MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2016 ME 154 Docket: Cum-15-635 Argued: September 15, 2016 Decided: October 18, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
JASON M. FOSTER
SAUFLEY, C.J.
[¶1] Jason M. Foster was charged by indictment with eighteen criminal
counts based on allegations that he had pretended to be a police officer in
order to compel or induce four women who were engaged in prostitution to
have sex with him as he demanded. Foster appeals from a judgment of
conviction entered by the court (Cumberland County, Warren, J.) after a jury
found him guilty of two counts of gross sexual assault (Class B), 17-A M.R.S.
§ 253(2)(B) (2015); four counts of impersonating a public servant (Class E),
17-A M.R.S. § 457(1), (3) (2015); and two counts of engaging a prostitute
(Class E), 17-A M.R.S. § 853-B(1)(A) (2015), based on his conduct toward
three of the four women identified by initials in the indictment. He argues
that he was deprived of due process because the indictment and jury verdict 2
form did not adequately distinguish among separate allegations involving
each victim. We affirm the judgment.
I. BACKGROUND
[¶2] Foster was charged with eighteen crimes involving four victims
through an indictment signed on November 7, 2014. For each count, he was
charged with a crime alleged to have occurred “between October 9, 2013 and
October 9, 2014.” Although the indictment did not specify the victims for the
counts of impersonating a public servant, the organization of the indictment
and the specificity in the jury verdict form make clear which counts are
associated with each alleged victim. The indictment charged four counts of
gross sexual assault (Counts 1 through 4) and four counts of impersonating a
public servant (Counts 5 through 8) with respect to one woman; two counts of
engaging a prostitute (Counts 11 and 12) and two counts of impersonating a
public servant (Counts 13 and 14) with respect to a second woman; two
counts of gross sexual assault (Counts 15 and 16) and two counts of
impersonating a public servant (Counts 17 to 18) with respect to a third
woman; and single counts of theft by extortion (Class C), 17-A M.R.S. § 355(1),
(3) (2015), (Count 9) and impersonating a public servant (Count 10) with
respect to a fourth woman. 3
[¶3] In April 2015, Foster moved for a bill of particulars regarding the
counts charging him with gross sexual assault and impersonating a public
servant. He argued that duplicative language in the indictments and the broad
date range failed to provide him sufficient notice of the basis for each charge
against him, thereby depriving him of the opportunity to prepare a defense,
and failed to protect him from double jeopardy. A month later, after further
discovery, Foster withdrew his motion for a bill of particulars without
prejudice. He did not file another motion for a bill of particulars.
[¶4] The court held a jury trial on August 18, 19, and 20, 2015. Foster
did not request jury instructions explaining the requirement of unanimity as
to each specific charged crime. Nor did Foster seek further clarification of the
nature of each alleged crime in the jury verdict form. The verdict form
identified, for each charged crime, the name of the alleged victim. No further
specificity was provided in the form, except to require the jury to find
whether, if Foster engaged a prostitute, he did so after the date at the start of
the date range for the charged crimes.
[¶5] The jury found Foster guilty of eight of the eighteen charges, which
involved three of the four alleged victims. The jury found him guilty of the
third listed count of gross sexual assault of one victim (Count 3) and the third 4
listed count of impersonating a public servant with respect to that victim
(Count 7). It also found that he was guilty of both counts of engaging another
victim as a prostitute (Counts 11 and 12) and both counts of impersonating a
public servant with respect to that victim (Counts 13 and 14). Finally, the jury
found Foster guilty of the second listed count of gross sexual assault (Count
16) and the second listed count of impersonating a public servant (Count 18)
with respect to the third victim.1
[¶6] The court sentenced Foster to eight years in prison for the
conviction of gross sexual assault alleged in Count 3, to be served
consecutively to concurrent four-month sentences for his convictions of
Counts 11, 12, 13, 14, and 18. The court imposed a six-month sentence for
impersonating a public servant with respect to the victim of Count 3 (Count
7), to be served concurrently with the sentence for Count 3; a seven-year
sentence, all suspended, for the other gross sexual assault conviction (Count
16), to run consecutively to the sentence for Count 3; and a three-year term of
probation. The court also ordered Foster to pay a fine of $1,150 and to pay up
1 Foster does not contest the sufficiency of the evidence to establish the crimes of which he was
convicted, and “there was ample evidence upon which the jury could find [him] guilty beyond a reasonable doubt of each element of the crimes charged.” State v. Poulin, 2016 ME 110, ¶ 39, --- A.3d ---. 5
to $500 to reimburse the victims’ compensation fund for restitution
benefitting one of the victims.
[¶7] Foster timely appealed from the judgment of conviction and
applied for leave to appeal from his sentence. See 15 M.R.S. §§ 2115, 2151
(2015); M.R. App. P. 2, 20. The Sentence Review Panel denied his application
for sentence review, see 15 M.R.S. § 2152 (2015); M.R. App. P. 20(f), and we
now consider his appeal from the judgment of conviction.
II. DISCUSSION
[¶8] If a defendant files and pursues a motion for a bill of particulars to
challenge the sufficiency of an indictment, we review a denial of the motion
for an abuse of discretion. See State v. Flynn, 2015 ME 149, ¶ 27, 127 A.3d
1239. We do not, however, review the issue at all when a defendant has
knowingly and voluntarily waived the issue of an indictment’s sufficiency by
declining to request a bill of particulars or otherwise challenge the indictment
in the trial court. See M.R.U. Crim. P. 12(b)(2); State v. Clarke, 2015 ME 70, ¶ 5
n.2, 117 A.3d 1045 (declining to review the sufficiency of an indictment to
inform the defendant of a charge when he neither challenged the indictment
before the trial court nor sought a bill of particulars); State v. Shea, 588 A.2d
1195, 1195 (Me. 1991) (concluding that a defendant waived a challenge to the 6
indictment by failing to move for a bill of particulars or object to the
indictment before trial).
[¶9] Foster was aware that the State had charged him with multiple
crimes against each alleged victim during the same time range. He filed a
motion for a bill of particulars based on assertions of vagueness in the
indictment but then withdrew the motion. Thus, despite a demonstrated
awareness of the procedural mechanism available to challenge the indictment,
Foster voluntarily withdrew his motion for a bill of particulars and thereby
waived any issue of a vagueness defect in the indictment. See Clarke, 2015 ME
70, ¶ 5 n.2, 117 A.3d 1045.
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2016 ME 154 Docket: Cum-15-635 Argued: September 15, 2016 Decided: October 18, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
JASON M. FOSTER
SAUFLEY, C.J.
[¶1] Jason M. Foster was charged by indictment with eighteen criminal
counts based on allegations that he had pretended to be a police officer in
order to compel or induce four women who were engaged in prostitution to
have sex with him as he demanded. Foster appeals from a judgment of
conviction entered by the court (Cumberland County, Warren, J.) after a jury
found him guilty of two counts of gross sexual assault (Class B), 17-A M.R.S.
§ 253(2)(B) (2015); four counts of impersonating a public servant (Class E),
17-A M.R.S. § 457(1), (3) (2015); and two counts of engaging a prostitute
(Class E), 17-A M.R.S. § 853-B(1)(A) (2015), based on his conduct toward
three of the four women identified by initials in the indictment. He argues
that he was deprived of due process because the indictment and jury verdict 2
form did not adequately distinguish among separate allegations involving
each victim. We affirm the judgment.
I. BACKGROUND
[¶2] Foster was charged with eighteen crimes involving four victims
through an indictment signed on November 7, 2014. For each count, he was
charged with a crime alleged to have occurred “between October 9, 2013 and
October 9, 2014.” Although the indictment did not specify the victims for the
counts of impersonating a public servant, the organization of the indictment
and the specificity in the jury verdict form make clear which counts are
associated with each alleged victim. The indictment charged four counts of
gross sexual assault (Counts 1 through 4) and four counts of impersonating a
public servant (Counts 5 through 8) with respect to one woman; two counts of
engaging a prostitute (Counts 11 and 12) and two counts of impersonating a
public servant (Counts 13 and 14) with respect to a second woman; two
counts of gross sexual assault (Counts 15 and 16) and two counts of
impersonating a public servant (Counts 17 to 18) with respect to a third
woman; and single counts of theft by extortion (Class C), 17-A M.R.S. § 355(1),
(3) (2015), (Count 9) and impersonating a public servant (Count 10) with
respect to a fourth woman. 3
[¶3] In April 2015, Foster moved for a bill of particulars regarding the
counts charging him with gross sexual assault and impersonating a public
servant. He argued that duplicative language in the indictments and the broad
date range failed to provide him sufficient notice of the basis for each charge
against him, thereby depriving him of the opportunity to prepare a defense,
and failed to protect him from double jeopardy. A month later, after further
discovery, Foster withdrew his motion for a bill of particulars without
prejudice. He did not file another motion for a bill of particulars.
[¶4] The court held a jury trial on August 18, 19, and 20, 2015. Foster
did not request jury instructions explaining the requirement of unanimity as
to each specific charged crime. Nor did Foster seek further clarification of the
nature of each alleged crime in the jury verdict form. The verdict form
identified, for each charged crime, the name of the alleged victim. No further
specificity was provided in the form, except to require the jury to find
whether, if Foster engaged a prostitute, he did so after the date at the start of
the date range for the charged crimes.
[¶5] The jury found Foster guilty of eight of the eighteen charges, which
involved three of the four alleged victims. The jury found him guilty of the
third listed count of gross sexual assault of one victim (Count 3) and the third 4
listed count of impersonating a public servant with respect to that victim
(Count 7). It also found that he was guilty of both counts of engaging another
victim as a prostitute (Counts 11 and 12) and both counts of impersonating a
public servant with respect to that victim (Counts 13 and 14). Finally, the jury
found Foster guilty of the second listed count of gross sexual assault (Count
16) and the second listed count of impersonating a public servant (Count 18)
with respect to the third victim.1
[¶6] The court sentenced Foster to eight years in prison for the
conviction of gross sexual assault alleged in Count 3, to be served
consecutively to concurrent four-month sentences for his convictions of
Counts 11, 12, 13, 14, and 18. The court imposed a six-month sentence for
impersonating a public servant with respect to the victim of Count 3 (Count
7), to be served concurrently with the sentence for Count 3; a seven-year
sentence, all suspended, for the other gross sexual assault conviction (Count
16), to run consecutively to the sentence for Count 3; and a three-year term of
probation. The court also ordered Foster to pay a fine of $1,150 and to pay up
1 Foster does not contest the sufficiency of the evidence to establish the crimes of which he was
convicted, and “there was ample evidence upon which the jury could find [him] guilty beyond a reasonable doubt of each element of the crimes charged.” State v. Poulin, 2016 ME 110, ¶ 39, --- A.3d ---. 5
to $500 to reimburse the victims’ compensation fund for restitution
benefitting one of the victims.
[¶7] Foster timely appealed from the judgment of conviction and
applied for leave to appeal from his sentence. See 15 M.R.S. §§ 2115, 2151
(2015); M.R. App. P. 2, 20. The Sentence Review Panel denied his application
for sentence review, see 15 M.R.S. § 2152 (2015); M.R. App. P. 20(f), and we
now consider his appeal from the judgment of conviction.
II. DISCUSSION
[¶8] If a defendant files and pursues a motion for a bill of particulars to
challenge the sufficiency of an indictment, we review a denial of the motion
for an abuse of discretion. See State v. Flynn, 2015 ME 149, ¶ 27, 127 A.3d
1239. We do not, however, review the issue at all when a defendant has
knowingly and voluntarily waived the issue of an indictment’s sufficiency by
declining to request a bill of particulars or otherwise challenge the indictment
in the trial court. See M.R.U. Crim. P. 12(b)(2); State v. Clarke, 2015 ME 70, ¶ 5
n.2, 117 A.3d 1045 (declining to review the sufficiency of an indictment to
inform the defendant of a charge when he neither challenged the indictment
before the trial court nor sought a bill of particulars); State v. Shea, 588 A.2d
1195, 1195 (Me. 1991) (concluding that a defendant waived a challenge to the 6
indictment by failing to move for a bill of particulars or object to the
indictment before trial).
[¶9] Foster was aware that the State had charged him with multiple
crimes against each alleged victim during the same time range. He filed a
motion for a bill of particulars based on assertions of vagueness in the
indictment but then withdrew the motion. Thus, despite a demonstrated
awareness of the procedural mechanism available to challenge the indictment,
Foster voluntarily withdrew his motion for a bill of particulars and thereby
waived any issue of a vagueness defect in the indictment. See Clarke, 2015 ME
70, ¶ 5 n.2, 117 A.3d 1045. Foster also elected not to request a specific jury
instruction regarding the requirement of unanimity for each convicted count,
see Me. Const. art. I, § 7, and not to request further clarification in the verdict
form identifying which alleged incident corresponded with each count on the
jury verdict form.
[¶10] Although Foster now argues that he did not receive due process,
was deprived of a fair trial, and may be exposed to double jeopardy, he did not
seek further process to address the specificity of charges in the trial court. See
Clarke, 2015 ME 70, ¶ 5 n.2, 117 A.3d 1045; State v. Bilynsky, 2008 ME 33, ¶ 7,
942 A.2d 1234. “[A] party must pursue the process that is available before 7
complaining of a procedural inadequacy” for purposes of a due process
challenge. Marshall v. Town of Dexter, 2015 ME 135, ¶ 28, 125 A.3d 1141. We
will not review an issue—even for obvious error—when a party has, as a trial
strategy, openly acquiesced to the process employed. See State v. Ford, 2013
ME 96, ¶¶ 15-17, 82 A.3d 75.
[¶11] Ultimately, Foster’s trial strategy was relatively effective,
resulting in his acquittal on ten of the eighteen charged counts. The jury’s
verdict demonstrates that, after it heard testimony and arguments, and
received agreed-upon instructions from the court, it considered the evidence
of multiple incidents to determine which crimes the State had proved beyond
a reasonable doubt and which it had not. It then presented its verdict by
completing a jury verdict form that was agreed upon by Foster and the State.
A review of the numerical design and the jury’s answers on the completed
verdict form indicates that the jury found that the State had proved specific
incidents and had not proved others. Given the record of the proceedings in
this case, we consider the due process and double jeopardy issues that Foster
now asserts to have been waived. We will not disturb the judgment of
conviction. 8
The entry is:
Judgment affirmed.
On the briefs:
Jamesa J. Drake, Esq., Drake Law, LLC, Auburn, for appellant Jason M. Foster
Stephanie Anderson, District Attorney, and Jennifer F. Ackerman, Dep. Dist. Atty., Prosecutorial District Two, Portland, for appellee State of Maine
At oral argument: Jamesa J. Drake, Esq., for appellant Jason M. Foster
Jennifer F. Ackerman, Dep. Dist. Atty., for appellee State of Maine
Cumberland County Unified Criminal Docket docket number CR-2014-7356 FOR CLERK REFERENCE ONLY