MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 8 ME 112 Docket: Yor

- 17

- 529 Argued : Ju ly 1 8 ,	2018 Decided: August 9 ,	2018 Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN,	JABAR , HJELM, and HUMPHREY, JJ.

STATE	OF	MAINE

v. RALPH	C.	MILLER

S AUFLEY ,	C.J. [¶1] Ralph	 C.	 Miller	 appeals	 from	 a	 judgment	 of	 conviction for twenty
- eight	counts	of	gross	sexual	assault 1 (Class	B), 17

- A	M.R.S.	§	253 (2 )(H) (2017 ), entered	by	 the c ourt	 (York	County, Douglas,	J. )	 following	a	jury	 trial. Miller	challenges	the	sufficiency	of	the	evidence	to convict	him	of	each	count	of gross	sexual	assault. We	affirm	the	judgment.
I. BACKGROUND [¶ 2 ]		Viewing	 the	evidence	in	 the	li ght	most	 favorable	 to	 the	State,	 the jury	rationally	could	have	found	the	following	facts	beyond	a	reasonable	doubt.
See State	v.	Hall ,	2017	ME	210 , ¶ 29,	172	A.3d	467.

1 Miller	was	also	convicted	of	one	count	of	incest	(Class	D),	17

- A	M.R.S.	§	556(1)(A)	(2017),	but he	does	not	appeal	from	that	conviction.2 [¶ 3 ] Miller ,	who	is	the	victim’s	biological	father, first	met the	victim in August	 of 2008. T he	 victim had	experienced	an	unstable	childhood, and	 she moved	in	with	Miller and	his	family in	late	2008

. She was	fifteen	years	old	at the	time. [¶ 4 ] Shortly	 after	 she	 moved	in, Miller put	 his	 hand	 over	 the	 victim’s mouth,	pulled down	her	pants,	and	forced	his	penis	into	her	vagina

. 2 Following this	initial assault , Miller sexually	assaulted the	victim in	the	same	way “more than	50	times,”	“almost	on	a	weekly	basis,”	and	“for	month	after	month	between [her]	 15th	 birth day and [ her ] 18th.” The	 victim testified	 that	 “on	 every
occasion , ”	Miller	“insert [ed] his	penis	into	my	vagina.” [¶ 5 ] The	victim	moved	out	of	Miller’s	house	shortly	after	her eighteenth birthday. For approximately three	years	b etween	2013	and	2016, after	she	had moved	out	of	Miller’s	home,	the	victim and	Miller maintained	a	relationship that involved	no	assaultive	behavior

. However,	o n	 February	17,	2016, Miller	had sexual	intercourse	with	the	victim

. Following	th is incident,	the	victim ,	who	“felt dirty	and	gross ,” went	to	a	hospital to	obtain	a	sexual	assault	examination.		At the	hospital,	a	certified	sexual	assault	nurse	examiner	collected	semen	from	the

2 The	victim	testified in	detail to	the	specific	events	surrounding	the	first	sexual	assault.3 victim’s	vagina and	cervix ,	and DNA	from	the semen was	later	shown	to matc h Miller’s. [¶ 6 ]		A	detective	from	the	Biddeford	Police	Department interviewed	the victim,	and	she described	incidents	of	sexual assault beginning	when she	was fifteen	 years	 old. She gave the	 detective a	 number	 of	 details	 regarding	 the consequences	of	Miller’s	sexual	as sault	on	her

. [¶ 7 ] One	month	later ,	with	the	victim’s	approval,	t he	detective arranged a	pretextual	phone	call to Miller

. P ursuant	 to	 the	detective’s	plan,	 the	victim called	Miller	on	a	recorded	line. Among	other	things,	she	reminded	him	of	his sexual	assaults. Miller then stated: I’m	sorry	for	everything.		I	should	have	just	left	you	alone.	.	.	. A nd I	just	want	you	to	know	that	no	matter	what	happens

.	.	. , I’m	going to	love	you.		I’m	still	going	to	talk	to	you.		You	don’t	have	to	do	that with	me	if	you	don’t	want	to.		Don’t	feel	like	you	do.		All	right? [¶ 8 ] On	March	16,	2016, Miller	was	charged	by	complaint	with incest	and twenty
- nine	counts	of	gross sexual	assault. On	June	7,	2016,	an indictment	was issued alleging	twenty

- nine	counts	of	gross	sexual	assault taking	place	“on	or about	between	June	1,	2009	and	May	29,	2011,	in	York	County,	Maine” and	a single	count	of	incest. A	superseding	indictment was	issued	on	January 5,	2017, specifically	 identifying	 the	 month	 in	 which	 each	 of	 the	 twenty

- nine	 alleged4 assaults	 occurred

— with	 one	 gross	 sexual	 assault	 alleged	 in	 each	 month between	June	2009	and	May	2011

. [¶ 9 ] Miller pleaded	not	guilty	to	all of	th e charges.		A	three

- day	jury	trial was	 held	 on	 June	 26

- 28,	 2017. 3 Following	 the	 State’s	 case

- in

- chief,	 Miller moved	for	a	judgment	of	acquittal,	and	the	court	denied	the	motion.		Miller then testified and acknowledged	that	he	had had sex	with	the	victim	on	February	17, 2016,	but	he	asserted	that	the	victim	had	initiated	the	encounter	and	that	he had	“just	let that happen.”		He	denied	having	sex	with	the	victim	“when	she	was a	kid.” [¶1 0 ]		The	jury	found Miller guilty on	all	counts , and	the	court	entered	a judgment	of	conviction. 4 Miller	timely	appealed	from	the	conviction. See M.R. App.	P.	2B(b)(1).

3 Immediately	before	trial,	the	State	dismissed	the	 twenty

- ninth	count	of	gross	sexual	assault, which	alleged	an	incident	“on	or	about	between	May	1 ,	2011 and May	31,	2011,”	out	of	concerns regarding	the	date	of	the	offense	and	the	victim’s	birthdate.

4 Following	a	hearing,	t he	court	sentenced	Miller	to	eight	years	of	imprisonment	for	each	of	the twenty
- eight	counts	of	gross	sexual	assault.		The	court	select ed	the	fifth	and	twenty

- eighth	counts	as

“ primary ”	counts	for	purposes	of	the	sentencing	analysis. See State	v. Downs ,	2009	ME	3 ,	¶ 14,	962 A.2d	950; 17

- A M.R.S.	§	1252

- C (2017).		Twenty

- six	of	the	terms	were	to	be	served	concurrently	with the	 unsuspended	 eight

- year	 sentence	 for	 the	 fifth	 count.	 	 For	 the	 twenty

- eighth	 count,	 the	 court sentenced	 Miller	 to	 eight	 years,	 all	 but	 four	 years	 suspended,	 to	 be	 served	 consecutively to	 the sentence	 for	 the	 fifth	 count. The	 court	imposed a	 three

- year	 period	 of	 probation. The	 Sentence Review	Panel	 of	 this	Court	denied	Miller’s	application	 for	leave	 to	appeal	 from	his	sentence. See 15 M.R.S.	§ 2151 (2017).5 II. LEGAL	ANALYSIS [¶1 1 ]		Miller	contends	that	the	State	did	not	produce	sufficient	evidence from	 which	 the	 jury	 could	 have	 found that	 Miller	 committed	 each	 of	 the twenty
- eight	counts	of	gross	sexual	assault	for	which	he	was	convicted. On	a challenge	to	the	sufficiency	of	the	evidence,	we examine the	record in	the	light most	favorable	to	the	jury’s	verdict	to	determine	whether	the	j ury	could	have rationally	 found,	 beyond	 a	 reasonable	 doubt,	 that the defendant committed each	element	 of	 the	 offenses	 for	which	he	was	convicted. See Hall ,	2017	ME
210 ,	¶	29,	172	A.3d	467.		“A	victim’s	testimony,	by	itself,	is	sufficient	to	support a	guil ty	verdict	for	a	sex	crime	.	.	.	if	the	testimony	addresses	each	element	of the	crime	and	is	not	inherently	incredible.” State	v. Moores ,	2006	ME	139 ,	¶	9, 910	A.2d	373. [¶1 2 ]		A	person	commits	gross	sexual assault	if	he	“engages	in	a	sexual act	with another	person	and	.	.	.	[t]he	other	person	has	not	in	fact	attained	the age	of	18	years	and	the	actor	is	a	parent	.	.	.	of	that other person.” 17

- A	M.R.S. § 253(1)(H) .	 	 A	 “sexual	 act”	 includes an	 act	 between	 two	 people	 involving “direct	 physical	 contact between	 the	 genitals	 of	 one	 and	 the	 genitals	 of	 the other .” 17

- A	M.R.S.	§ 251 (C)( 1) (2017).6 [¶13] Miller	does	not	dispute	that	he is	the victim’s	biological	parent ,	and the	evidence	showed	that	the	victim	was	under	age	eighteen	during	the	entire peri od	in which	Miller	was	alleged	to	have	committed	gross	sexual	assault. The testimony 5 at	 trial	 established	 that	 Miller	 “put	 his	 penis	 into	 [the	 victim’s] vagina , ” and that	this	specific	conduct

— including	genital

- to
- genital	contact

— occurred	“almost on	a weekly basis ”	and	“ for	month	after	month .” See	id. The jury	 could have	 been	 convinced,	 beyond	 a	 reasonable	 doubt, that Miller subjected	the	victim	to at	least twenty
- eight	separate	incid ents	of	gross	sexual assault

. See State	v.	Shulikov ,	1998	ME	111 ,	¶ ¶ 12

- 13 ,	712	A.2d	504

. [¶1 4 ]		The	focus	of	Miller’s	sufficiency	argument	is	not,	however,	on	the State’s	failure	to	prove	any	one	element	of	gross	sexual	assault.		Rather,	Miller contends	 that because the	 indictment	 specified	 the	 time	 and	 place	 of	 the assaults,	 the	State	was	 required	 to produce	evidence regarding the	 time	and place	of	each individual	incident	of	assault

. 6 Contrary	to	Miller’s	contention,	we

5 Although	the	victim’s	t estimony	was ,	on	its	own,	sufficient	to	support	the	jury’s	verdict, see State v.	Logan ,	2014	ME	92 ,	¶ 17,	97	A.3d	121,	we	note	that	the	testimony	in	this	instance	was	corroborated by	Miller’s	implied	concession	in	the	recorded	phone	call	that	he	had	pressu red	her	to	have	sex	with him, evidence that	 the re	were	 consequences	 of	 the	 sexual	 assault s ,	 and	 testimony	 regarding	 her disclosures	of	sexual	assaults	while she	was in	high	school.

6 Although	Miller	does	not	raise	the	argument,	cases	involving allegations	of	a	continuing	course of	sexual	assaults	including multiple	counts	o f	sexual	abuse	will sometimes generate	issues	involving the	defendant’s	right	to	a	unanimous	verdict	on	each	specific	finding	of	guilt

— what	we	have	termed “specific	unanimity

. ” See Me.	Const.	art.	I,	§ 7; State	v. Hanscom ,	2016	ME	184 ,	¶¶ 14

- 16 ,	152	A.3d 632	 (holding	 that the	 denial of	 a request	 for	 a jury	instruction on	 specific	 unanimity ,	where	 the evidence	could	lead	to	juror	confusion regarding the	basis	of	each	 finding	of guilt,	was	prejudicial7 have	consistently	held	that	time	is	not	an	el ement	of	gross	sexual	assault	except to	determine	the	age	of	the	alleged	victim	and	to	apply	the	statute	of	limitations. E.g ., State	v.	Standring ,	2008	ME	188 ,	¶ 13,	960	A.2d	1210.		Here,	the	evidence established	 that	 the	 victim	 was	 under	 age	 eighteen	 dur ing	 all	 of	 the sexual assaults	and	 that	 the	applicable	 eight

- year	statute	 of	limitations	had	 not	 run when	the	prosecution	was	commenced	in	March	2016. See 17

- A	M.R.S.	§ 8 (2

- A) (2017)

. 7 We	have	also	held	that	place	is	not	an	essential	element	of	a	crime	a nd serves	 only	 to	 fix	 the	 venue	 of	 the	 prosecution and	 provide	 evidence	 upon which	jurors	may	evaluate	credibility

. See State	v.	Brown ,	2000	ME	25 ,	¶	10 , 757	A.2d	768. [¶1 5 ]		The record	contains	ample	evidence	to	support	the	jury’s	finding, beyond	a	reasonable	doubt,	that	the	State	prove d each	and	every	element of all twenty
- eight	counts	of	gross	sexual	assault.

error). In	this	case, Miller	affirmatively	approved	of	the	jury	instructions ,	thereby	waiv ing any	such challenge

. See State	v.	Ford ,	2013	ME	96 ,	¶ 15,	82	A.3d	75. On	the	facts	of	this	case,	even	if	Miller	had preserved	any challe nge	to	the	specific	unanimity	issue,	the	evidence	is	explicit	and	straightforward. Either	the	juror s believed	that	Miller	had	sexually	assaulted his	own	daughter at	least	once	during each	month	alleged	in	the	indictment ,	or they did	not.

7 When	 the	Legislature	amended	 the	statute	of	limitations	 for	gross	sexual	assault	in	2013,	it adopted	 the	 amended	 eight

- year	limitations	period	 for	 all	 offenses	 for	which	 the	 then

- applicable six

- year	limitations	period	had	not	run. See P.L.	2013	ch.	392, § 3	(effective	Oct.	9,	2013) ;	17

- A	M.R.S. §	8(2

- A)	(2017). Here,	the first assault	occurred	no	earlier	than	January	2009,	within	the	six

- year limitations	 period	 applicable	 when	 the	 Legislature	 amended	 the	 statute.	 	 Therefore,	 the	 current, eight

- year	limi tations	period	is	applicable ,	and	all	of	the	assaults	are	within	the	statutory	period

.8 The	entry	is: Judgment	affirmed.

William	H.	Ashe,	Esq. (ora lly) ,	The	Law	Offices	of	William	H.	Ashe,	Ellsworth, for	appellant	Ralph	C.	Miller Kathryn	 Loftus	 Slattery,	 District	 Attorney,	 and	 Anne	 Marie	 Pazar,	 Asst.	 Dist. Atty. (orally) ,	Prosecutorial	District	1,	Alfred,	for	appellee	State	of	Maine

York	County	Unified	Criminal	Docket	docket	number	CR

- 2016

- 222 F OR C LERK R EFERENCE O NLY