MAINE SUPREME JUDICIAL COURT                                                     Reporter of Decisions
Decision: 2020 ME 22
Docket:   Aro-19-9
Argued:   September 25, 2019
Decided:  January 30, 2020

Panel:      SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.*
Majority:   SAUFLEY, C.J., and MEAD, GORMAN, and HUMPHREY, JJ.
Concurrence/
  Dissent: ALEXANDER and JABAR, JJ.



                                        STATE OF MAINE

                                                   v.

                                        COLBY D. CONROY


GORMAN, J.

         [¶1] Colby D. Conroy appeals from a judgment of conviction of gross

sexual assault (Class C), 17-A M.R.S. § 253(2)(F) (2018), unlawful sexual

contact (Class D), 17-A M.R.S. § 255-A(1)(K) (2018), sexual abuse of a minor

(Class D), 17-A M.R.S. § 254(1)(A) (2018), and unlawful sexual touching

(Class E), 17-A M.R.S. § 260(1)(J) (2018), entered in the trial court (Aroostook

County, Stewart, J.) after a jury-waived trial. Conroy argues that the trial court

erred when it found that the State had disproved his statutory defense to the

charge of sexual abuse of a minor, and that his convictions on the remaining




  *   Although Justice Hjelm participated in the appeal, he retired before this opinion was certified.
2

three charges were based on the court’s misinterpretations of the relevant

statutory language. We affirm in part and vacate in part.

                                       I. BACKGROUND

       [¶2] The following facts are drawn from the parties’ stipulations, see

State v. Haskell, 2008 ME 82, ¶ 2, 955 A.2d 737, and the findings of the trial court

that are supported by competent evidence admitted at trial, see State v. Proia,

2017 ME 169, ¶ 2, 168 A.3d 798. In the spring of 2014, Conroy was approved

as a substitute teacher for Regional School Unit 39 (RSU 39). On May 22, 2017,

he served as the substitute teacher for a culinary arts class at Caribou High

School. While serving as the substitute teacher on that day, Conroy was an

employee of RSU 39, and he had instructional, supervisory, and disciplinary

authority over the students in that class.

       [¶3] Among the students in the culinary arts class that day was a

fifteen-year-old sophomore (the student). During the class period, Conroy

chatted with the student and one of her classmates about a television show. At

some point, the student made a statement related to the use of condoms.1




    1 Conroy testified that the student and her classmate discussed condoms in a way that led Conroy

to tell them that their conversation was inappropriate for the classroom. This is the apparent basis
for the dissent’s statement that Conroy’s conversation with the student during the class “includ[ed]
sexual topics.” Dissenting Opinion ¶ 28.
                                                                                                    3

       [¶4] After the class period ended but while school was still in session that

day, Conroy sent the student a “friend request” via Facebook, and she accepted

the request. The two communicated via social media during the rest of the day

and that evening. The next day, May 23, they continued communicating and

eventually met at a shopping area in Caribou. Conroy drove the student home.

Later that evening, they exchanged text messages that were sexual in nature,

and they also exchanged nude photographs. The next day, May 24, Conroy

picked the student up at her home and then took her to a movie. After the

movie, Conroy drove to a secluded area where he engaged the student in a

sexual act, sexual contact, and sexual touching, as those terms are statutorily

defined. See 17-A M.R.S. § 251(1)(C), (D), (G) (2018). Conroy was twenty-two

years old at the time of these acts, and he and the student were not spouses.2

He was a “rostered” substitute teacher with RSU 39, meaning that he could have

served as a substitute teacher again without re-applying for the position.3


   2 The trial court indicated that the fact that Conroy and the student were not spouses, which is an
element of all of the crimes charged, see 17-A M.R.S. §§ 253(2)(F), 254(1)(A), 255-A(1)(K), 260(1)(J)
(2018), was established based on the parties’ stipulations “and other undisputed facts.” The
stipulations did not address this fact. Conroy, however, has never argued that the State failed to
prove that the student was not his spouse, and there is ample evidence in the record supporting the
court’s finding. To the extent that the court erroneously indicated that the fact was established by
stipulation, therefore, that error was harmless. See M.R.U. Crim. P. 52(a); State v. Dobbins, 2019 ME
116, ¶ 38, 215 A.3d 769.

   3 The court stated both that “it was likely [that Conroy] would be called in to substitute teach
again” and that it was only “speculation whether he would have been called in the future to substitute
teach.”
4

        [¶5] In July of 2017, in a seven-count indictment, the State charged

Conroy with two counts of gross sexual assault (Counts 1-2), one count of

unlawful sexual touching (Count 3), three counts of unlawful sexual contact

(Counts 4-6), and one count of sexual abuse of a minor (Count 7). After Conroy

pleaded not guilty to all counts, the court held a jury-waived trial on August 29

and 30, 2018. At the beginning of the trial, the State dismissed Counts 1, 5, and

6 with prejudice, leaving the following four charges for trial: gross sexual

assault (Class C), 17-A M.R.S. § 253(2)(F), unlawful sexual contact (Class D),

17-A M.R.S. § 255-A(1)(K), sexual abuse of a minor (Class D), 17-A M.R.S.

§ 254(1)(A), and unlawful sexual touching (Class E), 17-A M.R.S. § 260(1)(J).4

        [¶6] The parties stipulated to a set of historical facts, which narrowed

the factual and legal issues to be decided by the court. The court then heard

testimony from several witnesses, including the student, school administrators,

and Conroy.

        [¶7] At trial, Conroy testified to a number of things that caused him to

believe that the student was sixteen years old on May 24, 2017. The trial court

accepted that Conroy did hold such a belief, but concluded that the State had



    4The charges dismissed with prejudice by the State alleged that the student had submitted to a
sexual act as a result of compulsion (Count 1) and that she had not expressly or impliedly acquiesced
to sexual contacts (Counts 5 and 6).
                                                                              5

proved that Conroy’s belief was a gross deviation from what a reasonable and

prudent person would have believed in the same situation.

      [¶8] The court found Conroy guilty of all four charges and later sentenced

Conroy, on the charge of gross sexual assault, to forty-two months in prison,

with all but eighteen months suspended, and two years of probation. Conroy

was sentenced to six months in jail on the charge of unlawful sexual contact,

three months in jail on the charge of unlawful sexual touching, and six months

in jail on the charge of sexual abuse of a minor, all to be served concurrently

with the sentence imposed on the gross sexual assault charge.

      [¶9] Conroy timely appeals from the resulting judgment of conviction.

See 15 M.R.S. § 2115 (2018); M.R. App. P. 2B(b)(1).

                                II. DISCUSSION

A.    Sexual Abuse of a Minor

      [¶10] As mentioned above, in reaching its determination that Conroy

was guilty of the sexual abuse of a minor charge, the court specifically found

that, if Conroy believed that the student was sixteen years old or older, that

belief was unreasonable. Conroy argues that the trial court erred when it

rejected his statutory defense by misallocating the burden of proof. We review
6

the court’s legal rulings de novo and its factual findings for clear error. State v.

Diecidue, 2007 ME 137, ¶ 10, 931 A.2d 1077.

      [¶11] Section 254(1)(A) provides that “[a] person is guilty of sexual

abuse of a minor if . . . [t]he person engages in a sexual act with another person,

not the actor’s spouse, who is either 14 or 15 years of age and the actor is at

least 5 years older than the other person.” It is a defense to this crime “that the

actor reasonably believed the other person is at least 16 years of age.” 17-A

M.R.S. § 254(2) (2018). The State bears the burden of disproving this defense

beyond a reasonable doubt if the “evidence admitted at the trial . . . is sufficient

to raise a reasonable doubt on the issue.” 17-A M.R.S. § 101(1) (2018); see, e.g.,

State v. Lacourse, 2017 ME 75, ¶ 11, 159 A.3d 847. We will not disturb a trial

court’s decision on a statutory defense as long as the court’s findings are

supported by competent evidence in the trial record, State v. Herzog, 2012 ME

73, ¶ 13, 44 A.3d 307, and “the court’s judgment demonstrates that it has

properly applied the law and has held the State and the defendant to the proper

burdens of production and persuasion,” id. ¶ 11.

      [¶12] Here, as the court found, there was sufficient evidence to generate

the defense that Conroy reasonably believed that the student was at least
                                                                                   7

sixteen years old. The State therefore had the burden of disproving this defense

beyond a reasonable doubt. See 17-A M.R.S. § 101(1).

      [¶13] Conroy asserts that the trial court misallocated the burden of proof

onto him to prove that he reasonably believed the student was at least sixteen

years old. A review of the court’s decision as a whole, however, demonstrates

that the court was simply explaining how and why it had determined that the

State had met its burden of disproving Conroy’s defense. We are persuaded

that the court correctly applied the burden of proof by finding that the State had

proved beyond a reasonable doubt that, even if Conroy actually believed the

student was at least sixteen years old, his belief was unreasonable. That finding

was supported by competent evidence admitted at trial. Accordingly, we affirm

the conviction of sexual abuse of a minor.

B.    Unlawful Sexual Touching

      [¶14] Pursuant to 17-A M.R.S. § 260(1)(J),

      [a] person is guilty of unlawful sexual touching if the actor
      intentionally subjects another person to any sexual touching
      and . . . [t]he other person, not the actor’s spouse, is in fact less than
      18 years of age and is a student enrolled in a private or public
      elementary, secondary or special education school, facility or
      institution and the actor, who is at least 21 years of age, is a teacher,
      employee or other official in the school district, school union,
      educational unit, school, facility or institution in which the student
      is enrolled.
8

(Emphasis added.) Here, the only contested issue with regard to this charge

was whether the State proved beyond a reasonable doubt that Conroy was a

“teacher, employee or other school official.” We review the court’s factual

findings for clear error, and “[f]actual findings are clearly erroneous only when

there is no competent evidence in the record to support them.” Diecidue, 2007

ME 137, ¶ 10, 931 A.2d 1077.

      [¶15] Conroy has argued, before the trial court and here, that the statute

plainly requires proof that the accused possessed the relevant status at the time

that he committed the sexual touching. The State disagrees. We need not

address that issue of statutory construction because the court did find that on

May 24, 2017, when Conroy committed the sexual touching against the student,

he was in fact an employee of RSU 39, albeit in a limited capacity, and that

finding is supported by competent evidence in the record. The court’s finding

was properly based on the evidence that, at the time that he engaged in sexual

touching of the student, Conroy remained a rostered substitute teacher for RSU

39. In explaining its ruling, the court relied on the facts specific to Conroy’s

relationship with RSU 39. It noted that Conroy’s relationship with RSU 39 had

begun in 2014 and had, at one time, included both a full-time position and a

position as a wrestling coach. Although it acknowledged that Conroy was “not
                                                                                  9

a regular employee,” the court found that, “when [Conroy] left the school at the

end of the day on May 22, 2017, he was still a rostered substitute teacher who

had a meaningful relationship history with the school district.” Given the

specific findings made by the trial court, all of which are fully supported by the

record, we affirm Conroy’s conviction of unlawful sexual touching.

C.       Gross Sexual Assault and Unlawful Sexual Contact

         [¶16] With respect to the charges of gross sexual assault and unlawful

sexual contact, Conroy again argues that the court’s findings of guilt depended

on a misinterpretation of the statutes setting forth the elements of those crimes.

He contends that when the statutes are construed in accordance with their

plain language, there was insufficient evidence for the court to find that the

State had proved each element of the offenses beyond a reasonable doubt. We

agree.

         [¶17] The formulation of gross sexual assault at issue here is as follows:

         A person is guilty of gross sexual assault if that person engages in a
         sexual act with another person and . . . [t]he other person, not the
         actor’s spouse, is a student enrolled in a private or public
         elementary, secondary or special education school, facility or
         institution and the actor is a teacher, employee or other official
         having instructional, supervisory or disciplinary authority over the
         student.
10

17-A M.R.S § 253(2)(F) (emphasis added). The statute defining unlawful sexual

contact contains identical language regarding the actor’s status and authority:

         A person is guilty of unlawful sexual contact if the actor
         intentionally subjects another person to any sexual contact and
         . . . [t]he other person, not the actor’s spouse, is a student enrolled
         in a private or public elementary, secondary or special education
         school, facility or institution and the actor is a teacher, employee or
         other official having instructional, supervisory or disciplinary
         authority over the student.

17-A M.R.S. § 255-A(1)(K) (emphasis added).

         [¶18] The only contested issue at trial with respect to these charges was

whether Conroy was “a teacher, employee or other official having instructional,

supervisory or disciplinary authority over the student.”5                            17-A M.R.S

§§ 253(2)(F), 255-A(1)(K). At trial, as he does on appeal, Conroy argued that

this statutory language requires the State to prove that the actor possessed the

requisite status and authority over the student at the time that he engaged in

the sexual act or the sexual contact. As we have explained, the court’s finding as

to Conroy’s status at the time of the sexual act and sexual contact—that Conroy

was an employee of RSU 39 on May 24, 2017—was not clearly erroneous. Our



     5As an initial matter, we reject the State’s construction of these statutes—also an unsuccessful
venture before the trial court—which would uncouple “teacher” and “employee” from the modifier,
“having instructional, supervisory or disciplinary authority over the student.” Otherwise, any
accused who happened to be a teacher anywhere or, for that matter, any employee—regardless of
the nature of employment or identity of the employer—would forever be subject to criminal liability
for violating either or both of these statutes.
                                                                                11

analysis is therefore focused on the authority element of these crimes, an

element not present in the statute defining unlawful sexual touching. See 17-A

M.R.S. § 260(1)(J). The narrow question presented here is whether the court

erred when it interpreted the statutory language in a way that permitted it to

find that Conroy was an employee “having instructional, supervisory or

disciplinary authority over the student.” 17-A M.R.S. §§ 253(2)(F), 255-A(1)(K)

(emphasis added).

      [¶19] The applicable principles of statutory construction are familiar.

We review questions of statutory interpretation de novo. State v. Hastey, 2018

ME 147, ¶ 23, 196 A.3d 432. We look first to the plain language of the statute

to determine its meaning if we can do so while avoiding absurd, illogical, or

inconsistent results. In re Child of Nicholas P., 2019 ME 152, ¶ 32, 218 A.3d 247;

Hastey, 2018 ME 147, ¶ 23, 196 A.3d 432. We will not rewrite a statute where

its meaning is plain. See Fissmer v. Smith, 2019 ME 130, ¶ 27, 214 A.3d 1054.

Only if the meaning of a statute is not clear will we look beyond the words of

the statute to examine other potential indicia of the Legislature’s intent, such as

the legislative history. State v. Legassie, 2017 ME 202, ¶ 13, 171 A.3d 589 (“We

look to legislative history and other extraneous aids in interpretation of a
12

statute only when we have determined that the statute is ambiguous.”

(quotation marks omitted)).

      [¶20] In response to Conroy’s arguments, the trial court stated that it

“agree[d that] some contemporaneous relationship [must] exist [between the

requisite authority and] the sexual conduct,” but also stated that there need not

be “a direct level” of contemporaneity. The court concentrated its analysis on

the school-based origin of the relationship between Conroy and the student,

explaining its reasoning in the following way:

      It is exploitation of the teacher-student relationship, or extorting
      pressure, even if subtle, via that relationship, that these criminal
      statutes are aimed at preventing. And that exploitation, pressure
      or extortion could arise either before the sexual act, or after the
      sexual act, or some combination of both. But . . . , if there exists a
      teacher/employee-student relationship which is exploited in some
      manner resulting contemporaneously in a sexual act, the statute has
      been violated. In this respect, it is the relationship before the sexual
      act that is more critical, as that is when a perpetrator can groom
      and influence his victim. . . . If a teacher/employee-student
      relationship existed, which the teacher/employee was able to
      contemporaneously advance to a sexual act, the statute applies. . . .
      On these facts, . . . the substitute teacher/student relationship
      status that [Conroy] and [the student] had on May 22, 2017[,] was
      the direct nexus to and contemporaneous with the sexual act on May
      24, 2017. It was that relationship that existed on May 22[] that
      provided [Conroy] the opportunity to quickly cultivate
      communications and dialogue with [the student], exploiting that
      relationship, leading to sex a mere two days later.

(Emphases added.)
                                                                                              13

       [¶21] We agree with Conroy that the court’s analysis reflects an incorrect

reading of the applicable statutory language. By their plain language, the

statutes, which employ the term “having” in the present tense, require nothing

less than that, at the time of the sexual act or sexual contact, the actor have

instructional, supervisory, or disciplinary authority over the student.

17-A M.R.S. §§ 253(2)(F), 255-A(1)(K). As the Legislature has chosen to define

the criminal conduct, these specific crimes do not criminalize a combination of

grooming that begins when the actor possessed the requisite authority and

sexual conduct that occurs at some later time, absent proof that the requisite

authority continued to exist.6

       [¶22] Given the Legislature’s choice of language, the status element of an

employee-student or teacher-student relationship, by itself, cannot be taken to

automatically satisfy the required authority element of these statutes. Again,

the Legislature must have intended to require that the State prove more than

an accused’s “status” as a teacher or employee, because the Legislature

specifically included language here that it did not include in other statutes, such

as the one defining unlawful sexual touching. See 17-A M.R.S. §§ 255-A(1)(S),


   6 Although the trial court suggested that Conroy’s sexual act was “contemporaneous” with his

authority because the two existed near the same time, contemporaneous means “[l]iving, occurring,
or existing at the same time.” Contemporaneous, Black’s Law Dictionary (10th ed. 2014) (emphasis
added).
14

260(1)(J) (2018); Hickson v. Vescom Corp., 2014 ME 27, ¶ 15, 87 A.3d 704 (“All

words in a statute are to be given meaning, and no words are to be treated as

surplusage if they can be reasonably construed.” (quotation marks omitted)).

For these crimes, in addition to proving that the actor was a teacher, employee,

or other official, the State is required to present evidence sufficient to prove

that the actor was a person “having” authority over the student and that the

specific nature of that authority was instructional, supervisory, or disciplinary.7

17-A M.R.S. §§ 253(2)(F), 255-A(1)(K).

       [¶23] To accept the court’s interpretation, we would need to rewrite the

statute to either eliminate the authority element altogether or to change it to

read “having or having had instructional, supervisory or disciplinary authority

over the student.” This we cannot do. Cape Elizabeth Sch. Bd. v. Cape Elizabeth

Teachers Ass’n, 459 A.2d 166, 171 (Me. 1983) (“[I]t is not our role to rewrite the

statute where its meaning is plain.”).

       [¶24] We do not accept the State’s argument that interpreting these

statutes according to their plain language will produce absurd, illogical, or

inconsistent results. See Hastey, 2018 ME 147, ¶ 23, 196 A.3d 432. To the


    7 Contrary to the dissent’s analysis, see Dissenting Opinion ¶ 39, the statutes plainly require one

of these three specific types of authority. 17-A M.R.S. §§ 253(2)(F), 255-A(1)(K). Thus, a finding that
Conroy merely had “authority” over the student according to a dictionary definition of that word
would be necessary, but not sufficient, to satisfy that element of the statutes.
                                                                                                   15

contrary, eliminating the required temporal overlap between actual authority

and the sexual act or sexual contact would risk inconsistent results by making

it impossible for citizens and the courts to fairly determine how long criminal

liability would continue to attach once an authority role has ended.8 Moreover,

it is not the case that the State can prove these crimes only when the accused

committed the sexual act or sexual contact in the classroom. The statutes

require the State to present sufficient evidence to support a finding, beyond a

reasonable doubt, that the accused had the requisite authority over the student

when the sexual act or sexual contact occurred—wherever it occurred. That is

what the State failed to do in this case.

       [¶25] Finally, even if we were to conclude that the statutory language is

ambiguous, permitting us to look to the legislative history for other indicia of

the Legislature’s intent, the result would be the same. Nothing in the legislative

history suggests that the Legislature did not intend to require contemporaneity

between the actor’s authority over the student and the sexual act or sexual

contact. See, e.g., P.L. 1983, ch. 326, §§ 3, 7 (effective Sept. 23, 1983); L.D. 1113

(111th Legis. 1983); L.D. 1113, Statement of Fact (111th Legis. 1983). The


   8 “A criminal statute is unconstitutionally vague if it fails to give fair warning of its scope, in

accordance with due process requirements, and it fails to give fair warning if a person of ordinary
intelligence could not reasonably understand that it forbids the conduct for which he is criminally
charged.” State v. Hills, 574 A.2d 1357, 1358 (Me. 1990) (quotation marks omitted).
16

legislative history simply does not address the temporal relationships among

the status, authority, and conduct elements of these crimes.

      [¶26] As these two statutes are written, they required proof that Conroy

possessed the requisite authority over the student at the time that he

committed the sexual act and sexual contact. To the extent that the trial court

found that he did have that authority, that finding is not supported by evidence

presented at trial. Although we agree that, as the dissent points out, a substitute

or full-time teacher may retain authority over a student after the class period

or, for example, on a weekend or school vacation, see Dissenting Opinion

¶¶ 45-46, in this case, the State did not present any evidence—from the

student’s perspective, the school’s perspective, or Conroy’s perspective—that

Conroy actually retained that authority after he finished substitute teaching on

May 22, 2017. We therefore vacate the convictions of gross sexual assault and

unlawful sexual contact.

D.    Sentencing

      [¶27] Because we vacate two of the four convictions in this case,

resentencing is necessary to the extent that the sentences imposed were

interrelated. See Lacourse, 2017 ME 75, ¶¶ 16-17, 159 A.3d 847; State v. Carr,

1997 ME 221, ¶¶ 15-16, 704 A.2d 353; State v. Bunker, 436 A.2d 413, 419
                                                                             17

(Me. 1981). We therefore remand with instructions for the trial court to first

determine whether the sentences imposed for sexual abuse of a minor and

unlawful sexual touching were affected by the sentences imposed for gross

sexual assault and unlawful sexual contact. See Lacourse, 2017 ME 75, ¶ 17,

159 A.3d 847. If so, the court shall resentence Conroy on the sexual abuse of a

minor and unlawful sexual touching charges after a new sentencing hearing at

which both Conroy and the State have the opportunity to be heard. See id. ¶ 17.

      The entry is:

                  Judgment vacated as to Counts 2 and 4, gross
                  sexual assault and unlawful sexual contact.
                  Judgment affirmed as to Counts 3 and 7, unlawful
                  sexual touching and sexual abuse of a minor.
                  Remanded for further proceedings consistent
                  with this opinion.



ALEXANDER, J., with whom JABAR, J., joins, concurring in part and dissenting in
part.

      [¶28] The Court’s opinion recognizes that at all times relevant to the

actions in this case, Colby D. Conroy was under contract with Regional School

Unit 39 (RSU 39) as a rostered substitute teacher, on call to provide substitute

teacher instruction and supervision of students as needed. Conroy met his

fifteen-year-old student/victim when he was assigned to teach her class.
18

During the class, he groomed the victim for further encounters, engaged her in

conversation, including sexual topics, and learned how she could be contacted.

Following class, while the victim was still in school, Conroy began

communicating with the victim through social media. For the next forty-eight

hours, Conroy and the victim engaged in nearly continual communication

including social media messages, in-person meetings, exchange of nude

pictures, and, ultimately, the meeting where Conroy sexually assaulted her.

      [¶29] For these actions, Conroy was charged and, after trial, convicted of

gross sexual assault (Class C), 17-A M.R.S. § 253(2)(F) (2018), sexual abuse of

a minor (Class D), 17-A M.R.S. § 254(1)(A) (2018), unlawful sexual contact

(Class D), 17-A M.R.S. § 255-A(1)(K) (2018), and unlawful sexual touching

(Class E), 17-A M.R.S. § 260(1)(J) (2018). A review of the record demonstrates

that the trial court (Aroostook County, Stewart. J.) had before it more than

enough evidence to support its findings as to each charge.

      [¶30] I concur with the Court that Conroy’s convictions for sexual abuse

of a minor and unlawful sexual touching should be affirmed. I respectfully

dissent from the Court’s vacating Conroy’s convictions for gross sexual assault

and unlawful sexual contact.
                                                                              19

      [¶31] The Court concludes that the trial court erred in its interpretation

of the relevant statutory language to support the convictions for gross sexual

assault and unlawful sexual contact. Title 17-A M.R.S. § 253(2)(F) provides that

a person is guilty of gross sexual assault (Class C) if that person

      engages in a sexual act with another person and . . . [t]he other
      person, not the actor’s spouse, is a student enrolled in a private or
      public elementary, secondary or special education school, facility
      or institution and the actor is a teacher, employee or other official
      having instructional, supervisory or disciplinary authority over the
      student.

(Emphasis added.)

      [¶32] Title 17-A M.R.S. § 255-A(1)(K) provides that a person is guilty of

unlawful sexual contact (Class D) if that person

      intentionally subjects another person to any sexual contact
      and . . . [t]he other person, not the actor’s spouse, is a student
      enrolled in a private or public elementary, secondary or special
      education school, facility or institution and the actor is a teacher,
      employee or other official having instructional, supervisory or
      disciplinary authority over the student.

(Emphasis added.)

      [¶33] Although the Court determines that Conroy was an employee

within the meaning of sections 253(2)(F) and 255-A(1)(K), it decides that he

lacked sufficient “instructional, supervisory or disciplinary authority” over the

victim at the time of his sexual assault. 17-A M.R.S. §§ 253(2)(F), 255-A(1)(K).
20

      [¶34] We review questions of statutory interpretation de novo. See State

v. Jones, 2012 ME 88, ¶ 6, 46 A.3d 1125. In statutory interpretation, we look

“first to the plain meaning of the statutory language to give effect to the

Legislature’s intent.” Teele v. West-Harper, 2017 ME 196, ¶ 10, 170 A.3d 803;

see Arsenault v. Secretary of State, 2006 ME 111, ¶ 11, 905 A.2d 285. We will

construe criminal statutes to avoid “absurd, illogical, or inconsistent results.”

Jones, 2012 ME 88, ¶ 6, 46 A.3d 1125.

      [¶35] Based on the record, the trial court supportably found, and the

Court agrees, that when the sexual assault occurred, Conroy was a “teacher,

employee or other official” within the meaning of sections 253(2)(F) and

255-A(1)(K). The trial court also supportably found that when the sexual

assault occurred, Conroy had “instructional, supervisory or disciplinary

authority” over the victim within the meaning of sections 253(2)(F) and

255-A(1)(K).

      [¶36] The Court concludes that, although Conroy remained a “teacher,

employee, or other official,” the State failed to prove that Conroy had

“instructional, supervisory or disciplinary authority” over the victim when the

school day ended on May 22. 17-A M.R.S. §§ 253(2)(F), 255-A(1)(K). Such a

narrow construction would permit a substitute teacher such as Conroy to be
                                                                                                 21

convicted of the crimes at issue only if the sexual attacks occurred at school,

during school hours. We should not say that the Legislature intended such an

absurd result. See Jones, 2012 ME 88, ¶ 6, 46 A.3d 1125 (explaining that we

construe criminal statutes to avoid “absurd, illogical, or inconsistent results”).

       [¶37] To determine whether Conroy had “instructional, supervisory or

disciplinary authority” over the victim within the meaning of sections

253(2)(F) and 255-A(1)(K), we should be guided by the plain language of the

statutes in light of the entire statutory scheme. See In re Children of Mary J.,

2019 ME 2, ¶ 12, 199 A.3d 231.

       [¶38]     In enacting section 253(2) and section 255-A(1)(C)-(X), the

Legislature was concerned about sexual exploitation of vulnerable individuals,

including students. The statutes defining the crimes of gross sexual assault and

unlawful sexual contact contain numerous subsections, each of which is aimed

at protecting a particular group of individuals who are susceptible to

exploitation by persons in positions of authority.9 See 17-A M.R.S. §§ 253(2)(C),

(E)-(L), 255-A(1)(G)-(N), (Q)-(X) (2018).                The legislative history of these

statutes supports this conclusion. See L.D. 1113, Statement of Fact (111th Legis.


   9  These groups include, for example, (1) a person who “suffers from mental disability,”
17-A M.R.S. §§ 253(2)(C), 255-A(1)(G), (H) (2018) and (2) a “dependent person . . . who is unable to
perform self-care because of advanced age or physical or mental disease, disorder or defect.”
17-A M.R.S. §§ 253(2)(L), 255-A(1)(W), (X) (2018).
22

1983) (“This bill recognizes the subtle pressures that may be put upon a

student to ingratiate himself or herself with a teacher, employee or other school

official and that the student’s ‘consent’ in such cases may not be free and

voluntary.”).

      [¶39] Respecting this legislative purpose, we should conclude that the

phrase “having instructional, supervisory or disciplinary authority” connotes

not only the power to discipline a student or tell a student what to do while in

class, but more generally includes the “power to influence or command thought,

opinion, or behavior.” Authority, Merriam-Webster’s Collegiate Dictionary

(11th ed. 2014). This interpretation comports with the Legislature’s desire to

protect certain groups of individuals, such as students, who are prone to subtle

influence by authority figures that may result in sexual exploitation.

      [¶40] We review the evidence “in the light most favorable to the State to

determine whether the trier of fact rationally could have found beyond a

reasonable doubt” that Conroy possessed the requisite instructional,

supervisory, or disciplinary authority over the victim to sustain convictions of

gross sexual assault and unlawful sexual contact. State v. Moores, 2006 ME 139,

¶ 7, 910 A.2d 373.
                                                                              23

      [¶41] Conroy met, interacted with, and groomed the victim while he was

the substitute teacher of the victim’s class. He initiated online communications

with the victim during school hours that same school day—a fact of particular

significance because it shows that Conroy began to establish an exploitive

relationship with the victim at a time when he was a teacher who had

“instructional, supervisory or disciplinary authority” over the victim. 17-A

M.R.S. §§ 253(2)(F), 255-A(1)(K).

      [¶42] Over the next two days, Conroy engaged the victim in a continual

pattern of online and in-person communications, including the exchange of

sexual messages and nude photographs, culminating in his sexually assaulting

the victim.

      [¶43] The Court decides that, despite the plain language of the statutes

and the intent of the Maine Legislature, Conroy must be acquitted of the gross

sexual assault and unlawful sexual contact charges because the statutes, “which

employ the term ‘having’ in the present tense, require nothing less than that, at

the time of the sexual act or sexual contact, the actor have instructional,

supervisory, or disciplinary authority over the student.” Court’s Opinion ¶ 21.

The Court further observes, surprisingly, that “the statutes do not criminalize a

combination of grooming that begins when the actor possessed the requisite
24

authority and sexual conduct that occurs at some later time, absent the State’s

proof that the requisite authority continued to exist.” Court’s Opinion ¶ 21.

      [¶44]   The Court’s construction would license part-time faculty—

coaches, occasional teachers of specific subjects like art or music, or rostered

substitute teachers like Conroy—to sexually engage students as long as they

did it after school hours, off school grounds, or—for coaches—after the sport’s

season. Then, for “sexual conduct that occurs at some later time” in the Court’s

narrow reading, Court’s Opinion ¶ 21, offenders who targeted and groomed

their victims during school activities would not be viewed as having

“instructional, supervisory or disciplinary authority” over their victims. 17-A

M.R.S. §§ 253(2)(F), 255-A(1)(K).

      [¶45] This construction ignores the reality that part-time faculty, by later

recommendations, grade reports, comments on athletic performance or

student behavior, and other actions can exercise instructional, supervisory, or

disciplinary authority affecting a student’s present and future long after class

has ended.

      [¶46] In Conroy’s case, his authority could have extended at least to

May 24 and the later end of the grading period for the victim’s class. The trial

court properly found that, two days after their meeting in class, and at the time
                                                                               25

of the sexual assault, Conroy had “instructional, supervisory or disciplinary

authority” over the victim. 17-A M.R.S. §§ 253(2)(F), 255-A(1)(K). I would

affirm the convictions for gross sexual assault and unlawful sexual contact.



Matthew A. Hunter, Esq. (orally), Caribou, for appellant Colby D. Conroy

Todd R. Collins, District Attorney (orally), and John M. Pluto, Asst. Dist. Atty.,
Prosecutorial District No. 8, Caribou, for appellee State of Maine


Aroostook County Unified Criminal Docket docket number CR-2017-121
FOR CLERK REFERENCE ONLY
