PORTLAND — Hancock County Deputy District Attorney Toff Toffolon disputes arguments by a Tremont man convicted last year of sexually assaulting a young girl that the trial court erred in instructing the jury about the age of the victim.
Toffolon made the statements in a brief filed in the appeal of the conviction of Benjamin Hodgdon II, which is to be heard in the Maine Supreme Judicial Court.
Hodgdon was convicted in March 2016 in Hancock County Unified Criminal Court of single counts of gross sexual assault, unlawful sexual contact and sexual abuse of a minor following a three-day trial in the Ellsworth court. In August, he was sentenced to 11 years in prison with all but three-and-a-half years suspended for Class A gross sexual assault. Hodgdon additionally was sentenced to serve concurrent three-year sentences for each of the remaining counts.
Hodgdon’s attorney, Rory McNamara, claims that members of the jury were instructed by the court not to be concerned about the specific date of sexual acts or conduct. As a result, Hodgdon argued, the prosecution was relieved of its burden in proving that the victim had “not in fact attained the age of 14 years.” Maine laws regarding sex crimes are different for victims under the age of 14.
“Because age is an element, it was [Hodgdon’s] fundamental right to have the jury instructed on the need to find beyond a reasonable doubt that she was under 14 at the time of the offense or else it must find the defendant not guilty,” McNamara wrote in his brief.
Toffolon argued that the state is not required to prove a specific date and that the jury had not been told they did not have to be concerned about dates.
“The court correctly told the panel members about the state’s burden as regard to time specificity,” Toffolon maintained.
The age of the victim also enters into another of Hodgdon’s contentions: that the jury could not have “rationally found” that the state proved beyond a reasonable doubt that he had sex with the victim before she reached age 14.
Toffolon disputed this argument as well, stating the court record contains ample evidence that demonstrated it had met its burden of proof in respect to the victim’s age.
McNamara also contends that “the trial court abused its discretion by denying the defendant’s motion for dismissal.” Toffolon points out that the motion judge properly imposed limitations on introducing evidence about the recording and that the decision was beneficial to Hodgdon during the trial.
No date has been set for the state supreme court to consider Hodgdon’s conviction. Hodgdon also filed an appeal of his sentence. That appeal was denied in the fall.
The allegations of abuse surfaced in July 2013, when the victim, who is now 30, met with a detective to report she had been sexually assaulted by Hodgdon numerous times when she was 13 and 14 years old and a student at the Tremont Consolidated School. At the time, Hodgdon was a sixth-grade teacher and coached cross-country at the school.