# State of Maine v. James A. Reynolds

> Supreme Judicial Court of Maine · August 21, 2018 · 193 A.3d 168

URL: https://www.frixlaw.com/law-library/cases/4305689

## Case

- **Full name:** STATE of Maine v. James A. REYNOLDS
- **Court:** Supreme Judicial Court of Maine
- **Decided:** August 21, 2018
- **Citations:** 193 A.3d 168; 2018 ME 124
- **Precedential status:** Published
- **Opinion:** Opinion by Jabar
- **Judges:** Saufley, Alexander, Mead, Gorman, Jabar, Hjelm, Humphrey
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4305689

## Opinion text

MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions
Decision: 2018	ME	124
Docket: Oxf-17-468
Argued: June	13,	2018
Decided: August	21,	2018

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

STATE	OF	MAINE

v.

JAMES	A.	REYNOLDS

JABAR,	J.

[¶1] James	A.	Reynolds	appeals	from	a	judgment	of	conviction	for	four

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

1997);1 five counts of unlawful sexual contact (Class C), 17-A M.R.S.A.

§	255(1)(C) (Supp. 1997);2 and two counts of sexual abuse of a minor

(Class	C), 17-A M.R.S.A. § 254(3)(A) (Supp. 2001),3 entered in the trial court

1 Title	17-A	M.R.S.A.	§	253(1)(B)	has	since	been	amended,	but	not	in	any	way	that	affects	this

appeal. See P.L. 2001, ch. 383, § 14 (effective Jan. 31, 2003); P.L. 2003, ch. 711, § B-2 (effective
July	30,	2004).

2 The	unlawful	sexual	contact	statute	then	in	effect	has	since	been	repealed	and	replaced. P.L.

2001, ch. 383, §§ 22-23	(effective Jan. 31, 2003) (codified	at	17-A M.R.S. §	255-A	(2017), as	later
amended	by,	e.g.,	P.L.	2011,	ch.	464,	§	9	(effective	July	1,	2012)).

3 Title 17-A M.R.S.A. § 254(3)(A) has since been repealed and its contents incorporated into

17-A M.R.S. § 254(1)(A-2) (2017). P.L. 2001, ch. 383, §§ 21, 156 (effective Jan. 31, 2003). As
Reynolds observes, the indictment and judgment and commitment refer to different statutory
provisions for these counts. Both counts of the indictment refer to 17-A M.R.S.A. § 254(1)(A),
(3)(A)	(2001)—which	applied	only	when	the	actor	was	more	than	ten	years	older	than	the	victim—
while	the	judgment	and	commitment	refers	to	17-A	M.R.S.A.	§	254(1)(A)	(2001),	which	applied	to
2

(Oxford County, Clifford, J.) after a jury trial. Reynolds contends that (1)	the

court erred in denying his motion for judgment of acquittal on eight of the

eleven	counts	because	“a	rational	jury	could	not	have	unanimously	found	that

those	counts	were	supported	by	evidence	of	particular	instances	of	sexual	acts

or contact”; (2) he was unfairly prejudiced by the court’s admission into

evidence of uncharged sexual abuse; and (3)	the court erred in denying his

motion for judgment of acquittal as to the 1997 and 1998 unlawful sexual

contact charges because those charges were subject to a six-year limitations

period	and	the	State	failed	to	commence	prosecution	within	that	time	period.

We	disagree	and	affirm	the	judgment.

I. BACKGROUND

A. Preliminary	Proceedings

[¶2] In	December	2016,	Reynolds	was	indicted	on	four	counts	of	gross

sexual assault, 17-A M.R.S.A. § 253(1)(B); six counts of unlawful sexual

contact,	17-A	M.R.S.A.	§	255(1)(C);	and	two	counts	of	sexual	abuse	of	a	minor,

17-A	M.R.S.A.	§	254(3)(A). The	indictment	alleged	a	period	of	ongoing	abuse

against the victim on or about April 1 of every year from 1997 to 2002. In

circumstances	where	the	actor	was	at	least	five	years	older	than	the	victim,	not	ten. Because	the
evidence	at	trial	demonstrated	a	greater-than-ten-year	age	gap	between	Reynolds	and	the	victim,
and	because	the	court	instructed	the	jury	using	“more	than	10	years	older”	language,	it	appears	that
Reynolds	was	instead	convicted	pursuant	to	17-A	M.R.S.A.	§	254(3)(A)	(Supp.	2001). The	judgment
and	commitment	must	be	corrected	to	reflect	the	proper	conviction.
3

Count	1	through	Count	8,	Reynolds	was	charged	with	committing	one	count	of

gross sexual assault and one count of unlawful sexual contact against the

victim on or about April 1 of every year from 1997 to 2000. In Count 9

through	Count	12,	Reynolds	was	charged	with	committing	one	count	of	sexual

abuse	of	a	minor	and	one	count	of	unlawful	sexual	contact	against	the	victim

on	or	about	April	1	of	2001	and	2002.4

B. Motion	In	Limine	Proceedings

[¶3] After jury selection in June 2017, the State moved in limine,

pursuant to M.R. Evid. 404(b), to permit the admission of evidence of

uncharged	sexual	abuse	alleged	to	have	taken	place	outside	of	Oxford	County.

According to the State, evidence of this conduct was admissible to

“demonstrate [Reynolds’s] opportunity to commit the sexual abuse, the

relationship	between	the	parties,	as	well	as	the	intent	to	commit	the	ongoing

abuse.” Reynolds	opposed	the motion, arguing	that	admission	of	the alleged

abuse	violated	both	Rule	404(b)	and	M.R.	Evid.	403.

[¶4] A	hearing	on	the	motion	in	limine	was	held	before	trial	on	July	17,

2017. The	State	clarified	that	although	the	“[t]he	majority	of	the	sexual	abuse

occurred in an apartment in . . . Paris [Oxford County],” incidents also

4 Before	trial,	pursuant	to	M.R.U.	Crim.	P.	48(a),	the	State	dismissed	Count	12	due	to	insufficient

evidence.
4

occurred	“on	the	road	and	while	out	camping. And	so	the	[S]tate	would	like	to

make reference to those in [its] testimony.” Reynolds continued to argue

against	the	admissibility	of	the	uncharged	abuse,	contending	that	“[the	victim]

is	claiming	about	100	incidents,	80	percent	of	those	happened	at	the	house,	at

the	apartment.	.	.	. What	is	the	purpose	of	bringing	in	uncharged	incidents?”

The court concluded that the proposed evidence was properly admissible

under Rule 404(b) pursuant our decision in State v. DeLong, 505 A.2d 803,

805-06 (Me. 1986), because it was probative to demonstrate that “the

relationship	between	the	parties	is	that	this	defendant	.	.	.	considered	this,	you

know, his – his sexual toy. I mean he did this – he did this as a matter of

course	wherever	he	went.” However,	in	order	to	limit	the	prejudicial	effect	of

these uncharged incidents, the court specified that the victim would not be

permitted	to	describe	the	uncharged	conduct	“in	detail.”

[¶5] Reynolds preserved his objection to the evidence pursuant to

Rule	403,	claiming	the	unfair	prejudice	created	by	that	evidence	substantially

outweighed its probative value. However, after Reynolds was given the

opportunity	to	request	a	limiting	instruction	regarding	the	proper use	of	the

uncharged conduct, he stated that he did not wish to do so. Specifically, in
5

response to the court’s statement, “You’re entitled to [a limiting instruction]

.	.	.	[a]nd	you	affirmatively	waive	that,”	Reynolds	replied,	“Yes.”

C. Factual	History

[¶6] The case then proceeded to trial. Viewing the trial record in the

light most favorable to the State, the jury could rationally have found the

following	facts	beyond	a	reasonable	doubt. See	State	v.	Haag,	2012	ME	94,	¶	2,

48	A.3d	207. The	victim	was	born	in	April	1987	and	was	nine	years	old	when

she first met Reynolds, who was born on March 30, 1969. At the time, the

victim was living with her grandparents in Oxford, but she subsequently

moved into an apartment in South Paris with her mother, brother, and

Reynolds.

[¶7] The victim was sexually abused by Reynolds for “most of [her]

childhood.” The first incident occurred when she was nine and Reynolds

touched	her	genitals	while	he	was	driving	with	her	in	his	work	vehicle.5 From

that point on, Reynolds touched her genitals weekly, “more times than [she]

can	count,”	until	she	was	sixteen. Starting	when	the	victim	was	ten	years	old,

Reynolds	also	forced	her	to	put	her	hands	on	his	genitals. The	abuse	typically

5 Because	this	conduct	occurred	when	the	victim	was	nine	years	old,	and	the	indictment	charged

Reynolds with committing the sexual abuse beginning on the victim’s tenth birthday, this was
ostensibly	one	of	the	uncharged	incidents	that	the	court	admitted	pursuant	to	M.R.	Evid.	404(b)	and
M.R.	Evid.	403.
6

began	by	Reynolds	saying	“something	like	he	wanted	to	play[,]	and	then just

do	what	he	wanted	from	there.” The	abuse	occurred	after	the	victim	got	home

from school but before her mother got home from work, or on weekend

mornings	when	her	mother	was	either	at	work	or	grocery	shopping.

[¶8] When	the	victim	was	ten	years	old,	Reynolds	forced	her	to	put	her

mouth on his genitals while they were alone in the South Paris apartment.

Starting	when	she	was	twelve	years	old,	Reynolds	removed	the	victim’s	pants

and put his tongue on her genitals. Also when the victim was twelve,

Reynolds	touched	her	genitals	with	his	genitals.

[¶9] In	addition	to	her	testimony	regarding	specific	incidents	of	abuse,

the	victim	also	testified	that	Reynolds	either	(1)	touched	her	genitals	with	his

hand	or	mouth;	or	(2)	forced	her	to	touch	his	genitals	with	her	hand	or	mouth

on	a	weekly	basis	until	she	was	sixteen	years	old.

[¶10] At no time were the victim and Reynolds married. When the

abuse began, Reynolds told her that she would be in trouble if she said

anything,	and	she	never	told	anyone	about	the	abuse	while	it	was	happening.

In	2015,	the	victim	finally	told	her	then-fiancé	what	had	happened	to	her.
7

D. Specific	Unanimity	Instruction

[¶11] At the close of the State’s case-in-chief, Reynolds moved for a

judgment of acquittal pursuant to M.R.U. Crim. P. 29(a), which the court

denied. After the close of the evidence, the court instructed the jury on

specific unanimity. See State v. Hanscom, 2016 ME 184, ¶¶ 11-12, 152 A.3d

632. Reynolds	objected	to	the	court’s	initial	instruction,	stating	that	it	was	“a

bit of a summary” and requesting that the court read the unanimity

instruction	“exactly	as	it’s	written.” The	court	agreed	to	do	so	and	recited	the

specific unanimity instruction to the jury, generally tracking the language

suggested in the Maine Jury Instruction Manual. See Alexander, Maine Jury

Instruction	Manual	§	6-65	at	6-133	(2017-2018	ed.). There	was	no	objection

to	this	instruction.

E. Conviction	and	Sentencing	Proceedings

[¶12] The	jury	returned	guilty	verdicts	on	all	counts,	and	a	sentencing

hearing was held in October 2017. The court sentenced Reynolds to fifteen

years’	imprisonment,	all	but	ten	years	suspended,	with	six	years’	probation	for

each count of gross sexual assault, to be served concurrently with one

another. In addition, the court sentenced Reynolds to five years’

imprisonment for each of the unlawful sexual contact and sexual abuse of a
8

minor	charges,	also	to	be	served	concurrently	with	the	other	sentences. This

appeal	followed. See	M.R.	App.	P.	2B(b)(1);	15	M.R.S.	§	2115	(2017).

II. DISCUSSION

A. Specific	Unanimity

[¶13] Reynolds	contends	that	because	the	victim	testified	only	to	“three

discrete occasions of sexual acts or contact . . . only three convictions could

possibly	have	been	the	result	of	unanimous	findings.”6 According	to	Reynolds,

because the victim testified that there were “hundreds of sexual acts and

incidents of sexual contact” but “only mentioned three in enough detail to

distinguish one from any other,” the jury could not have unanimously found

that	he	committed	the	additional	eight	offenses	charged	in	the	indictment.

[¶14] “We review the denial of a motion for judgment of acquittal by

viewing the evidence in the light most favorable to the State to determine

whether	a	jury	could	rationally	have	found	each	element	of	the	crime	proven

beyond	a	reasonable	doubt.” State	v.	Waterman,	2010	ME	45,	¶	29,	995	A.2d

243.

6 Reynolds	argues	that	the	jury	could	have	rationally	agreed	on	only	three	specific	incidents	of

sexual	abuse—when	Reynolds	(1)	touched	her	genitals	in	his	work	vehicle,	(2)	forced	her	to	put	her
mouth	on	his	genitals	while	in	the	apartment,	and	(3)	touched	her	genitals	with	his	genitals	in	the
living	room. However,	because	the	abuse	in	the	work	vehicle	occurred	outside	of	Oxford	County’s
jurisdiction	and	when	the	victim	was	nine	years	old—rather	than	ten,	as	alleged	in	the	first	count	of
the indictment—the jury could not have rationally agreed that the work vehicle incident
constituted	one	of	the	incidents	alleged.
9

[¶15] The	Maine	Constitution	provides	that	“unanimity,	in	indictments

and	convictions,	shall	be	held	indispensable.” Me.	Const.	art.	I,	§	7. As	we	have

previously explained, “[c]ourts regularly encounter indictments that may

aggregate,	in	one	count	of	the	indictment,	several	identical	crimes	committed

against one or more victims.” State v. Fortune, 2011 ME 125, ¶ 26, 34 A.3d

1115. This	is	especially	common	in	cases	where,	as	here,	there	are	allegations

of	“multiple	sex	acts	committed	against	a	minor	child.” Id.;	see,	e.g.,	Hanscom,

2016	ME	184,	¶¶	2,	9,	152	A.3d	632;	State	v.	Shulikov,	1998	ME	111,	¶	11,	712

A.2d 504; State v. Cloutier, 1997 ME 96, ¶ 2, 695 A.2d 550. Thus, when

separate but similar incidents “are the evidence supporting a single charge,

the	jury	must	unanimously	find	that	one	specific	incident	occurred.” Fortune,

2011	ME	125,	¶	31,	34	A.3d	1115;	see	Hanscom,	2016	ME	184,	¶	12,	152	A.3d

632 (“[T]he specific unanimity instruction merely requires the State to

persuade the jury beyond a reasonable doubt that the crime at issue was

committed	on	some	particular	occasion.”).

[¶16] Our previous opinions in this area, however, have not directly

addressed	the	specificity	of	the	evidence	required	to	support	a	unanimous	jury

verdict of guilty on multiple sexual offenses. See generally, e.g., Hanscom,

2016	ME 184, 152 A.3d 632; Shulikov, 1998 ME 111, 712 A.2d 504; Cloutier,
10

1997 ME 96, 695 A.2d 550. For example, in Hanscom, we reviewed a trial

court’s denial of a request for a specific unanimity instruction where the

defendant	was	charged	with	two	counts	of	unlawful	sexual	contact	involving

two victims. 2016 ME 184, ¶¶ 2, 6, 152 A.3d 632. In that case, one of the

victims	testified	that	the	defendant	abused	her	“like	every	day	we	slept	[at	the

defendant’s house],” and the other victim testified that the abuse occurred

“more than once but it didn’t always happen.” Id. ¶ 4 (quotation marks

omitted). In	concluding	that	the	court	erred	in	declining	to	give	the	requested

specific	unanimity	instruction,	we	explained	that

because the State presented evidence that Hanscom committed
the	same	crime	against	each	victim	on	different	occasions,	and	any
one of those occasions could have led to a guilty verdict on that
particular charge . . . the specific unanimity instruction [would]
prevent[] jury confusion and . . . ensure that a guilty verdict is
based	on	the	jury’s	unanimous	conclusion	that	the	State	proved	a
single	criminal	episode.

Id.	¶	12.

[¶17] Thus, although we suggested in Hanscom that a properly

instructed jury could have relied on the victims’ testimony to unanimously

find	the	defendant	guilty	on	both	counts,	our	holding	was	limited	to	the	issue

of whether the court erred in denying the requested specific unanimity

instruction. See	id.
11

[¶18] In Shulikov, a case in which the defendant did not request a

specific unanimity instruction, we considered an issue closely related to the

one at	hand—whether	the	State	presented	sufficient	evidence	for	the	jury	to

rationally find that the defendant committed gross sexual assault against a

victim	on	eight	particular	occasions. 1998	ME	111,	¶	11,	712	A.2d	504. There,

the victim specifically testified as to two instances of sexual assault by the

defendant, her father, in early 1993 and 1995, and also testified that she

endured an “overall pattern of sexual abuse by her father” during which he

had	sexually assaulted	her	three	times	a	week	between	January	1,	1993,	and

December	31,	1994. Id.	¶¶	3,	11,	12.

[¶19] Relevant	to	this	case,	we	rejected	the	defendant’s	contention	that

the trial record was sufficient only to sustain convictions based on the two

specific acts she described—but not the eight counts alleged during the

“overall	pattern	of	sexual	abuse”	between	January	1,	1993,	and	December	31,

1994—concluding	that

the jury reasonably could have believed the victim’s testimony
that [the defendant] engaged in sexual intercourse with her at
least once a week during the time periods charged in the
indictment. This	testimony	is	sufficient	for	the	jury	to	find	every
element	of	gross	sexual	assault	beyond	a	reasonable	doubt. There
is	no	requirement	that	each	count	must	be	substantiated	by	details
as	to	time,	place,	and	location	.	.	.	.

12

Id.	¶¶	11-13	(emphasis	added).

[¶20] As such, although only by implication, our case law has

recognized	that	specific	evidence	of	particular	incidents	of	sexual	abuse	is	not

required to support a unanimous jury verdict of guilty for multiple sexual

crimes.

[¶21] In cases involving allegations of multiple acts of sexual abuse

committed	against	children,	the	victims,	who	claim	to	have	been	abused	over

a substantial period of time, “may have no practical way of recollecting,

reconstructing, distinguishing or identifying by specific incidents or dates all

or even any such incidents.” People v. Jones, 792 P.2d 643, 648 (Cal. 1990)

(quotation marks omitted). As the Washington Court of Appeals has

observed, “The more frequent and repetitive the abuse, the more likely it

becomes that the victim will be unable to recall specific dates and places.

Moreover, because the molestation usually occurs outside the presence of

witnesses, and often leaves no permanent physical evidence, the state’s case

rests	on	the	testimony	of	a	victim	whose	memory	may	be	clouded	by	a	blur	of

abuse and a desire to forget.” State v. Brown, 780 P.2d 880, 885 (Wash.

Ct.	App.	1989).
13

[¶22] For	this	reason,	these	types	of	cases	present	challenges	involving

questions	relating	to	the	sufficiency	of	the	evidence	and	the	defendant’s	right

to	due	process. Acknowledging	such	challenges	in	Jones,	the	Supreme	Court	of

California	reasoned,

The victim, of course, must describe	the kind of act or acts
committed	with	sufficient	specificity,	both	to	assure	that	unlawful
conduct indeed has occurred and to differentiate between the
various types of proscribed conduct (e.g., lewd conduct,
intercourse, oral copulation or sodomy). Moreover, the victim
must describe the number of acts committed with sufficient
certainty	to	support	each	of	the	counts	alleged	in	the	information
or indictment (e.g., “twice a month” or “every time we went
camping”). Finally,	the	victim	must	be	able	to	describe	the	general
time	period	in	which	these	acts	occurred	(e.g.,	“the	summer	before
my	fourth	grade,”	or	“during	each	Sunday	morning	after	he	came
to live with us”) to assure the acts were committed within the
applicable limitation period. Additional details regarding the
time, place or circumstance of the various assaults may assist in
assessing the credibility or substantiality of the victim’s
testimony,	but	are	not	essential	to	sustain	a	conviction.

792	P.2d	at	655-56.

[¶23] We agree that the State is not required to present specific

evidence	of	separate and	discrete	incidents	of	abuse	for	the jury	to	convict	a

defendant	of	every	charged	offense,	so	long	as	the	jury	is	properly	instructed

on	specific	unanimity,	see	Hanscom,	2016	ME	184,	¶	12,	152	A.3d	632,	and	we

concur with the Jones court that “the particular details surrounding a child

molestation charge are not elements of the offense and are unnecessary to
14

sustain	a	conviction,”	Jones,	792	P.2d	at	655;	see	Commonwealth	v.	Kirkpatrick,

668	N.E.2d	790,	793	(Mass.	1996).

[¶24] Accordingly, we are not persuaded by Reynolds’s assertion that

jury unanimity on multiple counts of sexual abuse is unattainable where

evidence of that abuse is supported by “generic” testimony. Although the

constitutional right to specific unanimity requires a jury to find that a crime

was committed on “some particular occasion,” Hanscom, 2016 ME 184, ¶ 12,

152	A.3d	632,	“even	generic	testimony	describes	a	repeated	series	of	specific,

though	indistinguishable,	acts	of	molestation,”	Jones,	792	P.2d	at	658. Despite

the	fact	that	a	jury	“may	not	be	able	to	readily	distinguish	between	the	various

acts,	it	is	certainly	capable	of	unanimously	agreeing	that	they	took	place	in	the

number	and	manner	described.” Id. Indeed,	“a	jury	will	either	believe	that	a

consistent and repetitive pattern of abuse has occurred, of necessity

encompassing a number of discrete acts, or they will disbelieve it.”

Kirkpatrick,	668	N.E.2d	at	794;	see	State	v.	Logan,	2014	ME	92,	¶	17,	97	A.3d

121 (evidence that a crime was committed may be presented by way of the

victim’s	testimony	which,	“by	itself,	is	sufficient	to	support	a	guilty	verdict	for

a	sex	crime	.	.	.	if	the	testimony	addresses	each	element	of	the	crime	and	is	not

inherently	incredible”	(quotation	marks	omitted));	State	v.	Marden,	673 A.2d
15

1304, 1312 (Me.	1996) (“The weight to be given to the evidence and the

determination of witness credibility are the exclusive province of the jury.”).

So long as a victim’s testimony is both credible and sufficiently definite to

address every element of the offenses charged, a jury is not precluded from

unanimously	finding	a	defendant	guilty	on	those	charges	beyond	a	reasonable

doubt.

[¶25] In	this	case,	the	victim	testified	that	beginning	when	she	was	nine

years	old	and	continuing	weekly	until	she	was	sixteen,	Reynolds	touched	her

genitals,	in	violation	of	17-A	M.R.S.A.	§	255(1)(C). The	victim	further	testified

that	by	the	time	she	was	ten	years	old	and	continuing	“probably	once	a	week”

thereafter,	Reynolds	began	forcing	her	to	touch	his	genitals,	also	in	violation	of

17-A	M.R.S.A.	§	255(1)(C). In	addition,	the	victim	testified	that	when	she	was

ten	years	old,	Reynolds	forced	her	to	put	her	mouth	on	his	genitals,	and	when

she was twelve years old, Reynolds put his tongue on her genitals, both in

violation of 17-A M.R.S.A. §	253(1)(B). According to the victim, this conduct

also occurred “probably once a week” until she was sixteen years old, in

violation of 17-A M.R.S.A. §§ 253(1)(B) and 254(3)(A). Thus, although the

jury may have been unable to distinguish among many of the various acts

described	during	this	pattern	of	consistent	abuse,	it	was	“certainly	capable	of
16

unanimously agreeing” that the victim’s testimony was credible, that this

pattern of abuse occurred, and that discrete acts comprising this pattern of

abuse took place on or about the dates alleged in the indictment. See Jones,

792	P.2d	at	658.

B. Uncharged	Conduct

[¶26] Reynolds	next	argues	that	the	court	erred	in	admitting	evidence

of	uncharged	sexual	abuse	because	“[t]he	jury	was	essentially	encouraged	to

punish	[him]	for	a	pattern	of	alleged,	yet	uncharged	behavior.”

[¶27] As a preliminary matter, we note that Reynolds’s theory on

appeal differs from the one he advanced before the trial court. In opposing

the State’s motion in limine, Reynolds argued only against the victim’s

references	to	sexual	abuse	occurring	outside	of	Oxford	County—“on	the	road

and	while	out	camping”—and	not	conduct	that	occurred	in	the	family’s	Paris

apartment. Here, however, Reynolds argues that the uncharged conduct

included	not	only	each	act	outside	of	Oxford	County,	but	also	every	referenced

act of sexual abuse beyond the eleven acts specifically alleged in the

indictment. According	to	Reynolds,	this	means	that	“the	jury’s	verdict	on	eight

of the eleven counts is necessarily based on . . . generalized evidence

overwhelmingly	comprised	of	uncharged	conduct.”
17

[¶28] Because Reynolds, having been unsuccessful in his alternative

argument before the trial court, has now changed his theory on appeal, we

deem his current argument waived. See Teel v. Colson, 396 A.2d 529, 534

(Me.	1979). Even	if	Reynolds	had	preserved	this	issue,	however,	it	would	be

unavailing. Rather than charging Reynolds with upwards of 300 counts of

sexual abuse—according to the victim’s testimony, she was abused at least

once weekly over the course of six years—the State, in exercising its

prosecutorial	discretion,	elected	to	charge	him	with	only	one	act	of	abuse	per

year within that period of time. See State v. Heald, 382 A.2d 290, 301

(Me.	1978) (“[A] reasonable prosecutorial discretion in the enforcement of

criminal laws is inherent in our criminal justice system . . . .”). The court

properly determined that evidence of Reynolds’s ongoing abuse was

admissible to show the relationship between him and the victim. See M.R.

Evid.	404(b);	DeLong,	505	A.2d	at	805-06.

[¶29] Moreover, Reynolds’s argument that he was unfairly prejudiced

by the admission of this evidence is unpersuasive for three reasons. First,

when a defendant believes he has been unfairly prejudiced by the

consolidation of several identical crimes into one count of an indictment, he

may	move	for	relief	from	prejudicial	joinder	pursuant	to	M.R.U.	Crim.	P.	8(d).
18

Fortune, 2011 ME 125, ¶ 27, 34 A.3d 1115. Reynolds failed to do so.

Moreover, although Reynolds argues that he was unfairly prejudiced by “the

generic	testimony	and	lack	of	discrete	events	in	this	case,”	he	did	not	request	a

bill of particulars pursuant to M.R.U. Crim. P. 16(d)(1) and is therefore

presumed	to	have	known	which	crimes	he	was	required	to	defend	against	at

trial. See	Cloutier,	1997	ME	96,	¶	9,	695	A.2d	550. Finally,	Reynolds	expressly

waived	his	right	to	a	limiting	instruction	regarding	uncharged	conduct,	and	is

thereby	precluded	from	now	contending	that	the	jury	could	have	decided	the

case on an improper basis. See State v. Roman, 622 A.2d 96, 99 (Me. 1993)

(“[I]n the absence of a request to the court to provide a limiting instruction,

we	can	assume	that	counsel	concluded	that	a	limiting	instruction	would	have

overemphasized the importance of the evidence and decided to forego the

request	for	strategic	reasons.”	(quotation	marks	omitted)).

C. Statute	of	Limitations

[¶30] Finally, Reynolds argues that the court erred in denying his

motion for judgment of acquittal as to Counts 2 and 4—which alleged

unlawful sexual contact on or about April 1, 1997, and April 1, 1998,

respectively—because those counts were subject to a six-year statute of
19

limitations and the State failed to commence prosecution within that time

period.

[¶31] We	disagree. Reynolds	is	correct	that,	before	1999,	the	criminal

code	provided	for	a	six-year	statute	of	limitations	for	unlawful	sexual	contact.

17-A M.R.S.A. § 8(1), (2)(A) (Supp. 1997); 17-A M.R.S.A. § 8(1), 2(A) (Supp.

1998), amended by P.L. 1999, ch. 438, §§	1-2 (effective Sept. 18, 1999).

However, the Legislature amended the Criminal Code in 1999 to remove the

previous limitations period in 1999, and that amendment applied

retroactively	to	the	prosecution	of	crimes	where	the	victim	was	younger	than

sixteen years old and where prosecution under the previous six-year

limitations	period	had	not yet	been	barred. P.L.	1999,	ch. 438,	§	3 (effective

Sept. 18, 1999). Because the victim was under sixteen years old when

Reynolds committed unlawful sexual contact in 1997 and 1998, and the

six-year limitations period for those crimes had not yet expired when the

Legislature	removed	the	statute	of	limitations	defense	in	1999,	the	State	was

not prohibited from initiating prosecution for those offenses in 2016.7 See

Stogner	v.	California,	539	U.S.	607,	611,	616-19	(2003).

7 Because the 1999 amendment only applied retroactively to offenses where the original

six-year limitations period had not yet expired, we are unpersuaded by Reynolds’s additional
contention	that	the	1999	amendment	constitutes	an	ex	post	facto	law,	in	violation	of	Me.	Const.	art.
I,	§	11. See	Stogner	v.	California,	539	U.S.	607,	611	(2003)	(reasoning	that	an	ex	post	facto	violation
20

The	entry	is:

Judgment	affirmed. Remanded	for	correction	of
the statutory references in the judgment and
commitment	on	Counts	9	and	11.

Rory	A.	McNamara,	Esq.	(orally),	Drake	Law,	LLC,	Berwick,	for	appellant	James
A.	Reynolds

Andrew S. Robinson, District Attorney, and Alexandra W. Winter, Asst. Dist.
Atty.	(orally),	Office	of	the	District	Attorney,	South	Paris,	for	appellee	State	of
Maine

Oxford	County	Unified	Criminal	Docket	docket	number	CR-2016-714
FOR	CLERK	REFERENCE	ONLY

occurs	where	a	limitations	period	is	extended	“after	the	State	has	assured	a	man	that	he	has	become
safe	from	its	pursuit”	(emphasis	added)	(quotation	marks	omitted)).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4305689. Public record. Not legal advice.
