MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2016 ME	145

Docket: Yor-15-91

Argued: December	10,	2015

Decided: September	20,	2016

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

STATE	OF	MAINE

v.

NICHOLAS	E.	WESTGATE

JABAR,	J.

[¶1]	 	 Nicholas	 E.	 Westgate	 appeals	 from	 a	 judgment	 of	 conviction	

entered	by	the	trial	court (York	County,	O’Neil,	J.) on a	jury	verdict	finding	him	

guilty	 of	 five	 counts	 of	 unlawful	 sexual	 contact	 (Class	 B),	 17-A	 M.R.S.	

§ 255-A(1)(E-1)	 (2015),	 and	 one	 count	 of	 visual	 sexual	 aggression	 against	 a	

child	 (Class	 C),	 17-A	M.R.S.	 §	 256(1)(B)	 (2015). At	 trial,	 the	State	 sought	 to	

prove	that	Westgate	committed	each	of	the	offenses	against	a	victim	under	the	

age	of	twelve.		Though	the	evidence	established	that	the	victim	turned	twelve	

during	 the	 general	 timeframe	 within	 which	 the	 crimes	 were	 allegedly	

committed,	the	 State	 did	 not	move	 to	 amend	 the	 charges,	 and	neither	 party	

requested	instructions	regarding	crimes	of	a	lower	class committed	with the	

same	 conduct	 as	 that	 charged when	 that	 conduct	 is	 perpetrated	 against	 a	
2

victim	who	is	at	least	twelve	but	not	yet fourteen years	old.		See	17-A	M.R.S.	

§§ 255-A(1)(E),	256(1)(A)	(2015).		

[¶2]		The	court	did	not	deliver	any	lesser-included	offense	instructions,	

and	it charged the	jury—with	 the	 consent	 of	 both	 parties—that	 the	jury	 did	

not	have	 to	determine	with	specificity	 the	date	or	dates	on	which	 the	sexual	

contact	occurred.		Thus,	the	court	did	not	require	the	jury	to	find	one	element	

of	 the	 crime—that	 the	 victim	 was younger	 than	 twelve	 when	 the	 sexual	

contact	occurred—in	order	to	deliver	a	guilty	verdict.		On	this	record,	we	are	

unable to conclude	that	it	was	highly	probable	that	the	error	did	not	affect	the	

jury’s	verdict,	and	we	are	compelled	to	vacate	the	judgment.

I.	 BACKGROUND

[¶3]		 In	2012,	Westgate	was	charged	by	indictment	with	 five	counts	of	

unlawful	sexual	contact	(Class	B), 17-A	M.R.S.	§	255-A(1)(E-1), and	one	count	

of	visual	sexual	aggression	against	a	child	(Class	C),	17-A	M.R.S.	§	256(1)(B).		

Although	both crimes	charged	are	defined	as	acts	perpetrated	against	a	victim	

under	 the	 age	 of	 twelve,	 see	 17-A	 M.R.S.	 §§ 255-A(1)(E-1),	 256(1)(B),	 the	

indictment	 alleged	 that	 the	 criminal	 acts	 occurred	 “[o]n	 or	 about	 Summer,	
3

2009,”	 and	 indicated	 that	 the	 victim	 was born	 on	 July	 20,	 1997,	 and	 thus

turned twelve	during	the	summer	of	2009.1

[¶4]	 	After	 granting	 several	motions	 to continue	 the	 dates	 set	 for	jury	

selection	 and	 trial,	 the	 court held	 a	 three-day	 jury	 trial	 in	 May	 2014.		

Following	 the	 swearing	 in	 of	 the	 jury,	 the	 court	 clerk	 read	 the	 indictment	

aloud	and	told	the	jury	that	it	was	tasked	with	determining	whether	Westgate	

was	guilty	or	not	guilty	of	 the	charges	alleged.2		The	court	 then	delivered	its	

preliminary	charge	 to	 the	jury,	stating	 that	 the	indictment	was	not	evidence,	

and	that	the	State	bore	the	burden	of	proving	the	allegations	in	the	indictment	

beyond	a	reasonable	doubt.		In	the	State’s	opening	statement,	the	prosecutor	

alerted	 the	jury	 to	 the	 fact	 that	 the	alleged	 victim	 did	 not	 remember	exactly	

when	the	incidents	occurred.

 1	 	 In	 the	 indictment,	 each	 of	 the	 five	 Class	 B	 counts	 charging	 Westgate	 with	 unlawful	 sexual	

contact	 pursuant	 to	 17-A	 M.R.S.	 § 255-A(1)(E-1)	 (2015)	 read	 as	 follows:	 “On	 or	 about	 Summer,	

2009,	in	Sanford,	YORK	County,	Maine,	NICHOLAS	WESTGATE,	being	at	least three	years	older	than	

Jane	Doe	 (DOB	7/20/97),	not	his	 spouse,	did	intentionally	 subject	 Jane	Doe	 (DOB	7/20/97),	who	

was	in	fact	less	than	12	years	of	age,	to	sexual	contact.”		The	single	Class	C	count	charging	Westgate	

with	 visual	 sexual	 aggression	 pursuant	 to	 17-A	 M.R.S.	 §	 256(1)(B)	 (2015)	 similarly	 alleged	 that:

“[o]n	 or	about	Summer,	 2009,	in	Sanford,	 YORK	 County,	Maine,	NICHOLAS	WESTGATE,	 having	in	

fact	attained	18	years	of	age,	and	for	the	purpose	of	arousing	or	gratifying	sexual	desire,	did	expose	

his	genitals	to	Jane	Doe	(DOB	7/20/97)	or	cause	Jane	Doe	(DOB	7/20/97)	to	expose	her	genitals	to	

NICHOLAS	WESTGATE	and	Jane	Doe	(DOB	7/20/97),	not	NICHOLAS	WESTGATE’s	spouse,	had	not	

in	fact	attained	12	years	of	age.”		

2	 	Although	 the	 trial	 transcript	indicates	 that	 the	 prosecutor	 delivered	 this	 charge,	 the	 court’s	

instructions	that	immediately	follow	refer	to	“the	piece	of	paper	that	Madam	Clerk	just	read . . . with	

the	 allegations	 associated	 with	 this	 case.”	 	 From	 this	 remark,	 we	 infer	 that	 the	 transcript’s	

designation	of	the	prosecutor	as	the	speaker	is	due	to	an	error	in	transcription.
4

[¶5]	 	 Viewing	 the	 evidence	 thereafter	 presented “in	 the	 light	 most	

favorable	to	the	State,	the	jury	could	rationally	have	found	the	following facts

beyond	 a	 reasonable	 doubt.”	 	 State	 v.	 Begin,	 2015	 ME	 86,	 ¶	 2,	 120	 A.3d	 97

(quotation	marks	omitted).	

[¶6]	 	 In	 2009,	 during	 the	 summer	 months	 of	 June,	 July,	 August,	 and	

September,	the	victim was	living	with	her	father	and	visited	her	mother,	who	

was	 living	 with	 Westgate.	 	 The	 victim described	 five	 incidents	 of	 Westgate	

having	 sexual	contact	with	her,	one	 of	which	also	involved	him	exposing	his	

genitals to	 her and	 causing	 her	 to	 expose	 her genitals to	 him.	 	 The	 first	

incident of	sexual	contact occurred	during a	weekend	in	June,	and	the	second	

incident occurred	 two	 weeks	 later.	 	 The	 third	 incident	 of	 sexual	 contact	

occurred	on	a	Thursday	in	June.		Though	the	victim provided	no	indication	of	

when	 the	 fourth	 incident	 occurred,	 she	 testified	 that	 the	 fifth	 incident	

coincided	 with	 the	 episode of	 visual	 sexual	 aggression,	 and	 that	 the fifth	

incident occurred	before	her	twelfth	birthday.

[¶7]	 	 At	 the	 close	 of	 the	 State’s	 case-in-chief,	 the	 court	 advised	 that	it	

would	 likely	 instruct,	 with	 respect	 to	 the	 indictment’s	 “[o]n	 or	 about”	

timeframe,	that	the	State	was	not	required	to	prove	the	date	that	the	offenses	
5

occurred.		Westgate	did	not	object,	and proceeded	to	mount	a	defense focused	

on	more	general	timing	and	credibility.		

[¶8]	 	 Westgate	 argued	 that	 he	 could	 not	 have	 committed	 the	 crimes	

during	the	summer	of	2009	because	he	did	not	have	any	unsupervised	contact	

with	 the	 victim	 during	 that	 period.	 	He	 asserted that	 the	 victim’s	 testimony	

about the timing of the	offenses	was not	credible because	it	was	inconsistent	

with	her	inability	to	pinpoint	the	timing	with	such	specificity	before	trial,	and	

it	conflicted	with	statements	 that	the	victim made	during	pretrial	interviews	

with	 the	 police	 and	 the	 prosecutor. After	 Westgate	 refreshed the	 victim’s

recollection by	playing	for	her	a	recording	of	her	pretrial	interview	with	 the	

police,	 the	 victim admitted	 that	 she	 had	 initially	 reported	 that	 Westgate	

committed	the	criminal conduct in	August 2009.		Westgate	later	played	for the	

jury a recording of	 the	 police interview,	 during	 which	 the	 victim	 told	 the	

investigating	officer	 that	 the incidents	of	sexual	contact	could	have	occurred	

“in	June	or	August.”		Westgate also	played	a	recording	of	the	victim’s	pretrial

interview	with	 the	prosecutor,	during	which the	victim	stated that	she	could	

not	 remember	 the	 days	 of	 the	 week	 or	 the	 months	 when	 the	 incidents	

occurred,	or	how	old	she	was	at	 the	 time,	but	 that	she	 thought that	she	was	
6

“eleven	 or	 twelve.”	 	 On	 Westgate’s	 request,	 the	 court	 admitted	 these

recordings,	but only	to	challenge	the	victim’s	credibility.

[¶9]		At	the	close	of	the	evidence,	in	describing	the	charges	of	unlawful	

sexual	 contact	 to	 the	 jury,	 the	 court paraphrased the	 language	 of	 the	

indictment,	stating	that	each	of	the	 five	charges	alleged	that	“on	or	about	the	

summer	 of	 2009, . . . Westgate,	 being	 at	 least	 three	 years	 older	 than	 [the	

victim],	who	was	not	his	spouse,	did	intentionally	subject	her,	who	was	in	fact	

less	than	12	years	of	age,	to	sexual	contact.” In	describing	the	charge	of	visual	

sexual	aggression,	the	court	again	paraphrased	the	indictment,	stating	that	the	

charge	alleged	that	“on	or	about	the	summer	of	2009	.	.	.	Westgate,	having	in	

fact obtained	 18	 years	 of	 age	 and	 for	 the	 purpose	 of	 arousing	 or	 gratifying	

sexual	 desire	 did	expose	 his	genitals	 to	 [the	 victim],	 or	 cause	 [the	 victim]	 to	

expose	her	genitals	to	him	and	[the	victim]	was	not	his	spouse	and	had	in	fact	

not	 obtained	 the	 age	 of	 12.”	 	The	 court	instructed	 the	jury	 to	 consider	 each	

charge	individually,	and	to	determine	whether	each	had	been	proved	beyond	

a	reasonable	doubt.

[¶10]		The	court	explained	that	the	indictment	referred	“to	the	summer	

of	 2009,	 for	 the	 time	 of	 these	 offenses.”	 	With	 respect	 to	 this	 “on	 or	 about”	

timeframe,	the	court	instructed	the	jury	as	follows:
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The	charges	here	claim	that	the	crime	was	committed	on	or	about	

a	 time,	 a	 specific	 time.	 	 The	 specific	 date	 of	 a	 crime	 need	 not	 be	

proven.	 	 It	 is	 enough	 if	 the	 State	 proves	 beyond	 a	 reasonable	

doubt	that	A,	the	crime	charged	was	committed	by	the	Defendant	

and	B,	it	happened sometime	within	 the	 timeframe	suggested	by	

all	of	 the	evidence	in	 the	case.		The	question	is	whether	 the	crime	

was	 committed,	 not	 when	 it	 happened	 and	 that	 must	 be	 the	

princip[al]	focus	of	your	inquiry.

However,	you	may	consider	any	evidence	of	uncertainty	as	to	the	

dates	of	the	alleged	crime	in	deciding	whether	or	not	the	offense	

has	 been	 proven	 beyond	 a	 reasonable	 doubt	 and	 in	 judging	

whether	to	believe	witnesses	and	their	ability	to	recall	events	and	

in	 determining	 whether	 the	 Defendant	 may	 have	 had	 the	

opportunity	to	commit	the	offense	alleged.	

(Emphasis	 added.)	 	 Neither	 Westgate	 nor	 the	 State objected to	 these	

instructions	or	requested any	additional	instructions.

[¶11]	 	 After	 retiring	 to	 deliberate,	 the	 jury	 asked	 for	 reinstruction	 on	

“issues	involving	timing	and	the	indictment.”		When	the	court	indicated	that	it

intended	 to	 repeat the	 instruction	 that	 it	 had	 already	 given regarding	 the	

indictment’s	“on	 or	 about”	 timeframe,	 again	 neither	 the	 State	 nor	 Westgate	

raised	any	objection.		The	court reinstructed	the	jury	that	the	charges “reflect	

upon	episodes	 that	 the	State	alleges	 took	place	in	 the	summer	of	2009,”	and	

that	the	jury	was	to	consider	whether	each	episode	had	been	proved beyond	a	

reasonable	 doubt.	 	 It	 then	 repeated	 its	 “on	 or	 about”	 instruction,	 using	 the	

same	language	as	it	had	used	before,	and	again	without	any	objection.	
8

[¶12]	 	 Before	 the	 jury	 delivered	its	 verdict,	defense	 counsel stated	 on	

the	record	that Westgate	had	decided	not	to	request	a	lesser-included	offense	

instruction	 “because	 [he] didn’t	 want	 to	 concede	 to	 the	 jury	 or	 have	 them	

misconstrue	it	as	a	concession	that	he	committed	any	wrongful	act	at	all.		[His]

defense	was	all	or	nothing,	and	that’s the	way	[he] presented	it.”		The	State	did	

not	request	a	lesser-included	offense	instruction,	and	none	was	given.

[¶13]		The	jury	returned	a	verdict	of	guilty	on	all	six	counts	as	charged

and	 the	 court	 entered	 a	 judgment	 of	 conviction	 on	 the	 verdict.	 	 The	 court

imposed	 a	 sentence of	 ten	 years’	 imprisonment with	 all	 but	 eight	 years	

suspended, followed	 by	 ten	 years	 of	 probation, on	 each	 of	 the	 charges	 of	

unlawful	 sexual	 contact,	 with	 the	 sentences	 on	 each	 charge	 to	 run	

concurrently.		On	the	charge	of	visual	sexual	aggression,	the	court	imposed	a	

concurrent	sentence	of	twelve	months.		Westgate	filed	an application	to	allow	

an	 appeal	 from	 his	 sentence,	 which	 we	 granted	 and	 consolidated	 with	 his	

timely	appeal	 from	 the	judgment of	conviction.		See	15	M.R.S.	 §§ 2115,	2151	

(2015);	M.R.	App. P. 2(b)(2)(A),	20(a),	(h).

II.		DISCUSSION

[¶14]	 	On	 appeal,	Westgate	 argues that	 the	 court	 erred	 by	instructing	

the	jury	that	it	did	not	need	to	determine	when	the	offenses	occurred,	but	only	
9

whether	the	offenses	were	committed	within	the	timeframe	suggested	by	the	

evidence.	 	He	asserts	 that	 he	was	 denied	 his	 right	 to	a	 fair	 trial	 because	 the	

court	 failed	to clearly instruct	the	jury	that	he	could	only	be	convicted	of	the	

crimes	charged	if	the	jury	found,	beyond	a	reasonable	doubt,	that	the conduct	

was	perpetrated	against	the	victim	before	her	twelfth	birthday.

3

A. Standard	of	Review

[¶15]		Because	Westgate	did	not	object	to	the	court’s	timing	instructions	

at	trial,	we	review	his	unpreserved	challenge	to	those	instructions	for	obvious	

error.		See	M.R.	Crim.	P.	30(b),	52(b) (Tower	2014);4 State	v.	Baker,	2015	ME	

39,	¶	11,	114 A.3d	214.		To	prevail	on	a	challenge subject	to	the	obvious	error	

standard,	Westgate bears	the	burden	of	demonstrating	“(1)	an	error, (2)	that	

is	plain, (3)	 that	affects	substantial	rights,” and that (4)	“seriously	affects	 the	

fairness	 and	 integrity	 or	 public	 reputation	 of	 judicial	 proceedings.” State	 v.	

Fay,	2015	ME	160,	¶	13,	130	A.3d	364 (alterations	omitted)	(quotation	marks	

omitted).

 3		We	reject	without	discussion	Westgate’s	unpersuasive	contention	that	the	indictment	and	the	

victim’s	 testimony	offer	him	no	protection	against	double	jeopardy.		See	State	v.	Hebert,	448	A.2d	

322,	 326	 (Me.	 1982)	 (“The	 scope	 of	 jeopardy	 created	 by	 an	 indictment	 is	 .	 .	 .	 as	 broad	 as	 that	

indictment	may	fairly	be	read.”).		

4		Although	the	Maine	Rules	of	Unified	Criminal	Procedure	have	superseded	the	Maine	Rules	of	

Criminal	Procedure	since	Westgate’s	trial,	the	new	rules	do	not	differ	from	the	former	rules	in	any	

respect	that	is	relevant	here.		See	M.R.U.	Crim.	P.	1(e)(3),	30(b),	52(b).		In	this	opinion,	we	cite	to	the	

rules	in	effect	at	the	time	of	Westgate’s	trial.	
10

[¶16]	 	In	 reviewing	 jury	 instructions for	 error at	 the	 first	 step	 of	 the	

obvious	 error	 analysis,	 we	 evaluate	 the	 instructions	 in	 their	 entirety,	

considering	 “the	 total	effect	 created	 by	all	 the	instructions	and	 the	 potential	

for	 juror	 misunderstanding,”	 State	 v.	 Varney,	 641	 A.2d	 185,	 187	 (Me.	 1994)	

(quotation	marks	 omitted),	 and	whether	 the	instructions	 “informed	 the	jury	

correctly	 and	 fairly	 in	 all	 necessary	 respects	 of	 the	 governing	 law,”	 Baker,	

2015	ME	39,	¶	10,	114	A.3d	214	(quotation	marks	omitted).		Jury	instructions	

are	 erroneous	 if they create	 “the	 possibility	 of	 jury	 confusion	 and	 a	 verdict	

based	 on	 impermissible	 criteria.”	 	 State	 v.	 Ashby,	 1999 ME	 188,	 ¶	 3,	

743 A.2d 1254	(quotation	marks	omitted).		An	instructional	error	is	“plain”	if	

the	 error	 is	 so	 clear	 that	 “the	 trial	 judge	 and	 prosecutor	 were	 derelict	 in	

countenancing	it,	 even	 absent	 the	 defendant’s	 timely	 assistance	in	 detecting	

it.” State	 v.	 Dolloff,	 2012	 ME	 130,	 ¶	 36,	 58	 A.3d	 1032	 (quotation	 marks	

omitted).	 	 “An	 error	 affects	 a criminal	 defendant’s	 substantial	 rights	 if	 the	

error	 was	 sufficiently	 prejudicial	 to	 have	 affected	 the	 outcome	 of	 the	

proceeding.”	 	 Fay,	 2015	 ME	 160,	 ¶	 13,	 130	 A.3d	 364 (quotation	 marks	

omitted).	 	In	 reviewing	 for	 obvious	 error,	 our	 ultimate	 task	 is	 to	 determine	

whether	 the	 defendant	 received	 a	 fair	 trial.	 	 Dolloff,	 2012	 ME	 130,	 ¶	 76,	

58 A.3d	1032.
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B. Obvious	Instructional	Error

[¶17]	 	 A	 defendant	 facing	 criminal	 prosecution	 by	 the	 State	 has	 a	

fundamental	 right,	 guaranteed	 by	 the	 Fifth	 and	 Sixth	 Amendments	 to	 the	

United	 States	 Constitution,	to	 a	 jury	 charged	 with	 determining	whether	the	

State	has	proved,	beyond	a	reasonable	doubt,	facts	that	establish	each	element	

of	the	crime charged. United	States	v.	Gaudin,	515	U.S.	506,	509-10	(1995).		“In	

order	for	the	criminal	justice	system	to	attain	just	and	efficient	results	through	

the	medium	 of	a	jury,	it	is	mandatory	 on	 the	 part	 of	a	 trial	judge	 that	in	 his	

charge	 to	 the	 jury	 he	 inform	 them	 in	 clear	 and	 concise	 terms as	 to	 the	 law	

which	is	applicable	to	the	particular	facts	in	issue	which	the	evidence	tends	to	

prove.”	 	State	v.	Bahre,	 456	A.2d	 860,	 866	 (Me.	 1983).	 	“We	 have	 previously	

ruled	 that	 a	 failure	 to	 properly	 instruct	 the	 jury	 on	 each	 of	 the	 essential	

elements of	 the	 offense [charged]	 constitutes	 obvious	 error	 affecting	

substantial	rights	.	.	.	.”		State	v.	Nickerson,	534	A.2d	1323,	1325	(Me.	1988).		

[¶18]	 Here,	 Westgate	 was	 charged	 by	 indictment	 with	 five	 Class	 B

violations	 of	 17-A M.R.S.	 §	 255-A(1)(E-1),	 which criminalizes	 the	 act	 of	

intentionally	 subjecting	 another	 person	 to	 sexual	 contact	 when	 “[t]he	 other	

person,	not	the	actor’s	spouse,	is	in	fact	less	than	12	years	of	age	and	the	actor	

is	at	least	3	 years	 older.”	 	He	was	also	charged	with	 one	Class	C	 violation	 of	
12

17-A	M.R.S.	§ 256(1)(B),	which	criminalizes the	act	of	exposing	one’s	genitals

to	another	or	causing	another person	 to	expose	his	or	her	genitals “[f]or	 the	

purpose	 of	 arousing	 or	 gratifying	 sexual	 desire”	 when	 the	 actor	 has	 “in	 fact	

attained	18	years	of	age”	and	“the	other	person,	not	the	actor’s	spouse, has	not	

in	fact	attained	12	years	of	age.”		For	the	crimes	charged,	one	of	the	facts	that	

had	to	be	proved	by	the	State,	beyond	a	reasonable	doubt,	was	that	Westgate	

had	committed	these	acts	before	the	victim’s	twelfth	birthday, which	fell	in	the	

middle	of	the	period that	the	alleged victim	described.

[¶19]		The	trial	court	read	the	indictment	to	the	jury,	but did	not	specify

what	 the	 elements of	 the	 criminal	 charges	were,	 including	 the element that	

the	 victim	 must	 have	 been	 under	 the	 age	 of	 twelve	 when	 the	 conduct

occurred. In	addition, when	the	court	went	on	to	address	the	“[o]n	or	about”	

timeframe	employed	by	the	indictment	to	pinpoint	a	time	period during	which	

the	 offenses	 allegedly	 occurred,	 the	 court did	 not	 tell	 the	jury	 that	 the	 State	

had	 to prove	 that	the	offenses	 occurred	before	 the	 victim’s	 twelfth	birthday.		

Instead,	the	court stated	that	the	State	did	not	have	to	prove	an	exact	date.	

[¶20]		After	retiring	 for	deliberations,	the	jury	submitted	a	note	asking	

for	 further	instruction	on	 the	issue	of	 timing.		This	request	suggests	 that	 the	

court’s	 initial	 instructions	 confused	 the	 jury	 about	 the	 necessity	 of	
13

determining	 whether	 the	 offenses	 occurred	 before	 the	 victim’s	 twelfth	

birthday. In	response to	the	jury’s	request,	the	court	stated	that	the	jury	could	

return	 a	 verdict	 of	 guilty	 so	 long	 as	 it	 found	 that	 the	 crimes	 had	 been	

committed	within	the	timeframe	suggested	by	the	evidence.		The	court	further	

instructed	the	jury	that its	principal	 focus	should	be the	question	of	whether	

the	 crimes	 had	 been	 committed,	 not	 when	 they	 occurred.	 	 Counsel	 did	 not	

seek,	and	 the	court	did	not	provide,	 the	critical	 follow	up	 to	 that	instruction,	

specifically,	 “as	 long	 as	 you	 find	 that	 the	 crime	 was	 committed	 before	 the	

child’s	twelfth	birthday.”

[¶21]	 	 Thus, clarifying	 instructions	 regarding	 the	 issue	 of	 timing,	

although	generally accurate,	here suggested	 that	 the	date	 of	 the	 offenses	did	

not	matter.	 Because	the	evidence	established	that	the	victim	turned	twelve	on	

July 20,	 2009—during	 the	 summer	 that the	 offenses	 were	 allegedly	

perpetrated—and	 the	 crimes	 charged	 proscribe	 acts perpetrated	 against	 a	

victim	who	is	younger	than	twelve,	the	date	of	the	offenses	did	matter.5

 5		We	have	stated	that

[i]t is	insufficient	merely	 to	give	 the	jury	general	and	abstract	propositions	of	law,	

which	 may	 be	 correct	 in	 themselves	 but, without	 further	 explanation	 as	 to	 their	

application	to	the	particular	 facts	of	the	case,	leave	the	jury	to	speculate	as	to	how	

they	should	be	applied	in	determining	guilt	.	.	.	in	the	factual	scenario	presented	by	

the	evidence.

State	v.	Bahre,	456	A.2d	860,	866	(Me.	1983).			
14

[¶22]	 Although	 the	 trial	 court did,	 by	 reading	 the	indictment,	 suggest	

that	 the	jury	had	to	 find	 that	 the	 victim	was	under	 twelve,	we	conclude	 that	

the	import	of	this	instruction	was	overcome	by	its	incongruity	with	the	court’s	

later	instruction	 that	 the	State	did	not	have	 to	prove	 the	dates	on	which	 the	

offenses	 were	 committed.	 	 Viewing	 the	 jury	 instructions	 as	 a	 whole,	 we	

conclude	 that	 the	 court’s	 timing	 instructions	 plainly	 and	 erroneously	

suggested	 that	 the	 jury	 could	 bypass	 the	 issue	 of	 whether	 the	 victim	 was	

younger	than	twelve	when	the	offenses	were	committed.		See	Baker,	2015	ME	

39,	¶	14,	114	A.3d	214.

[¶23]	 	 We	 also	 conclude	 that	 the	 gap	 in the	 court’s	 instructions	

regarding	the	necessity	of	finding	the	victim’s	age	denied	Westgate	the	right	to	

have	 the	jury	determine	whether	 the	State	had	proved,	beyond	a	reasonable	

doubt,	 every	 fact	 necessary	 to	 support	 his	 conviction.	 	 See State	 v.	 Dana,	

517 A.2d	719,	721	(Me. 1986).		The	court’s	instructions	to	the	jury	supply	the	

only	 insight	 that	 we	 can	 have	 into	 the	 jury’s	 essential	 fact-finding.	 	 The

incomplete instructions	given	here	affected	Westgate’s	substantial	rights	and	

the	fairness	of	his	trial,	see	Fay,	2015	ME	160,	¶	13,	130	A.3d	364,	because	the	

instructions	allowed	the	jury	to	find	him	guilty	without	determining	beyond	a	

reasonable	doubt	 that	 the	conduct	occurred	before	 the	victim	 turned	 twelve,	
15

see	 Dana,	 517	 A.2d	 at	 721.	 	Because	 the	 victim’s	 age	 was	 an	 element of	 the	

crimes	charged,	and	the	timing	of	the	offenses	relative	to	the	victim’s	twelfth	

birthday	was	an	issue	disputed	at	 trial,	the	instructional	error	compromised

the	integrity	of	the	jury’s	verdict.		We	must	conclude	that	the	error deprived	

Westgate	of	his	fundamental	right to	a	fair	trial.

C. Disposition

[¶24]		The	State’s	evidence	at	trial	could	establish	all	of	the	elements	of	

the	 crimes	 charged	 aside	 from	 the	 victim’s	 age.	 	 That	 evidence	 would	 have	

been	sufficient	to	support	Westgate’s	conviction	 for	violations	of	the	statutes	

that	criminalize—at	lower	classifications—the	same	conduct	as	 that	charged	

when	 that	conduct	is	perpetrated	against	a	victim	who	is	 twelve	or	 thirteen,	

but	 not	 yet	 fourteen.	 	 See	17-A	M.R.S.	 §§	 255-A(1)(E),	 (E-1),	 256(1)(A),	 (B);	

State	v.	Thornton,	2015	ME	15,	¶	11,	111	A.3d	31	 (explaining	 that	 the	crime	

defined	by	17-A	M.R.S.	§	255-A(1)(E)	is	a	lesser-included	offense	of	the	crime	

defined	by	17-A	M.R.S.	§	255-A(1)(E-1)).		However,	the	State	did	not move	to	

amend	the	indictment	to	charge	Westgate	with	the	lesser-included	offenses	of	

Class	C	unlawful	sexual	contact	and	Class	D	visual	sexual	aggression,	and	it	did	

not	ask	the	court	to	issue	lesser-included	offense	instructions	to	the	jury.
16

[¶25]		“The	State	may	charge	a	person	with	.	.	.	[a]	Class	.	. .	C	crime	only	

through	indictment	by	a	grand	jury.”	 Id. ¶	7.		Although	a	grand	jury	must	issue	

every	indictment,	the	trial	court	may	permit	the	amendment	of an	indictment	

without	resubmission	to	the	grand	jury	“‘at	any	time	before	verdict	or	finding	

if	 the	 amendment	 does	 not	 change	 the	 substance	 of	 the	 crime.’”	 	 Id. ¶	 8	

(quoting	M.R.U.	Crim.	P.	7(e)).		If	an amendment	“creates	a	substantive	change,	

the	 indictment	 must	 be	 resubmitted	 to	 the	 grand	 jury.”	 State	 v.	 Gauthier,	

2007 ME	156,	¶	18,	939	A.2d	77,	abrogated	in	part	on	other	grounds	by	Manley	

v.	 State,	 2015	 ME	 117,	 ¶	 18,	 123	 A.3d	 219.	 	 “A	 change	 is	 substantive	 if	 it	

changes	 the	nature	or	grade	of	 the	charged	offense;	it	is	 formal	if	it	does	not	

alter	the	facts	that	must	be	proved.”		Id.		

[¶26]		The	State	now	urges	us	to	substantively	amend	the	judgment	to	

conform	 to	 the	 evidence,	 and	 to	 impose	 a	 conviction	 for	 the	 uncharged	

offenses	 of	 Class	 C	 unlawful	 sexual	 contact	 and	 Class	 D	 visual	 sexual	

aggression	 pursuant	 to	 17-A	 M.R.S.	 §§	 255-A(1)(E)	 and	 256(1)(A),	

respectively.	 However,	at	trial, Westgate	expressly	told	the	court	that	he	did	

not	want	an	instruction	on	the	lesser	offenses.		The	State	did	not	oppose	that	

request,	and	the	court did	not	issue	a	lesser-included	offense	instruction	of	its	

own	initiative,	 though	it	 had	 the	 discretion	 to	 do	 so	 pursuant	 to	 17-A	M.R.S.	
17

§ 13-A(1) (2015).		To	amend	the	judgment	at	the	appellate	level	would	impose

a	 conviction	 for	offenses	that	were	 not	 presented	 to	 the	jury—and,	perhaps	

more importantly,	for	charges	that	neither party	wanted	the	jury	to	consider.		

[¶27]	 	 The	 uncertainty	 demonstrated	 by	 the	 parties	 and	 the	 court	

regarding	the	necessary	elements	to	charge	the	jury	to	obtain	a	conviction	on	

the	Class	B	charge	of	unlawful	sexual	contact may	be	attributable,	in	part,	 to	

the	confusing	evolution	of	 the	law	proscribing	unlawful	sexual	contact.	 Title	

17-A M.R.S.A.	§ 255	(1983),6 the	predecessor	to	section 255-A, was	originally	

enacted	in	1975.		P.L.	1975,	ch.	599,	§	1	(effective	May	1,	1976). The	elements	

of	 the	crime	of	unlawful	sexual	contact as set	out	in the	1983	 version	of	 the	

statute prohibited sexual	 contact with	 another	 person	 in	 five	 specific	

instances: when	 the	 victim	(A)	had not	expressly	 or	impliedly	acquiesced	in	

the sexual	contact;	(B) was unconscious	or	otherwise	physically	incapable	of	

resisting,	 and	 had not	 consented	 to	 the	 sexual	 contact; (C) was	 under	 age	

fourteen	and	 the	defendant was	at	least	three years	older;	(D) suffered from	

an	apparent mental	disability	that	rendered	him	or	her substantially	incapable	

of	understanding	the	nature	of	the	contact; or	(E)	was	in	official	custody	and	

 6 Title	17-A	M.R.S.A.	§	255	was	repealed	and	replaced	by	P.L.	2001,	ch.	383,	§§	22,	23	(effective	

Jan.	 31,	 2003)	 and	 has	 since	 been	 amended,	 most	 recently	 by	 P.L	 2011,	 ch.	 691,	 §§	 A-14,	 A-15	

(effective	May	22,	2012)	(codified	at	17-A	M.R.S.	§	255-A	(2015)).
18

the	 defendant	 had	 disciplinary	 or	 supervisory	 authority	 over	 him	 or	 her.		

17-A M.R.S.	§	255(1)(A-E).

[¶28]		No	sentencing	classification	was	specified	within	the	elements	of	

any	 of	 these	five	 criminal	 acts; sentencing	 classification	 was	 addressed	 in	 a	

separate	 subsection,	 17-A	 M.R.S.A.	 §	 255(2),	 indicating	 that	 unlawful	 sexual	

contact	was	a	Class	D	crime,	except	that	violation	of	subsection	(1)(C),	sexual	

contact	with	a	person	under	age	fourteen,	was	enhanced	to	a	Class	C	crime.

[¶29]	 	 By	 the	 time section	 255	 was	 repealed	 and	 replaced	 effective	

January	 31,	 2003,	 P.L.	 2001,	 ch.	 383,	 §§	 22,	 23	 (codified	 at	 17-A	 M.R.S.A.	

§ 255-A	 (Supp.	 2002)),	 the	 unlawful	 sexual	 contact	 prohibition	 had	 evolved	

into	 twenty	 separately	 defined	 crimes,	with	 the	 sentencing	 classification	 for	

each	 stated	 within	 the	 paragraph	 stating	 the	 elements	 of	 each	 crime.	 	 The	

unlawful	 sexual	 contact	 prohibition	 in	 17-A M.R.S.	 §	 255-A(1) (2015)	 has

further	 evolved	 into	 twenty-nine	 separate	 crimes,	 each	 with	 its	 own	

sentencing	classification	ranging	from	Class	A	to	Class	D.		With	the	offense	so	

defined,	 many	 prohibited	 acts	 may be	 subject	 to	 separate	 prosecutions	 for	

violation	of	 the	separately	defined	crimes,	and	confusion	by the	prosecution,	

the	 defense, and	 the	 courts	 as	 to	 how	 to	 address	 and	 instruct	 juries	 on	

prosecution	for	any	particular	offense	is	understandable.	
19

[¶30]		Because	 the	jury	was	not	adequately	advised	of	 the	necessity	of	

finding	 that	 the	crimes	were	committed	before	 the	 victim’s	 twelfth birthday,	

and	 we	 cannot	 know	 whether a	 properly-instructed jury	 would	 have	

convicted	Westgate	of	the	offenses	charged—or	of	any	lesser	offenses	had	it	

been	given	 the	opportunity—we	have	no	choice	but	 to	vacate	 the	conviction

and	remand	the	case	for	further	proceedings.7		See Bollenbach	v.	United	States,	

326	U.S.	607,	615	(1946)	(“In	view	of	the	place	of	importance	that	trial	by	jury	

has	 in	 our	 Bill	 of	 Rights, . . .	 the	 belief	 of appellate	 judges	 in	 the	 guilt of	 an	

accused,	 however	justifiably	 engendered	 by	 the	 dead	 record,	 [should	 not	 be	

substituted]	 for	 ascertainment	 of	 guilt	 by	 a	 jury	 under	 appropriate	 judicial	

guidance	.	.	.	.”).	

The	entry	is:

Judgment	of	conviction	vacated.		Remanded	 for	

a	new	trial.

 7	 	Because	we	 vacate	Westgate’s	 conviction,	we	 do	not	 consider	 his	 contentions	 that	 the	 court	

abused	its	discretion	in	setting	his	sentence.
20

On	the	briefs:

Jamesa	J.	Drake,	Esq.,	Drake	Law,	LLC,	Auburn, for	appellant	

Nicholas	E.	Westgate

Kathryn	 Loftus	 Slattery,	 District	 Attorney,	 Prosecutorial	

District	 1,	 Alfred, and	 Anne	 Marie	 Pazar,	 Esq.,	 Alfred,	 for	

appellee	State	of Maine

At	oral	argument:

Jamesa	J.	Drake,	Esq.,	for	appellant	Nicholas	E.	Westgate

Anne	Marie	Pazar,	Esq.,	for	appellee	State	of	Maine

York	County	Superior	Court	docket	number	CR-2012-1285

FOR	CLERK	REFERENCE	ONLY