Opinion

State of Maine v. Getchell

Court
Superior Court of Maine
Filed
Jul 2, 2018
Status
Unpublished
On the bench
Justice, Superior Court
Cited by
0 cases
Authority
More cited than 34.2%

The opinion

STATE OF MAINE UNIFIED CRIMINAL DOCKET

WASHINGTON 1 ss LOCATION: MACHIAS

DOCKET: WASCD-CR-17-332

STATE OF MAINE )

)

)

)

vs . ) ORDER AND DECISION

)

)

)

AARON GETCHELL )

Defendant )

By a Complaint dated July 26 1 2017 1 the Defendant, Aaron Getchell, has been charged with

Harassment by Telephone, 17-A, M.R.S.A. § 506(1)(A). 1A jury waived trial was held May 26,

2018, at which testimony was received from Officer Timothy Mace of the Washington County

Sheriff's Office and from the alleged victim, Desiree Greenier. Also admitted into evidence was

State Exhibit 11 a printout of the screenshots of Facebook Messenger messages exchanged

between the Defendant and Ms. Greenier on the dates of July 19, 2017 through July 23, 2017,

and Exhibit 2, a CD with a clearer image of the screenshot of the messages sent July 23, 2017

which include the picture of male genitals.

FACTS

Sometime prior to mid-July 2017, Desiree Greenier was introduced to the Defendant by her

friend, Destiny. This brief introduction was the sole time Ms. Greenier had any in-person or

1

The complaint was amended without objection at the commencement of the hearing to clarify the period of the

alleged conduct and to include reference to "electronic communication device ."

1

voice communication with the Defendant. Ms. Greenier, who turned 15 on July 18, 2017, did

not know Defendant's age but recognized him as older, as an adult. 21n mid-July 2017 Ms.

Greenier received a Facebook Messenger message from Defendant in which he asked why her

friend Destiny had "blocked" him on Facebook. Ms. Greenier responded that she did not know

why. Ms. Greenier and Defendant had no further communication of any kind with one another

until July 19, 2017.

On Wednesday, July 19, 2017 commencing at 11:41PM, Defendant sent to Ms. Greenier via

Messenger a message "Hey" "What are you up too". (See State's Exhibit 1). Defendant then

attempted to telephone Ms. Greenier at 11:43 PM but she did not answer. Defendant

messaged her again asking "No answer?", and then he attempted to telephone her again at

11:48 PM, but Ms. Greeneir did not respond to the message and did not answer the phone call.

On Thursday, July 20, at 11:37 PM Defendant again messaged Ms. Greenier "Hey", "You there" .

Ms. Greenier did not respond. At 11:50 PM and again at 11:52 PM Defendant attempted to

telephone Ms. Greenier, but she did not answer either call. Defendant then sent Ms. Greenier

additional messages,"???", "It will be fun I promise", and "Ok you're ignoring me" and also sent

a picture of what appear to be the boards or planks of a deck. Ms. Greenier then did respond

with "Yes?" .3 Ms.Greenier testified her response of "Yes?' was her way of asking "what do you

want?". Defendant then messaged her "What ya doing", "Add me on Snapchat", "Guessing I'm

2

Per the Complaint, Defendant was born August 25, 1982.

1

In Exhibit 1, on the response "Yes?" there is a smiley face emogi which the court was informed is a form of a

response made by Defendant.

2

to old not cool enough", and"????". Defendant then tried to call her at 12:03 AM, (it now being

Friday, July 21, 2017). Ms. Greenier did not answer or respond, and Defendant messaged again

"Geez ignore me that quick", and "You wanna see a dick pie??". Ms. Greenier did not respond

but testified she understood the message to be asking her if she wanted to see a picture of

Defendant's penis. Defendant attempted to telephone her again at 12:06 AM, and Ms. Greenier

again did not answer. Defendant messaged again "Ok I'll leave ya alone" but also messaged "It's

big......", which she understood as a reference to his penis. Ms. Greenier did not respond.

Defendant then attempted to telephone her two more times, at 12:08 AM and at 12:13 AM.

Ms.Greenier did not answer or respond to either call. Defendant messaged Ms. Greenier again,

"Yes and the ignore thanks" and sent her a picture of what is se·en as a blank screen.

Ms.Greenier then did respond, "I'm trying to sleep". She testified this was a "nice way" of

asking the Defendant to leave her alone . Defendant responded "Ok sorry" .

The next communication was on Sunday, July 23, 2017 at 10:29 PM when Defendant messaged

Ms. Greenier "Can you chat with me" and "Geez you must be sleeping again". Ms Greenier did

not respond. A few minutes later at 10:33 PM Defendant attempted to telephone Ms. Greenier

but she did not respond . Defendant then sent another message, "I'll show you something

interesting if your there". Again no response. Defendant then sent Ms. Greenier a picture

exposing a penis. (See Exhibit 2). Ms. Greenier did not respond. Ms. Greenier never "blocked"

Defendant from messaging her but did stop opening the messages.

3

Ms. Greenier testified she was offended by the picture containing a male penis and stated "It

bothered her a little". She also testified she has in the past randomly received from peers

pictures of a male penis, that such pictures are commonly known as 11 dick pies" and that she

found them disgusting. Ms. Greenier's testimony left the court with the impression she disliked

receiving such unsolicited pictures and found them offensive. She also testified to

understanding the term 11 dick" can be used in other ways including describing males, and that

she has the used the term herself in that manner.

DISCUSSION

The Defendant has been charged with the Class E crime of Harassment by Telephone pursuant

to 17-A, M.R.S.A. § SOG(l)(A), which states: .

A person is guilty of harassment by telephone or by electronic communication

device if:

A. By means of telephone or electronic communication device the person makes any

comment. request, suggestion or proposal thal is, in fact, offensively coarse or

obscene, \.Vithout the consent of the person called or contacted;

Therefore, to convict the Defendant of this charge, the State must prove beyond a reasonable

doubt each of the following elements:

-by means of telephone or electronic communication dcvict!,

-the Defendant made to Ms. Greenier a comment, request, suggestion or proposal,

-that was, in fact, offensively coarse or obscene, an<l

-that Ms. Greenier had not consented lo the commenl, request, suggestion or proposal.

4

Addressing the elements as listed above, the court first finds that Defendant communicated with

Ms. Greenier via Facebook Messenger and therefore his communications to her were by means

of telephone or electronic communication device. And specifically regarding his message to her

in the early morning of July 21, 2017 "You wanna see a dick pie??", the court finds the message

is a proposal satisfying the above listed second element of Section 506( 1)(A). And Defendant's

subsequent message "It's big ...." is a comment specifically describing his proposal, further

satisfying that element of the statute.

The next issue and primary question for the Court to address is whether the Defendant's proposal

and comment was offensively coarse or obscene. Neither coarse nor obscene are defined within

the statute. By any standard Merriam-Webster dictionary, coarse means crnde or umefined in

taste, manners or language, and its synonyms include rude, crude, crass, vulgar, gross and

unrefined. (See, for example, Webster's Seventh New Collegiate Dictionary (1967) and Roget's

College Thesaurus(l 962)).

Although the term obscene is not defined, obscene matter has been assigned a working definition

within jurisprudence. As both counsel have referred, the United States Supreme Court has set the

following test to determine if something is obscene:

(a) whether "the average person, applying contemporary community standards" would

find that the work, taken as a whole, appeals to the prurient interest; (b) 1,,vbether the

work depicts or describes, in a patently offensive way, sexual conduct specifically

defined by the applicable state law; and (c) whether the work, taken as a whole, lacks

serious literary, artistic, political, or scientific value. 1'vtiller v. Cal((ornia, 413 U.S.

15, 24 (1973).

A similar definition is used in Maine's Obscenity Statute, 17, M.R.S. § 2911 (1)(0):

5

"Obscene matter" means matter which:

(1) To the average individual, applying contemporary community standards, with respect

to what is suitable material for minors, considered as a whole, appeals to the prurient

interest;

(2) Depicts or describes, in a patently offensive manner, ultimate sexual acts, excretory

functions, masturbation or lewd exhibition of the genitals; and

(3) Considered as a whole, lacks serious literary, artistic, political or scientific value.

Before applying those tests to the case at hand, the Court notes that within the statute, both

coarse and obscene are described by the term offensively. Offensive generally means obnoxious,

insulting, or affronting. (See Webster's Seventh New Collegiate Dictionary (1967)).

In this case, the Defendant, an adult male in his mid-thirties, unsolicitedly sent a message to a 15

year old female with whom he had no prior meaningful friendship or relationship, other than a

very casual introduction, with a proposal to show her his genitals, with the additional comment

describing his genitals as large. The court finds that this conduct is offensively coarse. The

Defendant barely knew this young lady. He began messaging her late at night. And it cannot be

said Ms. Greenier consented, which is important to assessing the context of the messages.

Over two consecutive evenings, Defendant sent Ms. Greenier eight messages, one photograph of

decking planks, and attempted to call her five times before she responded with a one-word

message, "Yes?". That is interpreted, as Ms. Greenier testified, to mean what do you want?, but

in a non-inviting way. Defendant promptly sent her fom more messages, and attempted lo call

her again, but when she didn't answer, he messaged again, "Geez ignore me that quick". from

that statement by the Defendant it can be inferred Defendant knew Ms. Greenier was not

receptive to his communications. Yet, he then sent the message proposing to show her his

genitals, "You wanna sec a click pie??". There was no response from Ms. Greenier, so Defendant

6

attempted to call her again, his fifth attempt that evening, and Ms. Greenier again did not answer.

Not deterred, Defendant messaged again, "Ok I'll leave ya alone". But he didn't leave her alone,

he then messaged the comment describing his genitals, "It's big ..... ". Still receiving no response

from Ms. Greenier, Defendant attempted to call her two more times in the span of five minutes,

then messaged her again, then sent a blank photo. Finally, Ms. Greenier responded with "I'm

trying to sleep". Her response was clearly a rebuke to Defendant's efforts.

The point being, Ms. Greenier was not receptive or responsive to Defendant's communications.

She never encouraged or acquiesced to him messaging her, and her silence should have deten-ed

and discomaged his efforts. 4 It is within this context, in addition to the fact that Defendant was

twenty years older than Ms. Greenier who was only 15, and they barely knew each other that his

proposal to show her his genitals must be examined. In this context, the court finds his proposal

offensively coarse-it was rude, crass, crude, vulgar and gross, and in the context made to the

recipient, Ms. Greenier, it was offensive- it was affronting.

The State need not prove the proposal was both coarse and obscene, and although the Court has

found the proposal to be offensively coarse, it will none the less address whether it was also

obscene. Being obscene is agreeably a more difficult question. To begin with, thus for the

Court's analysis has focused on the words the Defendant messaged to Ms. Oreenier. Ultimately,

two evenings later Defendant again unsolicitedly messaged and attempted to call Ms. Greenier,

and again she did not respond. Ile then messaged ''I'll show you something interesting if your

there". But not waiting to for her to respond whether she was "there" or receptive to his proposal,

4

From these finding, the Court also finds that Ms. Greenier did not consent.

7

Defendant sent her a photograph exposing his genitals. But the quality, focus and the sharpness

of the photograph is generally poor and the male genitals shown in the image are difficult to

discern. (See Exhibit 2).

Again, considering the photograph in the entire context of the communications, the Court can

find that both the first and third prong of the Miller test (similar to Maine's statute defining

obscene matter) are met. In the context of this case, the photograph was made and delivered for

Defendant's prurient interests, and it lacked any serious literary, artistic, political, or scientific

value. But the second prong is more difficult. The quality of the photograph is so poor and the

image is so difficult to discern that the court cannot find beyond a reasonable doubt that it

depicts in a patently offensive way a sexual act or a lewd exhibition of the genitals. Hence,

sending of the image shown in Exhibit 2 is not directly violative of the statute applicable al the

time of this case, although it dearly adds context to the meaning of Defendant's earlier message

in which he proposed to show her a "dick pie" and which the comt has found to be offensively

coarse. 5 There can be no doubt, Defendant was proposing and intent upon showing Ms. Greenier

his penis. Accordingly, although the Comt docs not find that Defendant sending Ms. Greenier

the particular image of his penis as seen in Exhibit 2 by itself is violative of the law under

consideration, it adds context to his messages in which he proposed "You wanna sec a dick

pie??", "It's big .... ". It is those messages which the Court finds to be offensively coarse.

Finally, as the Court has already found, Ms. Greenier did not consent. See Footnote #4.

5

In this last Legislative session, amendments were made to 17-A, M.R.S. § 506 pursuant to which sending an Image

of one's genitals to another who was 14 or 15 years old and at least 5 years younger than the actor with the intent

to cause affront or alarm or for arousing or gratifying sexual desire is a Class E crime; see S.P. 690- L.D. 1838.

8

In summary, the Court finds that the State has proven beyond a reasonable doubt that the

Defendant, by means of an electronic communication device, made a proposal and comment to

Ms. Greenier, the victim herein, that was offensively coarse, and that Ms. Greenier had not

consented to such communications. Accordingly, the Court finds the Defendant GUILTY of the

Class E crime of Harassment by Telephone or Electronic Communication Device, 17-A, M.R.S.

§506(1 )(A} .

.ti / 7,/.

Dated~ 2018

t/ Justice, Superior Cow-t

9

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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