MAINE SUPREME JUDICIAL COURT                                     Reporter of Decisions
Decision: 2013 ME 54
Docket:   Pen-12-355
Argued:   April 11, 2013
Decided:  June 4, 2013

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,
             JJ.



                                STATE OF MAINE

                                         v.

                               KEITH E. KLINE JR.


ALEXANDER, J.

         [¶1] Keith E. Kline Jr. appeals from a judgment of conviction of reckless

conduct with a dangerous weapon (Class C), 17-A M.R.S. §§ 211(1), 1252(4)

(2012), entered in the trial court (Cuddy, J.) following a jury trial. Kline argues

that the evidence was insufficient to support the conviction, that the court erred

when it excluded certain evidence that Kline sought to admit through the testimony

of his private investigator, and that it erred when it did not grant a mistrial

following a comment the State made in rebuttal during closing arguments.

Additionally, Kline and the State agree that the court improperly applied the

mandatory minimum sentencing provision at 17-A M.R.S. § 1252(5) (2012)

because the court did not instruct the jury to make certain findings necessary to

require the mandatory minimum sentence. We affirm the judgment of conviction,
2


but, on agreement of the parties, we vacate the sentence and remand the matter for

resentencing.

                               I. CASE HISTORY

      [¶2] The following facts, viewed in the light most favorable to the State, are

established in the record. See State v. Hofland, 2012 ME 129, ¶ 22, 58 A.3d 1023.

      [¶3] On Labor Day afternoon, September 5, 2011, Keith E. Kline Jr. was

shooting firearms with friends behind his home in Hudson. Kline claimed to be

“target practicing” with his .40 caliber handgun, which has a muzzle velocity of

over 1000 feet per second, aiming into an area of saplings and overgrowth in the

woods.   There were no actual targets set up and no raised barriers or berms

surrounding the target area.

      [¶4]   The victim, Kline’s next-door neighbor, lived in a mobile home

approximately 500 feet from Kline’s home.        Although the land between the

victim’s home and Kline’s home was wooded, Kline indisputably knew where the

victim’s home was located and that he was shooting in the direction of her home.

      [¶5] The victim, who was in her home when Kline was shooting, sustained a

gunshot injury when a bullet pierced the exterior wall of her home and hit her.

Police recovered a bullet from the victim’s home and determined that a .40 caliber

weapon fired it. Kline was charged with one count of reckless conduct with a

dangerous weapon (Class C), specifically a firearm, 17-A M.R.S. §§ 211(1),
                                                                                 3


1252(4) and one count of reckless conduct (Class D), 17-A M.R.S. § 211(1)

(2012). The indictment included the language “with the use of a firearm against

[a] person” to invoke the mandatory minimum one-year sentence on the Class C

charge specified in 17-A M.R.S. § 1252(5).

      [¶6] Kline pleaded not guilty, and a jury trial was held in July 2012. Before

trial began, Kline moved to exclude any evidence regarding his prior relationship

with the victim before the shooting, apparently concerned that it might, among

other things, suggest that Kline had a motive to shoot or scare her. The court

granted Kline’s motion to exclude that evidence.

      [¶7] At trial, Kline offered a private investigator’s testimony concerning

what the private investigator had personally observed about the nature of the

woods separating Kline’s home from the victim’s home, the location of the homes,

and measurements he had taken between the two locations. The State challenged

portions of the investigator’s testimony.        The court excluded any testimony

regarding the investigator’s measurements of the property, but otherwise allowed

him to offer his lay opinion of what he personally observed between Kline’s and

the victim’s homes. Additionally, the court limited, pursuant to M.R. Evid. 401

and 403, the witness’s testimony as to his observations about the appearance of the

wooded area in November when the leaves were completely off the trees, given

that the shooting occurred in early September.
4


      [¶8]    After the close of the evidence, the parties presented closing

arguments. In his argument, Kline asserted that he was shooting safely, that there

was “no proof” that the shots he and his friends fired went into the victim’s home,

and that someone else must have shot the victim. In rebuttal, the prosecutor

recognized Kline’s implication that “she did this to herself” and then argued that

“there is certainly no motive here or reason why she would do that.” Citing the

court’s prior exclusion of evidence of Kline’s and the victim’s prior relationship

and related inference that Kline may have had a motive to shoot or scare the

victim, Kline objected and moved for a mistrial or a curative instruction. The court

denied the motion for a mistrial and gave a curative instruction that Kline’s motive

or lack of motive was not an issue that the jury should consider. Kline did not

object to the curative instruction. The court charged the jury without objection,

and the jury found Kline guilty of reckless conduct with a dangerous weapon,

specifically a firearm.

      [¶9] The court proceeded directly to sentencing following the jury’s verdict.

Applying the minimum mandatory sentencing provision of 17-A M.R.S. § 1252(5),

apparently on its own initiative, the court sentenced Kline to one year in prison.

Kline brought this timely appeal.



______________________
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                                      II. LEGAL ANALYSIS

A.      Sufficiency of the Evidence, Exclusion of Certain Evidence, and Denial of a
        Motion for Mistrial

        [¶10]     Kline contends that the evidence was insufficient for a jury to

rationally find that Kline acted recklessly when he shot a powerful handgun into

the woods in a residential area and in the direction of his next-door neighbor’s

home, knowing where it was located.                      Contrary to Kline’s contentions, the

evidence was sufficient for the jury to have rationally found each element of the

offense beyond a reasonable doubt. See 17-A M.R.S. §§ 211(1), 1252(4); see also

17-A M.R.S. §§ 2(22), 35 (2012); Hofland, 2012 ME 129, ¶ 22, 58 A.3d 1023

(stating the standard of review).

        [¶11] Kline also argues that the court improperly excluded or limited the

following evidence that Kline sought to introduce through his lay witness, a private

investigator, (1) testimony concerning the appearance and layout of the wooded

area between Kline’s and the victim’s homes, 1 and (2) testimony of actual

measurements the investigator had taken of the distance between Kline’s and the




   1
      Contrary to Kline’s contention, the investigator was allowed to testify to his general observations
about the area’s topography and the “extensive” nature of the vegetation between Kline’s and the victim’s
homes, and he further testified that, when standing at the spot from which Kline shot, the investigator
could see no homes. Because the offense occurred in early September, before the leaves had fallen, the
court limited, but did not entirely exclude, the investigator’s testimony as to the appearance of the wooded
area in November.
6


victim’s homes. 2 Reviewing the court’s evidentiary rulings for obvious error

because Kline did not articulate objections to the limitations on this testimony, we

conclude that the court did not err in limiting or excluding the investigator’s

testimony as it did. See State v. Roberts, 2008 ME 112, ¶ 21, 951 A.2d 803; State

v. Snow, 2007 ME 26, ¶¶ 8-11, 916 A.2d 957; see also M.R. Evid. 401, 402, 403,

701, 702; Mitchell v. Kieliszek, 2006 ME 70, ¶¶ 13-14, 900 A.2d 719 (stating that

“an opinion based on ‘scientific, technical, or other specialized knowledge’. . .

cannot be an opinion of a witness ‘not testifying as an expert’” and that expert and

lay opinion are mutually exclusive); State v. Marden, 673 A.2d 1304, 1311 n.5

(Me. 1996).

        [¶12] Finally, contrary to Kline’s contentions, the court did not abuse its

discretion when it denied Kline’s motion for a mistrial and instead provided a

curative instruction in response to the State’s comment in rebuttal. See State v.

Caron, 2011 ME 9, ¶ 16, 10 A.3d 739; State v. Bridges, 2004 ME 102, ¶¶ 10-11,

854 A.2d 855. It does not appear that the prosecutor’s comment regarding the lack

of evidence of the victim’s motive to fabricate was violative of the court’s earlier

exclusion of evidence of Kline’s motive. Further, Kline did not object to the

curative instruction or renew his motion for a mistrial.                          Thus, reviewing the

curative instruction for obvious error, we conclude that the curative instruction was

    2
      In contrast, the court would have permitted the witness to testify to his lay opinion as to the distance,
to the extent the testimony was not technical in nature.
                                                                                                        7


adequate to remedy any prejudice and that the court properly did not grant a

mistrial on its own initiative after giving the curative instruction. See State v.

Quirion, 2000 ME 103, ¶ 25, 752 A.2d 170.

           [¶13] In short, finding no error, we affirm the judgment of conviction.

B.         Application of the Minimum Mandatory Sentencing Statute

           [¶14] Kline and the State agree that the case should be remanded to the trial

court for resentencing.3 They argue that the fact-finder must find that the offender

used a “firearm against a person” before the mandatory minimum sentencing

provision of 17-A M.R.S. § 1252(5) may be applied. They further argue that

because they did not request and the court did not instruct the jury to find whether

Kline used a firearm “against a person” in the commission of reckless conduct with

a dangerous weapon, the jury did not make the required finding,4 and the court

erred in applying the provisions of section 1252(5). Because the parties agree that

the court should reconsider the sentence not supported by the requisite finding, we

do not discuss this issue further.

           [¶15]      Based on the agreement of the parties, we vacate the sentence

imposed and remand for resentencing.



     3
      A defendant may appeal a sentence directly as a matter of right if he claims that it was “imposed in
an illegal manner and the illegality appears plainly in the record.” State v. Harrell, 2012 ME 82, ¶ 4, 45
A.3d 732.
     4
         The jury did, however, find Kline guilty of “reckless conduct with a firearm.”
8


        The entry is:

                           Judgment of conviction affirmed. Sentence
                           vacated; remanded to the trial court for
                           resentencing.

________________________

On the briefs:

        Sean Ociepka, Esq., The Law Office of Sean Ociepka, Belfast,
        for appellant Keith E. Kline, Jr.

        R. Christopher Almy, District Attorney, and Tracy Collins
        Lacher, Asst. Dist. Atty., Prosecutorial District V, Bangor, for
        appellee State of Maine


At oral argument:

        Sean Ociepka, Esq. for appellant Keith E. Kline Jr.

        Tracy Collins Lacher, Asst. Dist. Atty., for appellee State of
        Maine



Penobscot County Unified Criminal Docket docket number CR-2012-91
FOR CLERK REFERENCE ONLY
