Published Date Written by Barbara Tetreault
CONCORD – The state Supreme Court has unanimously rejected an appeal to overturn the conviction of a Berlin man on charges of aggravated felonious sexual assault and conspiracy to commit aggravated felonious sexual assault.
In a ruling handed down last Friday, the court upheld the October 2011 conviction of William Ploof.
Ploof, 53, had appealed the conviction on the grounds on the evidence was insufficient to identify him as the perpetrator. Ploof had refused to attend the trial and the court eventually granted him a waiver of his right to be present.
Ploof also argued the court should have granted a mistrial after one of the witnesses said, "This guy is a multiple offender". Coos Superior Court Justice Peter Bornstein ordered the jury to disregard the remark but refused the defense request for a mistrial.
The charges stemmed from an incident that occurred between Aug. 1982 and April 1983 n Berlin. The victim, between 11 and 12 years old at the time, testified he and another boy used to associate sometimes with a group of men who provided them with alcohol and marijuana. The boys were at the apartment of one of the men when Ploof sexually assaulted the boy while the other child was in the bathroom with another man. According to testimony, Ploof threatened the boys that if they ever spoke about what happened, he would kill them. More than 27 years later, Berlin police interviewed the victim during an investigation into another crime and he reported the sexual assault.
Ploof was charged and was present for jury selection when the case came to trial in the fall 2009. But he later submitted a waiver of his right to be present at trial. When the court initially denied his waiver, Ploof refused to be transported to the trial and renewed his request for a waiver. The court granted the request and the trial proceeded without Ploof.
At the end of the state's case, the defense moved to dismiss, arguing the evidence was insufficient to establish Ploof's identity as the perpetrator of the crimes and later moved to set aside the verdict for the same reason. Judge Bornstein denied both requests.
The Supreme Court noted the state has the burden of proving beyond a reasonable doubt that the person charged with a crime is indeed the perpetrator. In the case of Ploof, his decision to waive his right to appear at the trial meant witnesses could not point to the defendant in court to identify him.
But in its decision, the court cited testimony by three witnesses who said they knew Ploof personally and identified him by name. Moreover, the decision said the defense did not object when the witnesses were questioned about the defendant by name.
"The defendant could have challenged the factual foundation for the witnesses' testimony that the William Ploof that they were discussing was indeed the defendant, but he did not do so. We therefore conclude that the jury could properly have found that the witnesses had personal knowledge that the William Ploof about whom they testified was the defendant," the court ruled.
The Supreme Court also addressed the issue of whether a mistrial should have been granted after the comment about Ploof's prior criminal conduct. The comment came during cross-examination when the witness was questioned about the 27-year delay in reporting the abuse. The witness said his father was an abusive man and he feared his retribution if he discovered his son had been sneaking out of the house.
After asking the defense attorney several times if he understood, the witness finally said, "No. This guy is a multiple offender".
The defense immediately moved for a mistrial and argued that at a minimum the statement be stricken from the record and the jury instructed to ignore it.
Judge Bornstein denied the request for a mistrial, ruling the statement did not cause "irreparable injustice that can't be cured by an instruction" and he instructed the jury to disregard the statement.
After being found guilty in the case, Ploof was sentenced in Coos Superior Court to serve seven and a half to 15 years.
Last November, he pleaded guilty to seven counts of sexual assault on two minors dating back to the early 1990s. He was sentenced to serve a total of seven and a half to 15 years on three of the charges. He received suspended sentences on the other four. All of the sentences run consecutive to the earlier sentence. As a condition of his sentences, Ploof was ordered to undergo the sex offender treatment program while incarcerated.
Ploof was the first man to be civilly committed by the state as a dangerous sexual offender back in 2009. He was convicted in 1968 for raping a young boy and was sentenced to serve up to ten years. As he neared the end of his sentence, prosecutors moved to civilly commit him under the Violent Sexual Predator Act approved by the legislature in 2007. After a seven-day trial, a jury ruled he was a sexual predator and he was ordered to spend up to five years in the secure psychiatric unit of the Concord state hospital. Ploof appealed the constitutionality of the law but the state Supreme Court upheld it in a ruling issued in September 2011.