MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 ME 53 Docket: Yor

- 19

- 2 34 Argued: February	12,	2020 Decided: April	23,	2020
Panel: MEAD,	GORMAN, * JABAR,	and	HUMPHREY,	JJ. **

STATE	OF	MAINE

v. RONALD	PAQUIN

MEAD ,	J. [ ¶1] Ronald	 Paquin	 appeals	 from	 a	judgment	 of	 conviction for eleven counts	 of	 gross	 sexual	 misconduct	 (Class	 A),	 17

- A	 M.R.S.A.	 §	 253(1)( B ) ( Supp. 1985) , 1 entered	by	the	trial	court (York	County, Douglas,	J. ) following	a jury	trial

. Paquin	contends	that	the	cou rt	erred	in	(1)	declining	his	request	to compel	the	State	to	obtain	the	victim’s	criminal	history	on	the	second	day	of	the trial;	 (2) admitting	expert	 testimony	concerning	 the	phenomenon	 of	delayed

* Although	not	available	at	oral	argument,	Justice	Gorman	participated	in	the	development	of	this opinion. See M.R.	App.	P.	12(a)	(“A	qualified	justice	may	participate	in	a	decision	even	though	not present	at	oral	argument.”).

** Although	Chief	Just ice	Saufley	participated	in	this	appeal,	she	resigned	before	this	opinion	was certified.

1 Title	17

- A	M.R.S.A.	 §	253 has	been	amended	many	 times since	 the	criminal	conduct	at	issue occurred and	is	codified	in	its	current	version	at	17

- A	M.R.S.	§	253 (2018).2 reporting	by	male	victims	of	sexual	abuse;	(3)	failing	to rule	sua	sponte that	the Double	Jeopardy	Clause	barred	convictions	on	both	Counts	5	and	30;	(4)	giving a	deficient	“on	or	about”	jury	instruction	on	Count	31;	(5) declining	to	allow	a police	 detective	 to	 testify about	 whether	 he	 perceived any	 inconsistenci es between two	alleged	 victims’ respective	 versions	 of	events ;	and	 (6) allowing the	State	to	dismiss	Counts	27,	28,	and	29	during	the	trial	without	his	consent rather	than	entering	a	judgment	of	acquittal	on	those	counts. [¶ 2 ] We	agree	with	Paquin	that	the	convictions	on	both	Counts	5	and	30 violated	 his	 double	 jeopardy	 protections	 and we remand	 for	 dismissal	 of
Count 30.		We	also	agree	that	the	court	erred	in	allowing	the	State	to	dismiss Counts	 27,	 28,	 and	 29	 during	 the	 trial and therefore remand	 for	 entry	 of	 a judgment	 of	 acquittal	 on	 those	 counts.	 	 In	 all	 other	 respects,	 w e affirm	 the judgment.
I.		BACKGROUND [¶ 3 ] Viewing	the	evidence	in	the	light	most	favorable	to the	jury’s verdict,

see State	v.	Marble ,	2019	ME	157,	¶	7, 218	A.3d	1157,	the	jury	rationally	could have	found the	following	facts.		I n	the	early	1980s	the	victim	was	an	altar	boy at	the Roman Catholic Church in	Haverhill,	Massachusetts,	where	Paquin	was	a priest.		When	the	victim	was	nine	or	ten	years	old,	Paquin , while discussing with3 the	victim a	human	sexuality	class	that Paquin was	taking,	told	the	victim	that “it	was	perfectly	normal	for	men	to	touch	each	other.”		At	some	point	Paquin
committed a	sexual	act against the	victim	in	Haverhill. [¶ 4 ] Beginning	in	the	winter	of	1985,	and continuing until	just	before he turned	 fourteen,	 the	 victim	 made	 numerous	 trips	 to	 Kennebunkport	 with Paquin,	staying	at	a	campground	in	Paquin’s	camper	or	in	the	motel	associated with	the	campground. On	those	trips	Pa quin	routinely	provided	the	victim	with alcohol	and committed sexual	acts against him. [¶ 5 ] In	 February	 2017 the g rand j ury	 returned	 an	indictment against Paquin ;	as	later	amended , the	indictment	charged	Paquin	with	 fifteen	counts (Counts	 1

- 13,	 30

- 31)	 of gross	 sexual	 misconduct	 (Class	 A), 17

- A	 M.R.S.A. § 253(1)(B) , against the	 victim ;	 and	 sixteen	 counts	 (Counts	 14

- 29)	 of	 gross sexual	misconduct	(Class	B), 17

- A	M.R.S.A.	§	253(2)(A) (Supp.	1985), against a second	alleged	victim

. 2 The	case	was	tried	to	a	ju ry	on	November 26

- 29,	2018. During	the	trial,	the	court	granted	Paquin’s	motion	for	a	judgment	of	acquittal
on	 Counts	 10

- 13 , and	 the	 State	 dismissed	 Counts	 27

- 29.	 	 The	 jury	 returned verdicts	of	guilty	on	the	remaining	counts	concerning the	victim (Counts	1

- 9,

2 The	convictions	at	issue	in	this	appeal	resulted	 from	Paquin’s	crimes	committed	against	one person, refer red to in	this	opinion as	“the	victim

. ”4 30

- 31)	and	not	guilty	on	the	remaining	counts	concerning the	second	alleged
victim (Counts	14

- 26). The	court	denied Paquin’s	motion	for	a	new	trial. [¶ 6 ] At	the	sentencing	hearing , the	court	entered	judgment	in	accordance with	 the	verdict and	sentenced	Paquin on	each	count to	concurrent	 terms	of twenty	years’	imprisonment,	with	all	but	sixteen	 years	suspended,	and	 three years	of	probation.		Paquin	timely	appealed	and	filed	an	application	to	appeal from	 the	 sentence.	 	 On	 August	 7,	 2019,	 the Sentence	 Review	 Panel	 denied Paquin	leave	to	appeal	from his sentence. II.		DISCUSSION [¶ 7 ] We	discuss	Paquin’s	six	assertions	of	error	in	turn.
A. Victim’s	Criminal	History [¶ 8 ] In	a	chambers	conference	on	 the	second	day	of	 the	 trial,	Paquin’s counsel raised	 the	 issue	 of his	 wish	 to cross - examin e the	 victim	 using nonspecific	 criminal	 history	 that	 the	 victim had disclosed in	 an	 arbitration statement	 as	 part	 of his civil lawsuit	 aga inst	 the	 Catholic Church

. Counsel acknowledged that all Paquin knew	about	 the	criminal	history	was	based	on the	arbitration	statement.		When the	State	objected,	the	court	advised	defense counsel	that	“[y]ou	can’t	go	on	a	fishing	expedition	before	the	jury .	.	.	.	I have	to5 base	 my	 ruling	 on	 [ M.R.	 Evid. ]	 609, 3 so	 do	 you	 know	 what	 [the	 victim’s] conviction	 history	 is,	 what	 he	 was	 convicted	 of	 and	 for	 what?” Counsel answered,	“No.” [¶ 9 ] D efense counsel	then	requested	that	the	State	produce	the	victim’s criminal	 history	 as “something	 that	 should	 be	 discoverable	 in	 this	 case , something	that	they	should	provide	us .”		T he	State	objected	on	the	ground that it	had already provided	in	discovery all	of t he	information	it	had, and argu ed that a	request	for	discovery	on	the	second	day	of	trial	concerning information previously	 known	 to	Paquin	was	 “not	appropriate.” The	court sustained	 the State’s	 objection	 and ruled	 that	 Paquin	 would	 not	 be	 allowed	 to	 inqu ire on

cross - examination about	 the	 victim’s	 self

- reported	 convictions	 “unless [counsel	has] some	specific	information	about	his	.	.	.	criminal	history.” [¶1 0 ] Paquin	 acknowledges	 that	 “Maine’s	 discovery	 rules	 contain	 no provision	specifically	requiring	t he	production	of the criminal	history	record	of a	complaining	witness	who	 testifies	at	 trial,” and	he	does	not assert that	 the State	failed	to	produce	any	discovery	explicitly	required	by M.R.U.	Crim.	P. 16 or	by Brady	v.	Maryland ,	373	U.S.	83	(1963), 4 and	its	progeny

. Rather,	Paquin

3 Maine	Rule	of	Evidence	609 governs	the	impeachment	of	a	witness	by	evidence	of	a	criminal conviction.6 urges	 us	 to	 hold	 that Rule	 16	 implicitly	 require s	 the	 State	 to	 produce	 the criminal	 history	 of	 a	 complaining	 witness	 who	 testifies	 at	 trial because ,	 he
argues, the	State is	always	in	constructive	possession	of	that	informa tion and	it

“ is	potentially impactful	on	the	outcome	of	[the]	trial

. ” 5 [¶1 1 ] “We afford	the	trial	court	substantial	deference	in	overseeing	the parties’	discover y . .	.	. ” State	v.	Silva ,	2012	ME	120,	¶	8,	56	A.3d	1230. “O nly when	 the	 defendant	 can	 establish	 that	 the	 effect [of	 an	 alleged	 discovery violation] is	so	significant	as	to	deprive	him	of	a	fair	trial	will we vacate	on	that basis.” Id. Furthermore,	 i n	 considering	 Paquin’s	 discovery	 request	 made during	trial conce rning	a	matter	of	which	he	was	aware ,	t he	court wa s	entitled to	consider	the potential delay	involved. See	id. ¶¶	5,	9. Without	deciding	if	or when	the	State	is	ever	required	to	do	so,	we	conclude that on	this	record	the trial	court	did	not	err	in	ruling that	the	State	was	not	required	to	produce the victim’s	criminal	history mid

- trial

. [¶1 2 ] Maine	Rule	of	Evidence 16(a)(2)(D),	t he	automatic	discovery	rule invoked	by	Paquin,	requires	the	State	to	produce	“[a]	statement	describing	any

4 We	recently	explained	that	“[t] he	due	process	concepts	articulated	in Brady require	the	State	to disclose	to	the	defendant	evidence	that	is	favorable	to	the	accused,	either	bec ause	it	is	exculpatory, or	because	it	is	impeaching .” State	v.	Reed

- Hansen ,	2019	ME	58,	¶	13,	207	A.3d	191	(quotation	marks omitted).

5 Paquin	does	not	argue	“that	the	State	is	required	to	produce	such	records	of every witness,	only those,	such	as	[the victim	in	this	case],	on	[whose]	testimony	its	case	depends.”7 matter	 or	 information	 known	 to	 the	 attorney	 for	 the	 State that	 may	 not	 be known	 to	 the	 defendant and	 that	 tends	 to	 create	 a	 reasonable	 doubt	 of	 the defendant’s	guilt	as	 to	 the	crime	charged.” ( E mphasis	added

. )		Here,	Paquin knew	prior	to	trial	that	the	vi ctim	had a self

- reported criminal history .		When the	court	inquired:	“And	 this	was	information	 that	you	received	in	discovery earlier	in	the	case?”	counsel	answered,	“Sure.” [¶1 3 ] Furthermore,	Paquin	made	no	showing	that	he requested from	the
State or	 ot herwise attempted	 to	 obtain	 the	 victim’s	 criminal	 record	 prior	 to trial, 6 and he	proffered	no	specific	dates	of	conviction	or	other	information	that would	 allow	 the	 court	 to	 determine	 the	 admissibility of	 the	 purported
convictions pursuant	 to M.R. Evid.	 60 9(a)

- (b),	 such	 as	 whether	 the y were punishable	by	imprisonment	for	more	than	one	year or	whether	their	elements established	dishonesty, see M.R. Evid.	609(a). [¶1 4 ] In	sum,	g iven	th is	record the	court did	not	abuse	its	discretion	in declining	to compel	the	State	to	obtain	the	victim’s	criminal	history during	the trial , nor	in	ruling	that Paquin could	not	cross

- examine the	victim	concerning

6 Paquin	 points	 to	 M.R.U.	 Crim.	 P.	 16(c)(1),	 which	 requires	 the	 State	 to	 produce,	 upon	 the defendant’s	written	request,	specified	items	“that	are	material	and	relevant	to	the	preparation	of	the defense.”		The	record	does	not	contain	any	such	request	from	Paquin.		Had	he	timely	requested	the victim’s	criminal	history	pursuant	to	the r ule	and	the	State	declined	to	comply,	the	court	would	have had	the	authority,	in	its	sound	discretion,	to	issue	an appropriate	order. See Corey v.	Norman,	Hanson &	DeTroy ,	1999	ME	196,	¶	17,	742	A.2d	933	(noting	“the	considerable	discretion	vested	in	the	judge” in making a	discovery	ruling	(quotation	marks	omitted)).8 his nonspecific ,	 self

- reported	 criminal	 history

. See	 Silva ,	 2012 ME	 120,	 ¶	 8, 56 A.3d	1230.
B. Expert	Testim ony [¶1 5 ] The	victim	testified	to	sexual abuse that	occurred	between	1985 and	1988,	more	than	thirty	years	before	the	charges	resulting	from that	abuse went	to	trial.		He	reached	a	settlement	with	the	Catholic Church in	2010 , and in 2011	he	reported	to the	Maine	Attorney	General ’ s	Office	what	had	happened. [¶1 6 ] At	 trial,	 the	State	sought	 to	call	an	expert	witness	 to	 testify	 that victims	of	sexual	abuse,	particularly	male	victims,	often	disclose	the	abuse long after	it	occurred,	and	to	explain	why	that i s	so. Following	a	lengthy	voir	dire, Paquin ’s	 objection	 to	 the	 expert’s	 testimony ,	 primarily	 on	 the	 ground	 that	it unfairly	bolstered	 the	victim’s	credibility, was	overruled. The	court satisfied itself that	 the	State	was	 not	 seeking	 to	 elicit	 the	exper t’s	 opinion	concerning why	 the alleged victims	 in	 this particular case	 delayed	 reporting,	 and	 it excluded,	 pursuant	 to	 M.R. Evid.	 403, any	 reference	 by	 the	 expert,	 while discussing	delayed	disclosure,	to	the	abuser	being	a	member	of	the	clergy .		The expert then	 testified	 that	 “delayed	 disclosure	 is	 actually	 the	 norm

.	 .	 . . I t’s9 almost	expected	given	the	statistics

. .	.	. [M] en	actually	wait	a	great	deal	longer to	disclose	abuse.” Paquin’s	renewed	objected	was	overruled. [¶1 7 ] “Whether	 proffered	 evidence	 r equires	 expert	 explanation	 is	 a question	left	to	the	discretion	of	the	trial	court.” State	v.	Wyman ,	2015	ME	1, ¶ 26,	 107 A.3d	 641.	 	Maine	 Rule	 of	 Evidence	 702	 allows	 “[a]	witness	who	is qualified	 as	 an	 expert	 by	 knowledge,	 skill,	 experience,	 training,	 or education [to]	testify	in	the	form	of	an	opinion	or	otherwise	if	such	testimony	will	help	the trier	of	fact	to	understand	the	evidence	or	to	determine	a	fact	in	issue.” [¶1 8 ] We	discern	no	abuse	of	discretion	in	the	court’s	determination	that the	expert	was	qualified	and could testif y concerning a	matter	that	would	assist the	 jury	 in	 understanding	 the	 evidence. See	 id. ; Wyman ,	 2015	 ME	 1,	 ¶ 26,
107 A.3d	641

. Furthermore,	 the	c ourt	limited	 the	 risk	 of	unfair	 prejudice	 to Paquin	by	restricting	the	expert’s	testimony	to	the	subject	of	delayed	disclosure in	general

— as	opposed	to	an	opinion	as	to	why	the	victim	in	this	case	may	have made	a	late	disclosure

— and	excluding	from	the	expe rt’s	opinion	the	effect	of an	abuser	being	a	member	of	the	clergy. 7 See M.R.	Evid.	403. [¶1 9 ] That	said , “[a]n	expert	opinion	must	be	relevant	to	an	issue	in	the

case . ” State	 v.	 Napier ,	 1998	 ME	 8,	 ¶ 5,	 704	 A.2d	 869. The trial	 court’s

7 The	expert	testified	that	her	employer	“coordin ate[s]	.	.	.	investigations	of	child	sexual	abuse	in Cumberland	County.” We	reject	Paquin’s	assertion	that this testimony	unfairly	bolstered	the	victim’s10 determination	 of	 relevancy is	 reviewed for	 clear	 error. Id. In	 this	 case,	 the expert’s	 testimony	 regarding	 the	phenomenon	of	delayed	disclosure	was	not relevant	if,	as	Paquin	contends,	“There	is	no	evidence	that	[the	victim]	delayed disclosing	his	abuse. ” [¶ 20 ] We	agree	that	the	evidence	does	not	establish as	a	certainty	when or	to	whom	the	victim	made a first	disclosure, but	establishes only	that	he	first disclos ed	the	abuse to	Maine	law	enforcement	authorities	in	2011,	and	that he had	reached	a	settle ment	with	 the	Church in	2010. However ,	at	 trial	Paquin accepted	the	premise	that	the	victim	had in	fact made	a	delayed	disclosure,	and he asserted	it	as	a	fact	in	objecting	to	the	expert’s	testimony: [ PAQUIN ] : You	 know,	 we	 haven’t	 made	 an	 issue	 of the late disclosure

. Obviously,	it’s	out	there

.	.	.	.

.	.	.	. And	so	given	that	we	didn’t	highlight	that,	that we	didn’t	call into	question	the	late	report ,	we	don’t	really	think that it’s	incredibly

credibility	because th e	expert’s	tangential connection	to	law	enforcement	“allowed	[her]	to	sit	as	a sort	of	human	polygraph,”	and	 the	 victim	 “[a]pparently	 .	 .	 .	passed	 those	 truth

- telling	 tests.”		The expert	went	on	to	say	that	her	duties	involved	“forensic	interviews	of children ”	(emphasis	added) ; here,	the	expert	testified	that	she	had	never	met	the	victim,	who,	in	any	event,	was	forty

- four	years old	at	the	time	of	the	trial.		Given	that	evidence,	we	cannot	conclude	that	the	jury	was	led	to	believe that	the	expert	was	vouching	for	the	victim’s	pe rsonal	credibility.11 probative	at	this	point	to	have	someone	come	in	and	tes tify	as	to	a late	disclosure.

.	.	.	. We	want	to	avoid	the	suggestion	that because	of this	failure to	disclose	or	delayed	disclosure that	there	were	other	victims	out there	in	.	.	.	this	particular	case

. (Emphasis	added.) [¶ 2 1] When	the	court	ruled on	his	objection,	Paquin	did	not	take	issue with	the	court’s	statement	that [b]ased	on	the	testimony	of	both	[ alleged victims],	it	is	clear	there has	 been	 a	 substantial	 delay	 in	 reporting	 these	 alleged	 events. They	.	.	.	allegedly	occurred	in	the	late	198 0s.		The	disclosure	was not	made	at	the	time.		It	was	made	a	number	of	years	later

. That	 delay	 has	 been	 referenced	 by	 counsel,	 by	 the	 defense both	in	opening	statement	and	as	part	of	cross

- examination	of	at least	[a	detective	who	testified]. [¶ 22 ] Pursuant	 to	 M.R.	 Evid.	 104(a),	 “[t]he	 court	 must	 decide	 any preliminary	 question	 about	 whether	 .	 .	 .	 evidence	 is	 admissible.”	 	 Like	 the

court ’s relevancy	determination, a	Rule	104(a)	decision	is	reviewed	 for	clear

error. Walton	 v.	 Ireland ,	 2014	 ME	 130,	 ¶ 12,	 104	 A.3d	 883; see Napier , 1998 ME 8,	¶ 5,	704	A.2d	869. Here,	the	court’s	finding	that	“ there	has	been	a substantial	delay	in	reporting	these	alleged	events,” a	precursor	to	the	expert’s opinion	 being	 relevant	 and	 therefore	 admissible,	 was	 not	 clearly erroneous12 given	the	evidence	establishing	when	the	abuse	occurred	and	when	the	victim first	reported	it	to	Maine	authorities,	coupled	with Paquin’s	implicit	admission that	the	victim’s	report	had	been	substantially	delayed.
C. Double	Jeopardy [¶ 23 ] Paquin	 contends	 that	 the	 court’s	 entry	 of	 judgment	 on both
Counts 5	 and	 30	 violates	 his	 constitutional	 double	 jeopardy	 protections.
U.S. Const.	amend

. V ; Me.	Const.	art. I,	§	8

. Reviewing	for	obvious	error	because this	issue	was	not	raised	at	trial, see M.R.U.	Crim.	P.	52(b), we	agree. [¶ 24 ] In State	v.	Martinelli ,	discussing	the	constitutional	double	jeopardy bar	 against	 “multiple	 punishments	 for	 the	 same	 offense,”	 2017	ME	 217,	 ¶	 5,
175 A.3d	636	(quotation	marks	omitted), we	explained that
[b]ecause	a	person,	by	one	act	or	transaction,	may	violate	multiple criminal	 laws,	 courts	 apply	 the Blockburger test	 to	 determine whether	the	crimes	enumerated	by	those	multiple	statutes	are	the same	 offense	 for	 purposes	 of	 double	 jeopardy	 protections. Se e Blockburger	 v.	 United	 States ,	 284	 U.S.	 299,	 304,	 52	 S.	 Ct.	 180, 76 L. Ed.	 306	 (1932).	 The	 test	 asks	 whether	 each	 statutory provision	requires	proof	of	a	fact	that	the	other	does	not.		If each statutory	provision	requires	a	unique	proof	of	fact,	the Block burger test	 is	 satisfied	 and	 there	 is	 no	 double	 jeopardy	 violation	 by subsequent	prosecutions	or	multiple	punishments.
Id. ¶	7	(emphasis	added)	(quotation	marks	omitted).13 [¶ 25 ] The	indictment	against	Paquin	charged: Count	 5: On	 or	 about	 between	 Novembe r	 1,	 1986	 and February 28, 1987,	 in	 Kennebunkport,	 YORK	 County,	 Maine, RONALD	PAQUIN ,	did	engage	in	a	sexual	act	with [the	victim]

.	.	. , not	his	spouse,	who	had	not	in	fact	attained	his	fourteenth	birthday.
Count	 30: On	 or	 about	 between	 December	 1,	 1986 and December 31,	 1986,	 in	 Kennebunkport,	 YORK	 County,	 Maine, RONALD	PAQUIN ,	did	engage	in	a	sexual	act	with [the	victim]	.	.	. , not	his	spouse,	who	had	not	in	fact	attained	his	fourteenth	birthday. To	 wit:	 Engaging	 in	 a	 sexual	 act	 in	 the	 form	 of	 direct physical contact	between	 the	genitals	of [the	victim]	.	.	. and	 the	mouth	of RONALD	PAQUIN

. [¶ 26 ] Paquin	argues	that	although	Count	30	requires	proof of a	specific type	of	sexual	act	whereas	Count	5	is	satisfied	by	proof	of	any	sexual	act,	the

two	count s	do	not each “require[]	proof	of	a	 fact	 that	the	other	does	not,” i d. (quotation	 marks	 omitted) ,	 because	 the	 jury	 could	 find	 that	 a	 single	 sexual

act

— Paquin	 putting	 his	 mouth	 on the	 victim ’s	 genitals	in	December	 1986

— satisfied	 the	 State’s	 burden	 of	 proof on	 both	 counts. Put	 another	 way,	 only Count	30	require d proof	of	a	unique	 fact,	and	if	Paquin	committed	 the	crime charged	 in	 Count	 30,	 then	 he	 necessarily	 committed	 the	 crime	 charged	 in
Count 5. [¶ 27 ] A ccordingly,	a pplying Martinelli ,	a	judgment	of	conviction	on	both counts	violates	the	Double	Jeopardy	Clause	unless	the	State	proved at	trial that the convictions did	 not	 arise	 from	 “the	 same	 act	 or	 transaction.” Id. ¶	 914 (quotation	marks	omitted).		As	Paquin	notes, the	State did	not. Although	the jury	might	have	found	that	separate	incidents	formed	the	basis	of	its	verdicts on	Counts	5	and	30, we cannot	know	that ,	and	will	not	assume	it

. [¶ 28 ] The trial court’s	instruction	following	a	note	from	the	jury	during deliberations	 confirms this	 analysis.	 	 The	 note	 read:	 “Could	 we	 please	 get clarification	 of	 the	 difference	 between	 charges	 1	 through	 9	 and	 charge number 30	and	then	charge	number 31?” T he	court	answered	the	jury:	“[A]ll of	 those	charges,	Counts	1	 through	9	and	Counts	30	and	31, charge	 the	same offense .	.	.	.	So	all	of	those	charges involve	the	same	crime .” (Emphasis	added.) Specifically	c oncerning	Count	30,	the	court	correctly	instruct ed	that	“the	State’s burden	 is	 to	 prove	 beyond	 a	 reasonable	 doubt	 that	 [the]	 particular	 type	 of sexual	act	occurred and	that	it	occurred within	the	date	range	specified	in	Count
30

. ” T he	double	jeopardy	problem	arises	because	if	the	jury	found	that	the	St ate met	that	exact	burden	of	proof,	nothing	more	was	required	for it to	find	Paquin guilty	on	Count 5	as	well. [¶ 29 ] Because	 the	Double	 Jeopardy	 Clause directs that Paquin	 cannot stand	 convicted	 of	 both	 Counts 5	 and	 30, we	 remand	 for the	 dismissal	 of
Cou nt 30.		Resentencing	on	Count	5 , as	urged	by	Paquin , is	not	required because15 each	 of	 the	 remaining ten convictions is for	 the	 same	 crime	 and	 resulted	 in identical	concurrent	sentences.
D. Jury	Instruction [¶ 30 ] Count	31	charged : On	or	about	between June	1,	1988	and	August	21,	1988	.	.	.	RONALD PAQUIN,	did	engage	in	a	sexual	act	with [the	 victim]	.	.	. ,	not	his spouse,	who	had	not	in	 fact	attained	his	 fourteenth	birthday.		To wit:	Engaging	in	a	sexual	act	in	the	form	of	direct	physical	contact betwe en	 the	anus	of [the	victim] .	.	.	and	 the	genitals	of	RONALD PAQUIN. The	victim’s	fourteenth	birthday	was	the	day	following	the	last	day	charged	in
Count	31. Consequently,	in	order	to	return	a	verdict	of	guilty	on	Count	31	the jury	 was	 required	 to	 find	 b eyond	 a	 reasonable	 doubt	 that	 direct	 physical contact	between	the	genitals	of	Paquin	and	the	anus	of the	victim occurred	on or	before	August	21,	1988. [¶ 3 1] Concerning	the	indictment	generally,	the	court	instructed: The	indictment	alleges	that	each	offe nse	was	committed on or	 about	 a	 specific	 period	 of	 time	 in	 each	 particular	 count.	 	 The specific	date	of	the	alleged	crime	need	not	be	proven.		It	is	enough if	 the	 State	 proves	 beyond	 a	 reasonable	 doubt	 that	 the	 offense charged	 was	 committed	 by	 the	 defendan t and	 it	 happened sometime	within	 the	dates	suggested	by	 the	evidence	of	 the	case with	respect	to	each	count. The	 question	 of	 whether	 the	 offense	 was	 committed,	 not when	 it	 happened,	 must	 be	 the	 principal	 focus	 of	 your	 inquiry; however,	you	may	consider any	evidence	of	uncertainty	as	to	the16 dates	 of	 the	 alleged	 offense	in	 deciding	 whether	 the	 offense	was proven	beyond		a	reasonable	doubt	.	.	.	. [¶ 32 ] Paquin	 contends	 that	 the	 instruction	 was	 erroneous	 because	 it allowed	 the	 jury	 to	 return	 a	 guilty	 verd ict	 even	 if	 it	 found that a	 sexual	 act occurred	 after August	 21,	 1988,	 when the	 victim had	 reached age fourteen.
Becau s e Paquin	 did	 not	 object	 to	 the	 instruction at	 trial , we	 review it for obvious	error. State	v.	Williams ,	2020	ME 17,	¶	24,

--- A.3d

--- . The	obvious error	standard	requires	Paquin	to	show	that	“ there	is	(1)	an	error,	(2) that	is plain,	and	(3)	that	affects	substantial	rights. Even	if	these	three	conditions	are met,	we	will	 set	 aside	 a	jury ’ s	 verdict	 only	if	we	 conclude	 that	 (4) the	 error seriously	 affects	 the	 fairness	 and	 integrity	 or	 public	 reputation	 of	 judicial proceedings .” Id. n.6	(quotation	marks	omitted). We ha ve said	that [a]n	error	regarding	jury	instructions	is	plain	if	that	error	is	so	clear that	the	trial	judge	and	prosecuto r	were	derelict	in	countenancing it,	even	absent	the	defendant’s	timely	assistance	in	detecting	it.		An error	affects	a	criminal	defendant’s	substantial	rights	if	 the	error was	 sufficiently	 prejudicial	 to	 have	 affected	 the	 outcome	 of	 the proceeding.		In	re viewing	for	obvious	error,	our	ultimate	task	is	to determine	whether	the	defendant	received	a	fair	trial. State	v.	Lajoie ,	2017	ME	8,	¶	15,	154	A.3d	132	( citations	and quotation	marks omitted). [¶ 33 ] In State	 v.	 Hodgdon ,	 w e found	 that an	 instruction functionally identical to	the one	at	issue	in	this	case did	not	rise	to	the	level	of	obvious	error,17

“ considering	the	instructions	as	a	whole,	as	we	must	do ,”	because	“[t] he	court on	several	occasions	informed	the	jury	of	the	requirement	that	to	return	a	gu ilty verdict

.	.	. [it] must	find	that	the	victim	was	under	the	age	of	fourteen	years	at the	time	the	offenses	occurred. ” 2017	ME	122, ¶¶	11,	16, 164	A.3d	959

. Here,

a s	in Hodgdon ,	the	trial	court repeatedly instructed	the	jur y ,	both	orally	and	in
its	wr itten	instructions,	and	specifically	concerning	Count	31,	that	it	must	find beyond	 a	 reasonable	 doubt	 that	 the	 victim	was	 under	 the	 age	 of	 fourteen	in order	to	return	a	verdict	of	guilty.		When	the	jury	sent	out	a	note	asking	about Count	31,	the	court	reem phasized	that	the	State	was	required	to	prove	beyond a	 reasonable	 doubt	 that	 the	 victim	 “had	 not	 yet	 attained	 his	 14th	 birthday.”
As we	did in Hodgdon ,	we	conclude	that there	is	no	obvious	error	demonstrated on	this	record. See	i d. ¶ 16. [¶ 34 ] That	said, we	noted	in Hodgdon t hat the	“on	or	about”	instruction commonly	 used	 in	 Maine	 courts 8 is problematic , standing	 alone ,	 when the applicable	statute requires the	State	to	prove	that	the	crime	charged	occurred on	or	before	a	specific	date in	order	to	avoid	a	judgment	of	acquittal

. Id. Such is	the	case	here,	where	the	jury	was	required	to	return	a	verdict	of	not	guilty	if it	 found	 that	 the	 sexual	 act	 charged	 in	 Count	 31	 occurred	 on	 or	 after

8 See Alexander, Maine	Jury	Instruction	Manual §	6

- 30	at	6

- 61	(2018

- 2019	ed.	2018).18 August 22, 1988

— the	victim’s	fourteenth	birthday

. A lthough	we	conclude	that the	 court’s	 instructions	 were	 not	 clearly	 erroneous when considered	 as	 a whole,	a better	approach	would	have	been	 for	 the	court	 to	make the specific date	limitation	clear	in	its	“on	or	about”	instruction,	in	addition	to	stating the “under	age	fourteen” requirement	elsewhere	in	its	instructions. 9
E. Inconsistent	Witness	Statements [¶ 35 ] When Paquin	cross

- examin ed a	Kennebunkport	police	detective , he asked,	“When	you	interviewed	the	two	alleged	victims,	did	you	notice	any inconsistencies	in	their	stories?		Did	they	match?” T he	State	objected and the following	exchange took	place at	sidebar: [ PAQUIN ] :	 	 Judge,	 he’s	 a	 trained	 detective.	 	He	 can

— he’s	 got the ability	to	judge	whether	someone’s	credible	or	not. [ STATE ] :	 	 So,	 Judge,	 the	 State’s	 objection	is	 he	 absolutely	 cannot judge	someone’s	credibility.		That’s	the	purview	of	the	jury	and	the jury	alone.	.	.	.

9 For	example,	without	requiring	that	trial	courts	employ	any	particular	language,	the	court	in	this case	 could	 have	made	its	instruction	 concerning	 C ounts	 1

- 9	 and	 30

- 31	more	 complete	 by	 saying (modification	in	italics): The	indictment	alleges	that	each	offense	was	committed	on	or	about	a	specific	period of	time	in	each	particular	count.		The	specific	date	of	the	alleged	crime	need	not	be proven.		It	i s	enough	if	the	State	proves	beyond	a	reasonable	doubt	that	the	offense charged	was	committed	by	the	defendant and that ,	concerning	Counts	1

- 9	and	Counts 30

- 31, each	 offense was	 committed	 before	 the	 alleged	 victim	 reached	 his	fourteenth birthday

. See	supr a ¶ 31

.19 [ PAQUIN ] :		I’m	asking	for	factual	informatio n	regarding	visits	and times	and	when	people	were	there. COURT:	 	 Is	 there	 a	 specific	 statement	 that	 you	 are	 seeking	 to illuminate	as	inconsistent,	or	are	you	just	asking	generally? [ PAQUIN ] :		Kind	of	asking	generally. COURT:		The	objection’s	sustained. [¶ 36 ] “We review	a	trial	court’s	ruling	on	the	admissibility	of	evidence for	 clear	 error	 or	 abuse	 of	 discretion.” State	 v.	 Tieman ,	 2019	 ME	 60,	 ¶ 12,
207 A.3d 618.		It	is well	established that	credibility	determinations	are	within the	 sole	 province	 of	 t he	 jury. See State	 v.	 Sweeney ,	 2004	 ME	 123,	 ¶ 11 , 861 A.2d 43 (“Questions	 that	 ask	 a	 witness	 to	 give	 an	 opinion	 of	 another witness’s	 veracity	 are	 improper	 because	 determining	 the	 credibility	 of	 a witness	 is	 the	 sole	 province	 of	 the	 fact

- finder.”).	 	 Paquin	 argues	 that the credibility of	the	alleged	victims was not im plicated	by	his	question because	he

was not asking the	detective whether he	believed	one	or	the	other,	but	rather whether there	were	any	inconsistencies	in their	accounts as	a	factual	matter. [¶ 37 ] Setting	aside	the	issue	of	whether	Paquin’s	question	cal led	for	an improper	credibility	opinion,	the	court	did	not	abuse	its	discretion	in	sustaining the	 State’s	 objection	 because	 whether	 the	 detective	 discerned	 any
inconsisten c ies in	the	alleged	victims’	accounts	was	of	limited	relevanc e given20 Paquin’s	opportu nity	to	cross

- examine them

. S ee id. (“One	witness’s	opinion	of another	witness’s	truthfulness	is	not	helpful	to	the	jury	when	the	jury	has	the opportunity	to	hear	both	witnesses.” ); M.R. Evid

. 403. Paquin	was then free	to highlight any perceived inconsistencies in	their	respective	accounts during	his closing	argument

. F. Dismissal	of	Counts	27

- 29 [¶ 38 ] Paquin	finally	contends	that	the	court	erred	in	allowing	the	State to	 dismiss	 Counts	 27

- 29 during	 the	 trial	 rather	 than	 entering	 a	judgment	 of

ac quittal on	those	counts

. Those	counts concerned	the	second	alleged	victim ;
t he	 jury	 returned	 verdicts	 of	 not	 guilty	 on all counts concerning the	 second alleged	victim that	were	submitted	to	it	(Counts	14

- 26). [¶ 39 ] After the	second	alleged	victim testified,	the	State	advised	the	court in	 chambers	 that	 it	 would	 be	 dismissing	 Counts	 27

- 29	 “with	 regard	 to	 [ the second	 alleged	 victim ]	 based	 on	 his	 testimony	 of	 not	 recalling.”	 	 The	 court replied,	“All	right.		Then	Counts	27,	28	and	29	are	dismissed.”		Wh en	Paquin’s counsel	raised	the	question	of	whether	Paquin’s	consent	to	the	dismissal	was required,	 the	 court	 advised:	 “[T]he	 State	 anticipated	 my	 thinking	 on	 this because	 I	would	 be	 disposed,	 unless	 they	 present	 a	witness	 .	 .	 .	 to	 fill	in	 the blanks	 on	 Cou nts	 27,	 28	 and	 29,	 I would	 be	 dismissing	 those	 counts o n	 a21 judgment	in	response	to	[a motion	for a judgment	of	acquittal]	anyway,	so	it’s sort	 of	 moot.”	 	 The	 court	 deferred ruling pending	 Paquin’s	 response	 to	 the proposed	 dismissal,	 but	 said,	 “I’ve	 already	 indicated	 I’m	 likely	 to	 grant	 the motion	 for	 judgment	 of	 acquittal	 on	 those	 three	 counts	 anyway. W hether [Paquin]	agrees	or	not ,	the	evidence	is	not	in	the	record	at	this	point. ” [¶ 40 ] After	the	State	rested	its	case

- in

- chief	on	the	third	day	of	the	trial, Paquin	moved	for	a	judgment	of	acquittal	on	all	counts.		In	ruling	on	the	motion, the	court	again	stated	that	“with	respect	to	Counts	27,	28	and	29	.	.	.	I	would	be
inclined to	grant	the	motion	for	acquittal.”		This	exchange	followed: [ STATE ] :		Judge,	would	have [ sic ] the Court	consider	it	moot,	then	I think	we	were	waiting	in	chambers	to	determine	if	there	would	be an	objection	to	those	dismissals,	and	I	just	want	to	make	sur e	the record’s	clear	that’s	mooted	then. COURT:		 I	haven’t	heard	 an	 objection,	 so	either	way,	 27	either

— either	 dismissal	 without	 objection	 or	 on	 the	 basis	 of	 [M.R.U. Crim. P.	29].		Counts	27,	28	and	29	are	dismissed. [ STATE ] :	 	 Judge,	 the	 State	 would	 move orally	 to	 dismiss	 those without	objection. COURT:		27,	28	and	29	are	dismissed	without	objection. The	 court	 later	 summarized	 its	 ruling,	 saying	 in	 part	 that	 the	 motion	 for judgment	of	acquittal	“is	moot	with	respect	to [Counts] 27,	28	and	29	and	those

c ounts	have	been	dismissed	by	agreement.”22 [¶ 4 1] T he	 State later filed	 a	 written	 dismissal	 for	 the	 stated	 reason: “Probable	cause	established	but	insufficient	evidence	to	establish	guilt	beyond
a	reasonable	doubt on	those	Counts .”		The written dismissal	in accurately	stated that	 “[c]ounsel	 for	 the	Defendant	indicated	 on	 the	 record	 that	 the	Defendant does	not	object	to	the	dismissal	of	these	Counts.” [¶ 42 ] Contrary	to	the	written	dismissal	and	the	State’s	expressed	wish “to make	sure	the	record’s	clear,”	ne ither	of	Paquin’s	attorneys	ever	expressly said	whether	Paquin	did	or	did	not	consent	to	the	dismissals,	although	the	State is	correct	in	arguing	that	they	had	multiple	opportunities	to	do	either.		Pursuant to	M.R.U.	Crim.	P.	48(a),	“a dismissal	may	not	be filed	during	the	trial	without the	 consent	 of	 the	 defendant.”	 	 The	 reason	 for	 the	 rule	 is	 that	 “dismissal	 of charges	after	jeopardy	has	attached	without	the	consent	of	the	defendant	raises a	 serious	 double	jeopardy	problem.”		2	Cluchey	&	Seitzinger, Maine Criminal
Practice §	48.2	at	IX

- 102	(Gardner	ed.	1995). [¶ 43 ] Beyond	 the	 potential	 violation	 of	 Rule	 48(a), we conclude	 that Paquin	was	in	fact	acquitted	on	Counts	27

- 29.		“[A]	defendant	once	acquitted may	 not	 be	 again	 subjected	 to	 trial	 without	 violating	 the	 Double	 Jeopardy Clause.” United	States	v.	Scott ,	437	U.S.	82,	96	 (1978). The	Double	 Jeopardy Clause	 is	 i mplicated	 “when	 it	 is	 plain	 that	 the	 [trial	 court]	 evaluated	 the23 [prosecution’s]	 evidence	 and	 determined	 that	 it	 was	 legally	 insufficient	 to sustain	a	conviction.” Id. at	97 (quotation	marks	omitted). [¶ 44 ] The	 Supreme	 Court	 said	 in Scott that	 “the	 tria l	 judge’s characterization	 of	 his	 own	 action	 cannot	 control	 the	 classification	 of	 the
action , ” and explained that	“a	defendant	is	acquitted	.	.	.	when	the	ruling	of	the judge,	whatever	its	label,	 actually	 represents	 a	 resolution	in	 the	 defendant’s favor,	 c orrect	 or	 not,	 of	 some	 or	 all	 of	 the	 factual	 elements	 of	 the	 offense charged.” Id. at 96

- 97	 (alteration	 and	 quotation	 marks	 omitted). Applying
Scott , the	 trial	 court’s	 characterization	 of	 its	 action on	 Counts	 27

- 29 as	 a dismissal does not	control our	ana lysis, see i d. at	96 ;	rather, we	consider	that after	 the	 State	 proposed	 a	 dismissal due	 to	 insufficient	 evidence ,	 the	 court repeatedly	 said	 that	 absent	 a	 dismissal	 it	 would	 grant	 Paquin’s	 motion	 for acquittal	 on	 those	 counts.	 	 The	 State	 then	 filed	 a written	 dismissal	 for	 the explicit	reason	that	there	was	insufficient	evidence	to	support	them. [¶ 45 ] Because	 “the	 ruling	 of	 the	 judge	 .	 .	 .	 actually	 represent[ed]	 a resolution	in	the	defendant’s	favor	.	.	.	of	some	or	all	of	the	factual	elements	of the offense [s] charged ” in	Counts	27

- 29,	the	court’s	action

— although	termed	a dismissal

— acquitted	 Paquin	 on	 those	 counts. Id. at	 97	 (alteration	 and quotation	 marks	 omitted). Accordingly,	 we	 vacate	 the	 dismissal	 of24 Counts 27

- 29	and remand	with	instructions	to enter	a	judgment	of	acquittal	on those	counts.
G. Conclusion [¶ 46 ] For	 the	 reasons	 set	 forth	 in	 this	 opinion,	 we	 (1)	 vacate	 the judgment	of	conviction	on	Count	30	and	remand	for	a	dismissal	of	that	count, and	(2) vacate	the	dismissal	of	Counts	27,	28,	a nd	29	and	remand	for	entry	of	a judgment	 of	 acquittal	 on	 those	 counts.	 	 In	 all	 other	 respects	 we	 affirm	 the judgment. The	entry	is: Dismissal	 of	 Counts	 27,	 28,	 and	 29	 vacated; remanded	with	instructions	to	enter	a	judgment of	acquittal	on	Counts	27,	28, and	29.		Judgment of	 conviction	 on	 Count	 30	 vacated;	 remanded with	 instructions	 to	 dismiss	 Count	 30	 with prejudice. In	 all	 other	 respects,	 judgment affirmed.

Rory	A.	McNamara,	Esq. (orally) ,	Drake	Law,	LLC,	Berwick,	for a ppellant	Ronald Paquin Kathryn	L.	Slattery,	District	Atto rney,	and	 Justina	McGettigan, Dep .	Dist.	Atty. (orally) ,	Prosecutorial	District # 1,	Alfred,	for	appellee	State	of	Maine

York	County	Unified	Criminal	Docket	docket	number	CR

- 2017

- 109 F OR C LERK R EFERENCE O NLY