State v. Day

I concur in that portion of the court’s opinion that vacates Counts V-XII, but dissent from the affirmance of Counts I and II of the judgment.

At the time of the alleged offense, 17-A M.R.S.A. § 251(c) defined a sexual act as an act of sexual gratification. In this prosecution for gross sexual misconduct, despite the express language of the statute, the trial judge failed to instruct the jury regarding this statutory definition. This court concludes that such failure was not obvious error because it was not an omission of an essential element of gross sexual misconduct. I disagree.

The court…