MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	231	
Docket:	   Ken-17-110	
Argued:	   November	14,	2017	
Decided:	  December	12,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                  STATE	OF	MAINE	
                                         	
                                        v.	
                                         	
                                   CORY	D.	KIBBE	
	
	
PER	CURIAM	

      [¶1]	 	 In	 2004,	 Cory	 D.	 Kibbe	 pleaded	 guilty	 to	 gross	 sexual	 assault	

(Class	A),	 17-A	M.R.S.	 §	253(1)(B)	 (2016),	 and	 unlawful	 sexual	 contact	

(Class	C),	 17-A	M.R.S.	 §	255-A(1)(E)	 (2016).	 	 The	 Superior	 Court	 (Kennebec	

County,	Clifford,	J.)	sentenced	Kibbe	to	twenty	years	in	prison	with	all	but	four	

years	suspended	and	eight	years	of	probation	for	the	gross	sexual	assault,	and	

to	four	years	in	prison,	to	run	concurrently,	for	the	unlawful	sexual	contact.		

      [¶2]		Kibbe	served	his	sentence	and,	thirteen	years	later,	in	2017,	after	a	

testimonial	hearing,	the	court	(Nale,	J.)	ordered	Kibbe	to	spend	four	years	in	

prison	 after	 granting	 the	 State’s	 motion	 to	 revoke	 Kibbe’s	 probation	 on	 the	

grounds	that	Kibbe	failed	to	report	to	his	probation	officer	as	required	on	two	

occasions	 and	 “walk[ed]	 in	 front	 of	 the	 Waterville	 public	 school.”	 	 We	 now	
2	

consider	 the	 sufficiency	 of	 the	 evidence	 supporting	 the	 court’s	 revocation	 of	

Kibbe’s	probation.1			

         [¶3]	 	 As	 applies	 to	 this	 matter,	 probation	 may	 be	 revoked	 when	 “the	

alleged	 violation	 does	 not	 constitute	 a	 crime	 and	 the	 court	 finds	 by	 a	

preponderance	 of	 the	 evidence	 that	 the	 person	 [who	 is	 on	 probation]	 has	

inexcusably	 failed	 to	 comply	 with	 a	 requirement	 imposed	 as	 a	 condition	 of	

probation.”		17-A	M.R.S.	§	1206(6)	(2016).		It	is	the	State’s	burden	to	establish	

these	 elements.	 	 State	 v.	 James,	 2002	 ME	 86,	 ¶	 9,	 797	 A.2d	 732.	 	 Kibbe	

challenges	only	the	determination	that	he	was	still	on	probation	at	the	time	of	

his	alleged	probation	violations.		

         [¶4]		Notwithstanding	the	deferential	standard	by	which	we	review	the	

sufficiency	of	the	evidence	supporting	such	a	factual	finding—clear	error—we	

conclude	 in	 this	 matter	 that	 the	 State	 failed	 to	 meet	 its	 burden.	 	 See	 State	 v.	

Palmer,	 2016	 ME	 120,	 ¶	 11,	 145	 A.3d	 561.	 	 Our	 conclusion	 is	 perhaps	 best	

demonstrated	by	a	summary	of	what	occurred	during	the	hearing.			

         [¶5]	 	 The	 State	 presented	 one	 witness	 at	 the	 hearing—Kibbe’s	

probation	 officer.	 	 On	 direct	 examination	 by	 the	 State,	 the	 probation	 officer	


     1		We	granted	Kibbe	a	certificate	of	probable	cause	on	his	petition	seeking	discretionary	review	

of	 the	 court’s	 decision.	 	 See	 17-A	M.R.S.	 §	1207(1)	 (2016);	 M.R.	 App.	 P.	 19(a)(ii)	 (Tower	 2016);	
M.R.	App.	P.	19(a)(2)(B).		
                                                                                         3	

testified	 that	 Kibbe	 was	 seen	 in	 front	 of	 a	 Waterville	 public	 school	 on	

August	30,	 2016,	 at	 a	 time	 when	 school	 was	 not	 in	 session,	 in	 violation	 of	 a	

probation	 condition	 that	 he	 not	 be	 within	 five	 hundred	 feet	 of	 a	 school,	 and	

that	 Kibbe	 had	 failed	 to	 report	 to	 her	 as	 required	 on	 September	 22,	 2016;	

September	 26,	 2016;	 and	 October	 6,	 2016,	 for	 which	 he	 was	 arrested	 on	

October	6,	2016.		The	State’s	attorney	did	not	ask	the	probation	officer	during	

direct	 examination	 if	 Kibbe	 was	 still	 on	 probation	 on	 these	 dates,	 and	 the	

probation	officer	did	not	testify	on	that	issue.		

      [¶6]		On	cross-examination,	Kibbe’s	attorney	questioned	the	probation	

officer	 regarding	 whether	 Kibbe	 was	 on	 probation	 at	 the	 time	 of	 the	 alleged	

violations:	

      Q	       So	 I	 have	 a	 date	 of	 December	 16th	 of	 2007	 of	 Mr.	 Kibbe’s	
               release	 that	 was	 provided	 to	 me	 by	 the	 Department	 of	
               Corrections.		But	is	it	correct	that	you’re	not	sure	when	he	
               was	originally	released?	
      	
      A	       I	don’t	have	that	date	off	the	top	of	my	head.	
      	
      Q	       So	you	--	as	you	sit	here	today,	you	believe	that	Mr.	Kibbe	is	
               still	on	probation	though,	correct?	
      	
      A	       Yes.	
      	
      Q	       And	he’s	--	was	subject	to	eight	years	of	probation?	
      	
      A	       That’s	possible.	
      	
4	

       Q	     You’re	not	sure	how	many	years	of	probation?	
       	
       A	     I	don’t.		I	only	have	a	hunch.	
       	
       Q	     It’s	eight	years.		I	think	we	can	probably	agree	that	it’s	eight	
              years.		Can	we	agree	that	it’s	eight	years	of	probation?	
       	
       A	     Yes.	
	
When	 asked	 when	 Kibbe	 was	 released	 from	 prison	 after	 serving	 the	

unsuspended	 portion	 of	 his	 sentence,	 the	 probation	 officer	 testified,	 “I	 --	 I	

don’t	 have	 it	 off	 the	 top	 of	 my	 head.	 	 No,	 I	 didn’t	 bring	 that	 with	 me.”	 	 After	

Kibbe’s	 attorney	 suggested	 that	 Kibbe	 was	 released	 from	 prison	 on	

December	16,	 2007,	 the	 probation	 officer	 agreed	 that	 his	 probation	

commenced	 on	 December	 17,	 2007,	 and	 that,	 barring	 other	 factors,	 Kibbe’s	

eight-year	probation	term	therefore	would	have	expired	in	December	of	2015,	

several	months	before	the	dates	of	the	alleged	probation	violations:	

       A	     .	.	.	.		His	probation	did	start	December	17th,	2007.	

              THE	COURT:	            Probation	would	begin	when?	

              THE	WITNESS:	          December	17th,	2007.	

              THE	COURT:	            December	17th?	

              THE	WITNESS:	          December	17th,	2007.	

              THE	COURT:	            Thank	you.		And	that	would	run	for	eight	
                                     years?	
              	
                                                                                         5	

             THE	WITNESS:	        Yes.	

      [¶7]		Although	the	probation	officer	testified	on	cross-examination	that	

Kibbe	was	subject	to	 prior	partial	probation	revocations	of	440	days	and	six	

months,	 she	 also	 testified	 that	 she	 was	 not	 sure	 how	 long	 Kibbe’s	 probation	

was	tolled	while	he	served	time	on	those	prior	revocations,	or	whether	and	to	

what	extent	he	received	good	time	credits	that	would	reduce	the	tolled	period.		

See	 17-A	M.R.S.	 §§	1206(7-A),	1253(8)(A),	 (D)	 (2016).	 	 The	 probation	 officer	

agreed	 that	 good	 time	 credits	 would	 affect	 the	 probation	 tolling	 dates,	 but	

when	Kibbe’s	attorney	inquired,	“The	problem	is,	you’re	not	sure	when	it	was	

tolled	for	those,	correct?”	the	probation	officer	answered,	“I	don’t	have	that	on	

me,	 no.”	 	 When	 asked,	 “So	 at	 this	 point,	 you	 don’t	 actually	 have	 any	 records	

with	 you	 for	 the	 Court	 to	 show	 that	 Mr.	 Kibbe	 was	 on	 probation	 on	

October	6th?”	the	probation	officer	responded,	“No,	I	don’t	have	that	with	me.		

I’m	sure	I	can	make	a	phone	call	and	get	all	the	tolling	dates.”		

      [¶8]	 	 On	 redirect	 examination,	 the	 probation	 officer	 testified	 that	

Kibbe’s	 prior	 probation	 revocations	 would	 have	 extended	 his	 probationary	

period	by	nineteen	months	from	the	initial	end	of	his	probation	in	December	

of	 2015,	 and	 that	 she	 did	 not	 receive	 a	 notification	 from	 the	 Department	 of	

Corrections	flagging	system	informing	her	that	Kibbe’s	probation	had	ended.		
6	

          [¶9]		On	recross-examination,	Kibbe’s	attorney	inquired	further	into	the	

effect	of	the	prior	probation	revocations:	

          Q	       This	whole	tolling,	I	mean,	you	were	led	through	a	bunch	of	
                   questions	 here	 on	 tolling	 but	 the	 bottom	 line	 is,	 you	
                   mentioned	 440	 days.	 	 You	 don’t	 know	 that	 Mr.	 Kibbe	 was	
                   actually	--	his	probation	was	tolled	for	440	days,	correct?	
          	
          A	       No.		I	can	probably	get	some	dates,	if	you’d	like.			
          	
          Q	       But	 for	 all	 you	 know	 here	 today,	 he	 could	 have	 been	
                   sentenced	 to	 440	 days,	 got	 a	 significant	 amount	 of	 good	
                   time	and	been	released	long	before	that	440	days,	correct?	
          	
          A	       I	don’t	know	what	the	good	time	would	have	been	on	it.	
	
The	State	rested	without	offering	any	additional	evidence.2	

          [¶10]		In	short,	the	record	makes	clear	that	the	State’s	single	witness—

Kibbe’s	probation	officer—was	unable	to	testify	with	any	degree	of	certainty	

that	 Kibbe	 was	 still	 on	 probation	 on	 October	 6,	 2016.	 	 She	 had	 neither	

knowledge	 of	 nor	 information	 about	 the	 actual	 dates	 of	 Kibbe’s	 probation.3		


     2		While	it	was	considering	what	disposition	to	impose	for	the	probation	violation,	the	court	took	

a	recess,	after	which	the	State’s	attorney	indicated,	“We’ve	also	confirmed	with	the	Department	of	
Corrections	 that	 [Kibbe]	 would,	 barring	 any	 further	 time	 in,	 remain	 on	 probation	 through	
September	of	next	year.”		To	the	extent	that	such	vague	information	could	have	aided	the	court	in	
its	 findings,	 the	 court	 had	 already	 found	 that	 Kibbe	 violated	 his	 probation	 by	 the	 time	 the	 State	
purported	 to	 obtain	 confirmation	 from	 the	 Department	 of	 Corrections,	 and	 in	 any	 event,	 the	
statements	of	an	attorney	are	not	evidence,	see	State	v.	Begin,	2015	ME	86,	¶	28,	120	A.3d	97.		
     3	 	 Moreover,	 we	 cannot	 be	 certain	 that	 the	 court	 correctly	 assigned	 the	 burden	 of	 proof	 to	 the	

State	 throughout	 the	 hearing.	 	 See	 State	 v.	 James,	 2002	 ME	 86,	 ¶	 9,	 797	 A.2d	 732.	 	 After	 Kibbe’s	
attorney	asked	the	probation	officer	on	cross-examination,	“Do	you	have	any	evidence	that	[Kibbe]	
was	on	probation	at	that	time?”	the	court	inquired	of	Kibbe’s	attorney,	“Do	you	have	any	evidence	
that	 he	 was	 not	 on	 probation?”	 	 Later,	 after	 Kibbe’s	 attorney	 challenged	 during	 closing	 argument	
                                                                                                                 7	

See	 17-A	M.R.S.	 §	1253(8)(A),	 (D).	 	 It	 was	 the	 State’s	 burden	 to	 prove,	 by	 a	

preponderance	of	the	evidence,	that	Kibbe	was	on	probation	at	the	time	of	his	

alleged	 probation	 violations;	 the	 State	 failed	 to	 meet	 that	 burden.4	 	 See	

17-A	M.R.S.	§	1206(6);	James,	2002	ME	86,	¶	9,	797	A.2d	732.		Accordingly,	we	

vacate	the	judgment	revoking	Kibbe’s	probation.5			

         The	entry	is:	

                          Judgment	 vacated.	 	 Remanded	 for	 entry	 of	 an	
                          order	 denying	 the	 State’s	 probation	 revocation	
                          motion.	
	
	        	        	       	        	        	
	
	                                  	




the	State’s	proof	that	Kibbe	was	on	probation	at	the	relevant	time,	the	court	stated,	“How	do	I	know	
he	wasn’t?		See,	that’s	the	--	I	think	we’re	taking	--	looking	at	this	the	wrong	way,	in	my	eyes.		I’m	
here	and	I’m	--	someone	needs	to	convince	me	that	he	is	--	was	not	on	probation.”		When	Kibbe’s	
attorney	 asked,	 “Well,	 Your	 Honor,	 are	 you	 suggesting	 that	 the	 defendant	 has	 the	 burden	 of	
proof	--,”	the	court	stated,	“I’m	not	suggesting	that.		I’m	not	suggesting	that	one	bit.		I’m	saying,	it’s	
[the	State’s]	burden.		And	what	I’ve	heard	from	the	district	attorney’s	office,	I’m	convinced	that	he	
was	on	probation.”			
    4	 	 To	 prevent	 such	 failures	 in	 calculating	 probationary	 periods	 in	 future	 matters—particularly	

those	in	which	there	is	a	serious	question	as	to	whether	the	probationer	is	still	on	probation—the	
State	and	the	State’s	witness	must	be	prepared	to	establish	that	probation	is,	in	fact,	still	in	effect.		
The	 better	 practice	 is	 for	 the	 State	 to	 file	 documentation	 with	 its	 motion	 to	 revoke	 probation	
detailing	the	relevant	dates.	

    5	 	 We	 decline	 the	 parties’	 alternative	 request	 to	 remand	 the	 matter	 for	 a	 new	 hearing.	 	 Having	

failed	to	meet	its	burden,	there	is	no	basis	upon	which	to	allow	the	State	a	second	attempt	to	prove	
those	facts.	
8	

Kevin	P.	Sullivan,	Esq.	(orally),	Sullivan	Law,	P.C.,	Augusta,	for	appellant	Cory	
D.	Kibbe	
	
Maeghan	Maloney,	District	Attorney,	and	Michael	H.	Madigan,	Asst.	Dist.	Atty.	
(orally),	Prosecutorial	District	No.	Four,	Augusta,	for	appellee	State	of	Maine	
	
	
Kennebec	County	Superior	Court	docket	number	CR-2004-357		
FOR	CLERK	REFERENCE	ONLY	
