Background
Kenneth D. Marin treated the victim as a granddaughter, and she called him “Opa.” According to the evidence viewed in the light most favorable to the verdict, Marin sexually abused her between 2012 and 2018, beginning when she was about six years old. Marin’s grandson initially denied witnessing misconduct but later disclosed that he had repeatedly seen inappropriate behavior and that Marin had pressured him to lie during an earlier law-enforcement interview.
A jury convicted Marin of three counts of gross sexual assault, two counts of unlawful sexual contact, two counts of unlawful sexual touching, and one count of tampering with a witness or informant. Before trial, the court severed four possession-of-sexually-explicit-materials charges. It nevertheless allowed the State to introduce a noncriminal pornographic image found on Marin’s computer that depicted a young woman and an older man and bore the caption “Oh, Grandpa!” The court also admitted testimony about uncharged conduct outside Maine after defense counsel expressly stated that he did not object.
The Court’s Holding
The Maine Supreme Judicial Court affirmed. It held that the “Oh, Grandpa!” image was relevant to motive and to the intent required for the unlawful-sexual-contact and unlawful-sexual-touching charges. The image depicted a sexual relationship resembling the alleged grandfather-granddaughter-like relationship between Marin and the victim and therefore made Marin’s motive or intent more probable. Although gross sexual assault did not require proof of intent, four of the eight tried charges did.
The Court also concluded that the image was admitted for permissible purposes—motive, intent, and the parties’ relationship—rather than to prove Marin’s propensity to offend. Its probative value was not substantially outweighed by unfair prejudice, particularly given the victim’s testimony and the other evidence of abuse. As to testimony concerning uncharged conduct outside Maine, Marin waived appellate review by failing to oppose the State’s motion, expressly declining to object at trial, and agreeing to instructions requiring the jury to find that the charged conduct occurred in Kennebec County, Maine.
Key Takeaways
- Sexually explicit material that does not itself depict criminal conduct may be admissible when it bears a sufficiently specific connection to the defendant’s alleged motive, intent, or relationship with the victim.
- Evidence relevant to intent may support admission even when some charged offenses lack an intent element, so long as intent remains an element of other charges being tried.
- An express statement of “I’m not objecting,” combined with agreement to the court’s handling of the evidence, can waive appellate review rather than merely limit review to obvious error.
Why It Matters
The decision illustrates the fact-specific boundary between impermissible propensity evidence and sexually explicit material offered for a permissible evidentiary purpose. A close correspondence between the material and the alleged relationship or conduct can make the evidence probative despite its prejudicial nature.
It also underscores the appellate consequences of affirmative agreement at trial. Counsel who expressly accepts the admission of contested evidence may eliminate appellate review of that issue altogether.