303 A.3d 640
Me.2023Background
- Victim was the defendant’s stepdaughter, born in 2002; assaults occurred while she was a minor between October 2018 and November 2019.
- October 2018: defendant took the victim to the basement under the pretext of teaching her to load a woodstove, physically restrained her, and forcefully engaged in a sexual act (penetration).
- Defendant subsequently touched the victim inappropriately “almost every night” (hundreds of times) and had vaginal intercourse with her multiple times through November 2019.
- September 11, 2019: defendant removed the victim’s clothes, took a nude photo, straddled her back, masturbated, and ejaculated on her; victim remembered date as her brother’s birthday.
- Defendant was tried and convicted by a jury on five counts (including Class A and B gross sexual assault and multiple unlawful sexual contact/touching counts). On appeal the court addressed three charge-instruction issues and unanimity, vacating convictions on two counts and vacating the sentence for resentencing.
Issues
| Issue | State's Argument | Russell's Argument | Held |
|---|---|---|---|
| Whether the court erred by refusing Russell’s requested jury instruction permitting the jury to treat omissions in the police investigation as raising reasonable doubt | Court’s existing instructions on presumption of innocence and burden of proof were sufficient; special instruction unnecessary | Requested instruction properly stated the law, was generated by the evidence, and would allow jurors to consider investigative omissions as raising reasonable doubt | No reversible error; refusal was proper because existing instructions covered the point and requested instruction risked improper focus on omitted evidence |
| Whether the court erred by instructing jurors they could consider motive or lack of motive to lie | Instruction was a neutral credibility guide applicable to witnesses including the victim and detective | Instruction improperly allowed inference against defendant by focusing on lack of motive to lie | No obvious error; instruction was neutral, did not shift burden, and was appropriate given defense challenges to witness credibility |
| Whether a specific unanimity instruction was required for counts alleging multiple instances of offenses (Counts 1–5) | For Counts 3 and 4, State conceded a specific-unanimity instruction was required; for other counts, State argued either a single discrete incident supported the count or existing instructions sufficed | Russell argued specific-unanimity instructions were required for multiple counts that alleged extended timeframes or multiple acts | Reversed in part: convictions on Counts 3 and 4 vacated for lack of a specific unanimity instruction; convictions on Counts 1 and 5 affirmed (each involved a single identifiable incident); Count 2 affirmed because the unanimous finding on Count 1 (October incident) fell within Count 2’s broader timeframe |
| Whether the sentencing court impermissibly penalized Russell for exercising right to trial | Sentencing court may consider lack of remorse; State argued comments referenced culpability, not trial decision | Russell argued judge’s comments showed punishment for going to trial, which is unconstitutional | Court did not decide on merits because convictions on Counts 3 and 4 were vacated and the sentence was vacated pending resentencing; defendant may raise the issue again at resentencing |
Key Cases Cited
- State v. Chase, 294 A.3d 154 (2023 ME 32) (specific-unanimity instruction required when multiple instances could each independently support conviction)
- State v. Hanscom, 152 A.3d 632 (2016 ME 184) (test for vacating verdict when a requested jury instruction was refused)
- State v. Bonfanti, 294 A.3d 137 (2023 ME 31) (standard for obvious-error review of jury instructions)
- State v. Osborn, 290 A.3d 558 (2023 ME 19) (definition and discussion of specific unanimity requirement)
- State v. Beeler, 281 A.3d 637 (2022 ME 47) (standard for viewing the evidence in the light most favorable to the State)
- State v. Clark, 246 A.3d 1165 (2021 ME 12) (jury instructions must correctly and fairly state governing law)
- State v. Moore, 290 A.3d 533 (2023 ME 18) (an accused cannot be punished for exercising the right to trial)
- State v. Reynolds, 193 A.3d 168 (2018 ME 124) (analysis relevant to unanimity when multiple undifferentiated acts are alleged)
- Blockburger v. United States, 284 U.S. 299 (1932) (test for whether two offenses require separate convictions for sentencing purposes)