State of Maine v. Gregory W. Vrooman , 71 A.3d 723 ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 69
Docket: Lin-12-334
Argued: April 9, 2013
Decided: July 30, 2013
Panel: SAUFLEY, C.J., and SILVER, MEAD, GORMAN, and JABAR, JJ.
STATE OF MAINE
v.
GREGORY W. VROOMAN
SAUFLEY, C.J.
[¶1] Gregory W. Vrooman appeals from judgments of conviction on four
counts of unlawful sexual contact (Class C), 17-A M.R.S. § 255-A(1)(E) (2012),
four counts of unlawful sexual touching (Class D), 17-A M.R.S. § 260(1)(C)
(2012), and four counts of assault (Class D), 17-A M.R.S. § 207(1)(A) (2012)
entered by the court (Hjelm, J.) after a jury trial. Vrooman challenges the court’s
denial of his motion to suppress evidence obtained during the execution of a search
warrant on his home computer. He also contests the court’s admission of
testimony concerning sexually suggestive websites that he viewed on his home and
work computers. We affirm the judgment.
I. BACKGROUND
[¶2] In February 2011, the State indicted Vrooman for multiple offenses of
unlawful sexual contact, unlawful sexual touching, and assault, as well as one
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count of tampering with a witness or informant (Class C), 17-A M.R.S.
§ 454(1)(A)(2) (2012), all related to allegations that he had sexually assaulted his
fiancée’s daughter. Vrooman pleaded not guilty to all charges. He filed a motion
to suppress and a motion in limine seeking to prevent the admission of evidence
obtained through a warrant-based search of his computer and other evidence
related to his viewing of pornography. The court denied the motion to suppress. It
granted in part and denied in part the motion in limine. A three-day jury trial was
held in April 2012. The jury acquitted Vrooman on the tampering charge and
found him guilty on all other charges.
[¶3] Viewed in the light most favorable to the State, the following facts
rationally support the verdict. State v. Dolloff, 2012 ME 130, ¶ 3, 58 A.3d 1032.
Vrooman first met Angela Harrison, the mother of the victim, in Rockland in 2005.
Soon thereafter, they began dating, and they became engaged in 2008. Harrison
had two children from a prior marriage: the victim and her younger brother. At the
time that Vrooman and Harrison began their relationship, Harrison’s children were
in foster care in Massachusetts.1
[¶4] In October 2006, Harrison successfully reunified with her children,
who moved to Maine to live with her. When Harrison regained custody, her
daughter, the victim, was nine years old, and her son was six years old. Harrison
1
The Massachusetts Department of Health and Human Services took custody of the victim and her
brother in 2001.
3
and Vrooman eventually decided to build a house and move in together with the
children. The victim was twelve years old when the family moved into the new
house in mid-October 2009. The victim and her brother each had their own rooms,
which were located at the opposite end of the house from the master bedroom
where Vrooman and Harrison slept.
[¶5] Vrooman would sometimes look at pornography on the desktop
computer located in the master bedroom. Vrooman’s “porn issue” bothered
Harrison and resulted in personal tension between them. On one occasion, the
victim’s brother walked into the master bedroom and witnessed Vrooman looking
at pornography on the desktop computer. Vrooman, a Maine State Police Trooper,
also viewed sexually suggestive websites on his State Police laptop. In early
November 2010, Vrooman conducted Internet searches on his desktop computer
using the search term “Teen Dancing” and on his laptop using the terms “You
Tube Teen” and “Teen Dancing.” He viewed webpages, with web addresses that
included terms such as “Hot-Slutty-Teen-Dancing,” that depicted, among other
things, sixteen- to twenty-five-year-old females dancing provocatively in their
underwear.
[¶6] Soon after moving into the new house in October 2009, Vrooman
began visiting the victim’s bedroom wearing only his underwear and a T-shirt.
Describing the first incident, the victim testified that, while she was sitting or lying
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face-up on her bed, Vrooman straddled her and put his hands under her bra and
underwear and touched her breasts and genitals.
[¶7] The victim testified that these incidents occurred five or six times while
she lived at the new house. During the subsequent incidents, the victim attempted
to stop Vrooman from touching her by lying on her stomach. She was
unsuccessful because, as she testified, he would “forcefully shove his hands under
me and then put them in my pants.” His hands would go under the victim’s shirt
and bra, touching or grabbing her breasts. Vrooman would tell the victim to be
quiet to prevent Harrison from hearing anything or waking up. These incidents
made the victim feel “[u]ncomfortable, confused, scared,” and “lost.”
[¶8] The victim’s younger brother saw Vrooman on top of the victim in the
victim’s bed on two occasions. On one occasion, the boy looked through an
opening in his sister’s closed door and saw Vrooman on top of his sister’s waist
with his “knees . . . on her arms so they couldn’t move.” He believed that
Vrooman was tickling his sister. When he opened the door, Vrooman “pulled his
hands away really fast.” On another occasion, the victim’s brother witnessed
Vrooman on top of the victim and the victim’s “shirt was pulled up and his hands
were on her stomach.”
[¶9] In November 2010, the victim told a friend about Vrooman’s actions.
The friend shared the victim’s account of the events with her counselor, who then
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reported this conversation to the Department of Health and Human Services. That
report led to the charges and Vrooman’s eventual convictions. The court sentenced
Vrooman to five years’ incarceration with all but twenty-one months suspended
and four years of probation on the counts of unlawful sexual contact. Vrooman
also received a concurrent sentence of 364 days in jail on the counts of unlawful
sexual touching and assault. Vrooman appeals from those convictions.
II. DISCUSSION
A. Motion to Suppress
[¶10] Vrooman first challenges the court’s denial of his motion to suppress
the evidence obtained from his computer pursuant to a search warrant issued on
December 8, 2010. He argues that the warrant was not supported by probable
cause and that the jurat of the warrant affidavit was defective.
[¶11] We review the court’s denial of Vrooman’s suppression motion “for
clear error as to factual issues and de novo as to issues of law.” State v. Gurney,
2012 ME 14, ¶ 30, 36 A.3d 893. “We uphold the court’s denial of a motion to
suppress if any reasonable view of the evidence supports the trial court’s decision.”
State v. Drewry, 2008 ME 76, ¶ 19, 946 A.2d 981 (quotation marks omitted).
[¶12] We first address Vrooman’s probable cause challenge, reviewing
directly “the finding of probable cause made by the judicial officer who issued the
warrant, affording that finding great deference,” and drawing all reasonable
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inferences to support that finding. State v. Nigro, 2011 ME 81, ¶ 26, 24 A.3d 1283
(quotation marks omitted). “Probable cause is established when, given all the
circumstances set forth in the affidavit before [the judicial officer], including the
veracity and basis of knowledge of persons supplying hearsay information, there is
a fair probability that contraband or evidence of a crime will be found in a
particular place.” Id. (alteration in original) (quotation marks omitted). “Technical
requirements of elaborate specificity once exacted under common law pleadings
have no proper place in this area.” State v. Ward, 624 A.2d 485, 487 (Me. 1993)
(quotation marks omitted).
[¶13] The affidavit in support of the warrant included representations that
Vrooman claimed that he unintentionally touched the victim’s breasts and put his
hand down her pants only to give her a “wedgie”; that he used his home and work
computers to view sexually suggestive images of young women, including some
who appeared to be teenagers; and that he had an issue with pornography and had
obtained counseling to address it. The motion court reasoned that, even if the
images viewed by Vrooman on his home computer were not “inherently illegal,”
those images were “arguably probative of the absence of mistake or accident” as
required for the admission of evidence of past wrongful conduct pursuant to Maine
Rule of Evidence 404(b).
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[¶14] Contrary to Vrooman’s argument, the search warrant affidavit
contained evidence sufficient to support a finding that there was a fair probability
that evidence of the alleged crimes—specifically, evidence that Vrooman acted
intentionally when he touched the victim—would be found on Vrooman’s home
computer. See 17-A M.R.S. §§ 207(1)(A), 255-A(1)(E), 260(1)(C); Gurney, 2012
ME 14, ¶ 32, 36 A.3d 893; Nigro, 2011 ME 81, ¶ 26, 24 A.3d 1283.
[¶15] Turning to the defective jurat, Vrooman did establish that the affidavit
contained an error in its identification of the officer who swore to the information
articulated in the affidavit. Specifically, the identification of the averring officer
was at odds with the affiant named in the jurat. The introductory portion of the
affidavit indicated that Detective Peter Lizanecz swore under oath to the facts
supporting probable cause, and the signature on the affidavit appears to be that of
Detective Lizanecz. The jurat, however, reads, “Appeared before me under oath
on this date the above-named Sgt. Glenn Lang and signed and swore to the truth of
the facts contained in the foregoing instrument.” (Emphasis added.)
[¶16] The court held a nontestimonial hearing on the challenge to the
warrant raised in the motion to suppress, and neither party asked the court to take
testimony on the apparent error in the jurat. The best practice would be to offer the
brief testimony of the swearing detective or an affidavit from him indicating that
the signature was his and not the signature of Lang. However, neither party
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actually challenged the fact that Lizanecz signed the affidavit. Accordingly, the
court found that Lizanecz, not Lang, was the affiant who swore to the truth of the
information supporting the warrant application. There is no error in that finding,
and once the court determined that the person who was initially named as the
affiant and the person who swore to the truth of the facts in the affidavit were the
same person, it did not err in concluding that the clerical error in the jurat did not
affect the validity of the warrant. See Gurney, 2012 ME 14, ¶ 30, 36 A.3d 893;
Drewry, 2008 ME 76, ¶ 19, 946 A.2d 981; Ward, 624 A.2d at 487; cf. State v.
Johnson, 2009 ME 6, ¶¶ 7, 18, 962 A.2d 973 (holding that an imperfect property
description did not undermine the validity of a warrant); Herrick v. Theberge, 474
A.2d 870, 874 (Me. 1984) (upholding the validity of an affidavit in support of
attachment despite a “sloppily prepared” jurat).
[¶17] Thus, the court did not err in denying Vrooman’s motion to suppress.
B. Evidentiary Rulings
1. Pretrial Motions
[¶18] Both parties filed motions in limine in early April 2012. The State
sought to offer testimonial and visual evidence of Internet searches and websites
visited by Vrooman on his home and work computers. Vrooman moved to
exclude, pursuant to Maine Rule of Evidence 403, any evidence of him having an
“issue with” or viewing pornography. Pursuant to Maine Rules of Evidence 401,
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403, and 404(b), he also requested that the court exclude evidence pertaining to
images taken by police from his “workplace or home computers showing teenage
girls either partially nude or otherwise.”
[¶19] At a consolidated nontestimonial hearing, the State argued that the
evidence gathered from the home and work computers should be admitted—
primarily through the testimony of Special Agent Matt Fasulo, who conducted the
forensic investigation of the computers—to show Vrooman’s motive, lack of
misunderstanding or mistake, and intent to commit the charged offenses. Fasulo
would testify that the images found on Vrooman’s computers depicted what
appeared to be teenage girls, and the State would offer further evidence of the lack
of mistake by publishing to the jury an image entitled “Teen Dancing” that showed
a young female dancing in her underwear and appeared to have been filmed by a
webcam in a bedroom.
[¶20] Vrooman argued that the evidence of Internet searches and images
was highly prejudicial and unrelated to the victim and the alleged conduct
underlying the charged offenses. Vrooman also argued against admitting evidence
that he generally had an “issue with pornography” or that he had agreed to attend
counseling with Harrison because this issue bothered her.
[¶21] The court determined that the specific evidence regarding images of
teens or young women was relevant and admissible pursuant to Rules 401 and
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404(b) to show absence of mistake and intent. Performing a pretrial Rule 403
analysis, the court limited the evidence to a testimonial recitation regarding the
images of teenagers or young women. To minimize the potential prejudice, the
court ruled that the actual website images would not be allowed in evidence unless,
at trial, a significant question arose about the nature of the searches or the material
found on the computer.
[¶22] Ultimately, in its pretrial ruling, the court noted that the images
themselves were “not inherently illegal,” which reduced their prejudicial effect,
and the court concluded that the testimonial evidence was not unfairly prejudicial
pursuant to Rule 403. Making clear the preliminary nature of its pretrial rulings,
the court explained to the parties, “[W]e may have to fine tune [the evidentiary
rulings] as we go along,” although “as a general matter the State’s evidence would
be admissible.” The court also informed the parties that, if requested, it would be
receptive to giving the jury a limiting instruction concerning the Internet searches.
[¶23] At the conclusion of the pretrial hearing, the State agreed to limit its
questioning to instances that were relevant to the charged conduct, and Vrooman’s
attorney informed the court that he was willing to work with the State to resolve
his objection to this evidence.
[¶24] We discern no error in the court’s pretrial rulings. The limited
testimony allowed by the court was directly relevant to refute Vrooman’s claim
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that his repeated touching of the victim’s breasts was a mistake. Evidence of other
bad acts is admissible if “probative of motive or intent rather than propensity to
commit crime.” State v. Lemay, 2012 ME 86, ¶ 26, 46 A.3d 1113. The court did
not err in determining, pursuant to Rules 401 and 404(b), that the evidence of
Vrooman viewing teenage girls or young women in suggestive and provocative
settings was admissible because it was directly relevant to his intentions and
assertions of mistake in his conduct with the twelve-year-old victim.
[¶25] We further conclude that the court acted within its discretion in
determining that the probative value of the testimony was not substantially
outweighed by the danger of unfair prejudice. See M.R. Evid. 403. The court’s
Rule 403 analysis, carefully undertaken, balanced the relevance of the evidence
against the potential prejudice to Vrooman by limiting the evidence to testimony
about his viewing of images of teenage girls or young women, rather than
pornography generally. The court’s ruling that the evidence would be presented
through testimony rather than publication of the specific images further reduced
the risk of prejudice to Vrooman.
2. Trial Rulings
[¶26] Although Vrooman did not object at trial to testimony that differed
from the expected testimony described at the pretrial conference, we take this
opportunity to address this not-unusual circumstance in criminal proceedings when
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a defendant has raised a Rule 403 issue in limine. As is often the case in trials, not
all of the evidence described to the court before trial came in exactly as anticipated
at the pretrial hearing. The record indicates that Harrison made statements to
police before trial that Vrooman had a “porn issue.” Vrooman objected in limine
to the admission of evidence regarding a generalized issue with pornography.
Harrison also told the police before trial that Vrooman viewed pornography
portraying young women or teenage girls. The State indicated at the in limine
hearing that it expected to focus its questions on the more specific teen and young
adult pornography that the court had determined was relevant. At trial, however,
Harrison testified only regarding her more general observation that Vrooman “had
a porn issue.”2
[¶27] Vrooman could have objected to Harrison’s testimony about him
having “a porn issue,” arguing that the probative value of evidence that he looked
at pornography, without more, was substantially outweighed by the risk of unfair
prejudice. See M.R. Evid. 403. However, likely for tactical reasons, Vrooman
chose not to object. 3 This situation—illustrating the unpredictable nature of
2
Fasulo did testify as anticipated. He described the evidence found on Vrooman’s home and work
computers, which included Internet searches using search terms such as “Teen Dancing” that led to
websites that contained sexually suggestive videos purporting to depict teenage girls.
3
Vrooman, after waiving his Fifth Amendment right not to testify, took the stand and admitted to
viewing provocative images depicting teens on his home and work computers. He testified that he did not
find the images showing teenagers sexually arousing but “would get a kick out of watching these kids
prancing around trying to imitate their favorite singers or whatever on MTV and trying to act all big and
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trials—exemplifies why pretrial Rule 403 rulings are generally preliminary and
why, if the unanticipated testimony is considered damaging, counsel must be
prepared to object when testimony offered at trial differs from, or goes beyond,
what the court allowed in an earlier ruling or when the context for the ruling has
changed.
[¶28] In the context of Vrooman’s trial, we conclude that the admission of
Harrison’s testimony regarding a general pornography problem did not result in an
obvious error. See M.R. Crim. P. 52(b); State v. Pabon, 2011 ME 100, ¶ 18, 28
A.3d 1147 (characterizing “obvious error as a seriously prejudicial error tending to
produce manifest injustice” (quotation marks omitted)). Her testimony was brief
and was accompanied by the testimony of others—including Harrison’s son,
Fasulo, and Vrooman himself—all of whom focused on the specific images
purportedly depicting teenage girls or young women. The admission of the more
general testimony concerning “a porn issue” did not affect Vrooman’s substantial
rights because he has not shown a reasonable probability that, but for the
admission of that testimony, the result of the proceeding would have been
different. See M.R. Crim. P. 52(b); Pabon, 2011 ME 100, ¶¶ 29, 34-35, 28 A.3d
1147.
grown up.” According to his testimony, it was possible that he viewed such images before going into the
victim’s bedroom. Vrooman admitted that he did touch the victim’s breasts on “a couple of occasions.”
He also conceded, “There were probably times . . . that I would straddle her to hold her down to tickle
her. . . . I never touched her inappropriately intentionally anyway. But would I hold her down? Yes.”
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The entry is:
Judgment affirmed.
_____________________________________
On the briefs:
Stephen C. Peterson, Esq., West Rockport, for appellant Gregory W.
Vrooman
Janet T. Mills, Attorney General, and Deborah P. Cashman, Asst. Atty.
Gen., Office of Attorney General, Augusta, for appellee State of Maine
At oral argument:
Stephen C. Peterson, Esq., for appellant Gregory W. Vrooman
Deborah P. Cashman, Asst. Atty. Gen., for appellee State of Maine
Lincoln County Superior Court docket number CR-2010-387
FOR CLERK REFERENCE ONLY