MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision: 2019 ME 138
Docket:   Yor-18-299
Argued:   March 4, 2019
Decided:  August 20, 2019

Panel:      SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority:   SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Dissent:    ALEXANDER, J.




                                  STATE OF MAINE

                                           v.

                                 PETER L. ROBBINS


MEAD, J.

       [¶1] Peter L. Robbins appeals from a judgment of conviction for unlawful

sexual touching (Class D), 17-A M.R.S. § 260(1)(C) (2018), and assault (Class D),

17-A M.R.S. § 207(1)(A) (2018), entered by the trial court (York County,

Driscoll, J.) following a jury trial. Robbins contends that the court erred in

several of its evidentiary rulings, including allowing the State to cross-examine

him concerning prior probation violations, declining to allow him to refresh a

witness’s recollection with a document that the witness had not authored, and

barring him from eliciting testimony from a witness concerning the victim’s

reputation for truthfulness. We agree with Robbins that the court erred in

allowing the State to introduce improper character evidence through its inquiry
2

into multiple violations of his unrelated federal probation, and we conclude

that the prejudice he suffered as a result of that error, when combined with the

effect     of   prosecutorial   misconduct    committed   during    the   State’s

cross-examination of him, deprived Robbins of a fair trial. Accordingly, we

vacate the judgment.

                                 I. BACKGROUND

         [¶2] Viewing the evidence in the light most favorable to the State, the

jury rationally could have found beyond a reasonable doubt that on

December 12,       2008,    Robbins,   then   age   thirty-two,    touched   the

then-twelve-year-old victim’s genitals over her clothing and made her touch his

genitals over his clothing while the victim was spending the night with

Robbins’s niece. See State v. Perkins, 2019 ME 6, ¶ 3, 199 A.3d 1174. The next

morning the victim’s parents took her to the police station to make a report.

         [¶3]   Robbins was summonsed for assault (Class D), 17-A M.R.S.

§ 207(1)(A), and ordered to make a court appearance on February 5, 2009.

That appearance was continued when Robbins wrote to the court to advise it

that he was in the custody of federal probation authorities, probation having

been imposed as a result of his 2004 federal conviction for bank robbery.
                                                                                        3

Robbins was eventually arraigned on the assault charge and pleaded not guilty;

the matter was then transferred to the Superior Court for a jury trial.1

      [¶4] In July 2009, Robbins was indicted on the original assault charge

and an additional charge of unlawful sexual touching (Class D), 17-A M.R.S.

§ 260(1)(C). After counsel entered an appearance, Robbins failed to appear for

arraignment on the indictment on September 18, 2009, and the court

(Brennan, J.) issued a warrant for his arrest. The warrant remained outstanding

until Robbins returned from Italy, where he had lived for seven years beginning

in September 2009. In April 2017, Robbins, then living in Colorado, filed a

motion to vacate the warrant, which the court (O’Neil, J.) denied.                  After

arraignment on the 2009 indictment was continued several times, Robbins

appeared for arraignment in February 2018, pleaded not guilty, and was

released on an unsecured bond (Fritzsche, J.).

      [¶5] At a trial held on June 25-26, 2018, the jury returned verdicts of

guilty on both counts; the court then entered a judgment and commitment

imposing a sentence of ten months’ imprisonment for unlawful sexual touching

and a concurrent thirty-day jail term and a $300 fine for assault. Robbins

appealed, and the sentence was stayed pending our decision.


  1 This process occurred before the rule changes creating a unified criminal process were
promulgated. See M.R.U. Crim. P. 1(e).
4

                                 II. DISCUSSION

A.    Prosecutorial Misconduct

      [¶6] Although the issue was not preserved at trial or raised on appeal,

we examine the State’s cross-examination of Robbins to determine whether

prosecutorial misconduct occurred, and, if so, whether it contributed to

Robbins being deprived of a fair trial. See M.R.U. Crim. P. 52(b); State v. Dolloff,

2012 ME 130, ¶ 76, 58 A.3d 1032 (“Our ultimate task in reviewing for . . .

obvious error is to determine whether [the defendant] received a fair trial.”).

      [¶7]    During Robbins’s cross-examination concerning the federal

probation violations, the following exchange occurred:

      PROSECUTOR: The rules [against drinking while on probation] didn’t
      apply?

      ROBBINS: I tend to think that because alcohol is legal, it was kind of like
      bending the rules.

      Q: But the rules told you, you couldn’t drink.

      A: But I don’t understand what this has to do with anything.

      Q: It has to do with whether or not anybody should believe a word you’re
      saying in this courtroom today.

      A: No—well, that’s completely different. It’s a different—it was a
      different case; it was a different time in my life.

      Q: A different time in your life?
                                                                            5

      A: Yes. I was very depressed from losing—

      Q: This is November of 2008, you were sexually assaulting this girl
      December 2008.

      A: Allegedly—allegedly.

      Q: No, no there is no—

      A: Yes.

      Q: —allegedly here.

      A: It is allegedly.

      Q: There is testimony on the record to that effect, sir.

      A: I’m sorry, when’s my lawyer going to speak up, please? What’s going
      on here. This is crazy.

      PROSECUTOR: I don’t have anything further.

      COURT: Thank you.

      PROSECUTOR: I’m done with him.

(Emphasis added).

      [¶8] Defense counsel did not object, and the court took no action in

response to that exchange. Accordingly, our review is for obvious error. State

v. Hassan, 2013 ME 98, ¶ 32, 82 A.3d 86; Dolloff, 2012 ME 130, ¶ 35,

58 A.3d 1032; see M.R.U. Crim. P. 52(b); M.R. Evid. 103(d). Applying that

standard of review, we will not vacate Robbins’s conviction unless “there is
6

(1) an error, (2) that is plain, and (3) that affects substantial rights. Even if

these three conditions are met, we will set aside [the] jury’s verdict only if we

conclude that (4) the error seriously affects the fairness and integrity or public

reputation of judicial proceedings.” Dolloff, 2012 ME 130, ¶ 35, 58 A.3d 1032

(citations and quotation marks omitted). We will not set a jury verdict aside

“lightly,” and so an error leading to that result must work a “serious and

manifest injustice.” Id. ¶ 39.

      [¶9] We conclude that a plain error occurred here. The only evidence

from which the jury could find that Robbins committed the crimes charged

came from the testimony of the victim—her credibility was the heart of the

State’s case. The prosecutor’s questions to Robbins—presented in the form of

assertions—explicitly conveyed his personal opinion to the jury that the victim

had told the truth, and that the jury did not need to decide that question for

itself: “[Y]ou were sexually assaulting this girl [in] December 2008. . . . [T]here

is no . . . allegedly here. . . . There is testimony on the record to that effect . . . .”

See State v. Williams, 2012 ME 63, ¶ 46, 52 A.3d 911 (“At trial, an attorney is

prohibited from commenting on his or her personal opinion as to the credibility

of a witness.”).
                                                                                      7

      [¶10] In Dolloff, we said that “[i]njecting personal opinion regarding the

. . . credibility of . . . [a] witness[],” or “vouching” for a witness by “[u]sing the

authority or prestige of the prosecutor’s office,” “will almost always be placed

into the category of misconduct.” 2012 ME 130, ¶ 42, 58 A.3d 1032 (quotation

marks omitted); see id. ¶ 36 (“An error is plain if the error is so clear . . . that the

trial judge and prosecutor were derelict in countenancing it, even absent the

defendant’s timely assistance in detecting it.” (alteration, citation, and

quotation marks omitted)).

      [¶11]     The third element of the obvious error test requires us to

determine if there is “a reasonable probability that the error affected

[Robbins’s] substantial rights.        An error affects a criminal defendant’s

substantial rights if the error was sufficiently prejudicial to have affected the

outcome of the proceeding.” Id. ¶ 37 (alteration, citation, and quotation marks

omitted); see State v. Pillsbury, 2017 ME 92, ¶ 18, 161 A.3d 690. We do so being

mindful that “[w]hen a prosecutor’s statement is not sufficient to draw an

objection, particularly when viewed in the overall context of the trial, that

statement will rarely be found to have created a reasonable probability that it

affected the outcome of the proceeding.”             Dolloff, 2012 ME 130, ¶ 38,

58 A.3d 1032.
8

      [¶12] Here, the jury could have reasonably understood the prosecutor to

say that the ultimate issue had been settled and the jury’s core function

performed when he stated to Robbins as fact that “you were sexually assaulting

this girl [in] December 2008. . . . [T]here is no . . . allegedly here.” That statement

on its face is, of course, patently wrong—it is elemental that the State’s

accusation that Robbins had sexually assaulted the victim was an allegation

unless and until the jury assessed the victim’s credibility and decided for itself

that the State had proved the truth of its charge beyond a reasonable doubt. See

United States v. Sarault, 975 F.2d 17, 21 n.5 (1st Cir. 1992) (“One of the most

fundamental tenets of our system of justice is the presumption of innocence.”);

Alexander, Maine Jury Instruction Manual § 6-7 at 6-14 (2018-2019 ed.).

      [¶13] In obscuring the presumption of innocence by framing Robbins’s

guilt as a fact rather than as an open question for the jury to decide, thereby

shifting the burden of proof to Robbins on the ultimate issue—in effect

requiring Robbins to prove that the prosecutor’s assertion was false—the

prosecutor committed, and the court failed to correct, an error that had a

“reasonable probability” of being “sufficiently prejudicial to have affected the

outcome of the proceeding.”        Dolloff, 2012 ME 130, ¶ 37, 58 A.3d 1032
                                                                                   9

(quotation marks omitted); see id. ¶ 42 (stating that “[s]hifting the burden of

proof on an issue to the defendant” “will almost always be . . . ‘misconduct’”).

      [¶14] Because the first three elements of the obvious error test are

satisfied, we must decide finally whether the error “seriously affect[ed] the

fairness and integrity or public reputation” of the trial. Id. ¶ 35 (quotation

marks omitted). In this unusual situation, Robbins, confronted by a prosecutor

stating as fact that he had committed the crime for which he was on trial,

implored his lawyer to become involved. His lawyer did not, nor did the court.

From this, the jury may have concluded that no one participating in the trial

apart from Robbins himself disagreed that the truth of the victim’s testimony—

and thus Robbins’s guilt—had been established. That possibility was not

purely theoretical, given that during its deliberations the jury sent out a note

asking the court to “reinstruct the jury that 100 percent positive is not the

requirement to convict.” It is possible that the jury decided that because the

prosecutor, “cloaked with the authority of the State,” State v. Pratt,

2015 ME 167, ¶ 15, 130 A.3d 381, told them that Robbins was guilty, and no

one other than Robbins objected to or corrected that statement, then the jury

should reach the same conclusion.
10

      [¶15] That potential impression was reinforced during the State’s closing

argument, when the prosecutor said “let’s talk about what we know” and

recited the victim’s testimony, ending the recitation with, “Now that’s the story.

That’s the evidence. That’s the testimony.” In concluding his argument, the

prosecutor did what we have cautioned prosecutors not to do, urging the jury

that “[the victim] can’t do any more than what she’s done. You’re the only ones

that can do something. Find him guilty.” See Dolloff, 2012 ME 130, ¶ 68,

58 A.3d 1032 (“In exhorting the jury to convict, which is not, standing alone,

misconduct, references to doing justice by conviction should be avoided.”).

      [¶16] Although our review for obvious error is exacting when a jury has

rendered a verdict, see State v. Hall, 2017 ME 210, ¶ 27, 172 A.3d 467, we

conclude on this record that prosecutorial misconduct plainly occurred, the

misconduct affected Robbins’s substantial rights, and the error seriously

affected the fairness and integrity of the trial. See Dolloff, 2012 ME 130, ¶ 35,

58 A.3d 1032.

B.    Evidentiary Rulings

      [¶17] The State successfully sought to introduce at trial Robbins’s prior

conviction for bank robbery and his federal probation violations stemming

from that conviction. These two categories of evidence implicate Maine Rules
                                                                               11

of Evidence 609, 608, and 404. We address each of these rules, and their

implications for the admissibility of the robbery conviction and probation

violation adjudications, in turn.

        1.    Rule 609(a)

        [¶18] Rule 609(a) of the Maine Rules of Evidence provides, in pertinent

part:

        In general. Evidence of a criminal conviction offered to impeach a
        witness’s character for truthfulness must be admitted if its
        probative value outweighs its prejudicial effect on a criminal
        defendant . . . .

        (a)   Robbery Conviction

        [¶19] Impeachment of a witness’s credibility by inquiry regarding a prior

conviction should always be reviewed with the court before presentation to the

jury, and inquiry is limited to the fact of the conviction. Inquiry into the

circumstances leading to the conviction is ordinarily improper. See State v.

Chase, 490 A.2d 208, 211 (Me. 1985) (“[I]t is only the fact of conviction, and not

the details of the offense, which is admissible.” (quotation marks omitted)).

Here, the court initially—and appropriately—addressed the possibility of

impeachment by conviction in considering and granting Robbins’s motion in

limine insofar as Robbins sought to exclude the bank robbery conviction itself.
12

The court undertook the balancing test required by Rule 609(a)2 and found that

“it would be highly prejudicial for [the robbery conviction] to come in. . . . I think

it would sway the jury.” That determination was not an abuse of the court’s

discretion. See State v. Burton, 2018 ME 162, ¶ 20, 198 A.3d 195. The court

later changed its ruling, however, and allowed evidence of the conviction to be

presented to the jury during the State’s cross-examination of Robbins.3 We

address the later admission of the robbery conviction in our discussion of Rule

404(a)(2), see infra ¶¶ 27-32.

         (b)    Probation Violations

         [¶20] During the discussion of Robbins’s motion in limine seeking to

exclude evidence of his bank robbery conviction, the State, in addition to

arguing that the conviction itself was admissible, raised the subject of Robbins’s

multiple adjudicated violations of his probation, arguing that “those . . . appear




     The balancing test mandated by Rule 609(a), referred to as a “‘reverse Rule 403’ test” by the
     2

Restyling Note, requires that prior convictions be admitted pursuant to the rule only if the court
determines that “their probative value as to credibility outweighs any danger of unfair prejudice to a
criminal defendant.” M.R. Evid. 609 Restyling Note, Nov. 2014.

     The later admission of the robbery conviction was allowed after the court found that Robbins
     3

opened the door to character evidence by referring to his good family and asserting that the
accusations of sexual misconduct were “horrific for someone like me,” coupled with his admission to
the probation violations. The court did not explicitly readdress its earlier findings that the conviction
was highly prejudicial and would sway the jury.
                                                                              13

to be convictions because he pleads guilty to these violations. They’re not

admissions.”

      [¶21] To the extent that the court relied on Rule 609(a) in admitting

Robbins’s probation violation adjudications arising from the conviction, that

ruling was erroneous because the Rule permits, in certain circumstances, the

admission of “[e]vidence of a criminal conviction” (emphasis added), and

Robbins’s probation violation adjudications were not criminal convictions.

Rule 609 specifies that a qualifying “conviction” results from the commission of

a “crime.”     M.R. Evid. 609(a)(1)-(2).   It does not encompass a probation

violation, which is not a crime at all standing alone, but rather is conduct that

results in the implementation of punishment previously imposed as part of an

underlying criminal judgment. See 17-A M.R.S. § 3(1) (2018) (stating that “[n]o

conduct constitutes a crime unless it is prohibited [by statute]”); 17-A M.R.S.

§ 1201(1) (2018) (“A person who has been convicted of a crime may be

sentenced to a . . . sentencing alternative that includes a period of probation

. . . .”); 17-A M.R.S. § 1206(7-A) (2018) (“Upon a finding of a violation of

probation, the court may vacate . . . the suspension of execution as to

imprisonment or fine specified when probation was granted . . . .”). Stated
14

simply, a probation violation adjudication does not constitute a conviction for

the purposes of Rule 609.

      2.    Rule 608(b)

      [¶22] To the extent the court may have relied on M.R. Evid. 608(b) to

admit evidence of Robbins’s probation violations, the Rule provides that

      [e]xcept for a criminal conviction under Rule 609, extrinsic
      evidence is not admissible to prove specific instances of a witness’s
      conduct in order to attack or support the witness’s character for
      truthfulness. The court may, on cross-examination, allow a party
      to inquire into specific instances of a witness’s conduct if they are
      probative of the character for truthfulness or untruthfulness of . . .
      [t]he witness.

As with Rule 609, “bad act” evidence under Rule 608(b) can be highly

prejudicial and should always be vetted with the court before presentation to

the jury.   Here, the State properly requested a pretrial ruling in limine

concerning the admissibility of Robbins’s probation violations.

      [¶23] On direct examination, Robbins testified that he drank beer on the

night that he allegedly assaulted the victim but not “excessively,” saying, “I don’t

drink excessively; I was not intoxicated.” Following Robbins’s testimony on

direct examination, the State requested a sidebar conference to discuss the

allowable scope of cross-examination. The State asserted that Robbins had

opened the door to inquiry about the alcohol-related probation violations by
                                                                               15

maintaining that he had not been drinking “excessively” on the night of the

alleged assault. Without elaboration, the court ruled that “[i]t’s fair game . . .

[t]he door’s open on that.”

      [¶24] Robbins subsequently admitted that he had violated his probation

by drinking, and he volunteered that he had also violated probation by dating

his then-girlfriend, an ex-felon. When the State questioned him about lying to

his probation officer, Robbins responded by asking, “In what way?” and the

prosecutor replied,

      [w]ell, your probation was violated six different ways. You were
      violated for failing to abstain from alcoholic beverages in August of
      2008. You were violated for associating with a known felon without
      permission, your girlfriend in August of 2008. You were also
      violated for failing to provide truthful answers to a probation
      officer in May of 2008. You then failed to provide truthful
      information to a probation officer in August of 2008. You have
      failed to abstain from [a]lcoholic beverages in November of 2008,
      and you again, failed to provide truthful answers to a probation
      officer in September of 2008. Correct?

(Emphasis added). Robbins answered, “It was a difficult time.”

      [¶25] Rule 608(b) allows inquiry into “specific instances of a witness’s

conduct if they are probative of the character for truthfulness or

untruthfulness.” The manner of the prosecutor’s inquiry here is problematic in

two regards. First, the inquiry was not focused on Robbins’s conduct as it

related to his character for telling or not telling the truth; rather, the inquiry
16

emphasized the fact that Robbins’s conduct led to adjudicated violations of his

federal probation.4         Second, the fact that Robbins failed to abstain from

alcoholic beverages and had contact with his girlfriend while on probation has,

at best, a tenuous connection to his character for truthfulness or

untruthfulness.

         [¶26] Furthermore, concerning the probation violations, the prosecutor

argued to the court when discussing Robbins’s pretrial motion in limine seeking

to exclude evidence of his robbery conviction that “[Robbins’s] proclivity to do

as he chooses and not follow the rules I think is important that the jury hear

about.” Thus, through the vehicle of Robbins’s “convictions” for violating

probation, see supra ¶¶ 20-21, the prosecutor was in effect able to do what he

expressly sought to do but was prevented from doing by the court’s earlier

ruling—he was able to get character evidence before the jury suggesting that

Robbins was simply a bad person who did not follow society’s rules. Because

Rule 608(b) is cabined to admitting evidence of specific instances of a witness’s

conduct for the limited purpose of establishing character for truthfulness or

untruthfulness, the wholesale introduction of adjudications of probation




     Although the prosecutor did not use the word “adjudicated,” it is clear from his repeated use of
     4

the passive voice (e.g., “you were violated”) that he was using jargon referring to adjudications.
                                                                                  17

violations in the federal court proceedings—irrelevant for that limited purpose

but highly prejudicial to Robbins—was error.

      3.     Rule 404

      [¶27] Maine Rule of Evidence 404(a)(1) embodies the well-established

principle that “[e]vidence of a person’s character or character trait is not

admissible to prove that on a particular occasion the person acted in

accordance with [that] character or [character] trait.” An exception, at issue

here, is set out in subsection (a)(2):

      (2) Exception for a defendant in a criminal case. A defendant may
      offer evidence of the defendant’s pertinent trait, and if the evidence
      is admitted, the prosecutor may offer evidence to rebut it.

      [¶28] In describing his police interview, Robbins told the jury that the

detective who interviewed him “[has] known who I am for a long time, and he

knows I come from a good family”; he said that he asked the detective, “[W]hy

does this keep happening, why do people keep saying things about me that

aren’t true? . . . [I]t was horrid, horrific for someone like me.” During the State’s

cross-examination, Robbins reiterated that “[t]his is a serious, but false

accusation that has offended me deeply because of who I am and how I was

raised.”
18

         [¶29]    On redirect examination, Robbins said that the probation

violations were the result of life circumstances, including depression and “a

little bit of an addiction.” The court convened a sidebar conference where the

State argued that the door had been opened to evidence of the bank robbery

conviction because Robbins first maintained that the criminal charge was

“horrific for someone like me,” and then attributed the probation violations to

a drug addiction. Robbins’s counsel did not object.5 The court ruled that “it’s a

bridge too far at this point in time . . . [Robbins’s] testimony has opened a door

on questions . . . with regard[] to the bank robbery, and I think it comes in at

this point. . . . [I]t’s got to come in now.”                When the State resumed its

cross-examination, Robbins admitted to the jury that in September 2004 he had

been convicted of bank robbery in federal court in New Hampshire.

         [¶30] The State implicitly argues, as it did at trial, that Robbins’s

statements constituted evidence of a character trait, and that the probation

adjudications and the robbery conviction were admissible as rebuttal pursuant

to Rule 404(a)(2). To be clear, Robbins never actually claimed that he was,

generally speaking, a good person; he referred simply to coming from a good



     5To the contrary, following Robbins’s admission to the probation violations his attorney
responded to the State’s argument at sidebar by saying, “If you want to ask him about whether or not
he’s a bank robber, be my guest.”
                                                                                             19

family and said that the “false accusation” and criminal charges were “horrific

for someone like me” and that they “offended [him] deeply.” Following these

assertions, the State sought, and the court agreed, to open the door to the

admission of evidence of the probation violation adjudications and the bank

robbery conviction.

       [¶31] Rule 404(a)(2) is implicated if a defendant in a criminal case offers

evidence of having a pertinent character trait. When the State seeks to rebut

that evidence, the court must first determine what the specific character trait is

claimed to be.6 Second, the court must determine whether the evidence

tendered by the State actually rebuts the claimed character trait.

       [¶32] Here, in part on the strength of Robbins’s statements noted above,

the court ruled that Robbins had “opened the door” to questions regarding the

bank robbery—a serious federal crime that was likely to have a powerful

rebuttal effect in the jury’s consideration of Robbins’s asserted good

character—that it had previously found in its earlier Rule 609(a) analysis to be

“highly prejudicial” and likely to sway the jury. Although the court failed to

articulate an express finding, pursuant to M.R. Evid. 403,7 that at that point in



  6  In this matter, it is not abundantly clear what Robbins meant by “someone like me.” Neither
attorney asked him to elaborate, and the court made no finding.
20

the trial the heightened probative value of the conviction was no longer

substantially outweighed by the danger of unfair prejudice, we infer that the

court did make such a finding and conclude that the admission of the robbery

conviction did not constitute an abuse of the court’s discretion.8 See Burton,

2018 ME 162, ¶ 20, 198 A.3d 195.

C.     Other Arguments

       [¶33] We briefly address Robbins’s two remaining arguments in the

interest of judicial efficiency should the same issues arise again on remand. See

Estate of Fisher, 545 A.2d 1266, 1271 (Me. 1988).

       1.      Refreshing Recollection

       [¶34] When the victim’s mother testified that the victim had finalized her

written statement to police four days after making her initial report, Robbins

attempted to show the mother the victim’s statement for the purpose of

establishing that it was dated more than two months after the initial police

report. When the State objected, the court ruled that Robbins could not, as a


   7 The Rule provides: “The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” M.R. Evid. 403.

   8 The same cannot be said concerning the court’s implied finding that the technical violations of

Robbins’s probation conditions had the same effect in rebutting his assertion of “good character” and
therefore the probative value of those less-serious violations also overcame the significant danger of
unfair prejudice. See M.R. Evid. 403; supra ¶ 26.
                                                                            21

matter of law, refresh the mother’s recollection with another person’s

statement. Robbins contends that the court’s ruling “fundamentally cut the legs

out from under the defense cross examination.”

      [¶35] Because “the question presented . . . is a purely legal one,” we

review the court’s ruling de novo, see State v. Hastey, 2018 ME 147, ¶¶ 22-23,

196 A.3d 432, and conclude that it was incorrect. “We have held that generally,

a witness may revive her memory and achieve a present recollection from any

type of writing (or other article) which might tend to serve the purpose.”

State v. Joel H., 2000 ME 139, ¶ 20, 755 A.2d 520 (alteration and quotation

marks omitted); M.R. Evid. 612. For two reasons, however, the error was

harmless.    See M.R.U. Crim. P. 52(a); State v. Jaime, 2015 ME 22, ¶ 38,

111 A.3d 1050 (“An error is harmless when it is highly probable that it did not

affect the jury’s verdict.”).

      [¶36] First, Robbins did not lay a proper foundation for refreshing the

mother’s recollection because she did not demonstrate any lack of memory

concerning her daughter’s written statement. When using an item to refresh a

witness’s recollection, “[t]he only question is whether [it] is genuinely

calculated to revive the witness’s memory.” State v. Poirier, 1997 ME 86, ¶ 8,

694 A.2d 448. Absent an adequate foundation, the court’s ruling barring
22

Robbins from using the victim’s statement to refresh the mother’s recollection

was correct, albeit for a different reason than the one the court articulated. See

State v. Gorman, 2004 ME 90, ¶ 41, 854 A.2d 1164 (“A trial court action, proper

under the law, may be affirmed, even if for a reason different than that given by

the trial court.”). Second, the victim’s written statement was admitted in

evidence when she testified later in the trial, making it available for Robbins to

use in his closing argument if he wished. He did not ask the victim about the

accuracy of the statement’s date when he cross-examined her.

      [¶37] Finally, it is evident that Robbins’s true purpose was not to refresh

the mother’s recollection, but rather to impeach her testimony as a whole by

demonstrating that she did not testify accurately as to the date of the victim’s

statement. The trial court correctly ruled that impeaching the mother with the

victim’s statement that had not yet been admitted in evidence was improper.

See M.R. Evid. 802.

      2.    Reputation Evidence

      [¶38] At trial, Robbins called his niece as a witness, who testified that at

the time of the incident she was in the same grade as the victim, was on the

cheerleading team with her, and “had a similar group of friends.” Robbins then

asked his niece, “[B]ased on everything that you knew about [the victim], what
                                                                                23

was her reputation at the time?” When the State objected, Robbins clarified at

sidebar that “[his niece] would know whether or not [the victim] had a

reputation for truthfulness. And that is what she is going to answer.” The court

ruled that Robbins had not laid a sufficient foundation and declined to allow the

question.

      [¶39] “We review the exclusion of reputation evidence for an abuse of

discretion.” State v. Tucker, 2009 ME 38, ¶ 15, 968 A.2d 543 (quotation marks

omitted). As the proponent of the reputation evidence, Robbins bore the

burden of satisfying the foundational requirements for its admission pursuant

to M.R. Evid. 608(a). Id. ¶¶ 16, 18. We have held that

      [t]o be admissible, reputation evidence must embody the collective
      judgment of the community and must be derived from a group
      whose size constitutes an indicium of inherent reliability. The
      community in which the impeached party has the reputation for
      untruthfulness must be sufficiently large; if the group is too insular,
      its opinion of the witness’s reputation for truthfulness may not be
      reliable because it may have been formed with the same set of
      biases. We have acknowledged that a child’s community may be
      smaller than that of an adult, but the community nonetheless must
      be of sufficient size, and the members of the community must have
      had sufficient contact with the child, to provide the required
      reliability.

Id. ¶ 17 (alterations, citations, and quotation marks omitted).

      [¶40] The victim’s mother testified that the victim and Robbins’s niece

were in the same grade at the same school with a “fairly large” group of other
24

friends and that they were cheerleaders together. She described the two as

“close friends” who had sleepovers “fairly often.” In contrast, the niece’s

mother said that the two girls “hung out a couple [of] times,” and the niece

herself flatly denied being “good friends” with the victim.

         [¶41] Prior to asking his niece about the victim’s “reputation,” Robbins

did not establish the size of the community on which his niece was to base her

opinion; who its members were; how, or how well, she knew those people;

whether she had ever spoken to them about the victim’s reputation for

truthfulness; or even whether the victim had such a reputation at all.9 At best

Robbins established that there was “a relatively small and discrete group of

friends” who might potentially undergird a reputation opinion; we have said

that is an insufficient foundation. Id. ¶ 22 (quotation marks omitted).

         [¶42] Finally, Robbins’s attorney advised the court that he intended to

ask Robbins’s niece whether she, personally, believed the victim; the court

correctly sustained the State’s objection to that question.                                 Id. ¶ 16

(“[A] witness’s testimony reflecting her own opinion that another witness is not

credible is not admissible . . . .”).



     We note that, given the foundational requirements for the admission of reputation evidence
     9

pursuant to Rule 608(a), the best practice is typically for the proponent of the evidence to be required
to conduct voir dire examination of the witness out of the presence of the jury.
                                                                               25

D.       Conclusion

         [¶43] Viewing the record as a whole, we conclude that the trial court’s

error in admitting evidence of Robbins’s federal probation violations, coupled

with the actions of the prosecutor in improperly shifting the burden of proof

from the State to Robbins, had a “reasonable probability” of being “sufficiently

prejudicial to have affected the outcome of the proceeding” and deprived

Robbins of a fair trial. Dolloff, 2012 ME 130, ¶ 37, 58 A.3d 1032 (quotation

marks omitted). For that reason, we vacate the judgment and remand for a new

trial.

         The entry is:

                      Judgment vacated. Remanded to the Unified
                      Criminal Docket for a new trial.

                                 ____________________________


ALEXANDER, J., dissenting.

         [¶44] I respectfully dissent from the Court’s choice to vacate the jury’s

verdict and force the victim to endure a new trial by allowing Peter L. Robbins

to close a door that he chose to open at trial and by finding obvious error in an

insignificant colloquy that Robbins—represented on appeal by competent

counsel—does not challenge on appeal.
26

      [¶45] Less than a year before the jury trial in this case, we published an

opinion that affirmed a jury’s verdict after addressing the same issues that lead

the majority to vacate the jury’s verdict today. Specifically, in State v. Hall,

2017 ME 210, ¶¶ 18-28, 172 A.3d 467, we held that when a defendant—by his

own choice—opens the door to the State’s use of previously excluded evidence

and does not thereafter object to the State’s questioning that may or may not

be proper, we would not allow that defendant to reconsider his trial strategy.

In Hall, we did not allow the defendant, on appeal, to close a door that he opened

at trial by asserting unpreserved objections to vacate a jury’s verdict, absent

demonstration of error far more obvious than appeared in Hall or appears here.

See id. ¶ 28.

      [¶46] In Hall, we emphasized that “[w]e are particularly cautious in our

review for error that is unpreserved in appeals from jury verdicts.” Id. ¶ 27

(emphasis added). We further stated that “[t]he judicial deference owed jury

decisions demands an appellate standard of review more rigorous than one

narrowly focused on whether it was reasonably possible that the jury would

have returned a different verdict.” Id. (quoting State v. Pabon, 2011 ME 100,

¶ 24, 28 A.3d 1147).
                                                                                                        27

        [¶47]      Those cautious standards, just reiterated in State v. Scott,

2019 ME 105, ¶¶ 23 n.7, 25, 34, --- A.3d ---, should govern resolution of the

issues in this appeal. Let us look at the evidence that is the focus of the Court’s

decision to vacate the jury’s verdict and force the victim to endure a new trial.

        [¶48] The jury found that in December 2008, Robbins, a convicted bank

robber then on federal probation, sexually assaulted a twelve-year-old girl by

touching her genitals over her clothing and forcing her to touch his genitals

over his clothing. Robbins was indicted in 2009 for unlawful sexual touching

(Class D), 17-A M.R.S. § 260(1)(C) (2018),10 and assault (Class D), 17-A M.R.S.

§ 207(1)(A) (2018)—the crimes for which he was eventually convicted.

Following indictment, Robbins absconded to Europe for seven years, ultimately

appearing for arraignment in February 2018 and proceeding to trial in June

2018.

        [¶49] Prior to trial, the parties met with the court to discuss the

admissibility of Robbins’s federal bank robbery conviction and evidence of

Robbins’s probation violations that included having contact with a prohibited

person, drinking, and lying to his probation officer. The court ruled that if


    10 Because, pursuant to 17-A M.R.S. § 251(1)(D) (2018), “[s]exual contact” includes “any touching

of the genitals . . . directly or through clothing,” and the victim was “less than 14 years of age,” Robbins
could have been charged with the Class C felony of unlawful sexual contact, 17-A M.R.S. § 255-A(1)(E)
(2018).
28

Robbins elected to testify, the bank robbery conviction could not be referenced,

despite the terms of M.R. Evid. 609(a), because its probative value did not

outweigh its “highly prejudicial” effect.11 The court also ruled that evidence of

Robbins’s lying to his probation officer could be admitted if he testified.

       [¶50] At trial, the State made no attempt to address Robbins’s prior

conviction or his probation violations in its opening statement or during the

presentation of the State’s case.

       [¶51] On direct examination by his attorney, Robbins testified that he

drank beer on the night that he allegedly assaulted the victim but not

“excessively,” saying, “I don’t drink excessively; I was not intoxicated.” In

describing his police interview, Robbins told the jury that the detective who

interviewed him “[has] known who I am for a long time, and he knows I come

from a good family.” Robbins also testified that he asked the detective, “[W]hy

does this keep happening, why do people keep saying things about me that

aren’t true?” He also testified that the sexual assault allegation “was horrid,

horrific for someone like me.”




   11 Maine Rule of Evidence 609(a) provides that, in general, “[e]vidence of a criminal conviction

[for a crime punishable by more than one year in prison] offered to impeach a witness’s character for
truthfulness must be admitted if its probative value outweighs its prejudicial effect on a criminal
defendant.”
                                                                                 29

      [¶52] What the jury could have reasonably inferred from Robbins’s

testimony was that he does not drink excessively, comes from a good family,

was horrified by the sexual assault charge because people like him do not do

such things, and people—including the victim—keep saying bad things about

him that are not true.

      [¶53] Following Robbins’s direct testimony, the State appropriately

requested a sidebar conference to discuss the allowable scope of

cross-examination. The State asserted that Robbins had opened the door to

discussion of the alcohol-related probation violations by maintaining that he

had not been drinking “excessively” on the night of the alleged assault. The

court ruled that “[i]t’s fair game . . . [t]he door’s open on that.” Robbins did not

object.

      [¶54] The State then argued that Robbins’s testimony that the criminal

charge was “horrific for someone like me” opened the door to admission of the

previously-excluded bank robbery conviction. When Robbins objected, the

court continued to exclude the conviction while restating its ruling that the

door had been opened to evidence of the alcohol-related probation violations.

      [¶55] During the State’s cross-examination, Robbins reiterated, “This is

a serious, but false accusation that has offended me deeply because of who I am
30

and how I was raised.” Robbins did admit that he had violated his probation by

drinking. He also volunteered, without being asked by the State, that he had

violated his probation by dating his then-girlfriend, who “was an ex-felon.”

      [¶56] When the State questioned Robbins about lying to his probation

officer, Robbins asked, “In what way?” The prosecutor responded as follows:

      Well, your probation was violated six different ways. You were
      violated for failing to abstain from alcoholic beverages in August of
      2008. You were violated for associating with a known felon
      without permission, your girlfriend in August in 2008. You were
      also violated for failing to provide truthful answers to a probation
      officer in May of 2008. You then failed to provide truthful
      information to a probation officer in August of 2008. You have
      failed to abstain from [a]lcoholic beverages in November of 2008,
      and you again, failed to provide truthful answers to a probation
      officer in September of 2008. Correct?

Contrary to his prior testimony suggesting that he was a good person from a

good family and that people made false claims about him doing bad things,

Robbins replied that “[i]t was a difficult time, for sure.” Robbins’s counsel did

not object to this exchange.

      [¶57] Continuing the State’s cross-examination, the following exchange

occurred:

      [STATE:] The rules [against drinking while on probation] didn’t
      apply?

      [ROBBINS:] I tend to think that because alcohol is legal, it was kind
      of like bending the rules.
                                                                               31


      [STATE:] But the rules told you, you couldn’t drink.

      [ROBBINS:] But I don’t understand what this has to do with
      anything.

      [STATE:] It has to do with whether or not anybody should believe
      a word you’re saying in this courtroom today.

      [ROBBINS:] No—well, that’s completely different. It’s a different—
      it was a different case; it was a different time in my life.

      [STATE:] A different time in your life?

      [ROBBINS:] Yes. I was very depressed from losing—

      [STATE:] This is November of 2008, you were sexually assaulting
      this girl December 2008.

      [ROBBINS:] Allegedly—allegedly.

      [STATE:] No, no there is no—

      [ROBBINS:] Yes.

      [STATE:] —allegedly here.

      [ROBBINS:] It is allegedly.

      [STATE:] There is testimony on the record to that effect, sir.

      [¶58] Following this exchange, Robbins expressed his frustration by

saying, “I’m sorry, when’s my lawyer going to speak up, please? What’s going

on here. This is crazy.” The State then said, “I don’t have anything further,” and
32

indicated that its cross-examination was complete. Defense counsel did not

object to this colloquy, and the court took no notice of the exchange.

      [¶59] Although the prosecutor’s “there is no . . . allegedly here” comment

during cross-examination of Robbins was inartful, the printed transcript does

not provide us with the full context because it cannot convey the inflection,

emphasis, or demeanor of the prosecutor when he made the statement. As the

United States Supreme Court has observed, timely objections to preserve errors

in the trial court are essential so that review on appeal can be informed by

rulings by “the judge who saw and heard the witnesses and has the feel of the

case which no appellate printed transcript can impart.” Unitherm Food Sys., Inc.

v. Swift-Eckrich, Inc., 546 U.S. 394, 401 (2006).

      [¶60] Based only on the printed transcript, the Court decides that “[t]he

prosecutor’s questions to Robbins—presented in the form of assertions—

explicitly conveyed his personal opinion to the jury that the victim had told the

truth, and that the jury did not need to decide that question for itself.” Court’s

Opinion ¶ 9. That seems an unduly strained interpretation of the questions to

Robbins—an interpretation evidently not shared by trial counsel, the trial

court, or counsel on appeal. Nothing in the transcript indicates a personal
                                                                                33

opinion “explicitly” conveyed to the jury or direction to the jury that it need not

decide the case for itself.

      [¶61] The prosecutor’s primary purpose in this exchange with Robbins

appears to have been to remind Robbins of the victim’s prior testimony after

Robbins had testified the victim had made a “false accusation.”                The

commonness of such exchanges in criminal trials—along with context that may

not be obvious from the transcript—likely explains why neither trial counsel

nor counsel on appeal asserted any error in this exchange and suggests that it

was not nearly as consequential as the Court, reading only the cold transcript,

now asserts. See State v. Vashon, 135 Me. 309, 311, 196 A. 88, 90 (1938) (“As to

the statements and questions of the Justice presiding, the printed record

[cannot] reproduce inflection, emphasis or demeanor, but failure on the part of

counsel to voice protest or take exception tends to indicate that the prejudicial

aspect now claimed was not then apparent even to them, and it is not to be

assumed that it had adverse effect upon the jury.”).

      [¶62] Even if the prosecutor’s statement was error—because, as the

Court asserts, it improperly conveyed his opinion that the victim was telling the

truth—the Court’s conclusion that it rises to the level of obvious error

contravenes our jurisprudence that “a jury’s verdict should be upset based on
34

an unpreserved error only where the injustice resulting from the error is truly

manifest,” Pabon, 2011 ME 100, ¶ 28, 28 A.3d 1147, and that “[w]hen a

prosecutor’s statement is not sufficient to draw an objection, . . . that statement

will rarely be found to have created a reasonable probability that it affected the

outcome of the proceeding,” State v. Scott, 2019 ME 105, ¶ 25, --- A.3d ---

(quoting State v. Dolloff, 2012 ME 130, ¶ 38, 58 A.3d 1032). Indeed, if “[w]e are

particularly cautious in our review for error that is unpreserved in appeals

from jury verdicts” when a defendant raises the alleged error on appeal, Hall,

2017 ME 210, ¶¶ 27-28, 172 A.3d 467, we must be even more wary when, as

here, the defendant does not raise the issue on appeal.

      [¶63] Disregarding our cautious standard of review, the Court reaches

out to decide that the brief exchange between the prosecutor and Robbins

affected Robbins’s substantial rights because it obscured his presumption of

innocence and suggested to the jury that he had the burden of proof. Court’s

Opinion ¶¶ 12-16. If—and it is a big if—the jury gained any such impression

from an exchange so insignificant that trial counsel did not object to it and

counsel on appeal does not assign error to it, any possible prejudice to Robbins

would have been very slight. And any slight prejudice would have been

remedied by the trial court’s jury instructions, which clearly and accurately
                                                                                 35

articulated Robbins’s presumption of innocence and the jury’s exclusive role as

fact-finder. Cf. Scott, 2019 ME 105, ¶ 34, --- A.3d --- (concluding that “any

possible prejudice to [the defendant] that resulted from the [prosecutor’s]

misstatements was remedied by the court’s instructions to the jury”).

      [¶64] The trial court instructed the jury, “You must now decide what the

facts are, meaning you decide what happened in this case,” and “One of the most

important things you have to do in analyzing the evidence is determine the

credibility, meaning the believability, of witnesses,” as well as, “Deciding

credibility, deciding the facts, that’s your job. That’s your job alone.” (Emphasis

added.) The trial court also emphasized Robbins’s presumption of innocence,

instructing the jury as follows:

      I want to instruct you that the burden of proof in this case is entirely
      on the State. The defendant does not have to prove anything. The
      burden, as I said, is entirely upon the State. Throughout the trial the
      defendant is favored with a presumption of innocence. That means
      that each defendant, although accused, begins a trial with a clean
      slate and with no evidence against him. That presumption of
      innocence stays with the defendant all of the way through trial
      right into the jury room with you. Up to the point, if you get to that
      point, where you’re satisfied beyond a reasonable doubt that the
      defendant is guilty. If you do not reach that point on a particular
      charge, if you are not satisfied beyond a reasonable doubt that the
      defendant is guilty, then on that charge, the presumption of
      innocence still exists and it requires you to return the verdict of not
      guilty.

(Emphasis added.)
36


          [¶65] Because we “presume that the jury heeds the [trial] court’s

instruction[s],” Scott, 2019 ME 105, ¶ 23, --- A.3d --- (alterations in original)

(quoting State v. Ardolino, 1997 ME 141, ¶ 18, 697 A.2d 73), there is no

“reasonable probability” that the jurors—with the court’s instructions fresh in

mind—were confused about their roles as fact-finders or considered Robbins’s

guilt a foregone conclusion as a result of the prosecutor’s inartful, but

ultimately inconsequential, comment from the previous day of trial. Court’s

Opinion ¶ 13. Accordingly, I would hold that the prosecutor’s comment did not

constitute obvious error and does not require us to vacate the jury’s verdict.12

See Dolloff, 2012 ME 130, ¶ 39, 58 A.3d 1032 (stating that we will not set aside

a jury verdict “lightly” after “a jury has been given a case and has done its work

in deliberating and deciding on guilt or innocence”).

          [¶66] As for the references to the federal probation violations, those

were generated when Robbins opened the door to that evidence by his own

testimony. Addressing the issue of opening of the door in Hall, we held, “When



     12 Such a holding would be consistent with our recent decision in State v. Scott, 2019 ME 105,
¶ 23 n.7, ---A.3d ---. In Scott, a detective, during Scott’s cross-examination, had “expressed his opinion
that Scott ‘was a very competent and composed liar.’” Id. Scott did not object to that testimony at
trial, but, unlike Robbins, Scott did assert on appeal that the admission of the detective’s statement
constituted obvious error. Id. Regarding the “liar” statement, we held, “Even if we accept that the
statement was objectionable, we discern no obvious error in the fact that the court did not address
the detective’s statement sua sponte.” Id. (citing State v. Perkins, 2019 ME 6, ¶ 2 n.1, 199 A.3d 1174).
                                                                                               37

a defendant elicits testimony related to previously excluded evidence during

cross-examination or through presentation of the defense case, and the

testimony, as delivered, is inconsistent with the excluded evidence or affects

the credibility of the State’s case, a court does not abuse its discretion in finding

that the defendant has ‘opened the door’ to the excluded evidence and

permitting the State to conduct limited questioning for the purpose of

responding to the defendant’s challenge.”                   Hall, 2017 ME 210, ¶ 19,

172 A.3d 467 (citing State v. Ifill, 574 A.2d 889, 891 (Me. 1990)). Through his

testimony, Robbins sought to have the jury infer that he does not drink

excessively, comes from a good family, was horrified by the sexual assault

charge because he does not do such things, and people, apparently including

the victim, keep saying bad things about him that are not true.

        [¶67] When the State stepped through the evidentiary door that Robbins

had opened, Robbins did not object. In fact, he invited the State to inquire about

the robbery conviction.13 Such is not reversible error, nor is it a basis to cast

aside our cautious standard of review, reverse the jury’s verdict, and force the

victim to endure a new trial.



   13After Robbins admitted to the probation violations, his attorney responded to the State’s
argument at sidebar by saying, “If you want to ask him about whether or not he’s a bank robber, be
my guest.”
38




Luke S. Rioux, Esq. (orally), Rioux, Donahue, Chmelecki & Peltier, Portland, for
appellant Peter L. Robbins

Kathryn L. Slattery, District Attorney, and Thaddeus W. West, Asst. Dist. Atty.
(orally), Prosecutorial District #1, Alfred, for appellee State of Maine


York County Superior Court docket number CR-2009-1792
FOR CLERK REFERENCE ONLY
