STATE of Maine v. Mark W. STRONG Sr.
Supreme Judicial Court of Maine
Argued: Feb. 13, 2013. Decided: Feb. 15, 2013.
2013 ME 21
Daniel G. Lilley, Esq. (orally), and Tina Heather Nadeau, Esq., Daniel G. Lilley Law Offices, P.A., Portland, for appellee Mark W. Strong Sr.
Sarah A. Churchill, Esq., Nichols & Webb, P.A., Saco, on the briefs, for amicus curiae Alexis Wright.
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
LEVY, J.
[¶ 1] The State of Maine appeals from an order of the trial court (Mills, J.) granting Mark W. Strong‘s motion to dismiss part of an indictment for failure to adequately charge forty-five counts of violation of privacy (Class D),
I. BACKGROUND
[¶ 2] On October 3, 2012, Strong was charged by a fifty-nine-count indictment that included twelve counts of promotion of prostitution (Class D),
On or about between [month, date, and year] and [month, date, and year], in Kennebunk, YORK County, Maine, MARK W STRONG SR, did intentionally install or use on one or more occasions in a private place, without the consent of the person or persons entitled to privacy therein, a device for observing, photographing, recording, amplifying or broadcasting sounds or events in that place.
Strong pleaded not guilty to all of the charges, and the court ordered that the parties file pretrial motions by December 6, 2012.
[¶ 3] On January 22, 2013, the first day of jury selection, Strong moved, pursuant
[¶ 4] The court then inquired whether all of the affected counts of the indictment concern the same activity and, specifically, whether there was “any other purpose” for each alleged victim to have been at the alleged prostitute‘s “place of business.” In response, the State made an offer of proof to establish that the key facts underlying the privacy counts demonstrated that the alleged victims were “persons entitled to privacy” in a “private place,” as required by section 511(1)(B).
[¶ 5] In its offer of proof, the State represented that the alleged prostitute with whom Strong cooperated and conspired had engaged in sex for money with the victims in three locations:
It first starts out at [the alleged prostitute‘s] residence. And then there is a larger studio, where the windows are covered. And there is a third situation where there is, like, a two-room business suite that [the alleged prostitute] has rented on a second floor, that she has to unlock the door for people to come in and then lock the door when they come in. They arrive. Essentially, the door is locked. . . . [O]n the ground floor, the windows were covered so people couldn‘t see in. And then when they were on the second floor, the windows weren‘t covered but people couldn‘t see in because they were on the second floor.
The State also represented that the victims went to these locations for the sole purpose of engaging a prostitute, and were with the alleged prostitute for “usually anywhere from 30 minutes up to several hours.” Further, “some went one or two times; some went many, many, many times.”
[¶ 6] The court granted Strong‘s motion and dismissed the privacy counts, concluding that based on the indictment and the State‘s offer of proof, the State could not prove the crimes as alleged. After a recess, the State moved the court to reconsider its dismissal, arguing, for the first time, that Strong‘s motion was not timely. The court denied the motion to reconsider, and the State filed this interlocutory appeal pursuant to
II. DISCUSSION
[¶ 7] We consider two questions: (A) whether we should reconsider our denial of Strong‘s motion to dismiss this interlocutory appeal, and (B) whether the court erred in dismissing the privacy counts of the indictment. We address each in turn.
A. Interlocutory Appeal
[¶ 8]
When determining whether to exercise this jurisdiction, we “consider whether under all the circumstances the lower court‘s ruling has produced a significant setback to the State‘s attempt to bring the accused to justice.” State v. Drown, 447 A.2d 466, 470-71 (Me.1982); see also State v. Brackett, 2000 ME 54, ¶¶ 6-7, 754 A.2d 337.
[¶ 9] Here, the circumstances of the court‘s dismissal of the forty-six privacy counts present a reasonable likelihood that the State‘s prosecution of Strong has been seriously impaired. The dismissed privacy counts constitute the majority of the criminal counts brought against Strong. They allege criminal activity that is wholly separate from and not customarily associated with the remaining counts alleging crimes of promotion of prostitution. See
B. Dismissal of the Counts Charging Violation of Privacy
[¶ 10] The State contends that the court erred in dismissing the privacy counts because (1) Strong‘s motion was untimely, and (2) the indictment adequately charges a crime pursuant to
1. Timeliness
[¶ 11] The State failed to raise its timeliness objection until after the court had heard and granted the motion to dismiss, and thus it has failed to preserve the issue for appellate review. See State v. Dolloff, 2012 ME 130, ¶ 39 n. 11, 58 A.3d 1032 (stating that “an objection must be made within a reasonable time of the offending [action] to be preserved“); see also
2. Adequacy of the Indictment
[¶ 12] “[A]n indictment is subject to dismissal for failure to state an offense only when the facts alleged on its face fail to make out an offense against the State,” which strips the court of jurisdiction to try the accused. State v. Storer, 583 A.2d 1016, 1020-21 (Me.1990). Although the State has not objected to it here, we have consistently rejected the practice of considering facts not alleged on the face of an indictment in determining whether the indictment charges an offense. See, e.g., id. at 1021; see also 1 Cluchey & Seitzinger, Maine Criminal Practice § 12.1 at IV-57 (Gardner ed.1995). Some courts, however, have recognized a narrow exception to this rule in the “unusual circumstance” in which the motion presents a question of law, the material facts are not in dispute, and the prosecution does not object to the court‘s consideration of those facts. United States v. Yakou, 428 F.3d 241, 247 (D.C.Cir.2005) (quotation marks omitted); see also United States v. Flores, 404 F.3d 320, 324-25 (5th Cir.2005).
[¶ 13] This case presents just such an “unusual circumstance.” The
[¶ 14] We next turn to the plain language of the statute. See State v. Paradis, 2010 ME 141, ¶ 5, 10 A.3d 695 (per curiam). Our review of the proper construction of the statute is de novo. See State v. Jones, 2012 ME 88, ¶ 6, 46 A.3d 1125.
A person is guilty of violation of privacy if . . . that person intentionally . . . [i]nstalls or uses in a private place without the consent of the person or persons entitled to privacy in that place, any device for observing, photographing, recording, amplifying or broadcasting sounds or events in that place.
[¶ 15] The State contends that
[¶ 16] When first enacted in 1976, section 511 defined a “private place” to mean “a place where one may reasonably expect to be safe from surveillance but does not include a place to which the public or a substantial group has access.” P.L. 1975, ch. 499, § 1. The comment immediately following the text of the bill as enacted states that the provision was intended “to prevent [the] seeing or hearing of things that are justifiably expected to be kept private.” 17-A M.R.S.A. § 511 cmt. (2006) (emphasis added). Through amendments in 1999 and 2008, the Legislature revised the definition of “private place” by removing the language excluding “a place to which the public or a substantial group has access” and adding the language, “including, but not limited to, changing or dressing rooms, bathrooms and similar places.” See P.L. 2007, ch. 688, § 2; P.L. 1999, ch. 116, § 1.
[¶ 17] Thus, the Legislature‘s overall purpose in criminalizing certain violations of privacy cannot be understood as an effort to broadly protect individuals’ subjective expectations of privacy. The purpose is more focused, requiring that certain objective factors be present as well. The place involved must be “a place where one may reasonably expect to be safe from surveillance.”
[¶ 18] Applying these standards to the unique facts delimited by the counts of the indictment as augmented by the State‘s offer of proof, the persons who entered and disrobed in the places described in the offer of proof—a residence, studio, and business office where a prostitute conducted her business—may have held a subjective expectation of privacy.3 Nevertheless, they cannot qualify as “persons entitled to privacy” in those places for purposes of the objective requirements of section 511(1)(B) because, as established by the State‘s offer of proof, their sole purpose for being present in those places was to engage a prostitute. Places of prostitution and people who knowingly frequent them to engage a prostitute are not sanctioned by society. Accordingly, it is objectively unreasonable for a person who knowingly enters a place of prostitution for the purpose of engaging a prostitute to expect that society recognizes a right to be safe from surveillance while inside.4
The entry is:
Judgment dismissing counts 3, 5, 6, 7, 9, 10, 11, 12, 13, 15, 16, 17, 18, 20, 21, 22, 23, 25, 26, 27, 28, 29, 31, 32, 33, 34, 36, 37, 38, 39, 40, 42, 43, 44, 45, 47, 48, 49, 50, 52, 53, 54, 55, 57, 58, and 59 is affirmed. Case remanded for further proceedings consistent with this opinion.
person otherwise entitled to privacy is engaged in criminal activity at the time of the privacy violation. Nor do we address the parameters of the right to privacy outside the bounds of section 511(1)(B) and the unique circumstances of this case.