MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2026 ME 93
Docket: Pen-25-322
Argued: February 4, 2026
Decided: August 27, 2026
Panel: STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, DOUGLAS, and LIPEZ, JJ.
STATE OF MAINE
v.
JAMES WELSH
LIPEZ, J.
[¶1] James Welsh appeals from a judgment of conviction for indecent
conduct, 17-A M.R.S. § 854(1)(A)(4) (2026), entered by the trial court
(Penobscot County, Mallonee, J.) after a bench trial. Welsh contends that there
was insufficient evidence to convict him of indecent conduct because the State
did not prove beyond a reasonable doubt that when he exposed his genitals, he
did so “[i]n a public place,” which is an element of the offense with which he
was charged. See id. § 854(1)(A)(2), (4). We conclude that the trial court relied
upon evidence that was insufficient as a matter of law to sustain Welsh’s
conviction under a proper reading of the statute but that the State presented
sufficient evidence—if credited by the court—to sustain Welsh’s conviction on
an alternative basis. Because the trial court expressly declined to opine on
2
whether the evidence underlying the State’s alternative theory supported a
finding of guilt, we vacate Welsh’s conviction and remand the case to the trial
court to make clear its findings of fact and correctly apply the indecent-conduct
statute to those facts.
I. BACKGROUND
A. Facts
[¶2] When the evidence is viewed in the light most favorable to the State,
the trial court rationally could have found the following facts beyond a
reasonable doubt. See State v. Wilson, 2015 ME 148, ¶ 13, 127 A.3d 1234.
[¶3] Welsh lives in an apartment building in Bangor. On the first floor of
the building, there is a small hallway that leads to a set of stairs. Welsh lives in
an apartment on one side of this hallway and has at least one neighbor who
occupies the apartment on the other side of the hallway. Another neighbor lives
in an apartment upstairs. The tenants access the building through an exterior
door that leads to the shared hallway; from the shared hallway, each apartment
is accessed through a separate interior door.
[¶4] On the morning of January 20, 2024, Welsh’s across-the-hall
neighbor opened her door to leave for work. She saw Welsh standing in the
hallway, naked. He was standing less than a foot from the door to her
3
apartment with his back turned toward her. When the neighbor saw Welsh, she
was upset and embarrassed for herself and for him. She closed her door and
called the police.
[¶5] A Bangor Police Department officer responded to the neighbor’s
call. When the officer arrived at the apartment building, he could see through
a window that Welsh was naked in his apartment, with the door from the
apartment to the shared hallway open. The officer entered the building and
spoke to Welsh. At this time, Welsh was still standing in his apartment, naked,
with the door open. The officer told Welsh to get dressed and Welsh did so. The
officer gave Welsh, who had two prior convictions for indecent conduct, a
summons for the same offense and then left.
B. Procedure
[¶6] Welsh was charged by criminal complaint with indecent conduct
pursuant to 17-A M.R.S. § 854(1)(A)(4), which elevates the offense set forth in
section 854(1)(A)(2) of the same statute from a Class E to a Class D crime when
the defendant has two or more prior convictions for certain crimes, including,
as relevant here, indecent conduct. He pleaded not guilty to the charge and
waived his right to a jury trial. In June 2025, the court held a bench trial at
which the State called two witnesses: Welsh’s neighbor who had observed the
4
incident and the police officer who responded to her 9-1-1 call. The State also
introduced a video of Welsh’s interaction with the officer and documentation
of Welsh’s two prior convictions for indecent conduct.
[¶7] Welsh did not call any witnesses or otherwise present evidence to
the court, but he did move for a judgment of acquittal after the State rested, see
M.R.U. Crim. P. 29(a), arguing that the conduct at issue occurred in his
apartment building, that the building is a private place for the purposes of the
indecent-conduct statute, and that the State had accordingly presented
insufficient evidence of a necessary element of the offense charged—that the
actor engaged in the prohibited conduct in a “public place,” see 17-A M.R.S.
§ 854(1)(A)(2). The court denied the motion, reasoning that the State had
presented evidence that Welsh was unclothed in the shared hallway of the
apartment building, which was open to members of the public such as visitors,
delivery people, and, in this case, police officers. It concluded that the hallway
was distinguishable from the building tenants’ private residences and was a
public place within the meaning of the statute.
[¶8] At the end of the trial, however, the court made an oral finding of
guilt predicated not on evidence of Welsh’s actions in the shared hallway, but
rather on his conduct while standing in his apartment. It explained:
5
I noted when [the neighbor] testified that she said only that she saw
Mr. Welsh’s back and that he was completely unclothed. And my
first thought was that that is a—it’s a purposeful act. It is a bad act,
and it is in some way an illegal act. But I was not sure that it was
an act that would fulfill the terms of this statute.
Then, I think that [the State’s] argument is interesting that he—
clearly his genitals were exposed, and they—there were
circumstances that caused affront and alarm, not because [the
neighbor] saw them, but because she was worried that they would
be exposed when Mr. Welsh turned around or if he turned around
once she opened the door, which would be a natural consequence.
That is a statutorily interesting argument that I think I need not
resolve because I am finding that the offense took place when the
officer arrived. To stand in your doorway with the doorway open,
facing the public entrance to a building, under circumstances
where a person can come in that door and, in fact, when a person
can be expected to come to that door, like the police officer who
came, constitutes exposing your genitals in a public place.
Then the question is whether the officer himself felt affront or
alarm? Well, he’s a police officer. He’s trained to deal with all kinds
of people and to maintain his poise. But he’s still a human. And it
was pretty clear from the interaction that he had with Mr. Welsh
that he felt affronted, if not alarmed. So I do find that this offense
was committed.
[¶9] The court entered a judgment of conviction and sentenced Welsh to
ninety days’ imprisonment and imposed a $45 fine. Welsh timely appealed. See
M.R. App. P. 2B(b)(1).
[¶10] At oral argument, we raised an issue not fully addressed by the
parties in their initial briefing: how we should proceed if we were to conclude
that there might be sufficient evidence in the record to sustain Welsh’s
6
conviction but that the basis upon which the trial court actually found Welsh
guilty—his interaction with the police officer while standing inside his own
apartment—was legally insufficient. We subsequently ordered supplemental
briefing on this issue, which the parties provided. We accordingly address the
arguments made by the parties in both their initial and their supplemental
briefing.
II. DISCUSSION
[¶11] The primary question before us is whether the State proved
beyond a reasonable doubt that Welsh exposed his genitals in a “public place”
for purposes of 17-A M.R.S. § 854(1)(A)(2), which provides that a person
commits the offense of indecent conduct if “[i]n a public place . . . [t]he actor
knowingly exposes the actor’s genitals under circumstances that in fact are
likely to cause affront or alarm.” On appeal, Welsh presents this as an issue
both of statutory construction and of the sufficiency of the evidence. We agree
that here the questions of “sufficiency of the evidence and statutory
construction are intertwined, as we must determine what the elements of the
crime are before we can determine whether the evidence was sufficient to
establish each element beyond a reasonable doubt.” State v. Murphy, 2016 ME
5, ¶ 4 n.2, 130 A.3d 401. Both the statutory-interpretation and the sufficiency
7
questions are preserved for appellate review by virtue of Welsh’s motion for
judgment of acquittal. 1 We review the applicable statute de novo and the
evidence in the light most favorable to the State. Id. ¶ 5.
A. The Meaning of a “Public Place”
[¶12] We begin with the statute under which Welsh was convicted,
which, as noted, requires a showing that at the time Welsh exposed his genitals,
he was “[i]n a public place.” 17-A M.R.S. § 854(1)(A)(2), (4). Welsh contends
that neither the shared hallway of his apartment building nor his apartment
itself constitutes a “public place” within the meaning of the statute.
[¶13] When we interpret a statute, we look first to the plain language in
the context of the whole statutory scheme. Murphy, 2016 ME 5, ¶ 7, 130 A.3d
401. We construe undefined words and phrases “according to their common
meaning.” Id. “[O]nly if the statutory language is ambiguous—that is,
reasonably susceptible to more than one interpretation—will we consider
other indicia of legislative intent,” such as legislative history. State v. Beaulieu,
2025 ME 4, ¶ 14, 331 A.3d 280 (quotation marks omitted). “[O]ur single goal is
1 Although Welsh did move for a judgment of acquittal, we review the sufficiency of the evidence
supporting a conviction under the same standard regardless of whether a defendant makes such a motion at trial. See State v. Averill, 2026 ME 48, ¶ 26 n.4, --- A.3d ---.
8
to give effect to the Legislature’s intent in enacting the statute.” State v.
Santerre, 2023 ME 63, ¶ 8, 301 A.3d 1244 (quotation marks omitted).
[¶14] “Public place” is not defined by statute, but the terms “in public”
and “public place” are commonly understood to refer to places to which
members of the public other than the owner or occupier have at least some
degree of access. See, e.g., Tribou v. State, 552 A.2d 1262, 1263-65 (Me. 1989)
(describing a nightclub as a “public place”); State v. Caswell, 2001 ME 23, ¶ 20,
771 A.2d 375 (Saufley, J., concurring) (referring to a gas station as a “public
place”); State v. Gatto, 2020 ME 61, ¶ 21, 232 A.3d 228 (noting that a defendant
convicted of the murder of a child had been “reticent to take the victim out in
public for fear that someone would recognize the obvious signs of abuse”
(emphasis added)); Public, New Oxford American Dictionary (3d ed. 2010)
(defining “in public” as “in view of other people; when others are present”); see
also 17-A M.R.S. § 501-A(2)(A)-(B) (2026) (defining a “[p]ublic place” for
purposes of the disorderly conduct statute as “a place to which the public at
large or a substantial group has access, including but not limited to . . . [t]he
lobbies, hallways, lavatories, toilets and basement portions of apartment
houses, hotels, public buildings and transportation terminals,” and a “[p]rivate
place” as “any place that is not a public place”); cf. Murphy, 2016 ME 5, ¶ 7, 130
9
A.3d 401 (interpreting the term “sexual partner” in the
domestic-violence-assault statute by looking to common usage of the term in
court opinions).
[¶15] Welsh rejects this common understanding in favor of a narrow
reading of “public place” that would apply only to publicly owned property.2
For support, he relies on definitions of “public place” and “public property”
from Black’s Law Dictionary.3 Welsh’s argument is unavailing. “Unless the
statute itself discloses a contrary intent, words in a statute must be given their
plain, common and ordinary meaning, such as the average person would
usually ascribe to them.” State v. Marquis, 2023 ME 16, ¶ 14, 290 A.3d 96
(alteration and quotation marks omitted). There is no indication from the
language of section 854 that “public place” is meant to be a legal term of art, and
we therefore do not find Welsh’s reliance on the definitions from Black’s
persuasive. To the contrary, the average person often uses terms such as “in
2 Welsh also contends that, to the extent that the meaning of the term “public place” is unclear, we should apply the rule of lenity and the doctrine of strict construction to interpret the term narrowly in his favor. In support of this contention, he cites the United States Supreme Court’s statement in McNally v. United States that “when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language.” 483 U.S. 350, 359-60 (1987). But, as we explain, infra ¶¶ 15-18, Welsh’s proposed reading of the statute is simply not a rational one.
3 Black’s defines “public property” as “State- or community-owned property not restricted to any
one individual’s use or possession,” Property, Black’s Law Dictionary (12th ed. 2024), and “public place” as “[a]ny location that the local, state, or national government maintains for the use of the public, such as a highway, park, or public building,” Public Place, Black’s Law Dictionary. 10
public” and “public place” to refer to various privately owned places frequented
by members of the public, such as supermarkets, restaurants, or office
buildings. On the other hand, people invariably refer to their own homes and
living spaces from which the public is excluded as “private places.”
[¶16] The structure of the indecent-conduct statute supports
interpreting “public place” in accordance with this commonly understood
meaning. See Beaulieu, 2025 ME 4, ¶ 15, 331 A.3d 280 (“To ascertain a statute’s
plain meaning, we examine the entirety of the statute, giving due weight to
design, structure, and purpose as well as to aggregate language.” (quotation
marks omitted)). Section 854 creates a dichotomy between “public” and
“private” places: a person can commit the offense in either, albeit under
different circumstances. See 17-A M.R.S. § 854(1)(A)-(C). As a result of this
dichotomy, what is not private is necessarily public; there is no third category.4
Although the statute also does not define “private place,” it provides for an
affirmative defense to a charge of indecent conduct in a “private place” that
gives a strong clue as to that term’s meaning. See id. § 854(2-A). Specifically,
section 854(1)(C) criminalizes the conduct of an actor who, “[i]n a private place,
. . . exposes the actor’s genitals with the intent that the actor be seen by another
4 Welsh does not appear to dispute this; he concedes that all “place[s]” are either public or private
for the purposes of the statute.
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person in that private place under circumstances that the actor knows are likely
to cause affront or alarm.” 5 However, “[i]t is a defense to prosecution under
[this subsection] that the other person previously lived or currently is living in
the same household as the actor.” Id. § 854(2-A). The existence of this defense
indicates that a “private place” is akin to a private “household”—a home or
similar place. It ensures that people who live together—family members,
dating partners, or roommates—do not commit the offense of indecent conduct
when one is naked in front of the other in the place in which they both live.
[¶17] Interpreting “private place” more broadly, as Welsh suggests, to
include all privately owned property, would render this defense absurd and
illogical. See Harrington v. State, 2014 ME 88, ¶ 5, 96 A.3d 696 (“We seek to
discern from the plain language of the statute the real purpose of the legislation,
avoiding results that are absurd, inconsistent, unreasonable, or illogical.”
(alteration and quotation marks omitted)). For instance, it would permit a
person who exposes his genitals in a privately owned restaurant to evade
conviction for the offense of indecent conduct if the other person who observes
the act is a current or former roommate. See 17-A M.R.S. § 854(1)(C), (2-A).
This is an unreasonable reading of the statute, and suggests that for purposes
5 Although we construe the statute as a whole and this subsection is instructive, we note that Welsh was not charged under this subsection of the statute.
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of section 854, “private place[s]” are limited to private residences or similar
locations, whereas “public place[s]” encompass all other places—anywhere
accessible to members of the public.6
[¶18] We accordingly conclude that under the plain language of section
854, “private place[s]” are limited to individuals’ homes or other similarly
exclusive places to which persons other than the owner or occupants do not
have regular access. “Public place[s],” on the other hand, encompass all other
places, both publicly and privately owned, to which members of the public or a
substantial group other than the owner or occupants have regular access. 7
The Legislature has also stated expressly that “[f]or purposes of [the indecent-conduct statute]
6
‘public place’ includes, but is not limited to, motor vehicles that are on a public way.” 17-A M.R.S. § 854(2).
While we conclude that the language of section 854 is unambiguous, we note that, even if we
7
were to accept Welsh’s contention that the statute is ambiguous, its legislative history supports our conclusion. In 1995, the Legislature codified the substance of what is now subsections 1(C) and 2-A of the statute, governing indecent conduct in a private place toward another person in that private place. See P.L. 1995, ch. 72, § 2 (effective Sep. 29, 1995) (codified as subsequently amended at 17-A M.R.S. § 854(1)-(2-A)). In interpreting this amendment, we said:
The Legislature thereby extended the reach of the statute from exposures by an actor
visible to the outside domain—from a public place or another private place—to
exposures in the private domain where the actor and the victim were in the same
private place. Legislative testimony by the representative who proposed the 1995
amendment suggests that the Legislature intended to criminalize an in-person
exposure that would otherwise escape prosecution because the actor and the victim
were in the same private place. The legislative record further indicates that the
“affront or alarm” requirement was included to avoid criminalizing consensual
private exposures.
State v. Legassie, 2017 ME 202, ¶ 18, 171 A.3d 589 (citing An Act to Prohibit Private Indecency: Hearing on L.D. 179 Before the J. Standing Comm. on Criminal Justice, 117th Legis. (1995) (testimony of Rep. William F. Reed and testimony of Marty McIntyre, Maine Coalition Against Sexual Assault)).
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[¶19] Applying the plain language of section 854 to the facts of this case,
Welsh’s apartment, his personal residence, is a “private place.” The shared
hallway of his apartment building, on the other hand, which is used by other
tenants of the building and, as the trial court found, could conceivably be used
by members of the public—visitors, delivery people, or, as here, visiting police
officers—is a “public place.”
B. The Trial Court’s Findings and Sufficiency of the Evidence
[¶20] We now turn to the trial court’s application of the statute to the
facts of this case and Welsh’s argument that the evidence was insufficient to
sustain his conviction. Although we view the evidence in the light most
favorable to the State, when the trial court makes specific findings of fact in
reaching its verdict, as it did here, “we review those findings for clear error and
will uphold them if supported by competent evidence in the record.” State v.
Hodgson, 2025 ME 88, ¶ 17, 345 A.3d 125 (quotation marks omitted).
[¶21] The court predicated its verdict on Welsh’s encounter with the
responding police officer, finding that Welsh’s conduct of standing naked in his
The Legislature’s intent to avoid criminalizing “consensual private exposures” in private places indicates that such places are those where a consensual private exposure would be appropriate, i.e., homes, hotel rooms, or other similar locations exclusive to the owner or occupants. Accordingly, it follows that all other places where a consensual private exposure would be inappropriate—any place that persons other than the owners or occupants could conceivably access—would be “public” within the meaning of the statute.
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open doorway “constitutes exposing your genitals in a public place.”8 For the
reasons we just explained, supra ¶¶ 12-19, the court’s characterization of
Welsh’s apartment as a “public place” was incorrect as a matter of law. Because
the defendant’s presence in a “public place” is an element of the crime that
Welsh was convicted of, see 17-A M.R.S. § 854(1)(A)(2), (4), and because the
exposure upon which the court based its finding of guilt did not occur in a public
place, there is insufficient evidence to sustain Welsh’s conviction on the
grounds articulated by the trial court.9 See Hodgson, 2025 ME 88, ¶ 17, 345
A.3d 125.
[¶22] Had the trial evidence pertained only to Welsh’s conduct while in
his apartment, our analysis would end here with a mandate vacating the
conviction and directing the trial court to enter a judgment of acquittal on
Welsh’s behalf. See, e.g., State v. Wilder, 2000 ME 32, ¶ 1, 748 A.2d 444
(“Because the evidence in this case is insufficient to support the convictions
beyond a reasonable doubt . . . we vacate the convictions and remand for entry
8 The court found that Welsh was standing in the open doorway of the apartment. The undisputed
evidence was that he was inside his apartment with the door to the shared hallway open, thus lending additional support to our holding here.
9 This is not to say that there is no possible consequence for Welsh’s standing naked in his
apartment with the door open. Section 854(1)(B) criminalizes the act of exposing one’s genitals in a private place “with the intent that the actor be seen from a public place.” But the State did not charge Welsh under that provision.
15
of a judgment of acquittal.”). But as the State argues, it also presented evidence
that Welsh exposed his genitals while in the shared hallway—a “public place.”
We accordingly consider whether that evidence, when taken in the light most
favorable to the State, is sufficient to support Welsh’s conviction. See Murphy,
2016 ME 5, ¶ 5, 130 A.3d 401.
[¶23] We conclude that the State’s evidence, when viewed in this light,
was sufficient to establish each element of the charged offense. First, there was
evidence that Welsh was in a public place—the shared hallway. Second, there
was evidence that Welsh knowingly exposed his genitals—that he stood fully
naked outside his neighbor’s door. Third, there was evidence from which one
could find that, although Welsh was facing away from the neighbor, he exposed
himself under circumstances that in fact were likely to cause affront or alarm—
indeed, the neighbor testified that she was affronted and alarmed. 10 And fourth,
10 The trial court suggested that the “affront or alarm” element of the offense required a victim—
a person who was in fact affronted or alarmed by the defendant’s exposure. This is inconsistent with the language of the statute, which focuses on whether the exposure occurs “under circumstances that in fact are likely to cause affront or alarm.” 17-A M.R.S. § 854(1)(A)(2) (emphasis added); see State v. Smith, 437 A.2d 639, 640-41 (Me. 1981) (holding that allegation in complaint that defendant “expose[d] his penis to passersby” was sufficient to satisfy “affront or alarm” element because “[t]he indiscriminate display of one’s penis to members of the traveling public is likely to prove offensive” (quotation marks omitted)). In a related vein, Welsh asserted at oral argument that to convict him the State had to prove that he knew the exposure was likely to cause affront or alarm. The subsection under which Welsh was charged, however, by requiring only that the circumstances were “in fact” likely to cause affront or alarm, 17-A M.R.S. § 854(1)(A)(2), mandates no such showing of intent regarding that element. See 17-A M.R.S. § 34(4)(B) (2026) (“Unless otherwise expressly provided, a culpable mental state need not be proved with respect to . . . [a]ny element of the crime as to which it is expressly stated that it must ‘in fact’ exist.”). By contrast, a separate subsection of the 16
the State introduced evidence of Welsh’s two prior convictions. This evidence,
if credited by the trial court, was sufficient to support each element of the
offense charged. See 17-A M.R.S. § 854(1)(A)(2), (4). The problem here is that
the court did not appear to make any findings with respect to this evidence. Cf.
State v. Cannell, 2007 ME 30, ¶ 10, 916 A.2d 231 (remanding for further findings
where defendant’s testimony, “if credited by the court, could lead to [the
defendant’s] acquittal”). We therefore consider how we must dispose of a
criminal appeal where there may be sufficient evidence in the record to support
the defendant’s conviction but the trial court expressly did not rely on that
evidence in making its finding of guilt, instead relying on evidence that was
insufficient to support the conviction.
C. The Proper Disposition of this Case
[¶24] The State argues that we should affirm Welsh’s conviction,
notwithstanding the trial court’s reliance on evidence insufficient to support
the conviction. It notes that we have affirmed a conviction on alternative
grounds on at least one occasion, see State v. Knight, 2009 ME 32, ¶ 10, 967 A.2d
indecent-conduct statute governing exposures in private places contains an express mens rea requirement. Contrast 17-A M.R.S. § 854(1)(A)(2) (prohibiting an actor from knowingly exposing his genitals in a public place “under circumstances that in fact are likely to cause affront or alarm” (emphasis added)), with id. § 854(1)(C) (prohibiting an actor from exposing his genitals in a private place “with the intent that the actor be seen by another person in that private place under circumstances that the actor knows are likely to cause affront or alarm” (emphasis added)).
17
723, and further contends that we may infer facts not specifically found by the
trial court but consistent with the record in evaluating the sufficiency of the
evidence supporting the court’s ultimate finding of guilt. Welsh disagrees,
asserting that because the evidence the court relied on was insufficient under a
proper reading of the statute, we must vacate the conviction.
1. Alternative Basis for Conviction
[¶25] We conclude that we cannot affirm Welsh’s conviction on grounds
that the trial court did not rely on. The State is correct that we have affirmed a
conviction on an alternative basis in a case where, following a bench trial, the
court erroneously applied the law to the facts. Specifically, in Knight, which
involved a prosecution for operating after suspension, we held that although
the trial court relied on legally insufficient evidence to find that the State met
its burden to prove the element of notice, any error was harmless because the
court also credited other evidence that sufficed to prove notice. Id. ¶¶ 1, 6, 8-10.
Here, however, it is not clear that the court credited the State’s evidence
regarding Welsh’s conduct in the hallway; the court’s statements regarding the
events that transpired before the police officer arrived are at best ambiguous—
they could be read as findings of fact, or simply as a summary of the neighbor’s 18
testimony and the State’s argument for conviction.11 The court’s findings are
therefore inadequate to support affirmance on the State’s alternative theory of
the case. See Weidul v. State, 2024 ME 51, ¶ 34 n.10, 319 A.3d 1048 (“The
proper role of an appellate court requires that one court, the trial court, have
the fact-finding role and that the appellate court defer to the trial court’s
findings.” (alterations and quotation marks omitted)).
2. Inferred Findings
[¶26] The State also argues that because Welsh did not move for special
findings of fact after the court found him guilty, we can infer the requisite
findings needed to support Welsh’s conviction. See M.R.U. Crim. P. 23(c) (“In a
case tried before the court without a jury, the court shall make a general finding
and shall in addition on request find the facts specially.”). For support it cites
State v. Brown, where we explained that because the defendant “failed to
request further findings of fact pursuant to M.R.U. Crim. P. 23(c),” we would
As noted, supra ¶ 8, regarding the State’s argument that Welsh committed the offense while
11
standing in the hallway, the court stated, in part:
I think that [the State’s] argument is interesting that he—clearly his genitals were
exposed, and they—there were circumstances that caused affront and alarm, not
because [the neighbor] saw them, but because she was worried that they would be
exposed when Mr. Welsh turned around or if he turned around once she opened the
door, which would be a natural consequence. That is a statutorily interesting
argument that I think I need not resolve because I am finding that the offense took
place when the officer arrived.
19
“infer that the trial court found all the facts necessary to support its judgment
given that those inferred findings are supported by evidence in the record.”
2017 ME 59, ¶ 17, 158 A.3d 501.
[¶27] The State’s argument is unpersuasive, however, because no
factfinding about Welsh’s actions in the hallway was necessary for the trial court
to reach its erroneous conclusion that Welsh committed indecent conduct (at
least under the provision he was charged with violating) while standing in his
apartment. Cf. id. Put another way, the trial court based its finding of guilt on
events that transpired after the police officer arrived at the apartment building,
when Welsh was in a private place—his apartment. The evidence that might
have supported a finding of guilt under a proper application of section
854(1)(A)(4)—of events that occurred while Welsh was in the hallway, a public
place—was unrelated to the trial court’s basis for finding Welsh guilty.
Accordingly, if we were to make findings regarding those events, they would
not be inferences; they would be independent findings of fact.12 Such findings
are beyond the scope of our domain as an appellate court. See Weidul, 2024 ME
51, ¶ 34 n.10, 319 A.3d 1048; State v. Stone, 294 A.2d 683, 688 n.6 (Me. 1972)
12 In contrast, in cases where the trial court does not make any findings as to a necessary element
of the offense charged and the defendant does not move for special findings of fact pursuant to M.R.U. Crim. P. 23(c), we will infer the necessary finding if it is supported by evidence in the record. See State v. Dodd, 503 A.2d 1302, 1307 (Me. 1986).
20
(“[A]t the appellate level, we may not ourselves provide . . . findings of fact; this
would be an improper invasion of the domain of the fact-finder.”).
3. The Proper Outcome: Remand
[¶28] Having concluded that we cannot affirm Welsh’s conviction, we
next consider the scope of our remand order. Welsh contends that rather than
giving the trial court an opportunity to make findings about the State’s evidence
that he exposed himself in the hallway, we must simply vacate the conviction
because the trial court “made an expression of reasonable doubt” as to this
potential alternative basis for conviction. We disagree, for two reasons.
[¶29] First, the court’s statements, while somewhat unclear, do not
articulate reasonable doubt about the evidence regarding Welsh’s hallway
activities; rather, the court simply avoided addressing the question of whether
those activities would constitute indecent conduct, stating that it was “a
statutorily interesting argument that I think I need not resolve because I am
finding that the offense took place when the officer arrived.” Because the court
expressly declined to reach the issue of whether the State proved that Welsh
committed the offense in the shared hallway, that remains an open question
that the court must address.
21
[¶30] Second, counter to Welsh’s assertions, we regularly remand cases
for further findings when, as is the case here, there may be sufficient evidence
in the record to support a finding of guilt but the trial court committed a legal
error that invalidates the conviction.13 See State v. Patterson, 2004 ME 79, ¶¶ 1,
15-16, 851 A.2d 521 (vacating a judgment of conviction for assault after a bench
trial and “remand[ing] to allow the court to make clear its findings of fact and
conclusions of law”); State v. Longley, 483 A.2d 725, 731-32 (Me. 1984)
(reasoning that trial court’s conclusion of law, after a bench trial, was
“susceptible to several interpretations,” one of which was erroneous, and
therefore vacating the conviction and remanding the case “so that the trial
justice [could], on the existing record, make fresh findings of fact” and a
“redetermination of innocence or guilt”); see also Cannell, 2007 ME 30, ¶ 10,
916 A.2d 231 (holding that trial court failed to properly evaluate defendant’s
asserted defense of justification for his use of physical force and “vacat[ing] the
13 This case is distinguishable from cases in which we have vacated a conviction after a bench trial
because the court erred in its application of the relevant statute to the facts and there was no evidence in the record to support a finding of guilt under a proper reading of the statute. See, e.g., State v. Jones, 2012 ME 88, ¶¶ 1, 7-12, 46 A.3d 1125 (vacating a conviction for carrying a concealed weapon when the trial court did not make findings about whether the knives at issue were of the type prohibited by statute and there was “[n]o evidence presented at trial” and thus “no factual basis in the record to support a conclusion that [the knives were of the prohibited type]”).
22
conviction and remand[ing] the matter to the [trial court] for application of the
nondeadly force defense to the facts already before the court”). 14
[¶31] Our decision in Patterson is particularly instructive. There, the
defendant raised a defense-of-property defense to his assault charge.
Patterson, 2004 ME 79, ¶¶ 1, 6, 851 A.2d 521. After a jury-waived trial, the
court made unrequested findings of fact that included conflicting statements
regarding the applicability of the affirmative defense; it first suggested that the
defendant had not generated the defense, then later erroneously indicated that
the defense was inapplicable as a matter of law. See id. ¶¶ 7-8, 11, 14-15. On
appeal, we concluded that “[b]ecause the conflicting statements of the court
make it impossible for us to ascertain whether the court found that [the
defendant] failed to provide sufficient evidence to generate the [affirmative]
defense, or whether it concluded that the defense could not be applied as a
14 Courts in other jurisdictions take a similar approach. See, e.g., United States v. Conners, 606 F.2d
269, 270-73 (10th Cir. 1979) (concluding that a statute prohibiting the hunting and killing of certain migratory birds only applied to “wild” birds and, because the trial court made no finding of fact as to whether the birds at issue were “wild” or “captive-reared,” remanding the case to the trial court to make findings on this “controlling question”); Augustin v. United States, 240 A.3d 816, 825 (D.C. 2020) (“Where, as here, the evidence is sufficient to support a verdict of guilty in a bench trial, but the trial judge appears to have grounded the verdict on a mistaken view of the facts without (apparently) having considered and rejected the permissible factual basis, the proper course is for this court to remand the case for the trial judge to weigh the evidence afresh.”); Ewell v. United States, 72 A.3d 127, 130-33 (D.C. 2013) (concluding that the trial court committed legal errors in its application of the defendant’s self-defense claim and failed to make fact findings adequate for appellate review, and accordingly “remand[ing the case] to the trial court for further factual findings and reconsideration of [the defendant’s] self-defense claim under the proper . . . standard”).
23
matter of law, . . . we must vacate and remand to allow the court to make clear
its findings of fact and conclusions of law.” Id. ¶ 16.
[¶32] Similarly, here, the trial court’s ambiguous statements, coupled
with its erroneous conclusion that Welsh committed the charged offense while
standing inside his open doorway, make it necessary for us to remand this case
for further findings. Specifically, the trial court, guided by our interpretation of
the statute as set forth in this opinion, must determine whether the State’s
evidence regarding Welsh’s purported actions in the hallway prove him guilty
beyond a reasonable doubt of indecent conduct as charged.
The entry is:
Judgment vacated. Remanded to the trial court
for further proceedings consistent with this
opinion.
Zachary J. Smith, Esq. (orally), Lawsmith Legal Services, L.L.C., Bangor, for
appellant James Welsh
R. Christopher Almy, District Attorney, and Anya V. Sproule, Asst. Dist. Atty.
(orally), Prosecutorial District V, Bangor, for appellee State of Maine
Penobscot County Unified Criminal Docket docket number CR-2024-329
FOR CLERK REFERENCE ONLY