee timely appealed pursuant to

15 M.R.S. § 2115 (2014) and M.R. App. P. 2.

                                       II. DISCUSSION

        [¶6]   In this appeal, Vultee argues that “each of the State’s witnesses’

testimony”—approximately forty specific statements—“violated first complaint

and other evidentiary law.”3

        [¶7] We begin by noting that Vultee did not object at all during the State’s

case-in-chief. Nonetheless, Vultee now challenges the admission of the different

statements.     The strategy Vultee has chosen—appealing numerous evidentiary

issues without allowing the trial court, from its superior position, to evaluate those

issues—is generally not effective. See State v. Dolloff, 2012 ME 130, ¶ 39 n.11,

    2
     The court also sentenced Vultee to various shorter sentences for the other counts, to be served
concurrently with the sentence for Count I.
    3
       Vultee also argues that much of the testimony violated one or more of the following evidentiary
rules: M.R. Evid. 403, 404(b), 701, 702.
                                                                                    5

58 A.3d 1032; State v. Clark, 2008 ME 136, ¶ 14, 954 A.2d 1066; State v. Dube,

522 A.2d 904, 910-11 (Me. 1987) (stating that “[t]he justice’s presence throughout

the trial afforded him a unique and advantageous perspective in evaluating any

prejudicial effect”).

       [¶8]    Because Vultee did not object at trial to the testimony he now

challenges, the admission of such evidence is reviewed for obvious error. See

State v. Miller, 1999 ME 182, ¶ 6, 741 A.2d 448 (Me. 1999). “For an error or

defect to be obvious . . . there must be (1) an error, (2) that is plain, and (3) that

affects substantial rights.” State v. Pabon, 2011 ME 100, ¶ 29, 28 A.3d 1147. “If

these conditions are met, we will exercise our discretion to notice an unpreserved

error only if we also conclude that (4) the error seriously affects the fairness and

integrity or public reputation of judicial proceedings.” Id. “Obvious error is error

so highly prejudicial that it taints the proceedings and virtually deprives the

defendant of a fair trial.” State v. Harper, 675 A.2d 495, 497 (Me. 1996).

      [¶9] We recognize that a defendant’s trial strategy may sometimes benefit

from the admission of testimony that the defendant could, by objection, prevent the

jury from hearing. This appears to be just such a case, because Vultee’s defense

focused on demonstrating conflicts in the information that the victim gave different

individuals.
6

      [¶10] Although Vultee did not object to the direct testimony from the

State’s witnesses, during his cross-examination of each witness he was able to

demonstrate the differences and inconsistencies among their testimonies, and

highlight some changes in the victim’s reports. In addition, while cross-examining

the mother’s friend, Vultee brought out that the victim’s accusations against Vultee

were made only after the mother’s friend discussed the sexual abuse of her

daughters.    Given the tenor of Vultee’s cross-examination of the State’s

witnesses—starting with the victim—the trial judge could have reasonably thought

that not objecting to the direct testimony was a defense strategy aimed at gathering

as many differing details of the accusations as possible. As a result, it was not

obvious error for the court to refrain from second-guessing a potentially strategic

decision by excluding testimony sua sponte. See State v. Ricker, 2001 ME 76,

¶ 11, 770 A.2d 1021 (concluding that no obvious error existed when potentially

inadmissible testimony was admitted, without objection, when the defense strategy

appeared to be based on the admission of that same testimony).

      [¶11] In addition, without the colloquy between the court and trial counsel

that would have occurred if Vultee had objected to the statements at trial, we

cannot assess whether any, some, or all of these statements might have been
                                                                                                        7

admitted for some reason other than the reason Vultee has seized upon.4

Ultimately, we are not persuaded that the admission of any of the statements that

Vultee now argues are inadmissible constitutes “error so highly prejudicial that it

taints the proceedings and virtually deprives the defendant of a fair trial.” Harper,

675 A.2d at 497.

        [¶12] We find Vultee’s remaining contentions similarly unpersuasive, and,

therefore, we affirm.

        The entry is:

                        Judgment affirmed.



On the briefs:

        R. Bradford Bailey, Esq., Brad Bailey Law, P.C., Boston,
        Massachusetts, and Bradley Lown, Esq., Coughlin, Rainboth,
        Murphy & Lown, PA, Portsmouth, New Hampshire, for
        appellant Erik L. Vultee

        Geoffrey Rushlau, District Attorney, Prosecutorial District Six,
        Rockland, for appellee State of Maine




   4
     We have recently had occasion to discuss the first complaint rule in some detail. That opinion also
discusses why a victim’s statement that is not covered by the first complaint rule could, nonetheless, not
be hearsay or could be hearsay that falls within an exception that would permit a court to determine it is
admissible for some purpose. State v. Fahnley, 2015 ME 82, ¶¶ 16-25, --- A.3d ---.
8


At oral argument

        R. Bradford Bailey, Esq., for appellant Erik L. Vultee

        Geoffrey Rushlau, District Attorney, for appellee State of
        Maine



Knox County Superior Court docket number CR-2012-340
FOR CLERK REFERENCE ONLY
