MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	122

Docket: Han-16-378

Argued: April	12,	2017

Decided: June	20,	2017

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

STATE	OF	MAINE

v.

BENJAMIN	H.	HODGDON	II

JABAR,	J.

[¶1]	 	 Benjamin	 H.	 Hodgdon	 II appeals	 from	 a	 judgment	 of	 conviction	

entered	 by	the	trial	 court (Hancock	 County,	 R.	 Murray,	 J.) on a	 jury	 verdict	

finding him	 guilty	 of	 one	 count	 each	 of	 gross	 sexual	 assault	 (Class	 A),	

17-A M.R.S.A.	 § 253(1)(B),	 (4) (Supp.	 2000);1 unlawful	 sexual	 contact	

(Class C), 17-A	M.R.S.A.	 § 255(1)(C),	 (2) (Supp.	2000);2 and	sexual	abuse	of	a	

minor	(Class	C),	17-A	M.R.S.A. § 254(1)(A),	(3)(A) (Supp.	2000).

3 He	contends	

 1	 	 Title	 17-A	 M.R.S.A.	 §	 253(1)(B),	 (4)	 has	 since	 been	 amended.	 	 P.L.	 2003,	 ch. 711,	 §	 B-2	

(effective	 July	 30,	 2004)	 (codified	 at	 17-A	 M.R.S.A.	 §	 253	 (2016));	 P.L.	 2001,	 ch.	 383,	 §§	 14,	 18	

(effective	Jan.	31,	2003).

2		Title	17-A	M.R.S.A.	§	255(1)(C),	(2)	was	repealed	and	replaced	by	P.L.	2001,	ch.	383,	§§	22,	23	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.	 2015,	 ch.	 509,	 §	 2	

(effective	May	22,	2012)	(codified	at	17-A	M.R.S.	§	255-A	(2016)).

3	 	 Title	 17-A	 M.R.S.A.	 §	 254(1)(A),	 (3)(A)	 has	 since	 been	 amended.	 	 P.L.	 2001,	 ch.	 383,	 §	 21	

(effective	Jan.	31,	2003)	(codified	at	17-A	M.R.S.	§	254(1)(A),	(A-2)	(2016)).
2

on	appeal, inter	alia,	that	the	trial	court’s	jury	instructions	as	to	the	counts	for	

gross	 sexual	 assault	 and	 unlawful	 sexual	 contact	 were	 in	 error	 because	 the	

instructions	 did	 not	 require	 the	jury	 to	 find beyond	a	 reasonable	 doubt that	

the	 victim	 was	not	 yet fourteen years	 old	when	 those	 crimes	 occurred.	 	We	

disagree and	affirm	the	judgment.		

I.		BACKGROUND

[¶2]		The	jury	rationally	could	have	 found	the	 following	 facts	beyond	a	

reasonable	doubt.		See	State	v.	Troy,	2014	ME	9,	¶	3,	86	A.3d	591.

[¶3]	 	 Hodgdon	 worked	 as	 a	 sixth,	 seventh,	 and	 eighth	 grade	 teacher	

from	1991	until	2003.	 The	victim	was	born	on	March	16,	1986,	and	attended	

the	same	school where	Hodgdon	taught; Hodgdon	was	her	teacher,	tutor,	and	

cross-country coach.	 	 During	 the	 summers	 of	 1998,	 1999,	 and	 2000,	 she	

worked	for	Hodgdon’s	lawn	care	business	mowing	lawns.

[¶4]		When she	was	in	seventh	or	eighth	grade,	Hodgdon	began	a	sexual	

relationship with	the	victim. Hodgdon	initiated	the	relationship	by	kissing	the	

victim	and	touching	her	genitals both	over	and	underneath	her	clothing.	 On	a	

later	 occasion,	Hodgdon	and	 the	 victim	 had	 sexual	intercourse	after	 she	 had	

spent	 the	 evening	 babysitting	 his	 children.	 Over	 the	 course	 of	 their	

relationship	 they	 had	 sexual	intercourse	at	Hodgdon’s	 home, in	 his	modular	
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classroom,	and in	his	truck	both	at	the	school	parking	lot	and	at	lawn	care	job	

sites.	 Hodgdon	 also	 on one	 occasion performed	 oral	 sex	 on	 her	 at	 his	

relative’s	house	in	Northeast	Harbor. The	victim	estimated	that, in	total,	they	

had	sex	between	thirty	and	forty	times	before	she	completed	junior	high.		

[¶5]	 	 Hodgdon	 and	 the	 victim	 remained	 in	 contact	 after	 she	 finished	

junior	 high	 school	 in	 2000.	 She	 worked	 for	 him	 tending	 lawns	 during	 the	

summers	of	2004	and	2006,	and	in	the	summer of	2004,	when	the	victim	was	

eighteen,	Hodgdon	performed	oral	sex	on	her	in	his	home.		They	remained	in	

contact	both	in	person and	by	phone	until July	2013.		

[¶6]	 	 The	 victim	 reported	 the	 crimes	 to	 the	 Hancock	 County	 Sheriff’s	

Office in	2013.		Hodgdon	was	charged	by	indictment on	April 10,	2014,	with	

four counts of	 gross	 sexual	 assault	 (Class	 A),	17-A	M.R.S.A. § 253(1)(B),	 (4);

two counts	of	unlawful	sexual	contact	(Class	C),	17-A	M.R.S.A.	§ 255(1)(C),	(2);

and	two	counts	of	sexual	abuse	of	a	minor	(Class	C),	17-A M.R.S.A.	§	254(1)(A),	

(3)(A).	 He	pleaded	not	guilty	to	all	charges.		

[¶7]		Hodgdon	filed	a	motion	to	dismiss	on	August	11,	2014,	contending	

that	the	State	permitted	the	spoliation	of	the	victim’s cellphone—from	which	

an	investigating	detective	had	downloaded	a	recording	purportedly	made	by	

the	 victim	 of	 a conversation	 between	 Hodgdon	 and	 herself—arguing	 that	
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digital	 data	 on	 the	lost	 or	 destroyed	phone	 constituted	 “crucial,	exculpatory,	

irreplaceable	 evidence.”	 	 The	trial	 court (Mallonee,	J.)	 held	 a	 hearing	 on	 the	

motion	on	December	17,	2014,	and	denied	it	on	March 26,	2015.

[¶8]		A	jury	trial	was	held	on	March	14,	15,	and	16,	2016,4 and	the	jury	

returned	 a	 guilty	 verdict	 as	 to	 Count	 5,	 gross	 sexual assault	 (Class	 A),	

17-A M.R.S.A.	 § 253(1)(B),	 (4);	 Count	 6,	 unlawful	 sexual	 contact	 (Class	 C),	

17-A M.R.S.A.	§ 255(1)(C),	(2);	and	Count	7,	sexual	abuse	of	a	minor	(Class	C),	

17-A M.R.S.A.	 § 254(1)(A),	 (3)(A).	 The	 jury	 acquitted	 Hodgdon	 of	 all	 other	

charges,	 and the	 court	 (R.	 Murray,	 J.) denied	 his	 motion	 for	 judgment	 of	

acquittal	as	to	Counts	5,	6,	and	7.

[¶9]		On	 the	charge	of	gross	sexual	assault, Hodgdon was	sentenced	 to	

eleven	 years’	 imprisonment with	 all	 but	 three years	 and	 six	 months	

suspended and	 six	 years	 of	 probation.	 On	 each	 of	 the	 charges	 of	 unlawful	

sexual	contact	and	sexual	abuse	of	a	minor, he	was	sentenced	to	three	years’	

imprisonment,	 both	 to	 run	 concurrently	 with	 his	 sentence	 for	 gross	 sexual	

assault.		He	timely	appeals.		See	M.R.	App.	P.	2(b)(2)(A).

 4 The	 court	 granted	 Hodgdon’s	 motion	 in	 limine	 to	 exclude	 from	 evidence	 the	 cell	 phone	

recording,	a	transcript	of	the	recording,	and	any	testimonial	references	to	either.		
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II.		DISCUSSION

[¶10] Hodgdon	raises	three issues	on	appeal that	we	will	address.

5 He	

contends	that	(1)	the	jury	instructions	as	to	Counts	5	and	6	relieved	the	State	

of	its	burden	of	proving	beyond	a	reasonable	doubt	that	the	victim	was	under	

fourteen	 years	 old	 at	 the	 time	 the	 offenses	 were	 committed,	 (2) the	 broad	

range	of	time	encompassed	by	the	indictment	exposes	him	to	double	jeopardy,	

and	 (3)	 there	 was	 not	 sufficient	 evidence	 for	 the	 jury	 to	 find	 beyond	 a	

reasonable	 doubt	 that	Hodgdon	 had	 sex	with	 the	 victim	 before	 she	 attained	

the	age	of	fourteen

A. Jury	Instructions

[¶11]		Hodgdon’s	argument regarding	the	victim’s	age concerns the	“on	

or	about”	instruction	the	court	provided	following	its	recital	of	the	elements	of	

the	 crimes.	 To	 return	 a	 guilty	 verdict	 on	 Count	 5,	 gross	 sexual	 assault,	 and	

Count	6,	unlawful	sexual	contact,	the	jury	was	required	to	find	that	at	the	time	

of	 the	 alleged	 offenses the	 victim	 was	 less	 than	 fourteen	 years	 old.	 	 See	

17-A M.R.S.A.	§	253(1)(B);	17-A	M.R.S.A.	§	255(1)(C).		The	court	instructed	the	

jury	 as	 to	 each	 element	 of	 these	 crimes,	 including	 the	 victim’s	 age,	 then	

 5 Hodgdon	also	contends on	appeal	that	the	court	abused	its	discretion	in	denying	his	motion	to	

dismiss	 because	 of	 the	 spoliation	 of	 certain	 cell	 phone	 evidence.	 We	 find	 this argument	

unpersuasive	and	do	not	address	it further.
6

instructed	 the	 jury	 that because	 the	 indictment	 “charges	 that	 these	 various	

crimes	were	committed ‘on	or	about’ various”	dates,	the	specific	date	of	each	

crime	“need	not	be	proven.”	 Instead,	the	court	instructed,	“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	dates	

suggested	 by	 the	 evidence	 in	 the	 case.”	 According	 to	 Hodgdon,	 this	 “on	 or	

about”	instruction	allowed	 the	jury	 to	return	a	guilty	verdict	without	 finding	

that	the	victim	was	under	fourteen	at	the	time	of	the	alleged	incidents.		

[¶12]		“We	review	jury	instructions	as	a	whole	.	.	. to	ensure	 that	 they	

informed	 the	 jury	 correctly	 and	 fairly	 in	 all	 necessary	 respects	 of	 the	

governing	law.”		State	v.	Tucker,	2015	ME	68,	¶	11,	117	A.3d	595 (quotation	

marks	 omitted).	 	 Because	 Hodgdon	 did	 not	 object	 to	 the	 court’s	 jury

instructions	 at	 trial,	 we review	 his	 unpreserved	 challenge	 to	 those	

instructions	for	obvious	error.		See	State	v.	Lajoie,	2017	ME	8,	¶	13,	154	A.3d	

132.	 	To	 prevail	 on	appeal,	Hodgdon	“must	 demonstrate	 that	 (1)	there	is	an	

error,	(2)	that	is	plain,	(3)	that	affects	substantial	rights,	and,	if	so,	(4)	that	it	is	

error	 that	 seriously	 affects	 the	 integrity,	 fairness, or	 public	 reputation	 of	

judicial	proceedings.”		Id.
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[¶13]	 	We	 recently	 held	in	 State	 v.	Westgate	that	 the	jury	instructions	

provided	in	a	similar	sex	crime	case	“plainly	and	erroneously	suggested	 that	

the	jury	could	bypass	 the	issue	of	whether	 the	victim	was	younger	 than	 [the	

statutory	 cut-off	 age]	 when	 the	 offenses	 were	 committed.”	 	 2016	 ME	 145,	

¶ 22,	148	A.3d	716.		In	Westgate,	 the	indictment	charged	the	defendant	with	

sex	 offenses	 against	 a	 child	 under	 twelve	 occurring “[o]n	 or	 about	 Summer,	

2009,” when the	victim	turned	twelve	on	July	20 of	that	year.		Id. ¶	3. The	trial	

court	in	Westgate provided	an	“on	or	about” instruction nearly	identical	to	the	

instruction	 at	 issue	 here.	 	 Id. ¶	 10.	 	 The	 jury	 requested reinstruction	 as	 to	

timing,	 and	 the	 court	 repeated	the “on	 or	 about”	 instruction.	 Id. ¶	 11.	 	We

vacated	the	defendant’s	conviction	because	the	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.”		Id. ¶	19.		The	only	“suggest[ion]	that	the	jury	had	

to	 find	 that	 the	 victim	 was	 under	 twelve”	 was	 the court’s	 reading	 of	 the	

indictment;	the	“incomplete”	instructions	therefore	“affected	[the	defendant’s]	

substantial	rights	and	the	fairness	of	his	trial.”		Id. ¶¶	22-23.

[¶14]	 	 Unlike	 the	 Westgate instructions	 in	 which	 only the	 indictment	

was	read	to	instruct	the	jury	as	to	the	required	element	of	the	victim’s	age, id.
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¶ 19, the	trial	 court	 here	 provided	 instructions	 to	 the	 jury	 that	 consisted	 of	

each	 element	 of	 the	 offenses,	 including	 the	 victim’s	 age. Even	 before	 the	

State’s	case-in-chief,	 the	court	provided	a	legal	road	map	 for	 the	jury,	 telling	

them	that	“under	the	laws	of	the	state	of	Maine	a	person	is	guilty	of	the	crime	

of	 gross	 sexual	 assault”	if	 “at	 the	 time	 of	 the	 sexual	 act	 the	 [victim]	 has	 not	

attained	the	age	of	14	years.”	 The	court	also	told	the	jury	at	that	time	that	“a	

person	 is	 guilty	 of	 unlawful	 sexual	 contact	 if	 .	 . .	 the	 [victim]	 is	 less	 than	

14 years	of	age.”		After	closing	arguments,	 the	court	instructed	 the	jury	as	 to	

Count	 5	 that	 the	 State	 must	 prove	 beyond	 a	 reasonable	 doubt	 that	 “on	 or	

about	January	15,	2000,	.	.	.	[the	victim]	had	not	attained	that	age	of	14	years,”	

and	as	to	Count	6	that	“on	or	about	February	15,	2000,	.	.	.	[the	victim]	was	less	

than	14	years	of	age.”		

[¶15]	 	 Nevertheless,	 Hodgdon	 contends	 that	 the	 “on	 or	 about”	

instructions	relieved	the	State	of	proving	beyond	a	reasonable	doubt	that	the	

victim	 was	 under	 fourteen	 when	 the	 incidents	 alleged in	 Counts	 5	 and	 6	

occurred.	 We	disagree.		The	court’s	“on	or	about	instruction”	informs	the	jury	

that	 the	 State	 must	 prove	 “beyond	 a	 reasonable	 doubt	 that	 .	 . . the	 crime	

charged	was	 committed	 by	 the	Defendant.”	 The	 court	 clearly	instructed	 the	
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jury	that	the	burden	of	proof	remained	with	the	State	to	prove	each	element	of	

the	crimes	charged.

[¶16] Although	 the	 “on	 or	 about” language—instructing the	 jury	 to	

determine	 whether	 the	 crime	 was	 committed	 and	 not	 whether	 it	 was	

committed	 on	 a	 specific	 date—standing	 by	 itself	 suffers	 from	 the	 same	

infirmity	we	discussed	in	Westgate,	considering the	instructions	as	a	whole,	as	

we	must	 do,	see Tucker,	 2015	ME	 68,	 ¶	 11,	 117	A.3d	 595,	 the	 “on	 or	about”	

instructions	 do	 not	 rise	 to	 the	 level	 of	 obvious	 error.	 The	 court	 on	 several	

occasions	informed	the	jury	of	the	requirement	that	to	return	a	guilty	verdict	

as	 to	 Counts	 5	 and	 6	 they	 must	 find	 that	 the	 victim	 was	 under	 the	 age	 of	

fourteen	 years	 at	 the	 time	 the	 offenses	 occurred.	 	 The	 jury	 was	 correctly	

informed	of	the	relevant	law	and	the	State’s	burden	of	proof.

B. Double	Jeopardy

[¶17]		Hodgdon	next	argues	that	the	broad	range	of	time	encompassed	

by	the	indictment	“is	so	elastic”	when	considered	with	the	evidence	presented	

at	 trial	 that	 it will expose	 him	 to	 double	 jeopardy because	 it	 is	 unclear	 on	

which	evidence	Hodgdon	was	convicted.	

[¶18]	 	 The double	 jeopardy	 clauses	 of	 the	 United	 States	 and	 Maine	

Constitutions	 prevent	 a	 defendant	 from	 standing	 trial	 a	 second	 time	 for	 the	
10

same	offense	following	conviction.		See	State	v.	Frisbee,	2016	ME	83,	¶	29	n.12,	

140	A.3d	1230.		We review	double	jeopardy	claims	de	novo.		State	v.	Hayward,	

2017	ME	33,	¶	15,	156 A.3d	734.		

[¶19]		In	State	v.	Lyon, we	upheld	a	judgment	of	conviction	entered	upon	

a	 jury	 verdict finding	 a	 defendant	 guilty	 of	 one	 count	 of	 unlawful	 sexual	

contact	 pursuant	 to	 17-A	 M.R.S.	 § 255-A(1)(E)(1)	 (2015) over	 claims	 of	

double	 jeopardy	 violations.	 	 2016	 ME	 22,	 ¶¶ 2-12,	 131	 A.3d	 918.	 	 The	

indictment	 alleged	 dates	 “on	 or	 about	 between	March	 3,	 2011	 and	March	 3,	

2012.”	 	Id. ¶	 2	 (alteration	 omitted) (quotation	marks	 omitted).	 	The	 victim’s	

twelfth	birthday	was	March	30,	2012.		Id.	¶	5.		Because	the evidence	presented	

supported the	jury’s finding	that the	defendant	committed	the	charged	crimes	

before March	 30,	 2012,	 we affirmed	 the	 verdict,	 concluding	 there	 was	 no	

obvious	 error	 in	 the	 variance between	 the	 timeframe	 indicated	 by the

indictment	 and	 the	 timeframe	 indicated	 by	 the	 evidence.	 	Id.	 ¶¶ 6-8.	 	 Even	

though	the	evidence	“extended	beyond	the	‘on	or	about’ end-date	alleged,”	the	

defendant	was	protected	against	double	jeopardy	because	

seen	in	the	context	of	the	actual	evidence	presented	in	support	of	

that	charge,	it	becomes	clear	that	the	temporal	parameter	for	the	

conviction	extends	beyond	the	specific	offense	date	alleged	in	the	

indictment	 .	 .	 .	 .	 This	 reading	 of	 the	 indictment	 .	 .	 .	 is	 therefore	

sufficient	 to	invoke	 [the	defendant’s]	double	jeopardy	protection	

and	bar	a	future	prosecution	.	.	.	.	
11

Id.	¶	11.

[¶20]		Just	as	in	Lyon,	the	indictment in	this	case charged	offenses	“on	or	

about”	certain	dates.	 Also, similarly	 to	Lyon,	and	as	we	discuss	 below	when	

considering	 Hodgdon’s argument	 as	 to	 the sufficiency	 of	 the	 evidence,	 the	

evidence	presented	suggests	that	the	crimes	of	which	Hodgdon	was	convicted	

could	have	occurred	over	a	period	of	time.		Unlike	Lyon,	however,	each	charge	

contained	in	 the	indictment	specified	an	offense	 that	occurred	on	or	about	a	

single	 date rather	 than	 a	 specified	 time	 span.	 Collectively, these	 charges	

spanned	 from	August	 15,	 1999, to	 July	 15,	 2000,	a	 period	 of	eleven	months.		

Because	 Counts	 5	 and	 6	 required	 the	 jury	 to	 find	 that	 the	 offenses	 charged	

occurred	 before	 the	 victim’s	 fourteenth	 birthday—March	 16,	 2000—and	

Count	7	required	the	jury	to	find	that	an	offense	occurred	when	the	victim	was	

fourteen	 or	 fifteen	 years	 old,	 the	 dates	 in	 the	 indictment	 together	 with	 her	

birthday	 provide	 clear	 guideposts	 upon	 which	 the	 jury could	 assess	 the	

evidence	 presented,	 despite	 the	 victim’s	 testimony	 that	 the	 sexual	 acts	

occurred	 over	 a	long	 period	 of	 time.	 	 See	 also	 State	 v.	 Cloutier,	 1997 ME	 96,	

¶¶ 8,	 11-12,	 695	A.2d	 550 (concluding	 that	a	 defendant	 did	 not	 face	 further	

jeopardy	 despite	 victim	 testimony	 establishing	that	 unlawful	 sexual	 contact	

and	gross	sexual	assault	had	occurred	a	year	or	more	after	 the	date	listed	in	
12

an	 indictment).	 	 Therefore,	 applying	 our	 reasoning	 from	 Lyon,	 we	 conclude	

that	 the	 temporal	 parameters	 for	 the	 conviction	 as	 established	 by	 the	

indictment	are	sufficient	to	avoid	double	jeopardy	concerns.

C. Sufficiency	of	the	Evidence

[¶21] Hodgdon	next	argues	that	the	evidence	presented	at	trial	did	not	

support	 a	guilty	 verdict	 as	 to	 Counts	 5,	 6,	 or	 7 because the	jurors rationally	

could	 not	 have	 found	 that	 Hodgdon	 had	 sexual	 encounters	 with the victim	

before	 the	 encounter	 to	 which	 he	 admitted,	 which	 occurred	 when	 she	 was	

eighteen.	 “When	 a	 defendant	 challenges	 the	 sufficiency	 of	 the	 evidence	

supporting	a	conviction,	we determine,	viewing	the	evidence	in	the	light	most	

favorable	 to	 the	 State,	whether	 a	 trier	 of	 fact	 rationally	 could	 find	 beyond	 a	

reasonable	 doubt	 every	 element	 of	 the	 offense	 charged.”	 	 State	 v.	 Dorweiler,	

2016	 ME	 73,	 ¶	 6,	 143 A.3d 114 (quotation	 marks	 omitted).	 	 A	 jury	 “is	

permitted	to	draw	all	reasonable	inferences	from	the	evidence,	and	decide	the	

weight	 to	 be	 given	 to	 the	 evidence	 and	 the	 credibility	 to	 be	 afforded	 to	 the	

witnesses.”		State	v.	McBreairty,	2016	ME	61,	¶	14,	137	A.3d	1012 (quotation	

marks	omitted).

[¶22]		The	State’s	only	evidence	that	Hodgdon	committed	the	crimes	as	

charged	was	 the	victim’s	 testimony.	 The	victim	 testified	 that	 the	 first	sexual	
13

encounter	 occurred	 when	 she	 was	 twelve	 years	 old.	 	 She	 provided	 very	

specific	details:	Hodgdon	asked	her	to	call	her	parents	to	tell	them	she	would	

be	 staying	 at	 a	 friend’s	 house,	 she	 initially	 was	 in	 Hodgdon’s	 bed	 but	 then	

moved	 into	 another	 room	 because	 her	 father	 unexpectedly	 arrived	 in	 the	

middle	 of	 the	 night,	 and	 she	 and	 Hodgdon	 had	 sexual	 intercourse	 after	 her	

father	left.		

[¶23]	 	 Additional details	 of	 other testimony, including	 Hodgdon’s

testimony	 about	 when	 he	 had	 contact	 with	 the	 victim, place	 this	 sexual	

encounter	in	January	or	February	2000.		Hodgdon	recalled	that	there	was	an	

evening	that	the	victim	babysat	for	his	children and	then	spent	the	night	at	his	

home.	 	He testified	 that	 he	 had	 called	 the	 victim’s	mother	 to	 confirm	 that	it	

would	 be	acceptable	 for	 the	 victim	 to	 stay	 the	 night.	 	Hodgdon	also	 recalled	

that	 the	victim’s	 father	had	shown	up	in	 the	middle	of	 the	night,	checked	on	

the	victim,	then	left.	 Both	Hodgdon	and	the	victim	testified	that	this	sleepover	

took	 place	 after	 Hodgdon’s	 first	 ex-wife	 had	 moved	 out.	 Hodgdon also

testified	 that	 the	events	occurred	during	a	period	of	 time	when	a	friend	had	

been	living	with	him;	and	 that	 the	 friend had	moved	in	around	Christmas	of	

1999 and	moved	out	in	April	or	May	2000.	 These	details	place	the	first	sexual	

encounter	between	Christmas	of	1999	and	April	or	May	2000.	 Hodgdon	also	
14

testified	that	his	ex-wife	moved	out	in	August	1999,	but	that	he	did	not	have	

regular	 visitation	 with	 his	 children	 until	 after	 the	 New	 Year,	 further	

corroborating	the	timeframe	charged	by	the	indictment.		

[¶24]	 	 Recalling	 other	 incidents,	 the	 victim	 testified	 that	 she	 and	

Hodgdon	 had	 sex	 on	 numerous	 occasions	 after	 the	 sleepover	 incident,	

including	multiple	times	in	his	classroom	before	classes	began,	multiple	times	

at	lawn	care	job	sites,	and	on	one	occasion	in	his	vehicle	at	school	after	cross	

country	 practice.	 	 She	 testified	 that	 these	 incidents	 all	 occurred	 after the	

babysitting	incident.		

[¶25]	 	Hodgdon	 denied	 having	 any	 sexual	 encounters	 with	 the	 victim	

while	 she	 was	 a	 minor.	 He provided	 several	 witnesses—employees	 and	

former	employees	of	the	school—to	testify	that	it	would	have	been	difficult	to	

have	sex	in	the	classrooms	at	the	school	without	being	noticed	due	to	the	lack	

of	 privacy.	 He	 also	 presented	 evidence	 that	 it	 would	 have	 been	 difficult	 to	

have	 sex	 at	 Hodgdon’s	 home	 during	 the	 alleged	 timeframe	 because	 of	

Hodgdon’s	house	guest	in	the	winter	of	2000.	 Further,	the	victim	admitted	at	

trial	to	 having	 a	 drug	 addiction,	 and	 Hodgdon	 testified	 that	 he	 had	 tried	 to	

help	 her	 but	 that	 she	 had	 attempted	 to	 extort	 money	 from	 him	 on	 several	

occasions	 by	 threatening	 to	 “falsely	 accuse	 [him]	 of	 having	 had	 a	 sexual	
15

relationship	with	her	when	she	was	a	kid.”	 Hodgdon	also	pointed	out	in	his	

closing	 argument	 that	 the	 victim	 did	 not	 testify	 as	 to	 any	 unique	 bodily	

features	 of	his	until	after	he	himself	had	 testified	 to	having	a	particular	 skin	

flap.		

[¶26]	 	 Despite	 the	 conflicting evidence	 presented	 by	 Hodgdon,	

“[d]eterminations	of	the	weight	and	credibility	to	be	afforded	the	evidence	are	

within	 the	 fact-finder’s	 exclusive	 province.”	 	 State	 v.	 Schmidt,	 2008	 ME	 151,	

¶ 19,	 957	 A.2d	 80.	 	 Viewed	in	 the	light	most	 favorable	 to	 the	 State,	 there	is	

competent	 evidence	 in	 the	 record	 to	 support	 the	 jury’s	 guilty	 verdicts and	

thus	the	court’s	entry	of	a	judgment	of	conviction.

The	entry	is:

Judgment	affirmed.	

Rory	 A.	 McNamara,	 Esq. (orally),	 Drake	 Law,	 LLC,	 Berwick,	 for	 appellant	

Benjamin	H.	Hodgdon	II

Toff	Toffolon,	Dep.	Dist.	Atty. (orally),	Ellsworth,	for	appellee	State	of	Maine

Hancock	County	Unified	Criminal	Docket	docket	number	CR-2014-4

FOR	CLERK	REFERENCE	ONLY