MAINE SUPREME JUDICIAL COURT                                                   Reporter of Decisions
Decision: 2020 ME 35
Docket:   Yor-19-214
Argued:   February 12, 2020
Decided:  March 19, 2020

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



                                       STATE OF MAINE

                                                 v.

                                       FRANK C. SHOLES


MEAD, J.

         [¶1] Frank C. Sholes appeals from a judgment of conviction for unlawful

sexual contact (Class C), 17-A M.R.S. § 255-A(1)(B) (2018), and domestic

violence assault (Class D), 17-A M.R.S. § 207-A(1)(A) (2018), entered in the trial

court (York County, Douglas, J.), following a jury trial and after the court denied

Sholes’s motion for a new trial, see M.R.U. Crim. P. 33. Sholes argues that (1) the

prosecutor committed multiple instances of misconduct and (2) the trial court

abused its discretion in denying Sholes the opportunity to call the victim

witness advocate to testify. We affirm the judgment.




   *
    Although not available at oral argument, Justice Gorman participated in the development of this
opinion. See M.R. App. P. 12(a)(2) ("A qualified justice may participate in a decision even though not
present at oral argument.").
2

                               I. BACKGROUND

      [¶2] We view the evidence, which supports the jury’s verdict, in the light

most favorable to the State. See State v. Daluz, 2016 ME 102, ¶ 2, 143 A.3d 800;

State v. Dolloff, 2012 ME 130, ¶ 3, 58 A.3d 1032.

      [¶3] For approximately twelve years, Sholes and the victim were in a

romantic relationship. The couple lived together toward the end of their

relationship, first in a rental property and then in a house that the victim

purchased. Sholes moved out of the house in March 2017. After that time, the

couple were no longer romantically involved but remained in communication

because Sholes wanted to maintain contact with the victim’s daughter, whom

he had helped raise. On July 28, 2017, Sholes entered the victim’s house while

the victim was home preparing to exercise. The victim asked Sholes to leave,

but Sholes wanted to “talk.” Sholes proceeded to force the victim to engage in

sexual activities, despite her telling him to stop numerous times.

      [¶4] On October 3, 2017, Sholes was indicted on four charges: gross

sexual assault (Class A), 17-A M.R.S. § 253(1)(A) (2018); aggravated criminal

trespass (Class C), 17-A M.R.S. § 402-A(1)(A) (2018); unlawful sexual contact

(Class C), 17-A M.R.S. § 255-A(1)(B); and domestic violence assault (Class D),
                                                                                 3

17-A M.R.S. § 207-A(1)(A). Sholes entered a plea of not guilty to each of the four

charges.

      [¶5] The trial court held a two-day jury trial on February 27 and 28,

2019. The jury found Sholes guilty of unlawful sexual contact and domestic

violence assault, and not guilty of gross sexual assault and aggravated criminal

trespass.

      [¶6] Sholes filed a timely motion for a new trial, see M.R.U. Crim. P. 33, on

the same bases that he argues on appeal: (1) that the prosecutor committed

misconduct when he used the word “rape” during closing argument and when

he made statements about the victim’s cell phone that he knew were not true,

and (2) that the court should have allowed Sholes to call the victim witness

advocate (VWA) to impeach the victim’s credibility. Following a hearing, the

court denied Sholes’s motion.

      [¶7] The court entered a judgment of conviction and sentenced Sholes to

two years and six months in prison, with all but six months suspended, and two

years of probation. Sholes timely appealed. See 15 M.R.S. § 2115 (2018);

M.R. App. P. 2B(b)(1).
4

                                  II. DISCUSSION

A.    Prosecutorial Misconduct

      [¶8] We “review the denial of a motion for a new trial for clear error or

an abuse of discretion.” State v. Robinson, 2016 ME 24, ¶ 24, 134 A.3d 828

(quotation marks omitted).          In analyzing allegations of prosecutorial

misconduct, we have repeatedly recognized the prosecutor’s special role and

accompanying responsibilities. See id. ¶ 23.

      [¶9]    When a defendant asserts that the prosecutor committed

misconduct, we first determine whether misconduct in fact occurred. See State

v. Clark, 2008 ME 136, ¶ 7, 954 A.2d 1066. If misconduct occurred, we review

the prosecutor’s statements for either harmless or obvious error, depending on

whether the defense objected to the statements at trial. See id.; see also Dolloff,

2012 ME 130, ¶¶ 31-39, 58 A.3d 1032 (explaining the harmless error and

obvious error standards in the prosecutorial misconduct context). Finally, we

consider whether “[m]ultiple incidents of prosecutorial misconduct, none of

which individually would require reversal, taken together . . . have a cumulative

effect of violating a defendant’s right to a fair trial.” Dolloff, 2012 ME 130, ¶ 74,

58 A.3d 1032 (quotation marks omitted).
                                                                               5

      1.    The Prosecutor’s Use of the Word “Rape”

      [¶10] Sholes contends that the prosecutor’s use of the word “rape” in his

closing rebuttal argument amounts to misconduct because it was “purposefully

aimed at inciting the jury’s emotions.” In order to analyze this challenge, it is

important to consider the alleged misconduct in the context of the entire trial.

      [¶11] In his opening statement, the prosecutor said, “Mr. Sholes the

defendant . . . enters the house without [the victim’s] permission and rapes her.

That’s gross sexual assault.” Sholes objected on the grounds that the term was

inappropriate and designed to incite the jury’s emotions. The court issued a

curative instruction to the jury that it was to “disregard any reference to [the

word ‘rape’] . . . as presented in the opening statement by counsel.”

      [¶12] Throughout the trial, the victim and a law enforcement witness

used the word “rape,” eliciting no objection from the defense. In the State’s

closing arguments, the prosecutor uttered the word on two occasions. First, in

his initial closing argument he used the word “rape” in reference to a rape kit,

quickly adding “excuse me, your sexual assault kit.” The defense did not object

to this mention of the word. Later, in his rebuttal argument, the prosecutor

said, “The blanket statement was made that memory fades over time. We all

know that. Being forcibly raped in your house—,” at which time the defense
6

objected, and the prosecutor corrected himself, “forcibly assaulted in your

house.” It is this final use of the word “rape” that Sholes challenges on appeal.

        [¶13] We are not persuaded by Sholes’s assertion that “rape” is more

inflammatory than “gross sexual assault” and therefore prejudicial, nor do we

accept Sholes’s unfounded accusation that the prosecutor’s use of the word was

intentional.1 The prosecutor’s use of the phrase “forcibly raped” therefore did

not constitute misconduct. Thus, there is no error for us to analyze under the

harmless error standard. See id. ¶¶ 32-34; State v. Gould, 2012 ME 60, ¶ 21,

43 A.3d 952.

        2.     The Prosecutor’s Comments Regarding the Victim’s Cell Phone

        [¶14] Sholes asserts that a second instance of prosecutorial misconduct

occurred when the prosecutor invited the jury to make an inference about the

police department’s handling of the victim’s cell phone.




    1Sholes’s contention—that the court erred in finding that the prosecutor’s use of the word “rape”
during closing arguments was “ostensibly by inadvertence”—has two components, neither of which
is availing. First, Sholes argues that the prosecutor’s statement at sidebar following the objection
during the prosecutor’s opening statement suggests that the prosecutor intended to repeat the word
after opening arguments. The prosecutor said, “I guess, as a middle ground, I’m fine with not using
that term again in my opening statement.” This statement, standing alone, does not demonstrate that
the prosecutor’s two later mentions were intentional. Second, Sholes asserts that the prosecutor “did
not exhibit the same slips of the tongue in chambers, when he was careful to use the term ‘sexual
assault’ as opposed to ‘rape,’” insinuating a strategy on the prosecutor’s part to hide the term “rape”
from the court but employ the word before the jury. In fact, the prosecutor used the term “rape” in
chambers on one occasion and used the phrase “sexual assault” before the jury on multiple occasions.
                                                                             7

      [¶15]   Two pieces of digital evidence, which both the defense and

prosecution had, were retrieved from the victim’s cell phone: (1) an audio

recording of the victim’s interview with the lead detective, recorded at the

hospital, and (2) a video recording made while the victim was holding her cell

phone and talking to Sholes. The latter was not admitted in evidence and was

not disclosed to the jury.

      [¶16] During her testimony, the victim said that she dropped her phone

off at the police station sometime after her hospital exam. The victim also

referenced text messages that were not in evidence, including stating that

Sholes had texted her offering her $600 in exchange for sex.

      [¶17] The alleged instance of prosecutorial misconduct occurred during

the prosecutor’s rebuttal closing argument. The defense asserted in its closing

argument:

      [The victim] said [Sholes] texted her about this sex for money and
      she provided that. I think she provided her phone to the detective
      in the case. Do we have a copy of any text that said he was asking
      for sex for money? No. There is no evidence like that in this case.

      ....

      You can consider whether a witness’s story was corroborated or
      contradicted by the testimony of another witness or exhibit. Was
      there a witness or exhibit that corroborated any of that stuff? Was
      there a picture? Was there a photo? Was there a text? We live in a
      modern era, have stuff on phones. Pictures are on everybody’s
8

        phones. Any of that presented in this case?                           Did anything
        corroborate her story?

        [¶18] In rebuttal, the prosecutor said:

        This whole idea that because the police department didn’t collect
        the evidence she says she had, that that somehow reflects on [the
        victim]. She gave [the lead detective] the phone. You could make
        the reasonable inference [the lead detective] did not take that
        information off the phone. That’s a reasonable conclusion from
        that. That doesn’t mean [the victim] didn’t give him the phone and
        say take whatever you want to take, which is what she told you.
        You can’t blame [the victim] for the police department not taking
        evidence off the phone after he interviewed her. If it’s there—

At this point the defense objected and a heated sidebar discussion ensued.

During sidebar, the defense, referencing a pre-trial exchange with the

prosecutor, argued that the prosecutor knew that his statement that the police

did not collect the evidence was false, and the prosecutor disagreed. The court

noted Sholes’s objection and overruled it.

        [¶19] There was no record evidence from the police department to prove

that the police received the phone at the station;2 what was presented, as the

court noted, was the victim’s testimony that she gave the police the phone.


    2 As the trial court observed, there was no “written report of the forensic evaluation of the phone,”
as “would have been (or should have been) generated as a matter of course.” As the court noted, it is
both “troubling that this [report] may not have been done,” and “troubling that counsel did not attend
to this issue before the morning of trial. The State should have made further inquiry well before then
to determine the existence or non-existence of a report and confirm the state of the evidence. Defense
counsel also should have followed up well before day one of the trial.” Although concerning, the lack
of trial preparation by trial counsel (who were not counsel on this appeal) does not resolve the matter
at issue here, which is prosecutorial misconduct.
                                                                                9

Additionally, no evidence was presented that would establish whether the

recordings that were taken from the victim’s phone were removed during the

hospital interview or at a later date. Based on the evidence in the record, it was

not improper for the prosecutor to suggest to the jury that it could infer that

the text messages the victim referenced may have existed but that they had not

been retrieved by law enforcement officers. See State v. Gould, 2012 ME 60,

¶¶ 19-21, 43 A.3d 952.

      [¶20] We consider the prosecutor’s statement in the “overall context of

the trial,” Dolloff, 2012 ME 130, ¶ 44, 58 A.3d 1032, and note that, like with the

prosecutor’s use of the word “rape,” his statement about the cell phone was

made during the State’s rebuttal argument. The court repeatedly instructed the

jury that statements made by the attorneys in closing arguments are not

evidence. See id. ¶ 72 (“We presume that a jury follows a curative instruction

unless there are exceptionally prejudicial circumstances or prosecutorial bad

faith.” (quotation marks omitted)). Given this instruction, even if we assume

that the prosecutor’s statement was improper, it does not amount to harmful

error. See id. ¶¶ 32-34; State v. Clarke, 1999 ME 141, ¶ 24, 738 A.2d 1233.

      [¶21] In addition, the prosecutor’s comment was in response to the

defense attorney’s attempts during closing argument to discredit the victim’s
10

credibility based on the lack of evidence from her phone. We have held that

when the prosecutor’s comment was “invited” by the defendant, the comment

will not “warrant reversing a conviction” if the prosecutor “did no more than

respond substantially in order to right the scale.” Dolloff, 2012 ME 130, ¶ 64,

58 A.3d 1032 (quotation marks omitted); see id. ¶ 44 (citing United States v.

Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987) (“[T]he prosecutor is given

somewhat greater leeway in rebuttal to rehabilitate his witnesses in response

to defense counsel’s inflammatory statements.” (quotation marks omitted))).

      [¶22] Finally, the defense attorney made no request of the court for a

specific instruction or other remedy following his objection. Contrary to

Sholes’s contention that the “trial court failed to afford the defense a remedy,”

it was the attorney’s responsibility to request a form of relief, which he failed

to do, see Daluz, 2016 ME 102, ¶ 49, 143 A.3d 800, and in any event the court

issued broad curative instructions regarding closing arguments, as described

above. Again, any error arising from the prosecutor’s remarks regarding the

victim’s cell phone was harmless.      See Dolloff, 2012 ME 130, ¶¶ 32-34,

58 A.3d 1032.
                                                                                                    11

         3.      Cumulative Effect of Prosecutorial Misconduct

         [¶23]     Finally, we review Sholes’s alleged instances of misconduct

“cumulatively and in context to determine whether [he] received an unfair trial

that deprived [him] of due process.” Id. ¶ 74; see U.S. Const. amend. XIV, § 1;

Me. Const. art. I, § 6-A. Because neither allegation amounted to misconduct, the

comments did not deprive Sholes of a fair trial when considered in the

aggregate. See Daluz, 2016 ME 102, ¶¶ 67-68, 143 A.3d 800. We therefore

conclude that the trial court did not abuse its discretion when it denied Sholes’s

motion for a new trial. See id. ¶¶ 68-69.

B.       Evidentiary Challenge

         [¶24] Sholes argues that the court abused its discretion in denying him

the opportunity to call as a witness the district attorney’s VWA. See Dolloff,

2012 ME 130, ¶ 24, 58 A.3d 1032.

         [¶25] The victim’s description of the incident during her direct testimony

included six facts that Sholes asserts she had not disclosed previously.3 Sholes’s

attorney questioned the victim and law enforcement officers about whether the



     The six previously undisclosed facts were (1) that Sholes held her down by kneeling on one leg
     3

and holding down the other; (2) that he picked up an exercise bar from the ground and threatened
her with it; (3) that she attempted to make a 911 call on her Alexa device; (4) that he forced her head
back; (5) that she tried to push him off of her; and (6) that when Sholes was leaving, he told her that
she should have taken the $600, referencing a prior text message exchange.
12

victim had told law enforcement or the hospital nurse the six facts. For the most

part, the victim did not recall whether she had shared the facts with law

enforcement.4 The State made an offer of proof that if the VWA were to testify,

she would say that she did not recall the victim telling her any of the six

previously undisclosed facts.5

         [¶26] Sholes’s attorney sought to call the VWA to testify in order to

impeach the victim through prior inconsistent statements and to challenge the

victim’s “recall and credibility.” It is this latter contention that Sholes focuses

on in this appeal. In particular, he argues that the court improperly limited its

evidentiary analysis to whether the VWA’s testimony could establish that the

victim made prior inconsistent statements, thereby preventing Sholes from

impeaching the victim’s credibility. We disagree.




     In the hospital following the incident, the lead detective, who was not called to testify, recorded
     4

an interview with the victim, which the victim listened to in preparation for trial. When
cross-examined about five of the six facts, the victim testified that she did not mention four of the
facts in the recorded interview and could not remember whether she had mentioned the fifth.
Regarding what she told other law enforcement officers or the nurse immediately following the
incident, the victim could not recall whether she had shared three of the facts and thought that she
had disclosed a fourth. On cross-examination of the two law enforcement officers, when Sholes’s
attorney asked about some of the previously unmentioned facts, both the patrol officer and detective
sergeant responded definitively that the victim had not told them about those facts in their
discussions with her following the incident.

     We reject Sholes’s contention that the court abused its discretion in relying on the State’s offer
     5

of proof regarding what the VWA’s testimony would be. Although the record reflects that the VWA
had not reviewed her notes before trial, the prosecutor asserted that he had reviewed the notes.
                                                                                                 13

       [¶27] The court addressed the issue of the victim’s memory in its ruling.

In excluding the VWA as a witness, the court stated,

       Mr. Gordon, I’ve heard the argument, I understand the argument.
       The request is denied.            You effectively established on
       cross-examination that the witness gave a number—made a
       number of inconsistent statements and had a lapse of memory. All
       of that is fair game for you to argue to the jury consistent with the
       Court’s instructions.

(Emphasis added.) The court emphasized that the defense had conducted

ample cross-examination regarding the previously undisclosed facts. In doing

so, the court reasoned that further testimony regarding the victim’s memory

would be cumulative. See M.R. Evid. 403. Contrary to Sholes’s assertion, the

court did not abuse its discretion in denying his request that the VWA testify.6

       The entry is:

                       Judgment affirmed.




   6 Sholes additionally suggests that the court should have ordered disclosure of the VWA’s notes,
which constitute privileged communications, on the basis that the trial court has the ability to
determine that disclosure of privileged victim advocate information is “necessary to the proper
administration of justice.” 16 M.R.S. § 53-C(3)(C) (2018); see 17-A M.R.S. § 1177(3) (2018) (section
1177 has since been repealed and replaced; see P.L. 2019, ch. 113, §§ A-1, A-2 (effective
Sept. 19, 2019) (to be codified at 17-A M.R.S. § 2109(3))). The court was aware of its discretionary
authority to overcome the statutory privilege afforded victim advocate communications and did not
abuse its discretion when it refused to order disclosure of the notes.
14

Patrick H. Gordon, Esq., and Joshua T. Avery, Esq. (orally), Fairfield and
Associates, P.A., Lyman, for appellant Frank C. Sholes

Kathryn Loftus Slattery, District Attorney, and Lauren K. Daley, Asst. Dist. Atty.
(orally), Prosecutorial District 1, Alfred, for appellee State of Maine


York County Unified Criminal Docket docket number CR-2017-592
FOR CLERK REFERENCE ONLY
