Benjamin Hodgdon FILE PHOTO

Hodgdon asks for new trial

ELLSWORTH – The Tremont man convicted last month of sexually assaulting a young student while he was teaching at the Tremont Consolidated School is asking for a new trial.

Benjamin Hodgdon II, 48, was convicted March 16 of single counts of gross sexual assault, unlawful sexual contact and sexual abuse of a minor following a three-day trial in Hancock County Unified Criminal Court. A jury of 10 men and two women deliberated for about five-and-a-half hours before returning the verdict. Hodgdon was acquitted on three additional counts of gross sexual assault and single counts of unlawful sexual contact and sexual abuse of a minor.

Hodgdon is expected to be sentenced following completion of a presentencing report. Until then, he remains free on bail. Gross sexual assault is a Class A crime punishable by up to 30 years in prison.

Hodgdon’s attorney, David Van Dyke of Lewiston, filed the motion for a new trial on March 22, the same day he filed a separate motion for acquittal on two of the three charges on which his client was convicted. Assistant District Attorney Toff Toffolon filed a response to Van Dyke’s motions the following day. A judge has not ruled on the motions.

In his motion for a new trial, Van Dyke contends that the victim, who is now 30, perjured herself on the third day of the trial during testimony involving Hodgdon’s physical appearance.

Hodgdon, on the stand the previous day, had testified that he was at one time “obese,” and as the result of his weight loss, had “a lot of extra skin.” This flap of skin, which since has been surgically removed, would have been noticeable during sex, he testified.

Called as a rebuttal witness by Toffolon the next day, the victim testified that Hodgdon had been self-conscious about his weight problem and had excess skin due to weight loss. Van Dyke, in cross-examining the victim, questioned why she did not mention this feature during a 2012 interview with a detective where she first reported the sexual assaults. Failure to mention such a feature suggests that the defendant and victim had no sexual contact, Van Dyke implied.

Van Dyke called for a sidebar, where, according to his motion, Toffolon admitted “that he had advised [the victim] of the body flap the prior day.” The victim, responding to Toffolon’s questions, then admitted the prosecutor told her about Hodgdon testifying about the skin flap.

“Insofar as her initial testimony was false and was under oath when made, she committed perjury,” Van Dyke wrote.

Toffolon disputes that contention, stating in his response that to prove perjury, one would have to show that the person testifying “made material inconsistent statements during the trial, knowing that one of those statements was false.”

“It is an affirmative defense that the speaker retracted the statement before it became manifest that the falsification would have been exposed,” Toffolon argued.

In his motion for a new trial, Van Dyke also argued that Toffolon or someone from the district attorney’s office violated rules regarding the sequestration of witnesses by providing information about Hodgdon’s testimony to the victim before she had been discharged as a witness.

Toffolon denies the contention that the sequestration order was violated. The skin flap was new evidence presented by the defense and “designed to create for the jury a lack of intimate contact between the defendant and victim, he wrote.

“The only way for the state to control the inference from new facts introduced by the adverse party was to discuss that fact with a potential rebuttal witness in order to decide her testimony would in fact be proper rebuttal,” Toffolon argued.

In his motion for acquittal, Van Dyke is asking the court to acquit Hodgdon of the gross sexual assault and unlawful sexual contact charges. He argues that no credible evidence was produced during the trial to establish whether the victim was 13 or 14 when the criminal conduct described in these two charges occurred. As a result, he wrote, “the record considered by the jury was insufficient as a matter of law to overcome reasonable doubt” on the age of the victim.

Toffolon pointed out the jury was properly instructed by the court that the charges occurred within a certain timeframe and that jurors took great care in considering this information because Hodgdon was acquitted on other charges where the conduct was alleged to occur on earlier dates. Testimony from the defendant, victim and other witnesses as well as a transcript and audio recording of a police interview of the victim was sufficient evidence for the jury to make an informed decision, he wrote.

Mark Good

Mark Good

Reporter at Mount Desert Islander
Mark Good

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