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)	 (2 015). 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	mov e	 to	 amend	 the	 charges,	 and neither	 party requested	instructions	regarding crimes	of	a	lower	cl ass committed	with the

same conduct	 as	 that	 charged when	 that	 conduct	 is	 perpetrated	 against	 a2 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 charge d the	jury

— with	 the	 consent	 of	 both	 parties

— that	 the	jury	 did not	have	 to determine	with	specificity	 the	date	or	date s	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 sex ual
contact occurred

— in	order	to	deliver	a	guilty	verdict .		On	th is	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	 th us 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	Westgat e 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	reasona ble	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	 pursu ant	 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 h is	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	indi cates	 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 ] I n	 2009,	 during	 the	 summer	 months	 of	 June,	 Jul y,	 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	 h er and	 causing	 her	 to	 expose	 her genitals to	 him

. T he	 first incident of	sexual	contact occurred	during a	weekend	in	June ,	and the	second incident occurred	 two	 weeks later

. T he	 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	 S tate’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	offenses5 occurred. Westgate	did	not	object,	and proceeded	to	moun t	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 a sserted 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	cri minal 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	Augus t.” 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	was6 “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	w as	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	 1 2.” The	 court	instructed	 the	jury	 to	 consider	 each charge	individually,	and	to	determine	whether	each	had	been	pro ved	beyond a	reasonable	doubt. [¶1 0 ] The	court	explained	that the indictment referred	“to	the	summer of	 2009,	 for	 the	 time	 of	 these	 offense s.”	 	With	 respect	 to	 this	 “on	 or	 about” timeframe,	the	court	instructed the	jury as	follows:7 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	evi dence	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	 Defenda nt	 may	 have	 had	 the opportunity	to	commit	the	offense	alleged. (Emphasis	 added.) Neither Westgate nor	 the	 State object ed to	 these instructions	or	request ed any	additional	instructions. [¶1 1 ]	 	 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”	 timef rame , 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	b een	prove d 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 [¶1 2 ]	 	 Before	 the	 jury	 delivered	its	 verdict, defense	 counsel stated	 on the	record	that Westgate	had	decided	not	to	request	a	lesser

- include d	offense instruction	 “because	 [h e ] 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. [¶1 3 ] 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	 e ach	 of	 the charges	 of unlawful	 sexual	 cont act ,	 with	 the	 sentences on	 each	 charge to	 run concurrently

. On the charge	of visu al sexual	aggression,	the	court	imposed	a concurrent	sentence	of	twelve	months. Westgate	filed	a n application	to	allow

a n	 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 [¶1 4 ] On	 appeal,	Westgate	 argues that	 the	 court	 erred	 by	instructing the	jury	that	it	did	not	need	to	determine	when	the	offenses	occurred,	but	only9 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	reaso nable	doubt,	that	the conduct was	perpetrated	against	the	victim	before	her	twelfth	birthday

. 3
A. Standard	of	Review [¶1 5 ]		Because	Westgate	did	not	object	to	the	court’s	timing	instructions at	trial,	we	review	his unpreserved challenge	to	th ose instructi ons	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	Sta te	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 [¶1 6 ] 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	 misunders tanding,” 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	m arks omitted). Jury	instructions

are	 erroneous if they create	 “the	 possibility	 of	 jury	 confusion	 and	 a	 verdict bas ed 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	 i s	 so	 clear	 that	 “the	 trial	 judge	 and	 prosecutor	 were	 derelict	 in countenancing	it,	 even	 absent	 the	 defendant’s	 time ly	 assistance	in	 detecting
it .” State	 v.	 Do l loff , 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	 de termine whether	 the	 defendant	 received	 a	 fair	 trial. Dolloff ,	 2012	 ME	 130,	 ¶	 76, 58 A.3d	1032.11 B. Obvious Instructional	Error [¶1 7 ] 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	ha s	proved, beyond	a	reasonable	doubt, facts	that	establish each	element of	the	crime charged

. United	States	v.	Gaudin , 515	U.S.	506,	5 09

- 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	 err or	 affecting substantial	rights	.	.	.	. ” State	v.	Nickerson ,	534	A.2d	1323,	1325	(Me.	1988). [¶1 8 ] Here, Westgate	 was	 charged by	 indictment with	 five Class	 B
vi olations	 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	 v iolation	 of12 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	 arous ing	 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	b efore	the	victim’s	twelfth	birthday , which	fell	in	the middle	of	the period that	the	allege d victim	described

. [¶1 9 ] 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	 allegedl y	 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	deliberation s,	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	 of13 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	f urther instructed	the	jury	that it s	principal	 focus	should be the	question	of	whether the	 crimes	 had	 been	 com mitted,	 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	 crim e	 was	 committed	 before	 the child’s	twelfth	birthday. ” [¶ 2 1] Th us , clarifying instructions	 regarding	 the	 issue	 of	 timing , although generally accurate,	here suggested	 that	 the	date	 of	 th e	 offenses	did

not	matter

. B ecause	the	evidence	established that	the	v ictim	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	h ave	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	specul ate	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	 w as 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	 th e	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	b efore	 the	victim	 turned	 twelve,15 see	 Dana ,	 517	 A.2d	 at	 721

. B ecause	 the	 victim’s	 age	 was	 a n element of	 t he
crim es charge d ,	and the	timing	of	the	offenses	relative	to	the	victim’s	twelfth birthday	was	an	issue	disputed	at	 trial , the	instructional	error compromise d 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 S tate’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	Wes tgate’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	w ith 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	 t he	 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, a brogated	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)	 a nd	 256 (1)(A) , respectively

. However,	at	trial, Westgate	expressly	told	the	court	that	he	did not	want	an	instruction	on	the	lesser	offense s .		The	State	did	not	oppose	that request,	and	the	court did	not	issue	a	lesser

- included	offense	instruction	of	its

o wn	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	charg es	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 , wa s	origina lly enacted	in	1975

. P.L.	1975,	ch.	599,	§	1	(effective	May	1,	1976). T he	e lements of	 the	crime	of	unlawful	sexual	contact as set	out	in the	1983	 version	of	 the

statute prohibited sexual	 contact with	 another	 pe rson	 in	 five	 specific
instances : when	 the	 victim (A) ha d not	expressly	 or	impliedly	acquiesced	in the sexual	contact ; ( B ) was unconscious	or otherwise physically incapable	of resisting,	 and	 ha d not	 consented	 to	 the	 sexual	 contact ; ( C ) was	 under	 age fourteen and	 the defendant wa s at	l east three years	older ; ( D ) suffered from

a n	apparent mental disability	that	rendered	him	or her substantially	incapable of understanding the	nature	of	the	contact ; or (E ) wa s	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	(ef fective 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	specifi ed	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) ) ,	 t he	 un lawful	 sexual	 contact	 prohibition	 had	 evolved into	 twenty	 separatel y	 defined	 crimes, with	 the	 sentencing	 classification	 for each	 stated	 within	 the	 paragraph	 stating	 the	 elements	 of	 each	 crime. T he 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,	 m any	 prohibited	 acts may be	 subject	 to	 separate	 prosecutions	 for violation	of	 the	se parately	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	 t welfth 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	opportunit y — 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	jur y has	 in	 our	 Bill	 of	 Rights , . . .	 the	 belief	 o f 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 F OR C LERK R EFERENCE O NLY