MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2016 ME	176

Docket: Pen-15-563

Argued: September	15,	2016

Decided: December	1,	2016

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

STATE	OF	MAINE

v.

RICHARD	J. WATSON

JABAR,	J.

[¶1]	 	Richard	 J.	Watson appeals	 from	 a	judgment	 of	 conviction of	 two	

counts	of	gross	sexual	assault	 (Class	A),	17-A	M.R.S.	 § 253(1)(C)	 (2015),	one	

count	 of	 unlawful	 sexual	 contact	 (Class	 A),	 17-A	 M.R.S.	 §	 255-A(1)(F-1)	

(2015),	 and	 one	 count	 of	 visual	 sexual	 aggression	 against	 a	 child	 (Class	 C),	

17-A	 M.R.S.	 §	 256(1)(B)	 (2015), entered	 in	 the	 Unified	 Criminal	 Docket	

(Penobscot	County,	Lucy,	J.)	following	a	jury	trial. Watson	contends	on	appeal	

that	 the	 trial	 court	 erred	 by	 admitting	 testimony	 of	 the	 victim’s	 aunt	 and	

grandmother	 concerning	 the	 victim’s	 state	 of	mind.	 	We disagree	and affirm	

Watson’s conviction.
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I.		BACKGROUND

[¶2]		The	evidence	at	 trial	established,	without	dispute,	 that	 the	victim	

was	 born	 in	 November	 of	 2003 and	 is	 Watson’s	 biological	 daughter.	 On	

August	 4,	 2014,	when	 the	 victim	was	 ten years old,	Watson	 told	 her	 that	 he	

would	get	her	a	phone	if	she	had	sex	with	him.	 The	victim	said	yes	because	

she	wanted	a	phone,	and	Watson	exposed	his	genitals	to	her	and	touched	his	

genitals	to	her	genitals.	 The	following	day,	Watson	bought	her	a	phone.	 On	a	

separate	 occasion	 later	 that	 summer,	 Watson	 performed oral	 sex	 on	 his	

daughter and	penetrated	her	genitals	with	his	finger.		

[¶3]	 	 Approximately	 one	 month	 after	 the	 first	 incident	 occurred,	 the	

victim	 reported	 the	 incidents	 to	 two	 family	 members:	 her	 aunt and	 her	

grandmother.

1 The	 victim	 testified	 that	 she	 had	 promised	 her	 father	 she	

would	 not report	 the	incidents because	 he	 told	 her	 he	 “could	 get	in	 a	lot	 of	

trouble,” and that	“I	just	felt	guilty	‘cause	I	felt	like	it’s	my fault	because	I said	

yes.” The	prosecutor	asked,	 “What	do	 you	mean	 you	 felt	guilty	because	 you	

said	yes?” “I	felt	guilty,”	the	victim	replied,	“because	.	.	.	I	said	yes	to	the	whole	

phone	thing	.	.	.	because	I	really	wanted	a	phone.” When	the	prosecutor	asked	

the	 victim	 to	 describe	 her	initial	 report	 to	 her	 aunt,	 the	 victim	 testified	 that	

 1 The	woman	identified	as	 the	victim’s	“aunt”	 testified	 that	she	is	 the	long-term	partner	of	the	

victim’s	uncle,	and	the	victim	identified	this	woman	as	her	“[a]untie.”	
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she	 told	her	aunt	 that she	 felt	 “really	guilty”	because	of	what	had	happened.	

Watson	did	not	object	to	this	exchange.	

[¶4]	 	 The	 victim’s	 aunt,	 permitted	 to	 provide	 the	 evidence	 under	 the	

“first	 complaint rule,”	see	 State	 v.	 Fahnley,	 2015	 ME	 82,	 ¶¶	 19-26,	 119	 A.3d	

727, testified	that	the	victim	told her	on	the	afternoon	of	September	7,	2014,	

about	the	two	incidents.		The	prosecutor	inquired	about	the	circumstances	of	

that	report,	asking	 the	aunt,	 “[W]hat	did	she	say	her	present	 feelings	were?”	

“Guilty,”	the	aunt	replied,	“That	was	the—the	big	one.		She	said	it	many	times.”	

Watson	 objected,	 asserting	 that	 the	 victim’s	 statement	 was	 inadmissible	

hearsay.	 At	 sidebar,	 the	 prosecutor	 asserted	 that	 the	 statement	 was	 “being	

offered	as	a	present	sense	impression.”	 The	court	did	not	explicitly	overrule	

or	 sustain	 the	 objection,	 but	 allowed	 the	 prosecutor to	 continue	the line	 of	

questioning.		

[¶5]		The victim’s	grandmother	testified	that	the	victim	was	living	with	

her	 during	 the	 summer	 of	 2014,	and	 returned	 home	 from	 her	last	 visit	with	

Watson	on	September	6	or	7,	2014.	 On	direct	examination,	the	prosecutor	did	

not	ask	the	grandmother	about	any	statements	the	victim	made	to	her	about	

being	 abused. On	 cross-examination,	 Watson’s	 counsel	 asked	 the	

grandmother	about	the	details	of	what	she	had	reported	to	the	police.	 During	
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his	 redirect	 examination,	 the	 prosecutor	 asked	 the	 grandmother	 to	 explain	

“the	circumstances”	of	when	and	how	the	victim	had	reported	the	assaults	to	

her.	 Watson	 did	 not	 object	 to	 the	 question,	 but	 did	 object	 to the	

grandmother’s	 answer.	 	 The	 court	 overruled	 the	 objection,	 noting	 that	 the	

grandmother	had	already	sufficiently	explained the	“circumstances,”	but	also	

explaining	 that	 she	 would	 not	 be	 permitted	 to	 testify	 as	 to	 the	 actual	

disclosure.		The	prosecutor	then	asked the	victim’s	grandmother	whether	the	

victim	had	indicated	“at	that	point	in	time	how	she	.	.	.	felt.”		Watson objected	

without	specifying	the	basis	of	the	objection,	and	the	court	overruled	it.		The	

grandmother	then	answered,	“Yes.		She	said	she	was	feeling	guilty.”		

[¶6]	 	After	 the	 State	 rested	 its	 case,	Watson	 moved	 for	 a	 judgment	 of	

acquittal,	 which	 the	 court	 denied.	 	 At Watson’s	 request,	 the	 court	 admitted	

into	evidence	a	video	recording	and	transcript	of	the	victim’s	September	2014	

police	interview, showing	 the	 victim	explaining to	 the	examining	officer	 that	

she	had	promised	Watson	she	would	not	report	the	incidents,	but	that	she	had	

“felt	 too	 guilty”	 and	 decided	 to	 report them.	 	 Other	 portions	 of	 the	 police	

interview	 supported	 Watson’s	 theory	 that	 the	 victim	 had	 fabricated	 the	

allegations	in	order	to	prevent	him	from	obtaining	custody	of	her.	 During	the	

interview,	 the	 officer	 told	 the	 victim	 that	 she	 had	 done	 the	 right	 thing	 by	
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reporting the	 incidents,	 and	 the	 victim	 replied,	 “So,	 I	 won’t	 get	 taken	 away	

from	my	grandparents?”		

[¶7]		In	his closing	argument to	the	jury,	the	prosecutor	asked,	“[W]hat	

was	it	that	stuck	in	your	mind	about	what	[the	victim]	said?		[The	victim]	said	

she	 felt	 guilty.	 .	 .	 . Remember	 that	 word?	 	 Guilty.”	 The	 prosecutor	 also	

emphasized,	“This	young	[victim]	told	the	police,	she	told	her	[aunt],	she	told	

you,	she	felt	guilty.”	 Watson did	not	object	to	these	remarks.		

[¶8]	 	 On	 July	 24,	 2015,	 the	 jury	 delivered	 a	 guilty	 verdict	 on	 all	 four	

counts.	 On	 October	 26,	 2015,	 the	 court	 entered	 a	 judgment	 on	 the	 verdict.	

For	each	of	 the	gross	sexual	assault	convictions,	 the	court	sentenced	Watson	

to	 twenty-seven	 years	 in	 prison	 followed	 by	 twenty	 years	 of	 supervised	

release,	with	the	sentences on	all charges to	run	concurrently.		The	court	also	

sentenced	Watson	 to	 twenty	 years	in	 prison	 for	 the	 unlawful	 sexual	 contact	

conviction,	 and	 to	 five	 years	 in	 prison	 for	 the	 visual	 sexual	 aggression	

conviction,	 ordering	 that	 those	 sentences	 be	 served	 concurrently	 with	 each	

other	and	with	the	twenty-seven-year	sentences imposed	on	the	gross	sexual	

assault	convictions.		Watson	timely	appealed.		See	M.R.	App.	P.	2(b)(2).
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II.		DISCUSSION

[¶9]		The sole	issue	presented	by	this	appeal	is	whether	the	trial	court	

committed	 reversible	 error	 by	 admitting	 the	 testimony	 of	 the	 victim’s	 aunt	

and	the	victim’s	grandmother	that	the	victim	expressed	feelings	of	guilt	when	

she	 reported	 the	 sexual	 incidents	 to	 them.	 	Watson	 argues	 that	 the	 victim’s	

expressions	 of	 guilt	 to	 her	 aunt	 and	 grandmother	 do	 not	 fall	 within	 the	

exception	to	the	rule	against	hearsay for	present	sense	impressions,	and	that	

the	court	therefore	erred	by	admitting	the	testimony.2 See M.R.	Evid.	803(1).		

Nor,	Watson	contends,	do	 the	 out-of-court	 statements	meet	 the	exception	 to	

the	 hearsay	 rule	 for	then-existing	 mental,	 emotional,	 or	 physical	 conditions

because	such	statements	are	not	admissible	to	prove	whether	a	crime	actually	

occurred.		See M.R.	Evid. 803(3).

[¶10]		Generally,	we	review	a trial	court’s	decision	to	admit	or	exclude	

alleged	hearsay	evidence	for	an	abuse	of	discretion.		State	v.	Guyette,	2012	ME	

9,	¶	11,	36	A.3d	916.		If	a court’s	ruling	is	proper	under	the	law, however, we	

may affirm	a	judgment	on	grounds	other	than	those	stated	by	the	trial	court.		

 2 Watson	did	not	state	a	specific	ground	when	he	objected	 to	 the	prosecutor’s	examination	of	

the	 victim’s	grandmother,	but	the	 basis	 of	 his	 objection	was	apparent	 from	 the	 context—i.e.,	 that	

Watson	was	objecting	to	the	grandmother’s	testimony	for	the	same	reason	that	he	objected	to	the	

aunt’s	testimony	regarding	the	victim’s	expression	of	guilt.		See	M.R.	Evid.	103(a)(1)	(“A	party	may	

claim	 error	 in	 a	 ruling	 to	 admit	 .	 .	 .	 evidence	 only	 if	 .	 .	 .	 [the]	 party,	 on	 the	 record	 .	 .	 .	 [t]imely	

objects . . .	and	[s]tates	the	specific	ground,	unless	it	was	apparent	from	the	context	.	.	.	.”).
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State	v.	Flint,	2011	ME	20,	¶	10,	12	A.3d	54.		Although	we	agree	with	Watson	

that	 the	 out-of-court	 statements	 concerning	 the	 victim’s	 feelings	 of	 guilt	 do	

not	fall	within	the	exception	to	the	hearsay	rule pursuant	to	M.R.	Evid.	803(1)

for	 present	 sense	 impressions,	 we conclude	 that the	 statements	 meet	 the

exception	 for	a	declarant’s then-existing	state	of	mind	pursuant	 to	M.R.	Evid.	

803(3).

[¶11]	 	 A statement	 of	 then-existing	 mental,	 emotional,	 or	 physical	

condition	is	“[a]	statement	of	the	declarant’s	then-existing	state	of	mind	(such	

as	motive,	intent,	or	plan)	or	emotional,	sensory,	or	physical	condition	(such	

as	mental	feeling,	pain,	or	bodily	health).”		M.R.	Evid.	803(3).	 Such	statements	

are	admissible	only	 to	establish	 the	declarant’s	state	of	mind	at	 the	 time	 the	

statements	were	made.		Id.; see	also	United	States v.	Cianci,	378	F.3d	71,	106	

(1st Cir. 2004) (a	Rule	 803(3)	 statement	is	 “not	admissible	in	 order	 to	 show	

what	 [the	 declarant]	 might	 have	 done	 or	 not	 done	 on	 other	 occasions	 not	

proximate	to	the	time	the	statement	was	uttered”);	United	States v.	DeSimone,	

488	F.3d	561,	571	 (1st	Cir.	2007) (“To	be	admissible	under	 this	exception,	a	

declaration,	among	other	things,	must	mirror	a	state	of	mind,	which,	in	light	of	

all	the	circumstances,	including	proximity	in	time,	is	reasonably	likely	to	have	

been	the	same	condition	existing	at	the	material	time.”	(citation	and	quotation	
8

marks	 omitted)). The	 exception	 “applies	 where	 the	 declarant’s	 .	 .	 .	 mental	

state	at	the	time	the	statement	was	made	is	relevant	to	an	issue	in	the	case.”		

State	v.	O’Rourke,	2001	ME	163,	¶	22	n.2,	792	A.2d	262 (citing	Field	&	Murray,	

Maine Evidence §	803.3	(2000	ed.)).

[¶12]	 	 For	 several	 reasons,	 the	 victim’s	 statements	 to	 her	 aunt	 and	

grandmother	meet	the	requirements	of	the	hearsay	exception	for	a	declarant’s	

then-existing	state	of	mind.		First,	the	victim’s	statements	that	she	 felt	guilty,	

as	 reported	 by	 her	 aunt	 and	 grandmother,	 clearly	 describe the	 victim’s

emotional	 condition	or mental	 feeling.	 	M.R.	Evid.	 803(3).	 	The	 victim’s	aunt	

responded	 to	 the	 prosecutor’s	 question,	 “[W]hat	 did	 she	 say	 her	 present	

feelings	 were?”	 by	 replying	 that	 the	 victim	 felt	 “[g]uilty.”	 	 The	 victim’s	

grandmother	 similarly	 testified	 that	 the	 victim	 was	 “feeling	 guilty.”	 These	

statements	described	how	the	victim	felt	at the	time	she	made	the	reports	to	

her	relatives.

[¶13]	 	 Next,	 the	 statements	 are	 relevant	 because	 they	 address	 the	

timing	 of	 the victim’s	 disclosure,	indicating	why	 she	was	 reluctant	 to	 report	

Watson’s	 acts.	 	 During	 her	 police	 interview,	 the	 victim	 said	 that	 she	 had	

promised	Watson	she	would	not	 tell	anyone	what	he	had	done,	but	she	“‘felt	

too	 guilty	 and	 did.’”	 	 In	 an	 attempt	 to	 undermine	 the	 victim’s	 credibility,	
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Watson’s	 case	 relied	in	 part	 upon	 the	 victim’s	 reticence	 to	 report	 the	abuse.

He questioned	the	victim	during	cross-examination	about	the	dates	on	which	

she	had	reported	the	incidents	to	her	relatives to	call	into	question	the	timing	

of	 the	 incidents	 and	 the	 victim’s	 reports	 of	 them,	 and	 asserted during	 his	

closing	argument	 that	“‘the	 timing	 of	 [her	 reports]	is	 really	 hard	 to	ignore.’”	

The statements	by	the	victim’s	aunt	and	grandmother	are	corroborative	of	the	

victim’s	 initial	 reluctance	 to	 report	 what	 had	 happened and	 also	 rebut	 the	

implication	that	she	fabricated	her	story.

[¶14]		Additionally, unlike	previous	cases	in	which	we	have	held	that	a

victim’s	 out-of-court	 statements	 were	 inadmissible	 hearsay	 because	 they

referenced	the	conduct	of	the	accused,	here,	the	victim’s	statements	described

only	her	own	feelings.		See	State	v.	Williams,	395	A.2d	1158,	1164	(Me.	1978)

(holding	that	a	victim’s	out-of-court	statement	that	she	was	scared	because	an	

assailant	had	been	chasing	her	was	inadmissible	under	Rule	803(3)	because	

her	 statement	 was	 “tantamount	 to	 remembering	 the	 prior	 conduct	 of	 [the	

assailant]	 threatening	her	with	harm”).		The	victim’s	out-of-court	statements

in	 this	 case,	 as	 presented	 by	 her	 relatives’	 testimony,	 recounted	 her	

then-existing	 emotional	 state	 and	 nothing	 more. Neither	 her	 aunt	 nor	 her	

grandmother	 testified	 to	 the	 content of	 those	 conversations	 other	 than	 the	
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victim	 relating	 her	 guilty	 state	 of	 mind.	 Furthermore,	 the	 victim	 herself	

testified, without	 objection, that	 she	 had	 told	 her	 aunt	 that	 she	 felt	 “really	

guilty”	 because	 of	 what	 had	 happened.	 	 Also,	 the	 videotape	 of	 the	 victim’s	

interview	offered	by	Watson	contained	a	statement	by	the	victim that	she	had	

“felt	 too	 guilty”	 after	 reflecting	 upon	 what	 had	 occurred	 between	 her	 and	

Watson,	 and	 therefore	 decided	 to	 report	 Watson	 to	 her	 relatives	 and	 the	

police.

[¶15]		The	court	did	not	abuse	its	discretion	by	allowing	 the	aunt	and	

the	grandmother	to	testify	about	the	victim’s	expression	of	guilt.

The	entry	is:

Judgment	affirmed.	

On	the	briefs:

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

Richard	J.	Watson

R.	Christopher	Almy,	District	Attorney, and	Tracy	Collins,	Asst.	Dist.	

Atty.,	Prosecutorial	District	V,	Bangor,	for	appellee	State	of	Maine

At	oral	argument:

Jamesa	J.	Drake,	Esq.,	for	appellant	Richard	J.	Watson

Tracy	Collins,	Asst.	Dist.	Atty.,	for	appellee	State	of	Maine

Penobscot	County	Unified	Criminal	Docket	docket	number	CR-2014-3368

FOR	CLERK	REFERENCE	ONLY