AUGUSTA — An attorney a former Oakland woman convicted of sexually assaulting a 3-year-old boy who was asleep at the time argued before Maine’s high court Thursday that a jury had confusing instructions about “duress” when deciding whether to find the woman guilty.
That was the position of attorney Rory McNamara, who represented Sarah Conway in an appeal heard Thursday morning in Augusta by the Maine Supreme Judicial Court, sitting as the Law Court.
Conway was convicted May 31, 2017, at the Capital Judicial Center of gross sexual assault, which occurred in the period of December 2014 to March 2015 in Oakland. Conway admitted that the assault occurred, but said it was involuntary because her boyfriend forcibly compelled her to do it. An earlier trial on that charge ended with a hung jury.
Conway, now 28, is serving an eight-year prison sentence and afterward will spend 18 years on supervised release. She was not present for the oral argument.
McNamara is seeking to have Conway’s conviction overturned and a new trial ordered.
He said the instruction given to the jurors before their deliberations at trial “points in two different directions. We don’t know where they ended up.”
In an aside, Chief Justice Leigh Saufley asked McNamara, “Are you engaged with MACDL to talk with defense counsel about those things they should remember to address when conferences are occurring regarding jury instructions?”
McNamara told her that his law partner, Jamesa Drake, was at the annual conference of the Maine Association of Criminal Defense Lawyers on Thursday, and “hopefully addressing some of these issues. It’s something we talk about every year. I do think instruction from this court is very important too — not just for those attending MACDL conferences, for courts as well.”
Deputy District Attorney Paul Cavanaugh, who was the trial prosecutor, argued that there was no “obvious error,” which is the standard used by Law Court in its review, and that Conway’s conviction should stand.
However, he also said the Law Court could provide guidance on the duress instruction.
“Clarity’s always good; that’s not the same as error,” Cavanaugh told the justices.
He said Conway was acquitted at her first trial of charges of unlawful sexual contact because of erroneous jury instructions, “and now, ironically, she argues that she was convicted of sexual assault … again on erroneous jury instructions.”
Cavanaugh said there was a great deal of discussion in the trial judge’s chambers — outside the jurors’ hearing — about the duress instruction and whether Conway feared her boyfriend, Stephen Richard Smith, and acted with recklessness by remaining with him.
“The use of force was contested,” Cavanaugh said. “The state maintains that there was no force.”
He cited Smith’s testimony at trial saying this was something Smith talked Conway into.
Smith himself testified at both trials, saying that he and Conway sexually assaulted the boy after removing the boy’s diaper.
Smith, now 39, is serving the initial 18-year unsuspended portion of a 30-year prison sentence. He pleaded guilty to three counts of unlawful sexual contact, two counts of visual sexual aggression against a child and one count of sexual misconduct with a child under 12.
Prior to the second trial, Conway had pleaded guilty to two counts of endangering the welfare of a child under 16, with the same boy plus a girl named as victims. She was sentenced to 364 days in jail concurrently on each count.
At the sentencing hearing in September 2017, Cavanaugh had sought a 20-year prison term for Conway, followed by a 20-year period of supervision.
“The children were 5 and 3 at the time of this conduct,” Cavanaugh said. “They were defenseless.”
The two children are in foster care with family members and supervised by New Hampshire child protection authorities.
The defense attorney at the sentencing hearing, Sherry Tash, blamed Conway’s former boyfriend for bringing “this evil into her life. He manipulated her and emotionally blackmailed her.”
At that hearing, Conway spoke directly to the judge. “I should have fought him or ran (away) with my children,” she said. “I foolishly stayed with this evil man and even had a child with him.”
She said she was not a bad person but someone who made bad choices.
Arrest affidavits filed in Augusta court say that Conway went to the police in Canaan, New Hampshire, on Sept. 16, 2016, and spoke to Sgt. Ryan Porter, saying that Smith was her ex-fiance and that they used to watch child pornography together when they had apartments in Oakland, from December 2014 to March 2015. According to Porter, Smith told her he had sexually abused his own children and talked her into sexually abusing her children.
The Law Court issues decisions in writing, and those decisions are published on the website of State of Maine Judicial Branch.
Betty Adams — 621-5631
Twitter: @betadams
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