MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2016 ME 157 Docket: Pen

- 15

- 562 Argued: September	8,	2016 Decided: October	20,	2016
Panel: SAUFLEY,	C.J.,	and ALEXANDER ,	MEAD, GORMAN , ∗ JABAR,	HJELM,	and	HUMPHREY,	JJ

.
STATE	OF	MAINE

v. RUSSELL	W.	CARTER

GORMAN ,	J. [¶1] Russell	 W.	 Carter appeals	 from a	 judgment	 of	 conviction	 for solicitation	 of	 a	 child	 to	 commit	 a	 prohibited	 a ct	 (Class	 D),	 17

- A	 M.R.S. § 259

- A(1)(A)	 (2015),	 entered	 in	 the	 trial	 court	 (Penobscot	 County,
A. Murray, J. ) after	a	jury

- waived	 trial.		Carter	challenges	 the	court’s	denial	of his	 motion	 to	 dismiss	 the	 complaint	 based	 on	 venue, the	 court’s failure	 to apply	 the	 affirmative	 defense	 of renunciation,	 and	 the	 sufficiency	 of	 the evidence	supporting	his	conviction.		We	affirm	the	judgment.

∗ 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.”).2 I.		BACKGROUND [¶2 ] Viewing	 the	evidence	in	 the	light	most	 favorable	 to	 the	State,	 the following	 facts	 were	 established	 at	 trial. See	 State	 v.	 Hayden ,	 2 014 ME	 31, ¶ 12,	 86	 A.3d	 1221.	 	 In	 2014,	 an	 elementary	 school	 in Penobscot	 County contacted	the	Bangor	Police	Department	when	the	school	discovered	that	one of	 its	 students,	 a	 thirteen

- year - old	 girl,	 had	 been	 communicating	 with	 adult men	 on	 her	 school

- issu ed	iPad.	 	 A	 police	 sergeant	 took	 over	 the	 device	 and began	 posing	 as	 the	 girl	 ( “ Samantha ” )	 to	 continue	 communicating	 with	 the men	and	 to	connect	with	other	individuals.		Among	 the	men	with	whom	 the sergeant	communicated	through	Samantha’s	account	was	Carte r, a	thirty

- one year - old	man	living	in	Bowdoin.		Samantha	identified	herself	multiple	times	to be	a	thirteen

- year - old	girl,	and	the	picture	attached	to	the	online	account was

a picture	 of a girl	 who	 appeared	 to	 be	 about	 thirteen	 years	 old .	 	 In	 their

conver sations,	Carter	indicated	on	numerous	occasions	 that	he	would	like	 to perform	 sexual	 acts on Samantha	 and	 have	 her	 perform	 sexual	 acts on him, including	 intercourse	 and	 oral	 sex.	 	 The	 two	 exchanged	 hundreds	 of	 online
messages in March	 and	 April	 of	 2014,	 du ring	 which	 Carter	 made arrangements	 to	 meet	 Samantha	 in	 person	 to	 engage	 in	 sexual	 activity	 on3 April	6	and	April	20,	2014

. Carter	did	not	show	up	at	the	appointed	time	and place	on	either date. [¶3 ] On	 June	 16,	 2014,	 Carter	 was	 charged	 with	 one	 count of solicitation	 of	 a	 child	 to	 commit	 a	 prohibited	 act	 (Class	 D), 17

- A	 M.R.S. § 259

- A(1)(A)

. He	pleaded	not	guilty	to the	charge. [¶4 ] The	 court	 conducted	 a	jury

- waived	 trial	 on	September	 21,	 2015. After	 the	 State	 rested,	 Carter	 moved	 to	 dismiss	 the	 complaint	 for	 improper

venue. The	court	denied	the	motion. Carter	also	unsuccessfully	argued	to	the trial	 court	 that	 the	 affirmative	 defense	 of	 renunciation	 applied. See
17

- A M.R.S.	 § 154	 (2015)

. By	 j udgment	 dated	 October	 30,	 2015,	 the	 court found	 Carter	 guilty	 of	 the	 charge	 and imposed a	 su spended	 jail	 term	 of	 six months	and	one	year	of	probation

. 1 Carter	appeals.
II.		DISCUSSION [¶5 ] Carter	argues	that	the	court	erred	by	failing	to find him	not guilty based	 on	 the	 affirmative	 defense	 of	 renunciation .	 	 We	 review	 the statutory application	 of	 an	 affirmative defense	 de	 novo as a	 matter	 of	 law

. State	 v. Graham ,	 2015	 ME	 35,	 ¶ 15,	 113	 A.3d	 1102. In	 doing	 so,	 we interpret	 the relevant	statute	according to	its	plain	language. See	State	v.	Tozier ,	2015	ME

1 As	 a	 result	 of	 this conviction,	 Carter	is	 also	 required	 to	 register	 on	 the	 State’ s	 s ex o ffender r egistry	for ten	years.		34

- A	M.R.S.	§§ 11273(14), 11285 (1) (2015)

.4 57,	¶	6,	115	A.3d	1240.		Only	if	that	plain	language	is	ambiguous	will	we	go	on to	consider	other	indicia	of	legislative	intent	to	discern	its	meaning. Id. ¶	11. [¶6 ] The	 affirmative	 defense	 of	 renu nciat ion	is	 set	 out	in	 17

- A	M.R.S. § 154 : § 154.	General	provisions	regarding	chapter	7
1. It	 shall	 not	 be	 a	 crime	 to	 conspire	 to	 commit,	 or	 to attempt,	or	solicit,	any	crime	set	forth in	this	chapter

. 2. There	 is	 an	 affirmative	 defense	 of	 renunciation	 in	 the following	circumstances.
A. In	 a	 prosecution	 for	 attempt	 under	 section	 152,	it	is	 an affirmative defense	that,	under	circumstances	manifesting	a voluntary	and	complete	renunciation	of	his	criminal	i ntent, the	 defendant	 avoided	 the	 commission	 of	 the	 crime attempted	 by	 abandoning	 his	 criminal	 effort	 and,	 if	 mere abandonment	 was	 insufficient	 to	 accomplish	 such avoidance,	 by	 taking	 further	 and	 affirmative	 steps	 which prevented	the	commission	thereof.
B. In	a	prosecution	for	solicitation	under	section	153,	or	for conspiracy	 under	 section	 151,	 it	 is	 an	 affirmative	 defense that,	 under	 circumstances	 manifesting	 a	 voluntary	 and complete	renunciation	of	his	criminal	intent,	 the	defendant prevented	 the	 commis sion	 of	 the	 crime	 solicited	 or	 of	 the crime	contemplated	by	the	conspiracy,	as	the	case	may	be.
C. A	renunciation	is	not “ voluntary	and	complete”	within	the meaning	of	this	section	if	it	is	motivated	in	whole	or	in	part by:	A	 belief	 that	a	 circumstance	e xists	which	increases	 the probability	of	detection	or	apprehension	of	the	defendant	or another	 participant	 in	 the	 criminal	 operation,	 or	 which makes	 more	 difficult	 the	 consummation	 of	 the	 crime;	 or	 a5 decision	 to	 postpone	 the	 criminal	 conduct	 until	 another time	or	 to	substitute	another	 victim	or	another	but	similar objective. (Emphasis	 added.) As	 its	 title	 states, the application of	 section	 154 is expressly	lim ited	 to	provisions	in	chapter	7 .		Chapter	7	contains	 “OFFENSES OF	 GENERAL	 APPLICABILITY,”	 and	 inc ludes	 only	 the	 offenses	 of	 criminal conspiracy, 17

- A M.R.S.	 §	 151	 (2015) ;	 criminal	 attempt, 17

- A	 M.R.S.	 §	 152 (2015) ;	 aggravated	 attempted	 murder, 17

- A	 M.R.S.	 §	 152

- A	 (2015) ;	 and criminal	 solicitation, 17

- A	M.R.S.	 §	 153	 (2015)

. E ven	 for those offenses ,	 th e affirmative	 defense	 of	 renunciation	 may	 be	 used	 only	 in	 three	 limited instances:	(1)	“[i] n	a	prosecution	for	attempt	under section 152,”	17

- A	M.R.S. § 154(2)(A);	 (2)	 “[i]n a	 prosecution	 for	 solicitation	 under section	 153,”
17

- A M.R.S.	§	154(2)(B);	and	(3)	“[i]n	a	prosecution	.	.	.	 for conspiracy	under section	151,”	17

- A	M.R.S.	§ 154(2)(B). [¶7 ] Carter	 was	 charged with	 the	 crime	 of	 solicitation	 of	 a	 child	 to commit	a	prohibited	act pursuant	to	17

- A	M.R.S.	§	259

- A,	which	is	loca ted	in chapter	 11, entitled	 “SEX	 ASSAULTS. ” By	 the	 plain	 terms	 of	 section	 154, solicitation	of	a	child	to	commit	a	prohibited	act	therefore	is	not	one	of	the	few crimes	for	which	renunciation	is	an	available	defense. 2 The	court	committed

2 Carter suggests that	 because 17

- A	 M.R.S.	 § 259

- A (2015) was not enacted until 2011 , see P.L. 2011,	 ch.	 597,	 § 3	 (effective April	 6,	 2012 ), many	 years after 17

- A	 M.R.S.	 §	 154 (2015)	 was6 no	 error	 in	 fail ing	 to	 apply	 the	 affirmative	 defense	 to	 absolve	 Carte r	 of	 his guilt	on	that	charge. [¶8 ] Carter also challenges	 the sufficiency	 of	 the	 evidence	 supporting his	conviction generally

. We	review	 the	evidence	in	 the	light	most	 favorable to	 the	 State	 to	 deter mine	 if	 a	 fact

- finder	 rationally could find,	 beyond	 a reasonable	doubt,	 that	Carter	committed	each	element	of	 the	crime	charged. Hayden , 2014 ME	31,	¶	12,	86	A.3d	1221. [¶9 ] The	elements	of	solicitation	of	a	child	 to	commit	a	prohibited	act

are	set	out in	17

- A	M.R.S.	§	259

- A(1)(A):
1. A	 person	 is	 guilty	 of	 soliciting	 a	 child	 to	 commit	 a prohibited	act	if:
A. The	 actor,	 with	 the	intent	 to	 engage	in	 a	 prohibited	 act with	 the	 other	 person,	 knowingly	 solicits	 directly	 or indirectly	 that	 person	 by	 any	 means	 to	 engage	 in	 a prohibited	act	and	the	actor:

enacted	in	 1975, see P.L.	 1975,	 ch.	 499,	 §	 1	 (effective March	 1,	 1976 ), the	 L egislature’s	 failure	 to include	 section	 259

- A	 among	 those	 crimes	 to	 which	 section	 154	 applies	 was	 a mere	 oversight. Because	 the	 language	 of	 section	 154	 is	 plain	 and	 unambiguous,	 we	 need not go	 beyond	 that language	to consider	any other indicia	of	legislative	intent ,	as	Carter	encourages	us	to	do

. See State v.	Tozier ,	2015	ME	57,	¶	11,	115 A.3d	1240. I n	any	event,	the	Legislature	easily	could	have	amended section	154	to	include	the	crime	of	solicitation	of	a	child	to	commit	a	prohibited	act	when	it	enacted section	 259

- A,	 but did	 not do	 so. See	 Joyce	 v.	 State ,	 2008	 ME	 108,	 ¶	 15,	 951	 A.2d	 69	 (“The Legisl ature	 could	 have	 modified,	 replaced,	 or	 eliminated	 altogether	 its	 .	 .	 .	 language	 if	 it	 wished; instead,	it	left	the	statute	unchanged.”).7 (1) Is	at	least	16	years	of	age; (2) Knows	 or	 believes	 that the	 other	 person	 is	 less than	14	years	of	age;	and (3) Is	at	least	3	years	older	than	the	age	expressed	by the	other	person. A	“prohibited	act”	is	defined	as	“[a]	sexual	act,”	“[s]exual	contact,”	or	“[s]exual exploitation	 of	 a	 minor	 pursuant	 to	 section	 2 82.”	 	 17

- A	 M.R.S.	 §	 259

- A(2). “S exual	 act”	 is	 further	 defined	 as,	 inter	 alia,	 “[a]ny	 act	 between	 2	 persons involving	direct	physical	contact	between	the	genitals	o f	one	and	the	mouth	or anus	of	 the other,	or	direct	physical	contact	between	 the	genitals	of one	and the	genitals	of	the	other.” 17

- A	M.R.S.	§	251(1)(C)(1)	(2015) .		“Sexual	contact” is	further	defined	as	“any	touching	of	the	genitals	or	anus,	directly	or	through clothing,	 other	 than	 as	 would	 constitute	 a	 sexual	 act,	 for	 the	 purpose	 of arousing	o r	gratifying	sexual	desire	or	for	the	purpose	of	causing	bodily	injury

or offensive	physical	contact.” 17

- A	M.R.S.	§	251(1)(D)	(2015)

. [¶1 0 ] Here,	 the	State	provided	evidence,	and	Carter	 does	not	 dispute, that	he was thirty

- one years	old when he was	communicating	with	Samantha and	that	he believed that she was not	yet fourteen	years	old. Carter also does not	 dispute	 that	 the	 State	 proved	 that	 he	 knowingly	 solicited	 Samantha	 to engage	in	 both	 sexual	 acts	 and	 sexual	 contact

. Carter argues , however, that8 there	was	no	competent	evidence	to	prove	his	intent	to	engage in	a	prohibited act	with	Samantha because	 he	never	 tried to	meet	Samantha in	person. We disagree. [¶1 1 ] The	 State	 established	 that	 Carter	 initiated	 a	 discussion	 about meeting	 S amantha	in	 person,	 set	 up	 two	 dates	 for	 the	 two	 of	 them	 to	meet, discussed	 with	 Samantha	 what	 excuse	 she	 would	 give	 her	 mother	 to	 leave home,	 gave	 Samantha	 details	 about	 what vehicle he	 would	 be	 driving,	 and chose	 a	 location	 and	 time	 for	 her	 to	 meet	 him. In	 fact,	 when	 Samantha suggested	that	“if	he	was	uncomfortable	with	meeting,	then	we	could	just	text, that	was	 fine	with	me,”	Carter	“said	no,	he

- – he	wanted	to	meet.” From	this evidence,	the	court	reasonably could infer	Carter’s	intent	to	engage	in	one or more	of	the	prohibited	acts that he	suggested he	and	Samantha engage	in. See State	 v.	 Woodard ,	 2013	 ME	 36,	 ¶	 19,	 68	 A.3d	 1250

. That	 Carter	 did	 not actually	meet	Samantha	on	either	of	those	two	occasions	does	not	negate his state	 of	 mind	 at	 the	 time	 he committed each	 of	 the other elements	 of solicitation	 of	 a	 child	 to	 commit	 a	 prohibited	 act .	 	 Entirely	 absent	 from	 the elements	of	 the	crime	as	elucidated	in	section 259

- A is	any	requirement	 that the	 defendant	 and	 victim	 ever	 meet	 in	 person. Carter’s comm ission	 of	 the crime	was	complete	upon	his solicitation	of	the	victim	to	do	a	prohibited	act

.9 Any action	 he	 took	 to follow	 through	 on	 that	 solicitation might	 well	 have subjected	Carter	to	additional	criminal	charges. 3 The	entry	is: Judgment	affirmed.

On	the	briefs: Hunter	J.	Tzovarras,	Esq.,	Hampden,	for	appellant	Russell	W. Carter R.	 Christopher	 Almy,	 District	 Attorney,	 and	 Tracy	 Collins, Asst.	 Dist.	 Atty.,	 Prosecutorial	 District	 V,	 Bangor,	 for appellee	State	of	Maine
At	oral	argument: Hunter	J.	Tzovarras,	Esq.,	for	appellant	Russell	W.	Carter Tracy	Collins,	Asst.	Dist.	Atty.,	for	appellee	State	of	Maine

Penobscot	County	Unified	Criminal	Docket	docket	number	CR

- 2014

- 2207 F OR C LERK R EFERENCE O NLY

3 In	addition,	Carter’s	argument	with	regard	to	venue	is	unpersuasive	and	we	do	not	address	it further.