State v. Gantnier, 55 A.3d 404

Background

Gantnier was convicted of unlawful sexual contact and violating a condition of release in a June 2010 jury trial.
The State charged unlawful sexual contact based on touching the victim’s genitals or anus while she was 14.
A bail bond prohibited Gantnier from direct or indirect contact with the victim.
Gantnier asserted lesser-included-offense instructions for unlawful sexual touching and assault; the court denied.
On appeal, the Maine Supreme Judicial Court vacated the unlawful sexual contact conviction and remanded for further proceedings.
The conviction for violating a condition of release was affirmed; SORNA notice followed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are assault or unlawful touching lesser offenses to unlawful sexual contact?	Gantnier contends assault and unlawful touching are lesser-included offenses.	State contends they are not lesser-included offenses of unlawful sexual contact.	Assault is a lesser-included offense; unlawful touching is not.
Do the elements and penalties render a lesser offense or lesser penalty applicable?	Lesser-included offenses should be instructed if legally or practically encompassed.	No lesser penalty for assault or unlawful touching under statutory structure.	Assault carries a lesser penalty; unlawful touching does not; thus only assault relevant for lesser-penalty analysis.
Was there a rational evidentiary basis for instructing the jury on assault as a lesser offense?	Evidence could support a finding of reckless, offensive touching with intent to wake, not to assault.	Court erred in not instructing on assault if evidence could support it.	Yes; the record supports a rational basis for an assault instruction.
Did the court’s failure to give the assault instruction require vacating the unlawful sexual contact conviction?	Failure deprived Gantnier of defense theory and proper jury consideration.	Not necessary if assault not a lesser-included offense or no basis for instruction.	Yes; conviction for unlawful sexual contact vacated and remanded for further proceedings.
Is there sufficient evidence to sustain the violation of the condition of release charge?	Indirect contact evidence may satisfy contact element.	No direct interaction required; indirect contact can still satisfy the charge.	There is sufficient evidence to sustain the violation of release charge.

Key Cases Cited

State v. Luce, 394 A.2d 770 (Me. 1978) (lesser-included-offense analysis for distinct species of crimes)
State v. Rembert, 658 A.2d 656 (Me. 1995) (definition of lesser-included offenses; elements comparison)
State v. Stewart, 2007 ME 115 (Me. 2007) (aggravated assault not lesser-included of elevated aggravated assault)
State v. Thongsavanh, 2007 ME 20 (Me. 2007) (standard for instructing on lesser-included offenses)
State v. Wilder, 2000 ME 32 (Me. 2000) (jury instruction standards for lesser offenses)
State v. Labbe, 2009 ME 94 (Me. 2009) (de novo review of legal conclusions on lesser-included offenses)
State v. Bridges, 2003 ME 103 (Me. 2003) (caselaw on lesser-included offenses and jury instruction)
State v. Cook, 2010 ME 85 (Me. 2010) (sufficiency and standard of proof for actual elements)
State v. Pettengill, 635 A.2d 1309 (Me. 1994) (indirect contact as contact under release conditions)
State v. Elliott, 2010 ME 3 (Me. 2010) (indirect contact sufficient to violate release conditions)
State v. Metzger, 2010 ME 67 (Me. 2010) (probation availability for Class D crimes)