MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	    2019	ME	53	
Docket:	      Wal-18-267	
Submitted	
  On	Briefs:	 January	17,	2019		
Decided:	     April	11,	2019	
	
Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	    ALEXANDER,	MEAD,	JABAR,	and	HUMPHREY,	JJ.	
Dissent:	     GORMAN	and	HJELM,	JJ.	
	
	
                                    LAURIE	ALLEN	
                                          	
                                         v.	
                                          	
                                      MARK	RAE	
	
	
HUMPHREY,	J.	

      [¶1]		Mark	Rae	appeals	from	a	protection	from	harassment	order	entered	

against	him	 in	the	District	Court	(Belfast,	Sparaco,	D.C.J.)	on	the	complaint	of	

Laurie	Allen.		See	5	M.R.S.	§§	4652,	4655(1)	(2018).		Rae	contends	that	the	court	

erred	in	finding	that	he	had	committed	 “[t]hree	or	 more	 acts”	of	harassment	

pursuant	to	5	M.R.S.	§	4651(2)(A)	(2018).		Although	we	agree	that	there	were	

not	three	or	more	acts	of	harassment,	we	affirm	the	judgment	because	the	facts	

as	 found	 by	 the	 court	 are	 sufficient	 to	 prove	 that	 Rae’s	 actions	 constituted	
2	

criminal	mischief,	which	can	stand	alone	as	a	“single	act”	of	harassment.		See	5	

M.R.S.	§	4651(2)(C)	(2018);1	17-A	M.R.S.	§	806(1)(A)	(2018).			

                                        I.		BACKGROUND	

         [¶2]	 	 A	 trust	 controlled	 by	 Rae’s	 family	 purchased	 property	 abutting	

Allen’s	home	in	Belfast.		Thereafter,	a	boundary	dispute	arose	between	Rae	and	

Allen.		Both	parties	claim	to	own	a	strip	of	land	approximately	twenty-feet	wide	

situated	between	Allen’s	yard	and	what	is	now	a	garage	on	the	trust’s	property.		

Despite	attempts	to	resolve	the	dispute,	including	numerous	visits	from	local	

law	enforcement,	the	strip	of	land	remained,	at	the	time	of	the	hearing,	a	source	

of	considerable	tension	between	the	parties.			

         [¶3]	 	 On	 April	 24,	 2018,	 Allen	 filed	 for	 a	 protection	 from	 harassment	

order	 pursuant	 to	 5	 M.R.S.	 §	 4652,	 alleging	 that	 Rae	 had	 harassed	 her.	 	 On	

May	14,	 2018,	 the	 court	 held	 a	 contested	 hearing	 and	 heard	 testimony	 from	

both	parties.		The	court	found	that	Allen’s	testimony	was	credible	and	that	Rae’s	

testimony	was	“not	particularly	credible.”			

         [¶4]		Allen	testified	that	she	parked	her	boat	trailer	on	the	disputed	strip	

of	 land	 to	 guard	 against	 what	 she	 believed	 was	 Rae’s	 unlawful	 claim	 to	 the	


     1		Title	5	M.R.S.	§§	4651,	4653	were	amended	during	the	pendency	of	this	case,	though	not	in	any	

way	that	affects	the	present	appeal.		See	P.L.	2017,	ch.	455,	§§	1-2	(effective	Dec.	13,	2018)	(codified	
at	5	M.R.S.	§§	4651(2)(C),	4653(1)(B)	(2018)).			
                                                                                                              3	

property.		Rae	testified	that	he	asked	Allen	to	remove	the	boat	multiple	times	

so	 he	 could	 more	 conveniently	 move	 construction	 equipment	 onto	 his	

property;	 when	 Allen	 refused,	 Rae	 responded	 by	 saying,	 “if	 [the	 boat	 is]	 not	

gone	by	Sunday,	I	will	move	it	for	you.”		When	Rae	attempted	to	move	the	boat,	

he	discovered	that	Allen	had	placed	a	boot	lock	on	one	of	the	tires	of	the	boat	

trailer,	rendering	it	immobile.		Allen	testified	that	she	personally	observed	Rae	

“cut”	and	“slice”	the	valve	stem	off	the	boat	trailer’s	tire.		Rae	denied	cutting	the	

valve	stem	but	admitted	he	attempted	to	move	the	boat	trailer.			

        [¶5]		The	court	found,	based	on	Allen’s	testimony,	that	Rae	committed	an	

act	 of	 “fear	 and	 intimidation”	 by	 cutting	 off	 a	 tire	 valve	 stem	 on	 Allen’s	 boat	

trailer,	which	Allen	parked	in	the	disputed	area,	and	that	Rae	did	it	“to	be	.	.	.	

mean	and	harass	[Allen]	because	of	this	dispute.”2			

        [¶6]		After	the	hearing,	the	District	Court	entered	an	order	of	protection	

from	harassment	in	favor	of	Allen	and	against	Rae	for	one	year.		See	5	M.R.S.	

§	4655(1),	(2).		The	court	made	clear	that	it	was	not	resolving	the	ownership	of	

the	disputed	property	or	determining	the	boundary	lines	of	the	properties.		Rae	


   2	 	 The	 court	 also	 found	that	 Rae	 “[drove]	 across	the	 corner	 [of	 either	 the	 disputed	area	 or	the	

trust’s	property]”	in	a	manner	intended	to	be	“intimidating”	to	Allen,	and	“unnecessarily	plow[ed]	
snow	towards	[Allen’s]	house.”		However,	because	the	court	did	not	find	that	these	actions	by	Rae	“in	
fact	 cause[d]	 fear,	 intimidation	 or	 damage	 to	 personal	 property,”	 they	 are	 not	 acts	 of	 harassment	
within	the	meaning	of	5	M.R.S.	§	4651(2)(A).		In	addition,	the	court	found	that	Rae	“scrape[d]	and	
damage[d]”	Allen’s	boat;	however,	the	record	does	not	support	this	finding.			
4	

filed	a	motion	for	additional	findings	of	fact	and	conclusions	of	law	and	a	motion	

to	 amend	 the	 judgment;	 both	 motions	 were	 summarily	 denied.	 	 Rae	 timely	

appealed.			

                                   II.		DISCUSSION	

      [¶7]		“We	review	the	trial	court’s	findings	of	fact	for	clear	error	and	will	

affirm	 those	 findings	 if	 there	 is	 competent	 evidence	 in	 the	 record	 to	 support	

them,	even	if	the	evidence	might	support	alternative	findings	of	fact.”		Preston	

v.	 Tracy,	 2008	 ME	 34,	 ¶	 10,	 942	 A.2d	 718	 (quotation	 marks	 omitted).	 	 This	

deferential	 standard	 is	 “particularly	 appropriate”	 in	 actions	 for	 protection	

orders,	“where	the	trial	court’s	ability	to	observe	the	witnesses	invariably	plays	

a	part	in	its	assessment	of	the	impact	a	particular	person’s	words	and	actions	

had	upon	another	person.”		Smith	v.	Hawthorne,	2002	ME	149,	¶	16,	804	A.2d	

1133.		Although	on	appeal	we	cannot	infer	findings	from	the	evidence	in	cases	

where,	as	here,	a	motion	for	further	findings	is	denied,	Douglas	v.	Douglas,	2012	

ME	 67,	 ¶	 27,	 43	 A.3d	 965,	 the	 fact-finder	 may	 nevertheless	 have	 drawn	

reasonable	inferences	from	circumstantial	evidence	presented	at	trial,	such	as	

whether	the	accused	intended	to	harass,	intimidate,	or	cause	fear.		See	Cates	v.	

Donahue,	2007	ME	38,	¶	15,	916	A.2d	941.			
                                                                                          5	

       [¶8]		A	court	is	authorized	to	grant	a	protection	from	harassment	order	

based	 upon	 “a	 single	 act	 .	 .	 .	 constituting	 a	 violation”	 of	 certain	 enumerated	

criminal	 offenses,	 including	 criminal	 mischief.	 	 5	 M.R.S.	 §	 4651(2)(C);	 17-A	

M.R.S.	 §	 806.	 	 A	 person	 commits	 criminal	 mischief	 when	 he	 intentionally,	

knowingly,	 or	 recklessly	 damages,	 destroys,	 or	 tampers	 with	 the	 property	 of	

another	 “having	 no	 reasonable	 grounds	 to	 believe	 [he]	 has	 a	 right	 to	 do	 so.”		

17-A	M.R.S.	§	806(1)(A).		In	a	protection	from	harassment	proceeding,	a	court	

need	 only	 find	 that	 a	 person	 committed	 one	 of	 the	 enumerated	 statutory	

offenses	by	a	preponderance	of	the	evidence	to	make	a	finding	of	harassment	

under	section	4651(2)(C).	 	See	Patane	v.	Brown,	2002	ME	 47,	¶¶	11,	14,	792	

A.2d	1086.			

	      [¶9]		The	court’s	findings,	based	on	competent	evidence	in	the	record,	are	

sufficient	 to	 establish	 the	 elements	 of	 criminal	 mischief.	 	 17-A	 M.R.S.	

§	806(1)(A).		Allen	testified	that	she	personally	observed	Rae	“slice[]	the	valve	

off”	and	“cut	it	off	to	try	and	get	the	tire	to	go	down	so	he	could	get	the	boot	lock	

off.”		Although	Rae	denied	damaging	Allen’s	boat	or	attempting	to	cut	the	valve	

stem,	he	admitted	that	he	attempted	to	move	the	boat	but	was	unable	to	do	so	

because	of	the	boot	lock.		The	court	specifically	found	Allen’s	testimony	credible	

and	Rae’s	testimony	not	credible.		Because	a	trial	court	is	not	bound	to	accept	
6	

testimony	and	evidence	as	fact,	and	because	determinations	of	the	weight	and	

credibility	of	testimony	and	evidence	are	“squarely	in	the	province	of	the	fact-

finder,”	 we	 will	 not	 second-guess	 the	 trial	 court’s	 credibility	 assessment	 of	

conflicting	testimony.		Sloan	v.	Christianson,	2012	ME	72,	¶	33,	43	A.3d	978.		The	

court’s	 finding	 is	 sufficient	 to	 establish	 that	 Rae	 damaged,	 destroyed,	 or	

tampered	with	Allen’s	property.		17-A	M.R.S.	§	806(1)(A).			

	        [¶10]		The	court	also	found,	again	based	on	the	record	evidence,	that	Rae	

cut	the	valve	stem	to	“try	to	resolve”	the	property	 dispute	“through	fear	and	

intimidation”	and	to	be	“mean	and	harass	[Allen]	because	of	[the]	dispute”	over	

the	 property,	 establishing	 that	 Rae	 committed	 this	 act	 intentionally	 or	

knowingly.		Id.			

         [¶11]	 	 Finally,	 Rae	 contends	 that,	 even	 if	 he	 damaged	 the	 boat	 while	

trying	to	remove	it,	he	had	“reasonable	grounds	to	believe	that	[he]	ha[d]	the	

right	to	do	so”	because	his	 actions	in	trying	to	stop	what	he	believed	was	 an	

ongoing	 criminal	 trespass	 by	 Allen	 against	 his	 property	 were	 “protected	 by	

law.”3	 	 17-A	 M.R.S.	 §	 806(1)(A);	 5	 M.R.S.	 §	4651(2).	 	 Whether	 Rae	 harassed		



     3		Rae’s	assertion	that,	pursuant	to	17-A	M.R.S.	§	104(1)	(2018),	he	was	justified	in	attempting	to	

remove	Allen’s	boat	to	terminate	a	criminal	trespass	by	Allen	is	unavailing,	for	two	reasons.		First,	
Rae’s	reliance	on	section	104(1)	is	misplaced.		Section	104(1)	is	a	defense	to	criminal	prosecution	
that	refers	to	use	of	force	“upon	another	person	.	.	.	to	prevent	or	terminate	.	.	.	a	criminal	trespass	by	
such	person,”	id.	(emphasis	added),	and	does	not	serve	as	a	blanket	defense	when	a	person	damages	
the	personal	property	of	another	while	trying	to	remove	the	property	from	a	disputed	area.		See,	e.g.,	
                                                                                                           7	

Allen	does	not	turn	on	whether	Rae	had	the	right	to	remove	Allen’s	boat	from	

the	property	that	he	claims	the	trust	owns,	but	rather	on	the	manner	in	which	

he	attempted	to	remove	it.		“[E]ven	when	an	individual	may	have	a	legal	right	

to	do	something,	the	manner	in	which	a	legal	act	is	performed	can	constitute	

harassment.”		Cates,	2007	ME	38,	¶	11,	916	A.2d	941;	see	also	Patane,	2002	ME	

47,	¶	10,	792	A.2d	1086.			

        [¶12]	 	 Regardless	 of	 whether	 Rae	 had	 a	 valid	 property	 interest	 in	 the	

disputed	strip	of	land,4	either	personally	or	through	the	trust,	his	act	of	cutting	

the	valve	stem	in	an	effort	to	remove	the	boat	from	the	property	qualifies	as	a	

single	act	of	criminal	mischief	that	constitutes	an	act	of	harassment.		17-A	M.R.S.	

§	806(1)(A);	5	M.R.S.	§	4651(2)(C).		This	dispute	should	have	been	resolved	by	

a	 reasonable	 and	 rational	 conversation	 between	 Rae	 and	 Allen	 or	 by	 Rae	




State	v.	French,	2018	ME	21,	¶	9,	179	A.3d	303;	State	v.	Neild,	2006	ME	91,	¶¶	12-13,	903	A.2d	339;	
State	v.	Dyer,	2001	ME	62,	¶	11,	769	A.2d	873.			

     Second,	ownership	of	the	land	on	which	the	boat	was	located	was	in	dispute,	and	the	court	made	
clear	that	it	was	not	resolving	the	boundary	dispute.		Even	to	the	extent	that	Rae	believed	that	he	was	
licensed	or	privileged	to	act	on	behalf	of	the	trust	to	defend	the	disputed	area,	the	court	was	well	
within	 the	 bounds	 of	 its	 discretion	 to	 disregard	 a	 2016	 survey	 that	 Rae	 referenced—but	 did	 not	
produce—that	purported	to	demonstrate	that	the	trust	owned	the	disputed	property	and	conclude	
that	Rae’s	testimony	about	the	location	of	the	boundary	line	was	“not	particularly	credible.”		See	Sloan	
v.	Christianson,	2012	ME	72,	¶	33,	43	A.3d	978.				

   4		We	express	no	opinion	on	the	ownership	of	the	disputed	strip	of	land.					
8	

seeking	a	declaratory	judgment	or	other	court-ordered	remedy	to	establish	title	

and	ownership	to	the	disputed	strip	of	land.			

      The	entry	is:	

                  Judgment	affirmed.		
                  	
                     	     	    	      	     	
                                	
HJELM,	J.,	with	whom	GORMAN,	J.,	joins,	dissenting.	
	
	    [¶13]		I	agree	with	the	Court’s	conclusion	that	the	evidence	presented	at	

trial	 is	 sufficient	 to	 support	 a	 finding	 that	 Mark	 Rae	 had	 engaged	 in	 an	 act	

against	Laurie	Allen	that	rises	to	the	level	of	“harassment,”	as	the	Legislature	

has	defined	that	term,	see	5	M.R.S.	§	4651(2)(C)	(2018).		I	also	agree	with	the	

Court’s	conclusion	that	the	evidence	does	not	support	the	trial	court’s	finding	

that	 Rae	 engaged	 in	 two	 additional	 acts	 of	 harassment.	 	 See	 5	 M.R.S.	

§	4651(2)(A)	(2018).		Although	the	trial	court	could	have	granted	judgment	for	

Allen	 and	 issued	 an	 order	 of	 protection	 from	 harassment	 against	 Rae	 on	 the	

basis	of	the	single	act	of	harassment,	that	is	not	why	the	court	issued	the	order.		

For	 that	 reason,	 I	 respectfully	 dissent	 and	 would	 remand	 for	 the	 court	 to	

reconsider	 whether	 the	 order	 should	 issue	 based	 on	 the	 one	 act	 of	

harassment—namely,	damaging	a	tire	valve—that	Allen	proved	at	trial.	
                                                                                      9	

	     [¶14]		Maine’s	statutes	governing	actions	for	protection	from	harassment	

vest	 the	 trial	 court	 with	 discretion	 in	 determining	 whether	 to	 issue	 a	

harassment	 order	 once	 harassment	 is	 proven.	 	 Pursuant	 to	 those	 statutes,	 if,	

after	holding	a	hearing	on	the	complaint	for	protection	from	harassment,	the	

court	 finds	 that	 the	 plaintiff	 has	 proved	 that	 the	 defendant	 committed	 the	

harassment	 alleged,	 the	 court	 “may”	 issue	 a	 protection	 order.	 	 5	 M.R.S.	

§§	4654(1),	4655(1)	(2018).		This	plain	language	calls	for	the	court	to	exercise	

its	 sound	 discretion	 in	 determining	 whether	 to	 issue	 a	 harassment	 order	 in	

those	actions	where	the	party	seeking	such	an	order	has	proved	her	case.		See	

Fitzpatrick	v.	McCrary,	2018	ME	48,	¶	16,	182	A.3d	737	(noting	that,	in	general,	

the	word	“may”	used	in	a	statute	is	permissive	and	discretionary).	

	     [¶15]		Particularly	in	the	context	of	harassment	proceedings,	such	a	grant	

of	discretionary	authority	to	the	court	is	eminently	sensible,	and	the	exercise	of	

that	discretion	is	important.		As	defined	by	the	Legislature,	“harassment”	can	

take	 many	 shapes	 across	 a	 broad	 continuum,	 from	 acts	 of	 violence	 against	 a	

person	 that	 would	 constitute	 some	 of	 the	 most	 serious	 forms	 of	 criminal	

conduct,	to	acts	that	result	in	minor	property	damage.		See	5	M.R.S.	§	4651(2).		

Yet	 any	 harassment	 order,	 which	 can	 be	 effective	 for	 one	 year,	 5	 M.R.S.	

§	4655(2)	 (2018),	 can	 impose	 significant	 restrictions	 on	 the	 defendant.	 	 The	
10	

order	 may	enjoin	the	defendant	from	having	contact	with	certain	persons	or	

being	present	at	certain	locations;	the	order	may	award	damages	and	attorney	

fees;	and	the	order	in	fact	may	provide	anything	else	“determined	necessary	or	

appropriate	in	the	discretion	of	the	court.”		5	M.R.S.	§	4655(1).		Once	the	court	

issues	a	harassment	order,	a	violation	of	some	types	of	its	provisions	is	a	Class	D	

crime,	which	can	draw	nearly	one	year	in	jail.		See	5	M.R.S.	§	4659(1)	(2018);	

17-A	M.R.S.	§	1252(2)(D)	(2018)	(stating	the	maximum	jail	term	for	a	Class	D	

crime).	

	     [¶16]		For	these	reasons,	the	trial	court	must	be	entrusted	with	making	

sound	and	careful	determinations,	tailored	to	the	unique	circumstances	of	each	

case,	about	whether	and	in	what	way	it	is	appropriate	to	intervene	through	the	

imposition	of	judicial	relief.		That	discretion	may	be	properly	exercised	only	by	

the	trial	judge,	who	is	in	the	position	to	listen	first-hand	to	the	witnesses	and	

watch	them	as	they	testify,	and	who	can	acquire	an	appreciation	for	the	very	

human	 dynamics	 that	 are	 central	 to	 a	 harassment	 proceeding.	 	 As	 the	 Court	

points	 out,	 see	 Court’s	 Opinion	 ¶	 7,	 we	 have	 said	 as	 much	 in	 the	 context	 of	

protection	from	abuse	cases,	where	the	court	also	is	given	the	same	discretion	

in	determining	whether	to	issue	a	protective	order.		See	19-A	M.R.S.	§	4007(1)	

(2018)	 (stating	 that	 “[t]he	 court,	 after	 a	 hearing	 and	 upon	 finding	 that	 the	
                                                                                          11	

defendant	 has	 committed	 the	 alleged	 abuse	 or	 engaged	 in	 the	 alleged	

conduct	.	.	.	may	grant	a	protective	order”	(emphasis	added)).		We	have	said,	

       the	trial	court’s	ability	to	observe	the	witnesses	invariably	plays	a	
       part	in	its	assessment	of	the	impact	a	particular	person’s	words	and	
       actions	 had	 upon	 another	 person.	 	 Appellate	 review	 is	 naturally	
       limited	 by	 the	 written	 record’s	 inability	 to	 fully	 convey	 each	
       witness’s	 appearance,	 body	 language,	 stature,	 speech	 patterns,	
       degree	of	eye	contact,	and	numerous	other	nonverbal	cues.	
	
Smith	v.	Hawthorne,	2002	ME	149,	¶	16,	804	A.2d	1133.	
	
	     [¶17]	 	 Here,	 the	 court	 found	 that	 Rae	 had	 committed	 three	 acts	 of	

harassment	against	Allen	and	determined,	on	that	basis,	that	it	was	appropriate	

to	issue	an	order	for	protection	from	harassment	against	him.		In	fact,	two	of	

the	 grounds	 underlying	 the	 court’s	 decision	 to	 issue	 the	 order	 are	 not	

supported	by	the	record.		This	leaves	only	one	act	of	“harassment,”	see	5	M.R.S.	

§	4651(2)(C)—namely,	when	Rae	cut	a	valve	stem	off	a	wheel	on	Allen’s	boat	

trailer	 she	 had	 parked	 on	 the	 disputed	 strip	 of	 land.	 	 The	 Court	 is	 willing	 to	

affirm	the	issuance	of	the	harassment	order	against	Rae	based	on	this	limited	

aspect	of	the	record.		But	for	the	reason	I	have	discussed,	such	a	result	would	

not	obtain	as	a	matter	of	law,	and	beyond	that,	it	is	impossible	for	us	to	know	

whether,	 in	 exercising	 its	 discretion,	 the	 trial	 court	 would	 have	 issued	 a	

protective	order	based	on	the	one	remaining	ground.			
12	

      [¶18]		If	the	court	had	found	only	that	Rae	harassed	Allen	by	cutting	off	

the	tire	valve	stem,	and	if	the	court	had	then	issued	a	harassment	order	on	that	

limited	basis,	my	analysis	would	be	very	different	and	I	would	agree	with	the	

Court’s	 conclusion	 that	 the	 judgment	 should	 be	 affirmed.	 	 But	 to	 affirm	 the	

judgment	here,	we	would	be	required	to	speculate	that	the	court	would	have	

issued	 a	 harassment	 order	 against	 Rae	 based	 on	 the	 one	 instance	 of	 limited	

property	damage.		Rather	than	engaging	in	that	speculation,	I	would	vacate	the	

judgment	and	remand	for	the	court	to	determine	whether,	pursuant	to	section	

4655(1),	an	order	for	protection	from	harassment	should	be	issued	based	on	

the	one	episode	of	harassment	that	Allen	proved	at	trial.	

      [¶19]		It	may	be	that,	on	a	remand,	the	court	nonetheless	would	issue	the	

order	even	on	that	more	limited	ground.		Or	maybe	not.		That	is	not	a	principled	

determination	we	can	make	on	our	record,	and	the	Court’s	decision	to	affirm	

the	issuance	of	the	harassment	order	based	on	a	very	different	predicate	than	

the	trial	court	used	constitutes	an	intrusion	into	the	discretion	that	is	the	trial	

court’s—and	not	ours—to	exercise.	 	

	     	      	      	     	      	

	                         	
                                                            13	

Joseph	W.	Baiungo,	Esq.,	Belfast,	for	appellant	Mark	Rae	
	
Laurie	Allen	did	not	file	a	brief	
	
	
Belfast	District	Court	docket	number	PA-2018-58		
FOR	CLERK	REFERENCE	ONLY	
