MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	74	
Docket:	   Yor-16-290	
Argued:	   March	2,	2017	
Decided:	  April	25,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   STATE	OF	MAINE	
                                          	
                                         v.	
                                          	
                                     LEE	PERRY	
	
	
JABAR,	J.	

      [¶1]	 	 Lee	 Perry	 appeals	 from	 a	 judgment	 of	 conviction	 entered	 by	 the	

trial	 court	 (York	 County,	 Douglas,	 J.)	 after	 a	 jury	 found	 him	 guilty	 of	 three	

counts	 of	 aggravated	 assault	 (Class	 B),	 17-A	 M.R.S.	 §	 208(1)	 (2016);	 two	

counts	of	domestic	violence	assault	(Class	D),	17-A	M.R.S.	207-A(1)(A)	(2016);	

and	 one	 count	 each	 of	 domestic	 violence	 criminal	 threatening	 with	 a	

dangerous	 weapon	 (Class	 C),	 17-A	 M.R.S.	 209-A(1)(A)	 (2016),	 and	 domestic	

violence	 reckless	 conduct	 with	 a	 dangerous	 weapon	 (Class	 C),	 17-A	 M.R.S.	

§	211-A(1)(A)	(2016).		He	also	challenges	the	consecutive	sentences	imposed	

for	two	of	the	convictions.		We	affirm	the	judgment	and	sentences.		
2	

                                     I.		BACKGROUND	

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

rationally	 could	 have	 found	 the	 following	 facts	 beyond	 a	 reasonable	 doubt.		

See	State	v.	Hurd,	2010	ME	118,	¶	4,	8	A.3d	651.		At	the	time	of	the	events	in	

question,	 the	 victim	 and	 the	 defendant,	 Lee	 Perry,	 were	 sexual	 partners	

residing	 together	 at	 an	 apartment	 in	 North	 Berwick.	 	 On	 the	 afternoon	 of	

December	5,	2014,	the	victim	and	Perry	engaged	in	a	verbal	altercation	after	

the	victim	accused	Perry	of	taking	money	and	prescription	medications	from	

her	purse.		At	some	point	during	the	altercation,	the	victim	attempted	to	walk	

away	from	Perry	and,	when	she	turned	her	back	to	do	so,	Perry	shoved	her	to	

the	ground,	causing	the	victim	to	injure	her	wrist	when	she	extended	her	arm	

to	break	her	fall.				

	      [¶3]		Shortly	after	the	shoving	incident,	Perry	went	into	the	bedroom	to	

take	a	nap.		When	Perry	awoke,	the	altercation	reignited,	and	Perry	grabbed	

the	victim	and	threw	her	to	the	ground.		While	the	victim	was	face	down	on	

the	apartment	floor,	Perry	grabbed	her	around	her	neck	and	began	tightening	

his	grip,	inhibiting	her	ability	to	breathe.		Perry	continued	applying	pressure	

to	 the	 victim’s	 neck	 until	 she	 lost	 control	 of	 her	 bowels	 and	 bladder.	 	 Perry	
                                                                                         3	

eventually	stopped,	and	the	victim	pulled	herself	off	the	ground	and	went	into	

the	bathroom	to	take	a	shower	and	change	her	clothes.			

	      [¶4]	 	 While	 the	 victim	 was	 in	 the	 shower,	 Perry	 broke	 the	 lock	 on	 the	

bathroom	door,	grabbed	the	victim	by	her	hair,	and	slammed	her	head	against	

the	 bathroom	 wall	 and	 the	 toilet	 basin.	 	 Perry	 then	 proceeded	 to	 pull	 the	

victim	out	of	the	bathroom	on	her	hands	and	knees.		While	the	victim	was	on	

the	 floor,	 Perry	 grabbed	 a	 knife	 and	 threatened	 to	 kill	 her,	 remarking	 that	

“12	to	14	[years	in	prison]	don’t	look	too	bad	about	now.”		To	defend	herself,	

the	victim	raised	her	hand	to	deflect	the	blade	and	suffered	lacerations	on	her	

hand.				

	      [¶5]		The	victim	eventually	left	the	apartment	she	shared	with	Perry	and	

went	 upstairs	 to	 a	 friend’s	 apartment.	 	 Initially,	 the	 victim	 did	 not	 want	 to	

contact	 the	 authorities;	 only	 after	 she	 saw	 the	 extent	 of	 her	 injuries	 in	 the	

mirror	did	she	decide	to	place	a	call	to	a	friend	and	ask	that	the	friend	call	the	

police.		

	      [¶6]	 	 In	 the	 early	 morning	 hours	 of	 December	 6,	 2014,	 an	 officer	 from	

the	 North	 Berwick	 Police	 Department	 received	 a	 call	 reporting	 a	 domestic	

disturbance.	 	 Accordingly,	 he	 responded	 to	 the	 victim’s	 apartment	 and	 was	

joined	shortly	thereafter	by	another	officer.		When	the	officer	arrived,	he	was	
4	

greeted	by	the	victim,	who	bore	visible	injuries.		The	victim	informed	him	that	

she	 and	 Perry	 had	 been	 involved	 in	 an	 altercation	 and	 that	 Perry	 had	

physically	assaulted	her.		Based	on	this	conversation	and	in	accordance	with	

“standard	 police	 protocol”	 the	 officer	 then	 went	 to	 speak	 with	 Perry.	 	 While	

the	 other	 officer	 remained	 outside,	 the	 victim	 led	 the	 first	 officer	 into	 the	

apartment	and	the	room	in	which	Perry	was	sleeping.		The	first	officer	woke	

Perry	 by	 announcing	 his	 presence	 as	 a	 police	 officer.	 	 The	 first	 officer	

proceeded	to	ask	Perry	a	series	of	questions	about	what	had	transpired	earlier	

that	 evening	 and	 if	 he	 had	 been	 drinking.	 	 Perry	 admitted	 that	 he	 and	 the	

victim	had	argued	earlier	but	denied	hurting	her	or	knowing	how	she	received	

her	injuries.		Perry	also	admitted	that	he	drank	four	or	five	beers	that	evening.		

At	 no	 time	 during	 this	 exchange	 was	 Perry	 advised	 of	 his	 Miranda	 rights.		

After	hearing	Perry’s	responses,	the	first	officer	left	Perry	in	the	bedroom	and	

reunited	with	the	other	responding	officer	outside	of	the	apartment.		At	that	

time,	the	first	officer	expressed	to	the	other	officer	his	intent	to	arrest	Perry.		

The	first	officer	then	re-entered	the	apartment	and	placed	Perry	under	arrest.		

	     [¶7]		On	March	2,	2015,	the	State	filed	a	seven-count	indictment	against	

Perry.		Three	of	the	seven	counts	alleged	aggravated	assault	based	on	separate	

and	distinct	episodes	of	alleged	criminal	conduct	in	violation	of	three	distinct	
                                                                                       5	

provisions	 of	 the	 Criminal	 Code.	 	 Count	 I	 alleged	 aggravated	 assault	 in	

violation	 of	 17-A	M.R.S.	 §	 208(1)(A).	 	 Count	 II	 alleged	 aggravated	 assault	

causing	 bodily	 injury	 under	 circumstances	 manifesting	 extreme	 indifference	

to	 the	 value	 of	 human	 life.	 	 17-A	 M.R.S.	 §	 208(1)(C).	 	 Count	III	 alleged	

aggravated	 assault	 causing	 bodily	 injury	 with	 a	 dangerous	 weapon.		

17-A	M.R.S.	§	208(1)(B).			

	     [¶8]	 	 A	 three-day	 jury	 trial	 on	 the	 indictment	 commenced	 on	 May	 24,	

2016.		Prior	to	trial,	Perry	moved	the	court	to	suppress	statements	he	made	to	

the	first	officer	before	his	arrest.		After	a	hearing,	the	court	(Douglas,	J.)	denied	

the	 motion,	 concluding	 that	 Perry	 was	 not	 in	 custody	 for	 Miranda	 purposes	

during	the	interview	and	therefore	the	statements	were	admissible	at	trial.		

	     [¶9]	 	 At	 trial,	 the	 State	 elicited	 testimony	 from	 various	 individuals	

describing	 the	 extent	 of	 the	 victim’s	 injuries,	 which	 included	 a	 broken	 wrist	

requiring	surgery	and	a	laceration	on	her	right	hand.		In	addition,	the	victim	

testified	to	the	symptoms	and	injuries	she	experienced	during	and	after	Perry	

strangled	 her	 on	 the	 floor	 of	 the	 apartment,	 namely	 incontinence,	 nausea,	

blurred	vision,	headache,	and	neck	pain.		Over	Perry’s	objection,	the	State	also	

presented	the	testimony	of	a	strangulation	expert	who	provided	the	technical	

definition	of	“strangulation,”	specifically	as	it	differs	from	the	colloquial	term	
6	

“choking,”	 and	 described	 the	 physiological	 effects	 and	 symptoms	 of	

strangulation.			

	        [¶10]		Relying	upon	the	testimony	summarized	above,	the	State,	in	both	

its	opening	statement	and	closing	argument,	explained	to	the	jury	that	Count	I	

of	 the	 indictment,	 aggravated	 assault,	 pertained	 to	 Perry’s	 shoving	 of	 the	

victim	 that	 resulted	 in	 her	 breaking	 her	 wrist;	 that	 Count	 II,	 aggravated	

assault	 with	 extreme	 indifference	 to	 the	 value	 of	 human	 life,	 pertained	 to	

Perry’s	strangulation	of	the	victim;	and	that	Count	III,	aggravated	assault	with	

a	dangerous	weapon,	pertained	to	Perry’s	use	of	the	knife	to	cut	the	victim’s	

hand.				

	        [¶11]		After	a	brief	deliberation,	the	jury	returned	a	guilty	verdict	on	all	

counts.	 	 With	 regard	 to	 the	 aggravated	 assault	 charges,	 the	 court	 sentenced	

Perry	as	follows:1	

         •       Count	I,	aggravated	assault:	four	years’	imprisonment	to	be	
                 served	concurrently	with	Count	II;		
         •       Count	II,	aggravated	assault:	nine	years’	imprisonment;		

     1		On	the	remaining	counts,	Perry	was	sentenced	as	follows:	Count	IV,	criminal	threatening,	three	

years’	 imprisonment;	 Count	 V,	 domestic	 violence	 assault,	 270	 days’	 imprisonment;	 Count	 VI,	
domestic	 violence,	 reckless	 conduct	 with	 a	 dangerous	 weapon,	 three	 years’	 imprisonment;	 and	
Count	 VII,	 domestic	 violence	 assault	 with	 a	 dangerous	 weapon,	 three	 years’	 imprisonment.		
Although	the	crime	charged	in	Count	VII,	domestic	violence	assault,	is	a	Class	D	crime	carrying	with	
it	 a	 maximum	 term	 of	 imprisonment	 of	 less	 than	 one	 year,	 the	 State,	 pursuant	 to	 17-A	 M.R.S.	
§	1252(4)	 (2016),	 sought	 an	 elevated	 sentence	 because	 of	 Perry’s	 use	 of	 a	 dangerous	 weapon	
during	the	commission	of	the	crime.		Sentences	for	the	aforementioned	charges	were	ordered	to	be	
served	concurrently	with	the	sentence	imposed	on	Count	II.		
                                                                                          7	

       •      Count	 III,	 aggravated	 assault:	 five	 years’	 imprisonment,	 all	
              suspended,	 and	 four	 years’	 probation,	 to	 be	 served	
              consecutively	to	Count	II.		
       	
                                    II.		DISCUSSION	

	      [¶12]	 	 Perry	 now	 appeals,	 arguing	 that	 the	 court	 erred	 in	 denying	 his	

motion	to	suppress	and	abused	its	discretion	in	allowing	the	State	to	present	

expert	 testimony	 on	 strangulation.	 	 He	 also	 sought	 and	 obtained	 leave	 to	

appeal	his	sentence.		

A.	    Motion	to	Suppress	

	      [¶13]	 	 Perry	 first	 argues	 that	 the	 court	 erred	 in	 denying	 his	 motion	 to	

suppress	 statements	 he	 made	 to	 the	 first	 officer	 prior	 to	 his	 arrest.		

Specifically,	 he	 argues	 that	 these	 statements	 should	 have	 been	 suppressed	

because,	 when	 he	 spoke	 with	 the	 first	 officer	 in	 the	 early	 morning	 hours	 of	

December	 6,	 he	 was	 in	 custody	 and	 had	 not	 been	 apprised	 of	 his	 Miranda	

rights.				

       1.     Standard	of	Review	

	      [¶14]	 	 When	 addressing	 a	 challenge	 to	 a	 court’s	 denial	 of	 a	 motion	 to	

suppress,	we	review	the	motion	court’s	factual	findings	for	clear	error	and	its	

legal	conclusions	de	novo.		See	State	v.	Cote,	2015	ME	78,	¶	9,	118	A.3d	805.		

We	 treat	 the	 determination	 of	 whether	 a	 person	 was	 in	 custody	 for	Miranda	
8	

purposes	as	a	mixed	question	of	law	and	fact.		State	v.	Dion,	2007	ME	87,	¶	22,	

928	A.2d	746.			

      2.     Custody	Determination	

	     [¶15]		When	a	person	has	been	subjected	to	an	in-custody	interrogation	

but	 has	 not	 been	 advised	 of	 his	 Miranda	 rights,	 the	 State	 may	 not	 offer	 the	

statements	 made	 during	 that	 interrogation	 against	 that	 person	 in	 its	

case-in-chief.		State	v.	King,	2016	ME	54,	¶	16,	136	A.3d	366.		To	determine	if	a	

person	 was	 “in	 custody”	 for	 Miranda	 purposes,	 a	 court	 must	 objectively	

review	the	pertinent	circumstances	to	decide	whether	a	reasonable	person	in	

the	defendant’s	position	would	have	felt	free	to	terminate	the	interaction	with	

law	enforcement	or	if	there	was	a	“restraint	on	freedom	of	movement	of	the	

degree	associated	with	formal	arrest.”		State	v.	Holloway,	2000	ME	172,	¶	14,	

760	A.2d	223	(quotation	marks	omitted).		In	conducting	this	analysis,	a	court	

may	consider	a	number	of	factors,	including		

      (1)    the	locale	where	the	defendant	made	the	statements;		
      	
      (2)    the	party	who	initiated	the	contact;		
      	
      (3)    the	 existence	 or	 non-existence	 of	 probable	 cause	 to	 arrest	
             (to	the	extent	communicated	to	the	defendant);		
      	
      (4)    subjective	views,	beliefs,	or	intent	that	the	police	manifested	
             to	 the	 defendant,	 to	 the	 extent	 they	 would	 affect	 how	 a	
                                                                                         9	

             reasonable	 person	 in	 the	 defendant’s	 position	 would	
             perceive	his	or	her	freedom	to	leave;	
      	
      (5)    subjective	views	or	beliefs	that	the	defendant	manifested	to	
             the	 police,	 to	 the	 extent	 the	 officer’s	 response	 would	 affect	
             how	a	reasonable	person	in	the	defendant’s	position	would	
             perceive	his	or	her	freedom	to	leave;		
      	
      (6)    the	focus	of	the	investigation	(as	a	reasonable	person	in	the	
             defendant’s	position	would	perceive	it);	
      	
      (7)    whether	 the	 suspect	 was	 questioned	 in	 familiar	
             surroundings;		
      	
      (8)    the	number	of	law	enforcement	officers	present;		
      	
      (9)    the	 degree	 of	 physical	 restraint	 placed	 upon	 the	 suspect;	
             and	
      	
      (10) the	duration	and	character	of	the	interrogation.		

State	v.	Michaud,	1998	ME	251,	¶	4,	724	A.2d	1222.			

	     [¶16]	 	 Here,	 the	 court	 did	 not	 err	 in	 concluding	 that	 Perry	 was	 not	 in	

custody	for	Miranda	purposes	when	he	spoke	with	the	first	officer	in	the	early	

morning	hours	of	December	6.		Although	the	court	found	that	the	first	officer	

initiated	contact	with	Perry,	awaking	him	in	his	bedroom	and	announcing	his	

presence	 as	 a	 police	 officer—a	 fact	 that	 weighs	 in	 favor	 of	 a	 finding	 of	

custody—the	record	amply	supports	the	court’s	conclusion	that	Perry	was	not	

in	custody	at	that	time.		Specifically,	the	Court	found	that	the	questioning	was	

conducted	 by	 a	 single	 officer	 in	 circumstances	 familiar	 to	 Perry;	 Perry	 was	
10	

never	physically	restrained;	the	questioning	by	the	first	officer	was	brief;	and,	

although	 at	 some	 point	 in	 his	 investigation	 the	 first	 officer	 formulated	 an	

intent	 to	 place	 Perry	 under	 arrest,	 he	 never	 manifested	 that	 intent	 to	 Perry.		

See	Dion,	2007	ME	87,	¶¶	25-27,	928	A.2d	746	(holding	that	the	court	did	not	

err	 in	 concluding	 that	 a	 defendant	 was	 not	 in	 custody	 where	 he	 made	

statements	 to	 law	 enforcement	 officers	 in	 his	 own	 home,	 was	 not	 physically	

restrained	 during	 the	 conversation,	 never	 manifested	 an	 intent	 to	 terminate	

the	interaction,	and	the	officers	never	indicated	to	the	defendant	that	they	had	

probable	 cause	 to	 arrest	 him).	 	 Therefore,	 viewing	 the	 totality	 of	

circumstances	 in	 light	 of	 the	 Michaud	 factors,	 the	 court	 did	 not	 err	 in	

concluding	 that	 Perry	 was	 not	 in	 custody	 for	 Miranda	 purposes	 and	

consequently	denying	his	motion	to	suppress.		

B.	   Admission	of	Expert	Testimony	on	Strangulation	

	     [¶17]	 	 Perry	 next	 argues	 that	 the	 court	 abused	 its	 discretion	 in	

admitting	the	testimony	of	an	expert	witness	who	testified	about	the	causes,	

effects,	 and	 symptoms	 of	 strangulation.	 	 Specifically,	 he	 argues	 that	 this	

testimony	should	have	been	excluded	because	a	determination	of	whether	the	

victim	 was	 “strangled,”	 a	 term	 defined	 by	 statute,	 was	 within	 the	 common	
                                                                                   11	

knowledge	of	a	layperson,	and	thus	the	testimony	could	not	assist	the	jury	in	

making	that	determination.				

	     [¶18]	 	 We	 review	 a	 trial	 court’s	 evidentiary	 rulings	 for	 an	 abuse	 of	

discretion	or	clear	error.		See	State	v.	Mooney,	2012	ME	69,	¶	9,	43	A.3d	972.		

Pursuant	to	the	Maine	Rules	of	Evidence,	a	witness	who	has	been	qualified	as	

an	expert	is	not	limited	to	testifying	in	the	form	of	an	opinion;	rather,	she	may	

provide	expert	testimony	in	another	form	so	long	as	it	“will	help	the	trier	of	

fact	 to	 understand	 the	 evidence	 or	 to	 determine	 a	 fact	 in	 issue.”		

M.R.	Evid.	702.	

	     [¶19]		“Strangulation,”	as	the	term	is	used	in	17-A	M.R.S.	§	208(1)(C),	is	

defined	 as	 “the	 intentional	 impeding	 of	 the	 breathing	 or	 circulation	 of	 the	

blood	of	another	person	by	applying	pressure	on	the	person’s	throat	or	neck.”	

Here,	 because	 the	 State’s	 strangulation	 expert	 did	 not	 review	 any	 facts	

pertinent	to	the	case,	she	did	not	give	an	opinion	as	to	whether	the	victim	had	

been	 strangled.	 	 Rather,	 she	 testified	 to	 the	 technical	 definition	 of	

strangulation	 and	 how	 that	 definition	 is	 distinct	 from	 “choking,”	 although	

laypeople	 often	 use	 those	 terms	 interchangeably.	 	 She	 also	 described	 the	

symptoms	 associated	 with	 strangulation	 and	 noted	 how	 those	 symptoms	

occur	as	a	result	of	an	interruption	in	the	flow	of	oxygen	to	the	brain.			
12	

	     [¶20]	 	 Although	 the	 use	 of	 a	 medical	 expert	 is	 not	 essential	 to	

establishing	the	element	of	strangulation,	the	expert’s	testimony	here	helped	

the	jury	“understand	the	evidence,”	specifically	as	it	pertained	to	the	technical	

definition	 of	 “strangulation,”	 and	 how	 that	 term	 is	 distinct	 from	 “choking.”		

M.R.	 Evid.	 702.	 	 Further,	 by	 testifying	 to	 the	 physiological	 effects	 of	 and	

symptoms	associated	with	strangulation,	the	State’s	expert	assisted	the	jury	in	

“determining	 a	 fact	 in	 issue,”	 namely,	 whether	 Perry’s	 alleged	 conduct	

constituted	 “strangulation”	 as	 defined	 in	 the	 statute.	 	 M.R.	 Evid.	 702.		

Therefore,	 the	 court	 did	 not	 abuse	 its	 discretion	 in	 admitting	 the	 expert’s	

testimony.		

C.	   Sentencing	

	     [¶21]	 	 Lastly,	 Perry	 argues	 that	 the	 court	 abused	 its	 discretion	 in	

sentencing	 him	 to	 serve	 consecutive	 terms	 of	 imprisonment	 for	 Counts	 II	

and	III,	 aggravated	 assault	 committed	 under	 circumstances	 manifesting	

extreme	indifference	to	the	value	of	human	life	and	aggravated	assault	with	a	

dangerous	weapon,	respectively.				

	     [¶22]	 	 “We	 review	 a	 sentencing	 court’s	 imposition	 of	 consecutive	

sentences	 for	 an	 abuse	 of	 discretion.”	 	 State	 v.	 Downs,	 2009	 ME	 3,	 ¶	 29,	

962	A.2d	950.		In	Maine,	a	court	“must	impose	sentences	concurrently	unless	
                                                                                        13	

it	 finds	 a	 statutory	 basis	 for	 imposing	 the	 sentences	 consecutively.”	 	 Id.;	 see	

17-A	M.R.S.	§	1256(2)	(2016).		Title	17-A	§	1256(2)(A)	and	(D)	provide	that	a	

court	 may	 impose	 consecutive	 sentences	 when	 the	 circumstances	 of	 the	

crimes	 are	 particularly	 serious	 or	 where	 “the	 convictions	 are	 for	 offenses	

based	 on	 different	 conduct	 or	 arising	 from	 different	 criminal	 episodes.”		

Conversely,	 where	 multiple	 crimes	 arise	 out	 of	 a	 single	 criminal	 episode,	 a	

court	 may	 not	 impose	 consecutive	 sentences	 where	 one	 of	 the	 crimes	 is	 a	

lesser	 included	 crime	 of	 the	 other	 or	 where	 “[o]ne	 crime	 consists	 only	 of	 a	

conspiracy,	 attempt,	 solicitation	 or	 other	 form	 of	 preparation	 to	 commit,	 or	

facilitation	of,	the	other.”		Id.	§	1256(3)(A)-(B).		

	      [¶23]		Here,	the	court	imposed	consecutive	sentences	on	Counts	II	and	

III	after	concluding	there	existed	“at	least	one”	and	perhaps	two	grounds	for	

doing	 so.	 	 First,	 the	 court	 noted	 that	 although	 Perry	 engaged	 in	 a	 prolonged	

physical	assault	of	the	victim,	“there	are	[discrete]	episodes	of	conduct	and	I	

think	 the	 State	 is	 entitled	 to	 ask	 for	 and	 the	 court	 is	 authorized	 to	 impose	

consecutive	sentences	in	[this]	instance.”		Second,	the	court	noted	that	even	if	

Counts	II	and	III	arose	out	of	the	same	criminal	episode,	it	was	still	at	liberty	

to	 impose	 consecutive	 sentences	 pursuant	 to	 17-A	 M.R.S.	 §	1256(2)(D)	

because	 “this	 is	 a	 situation	 where	 the	 seriousness	 of	 the	 conduct	 involved	
14	

does	provide	a	basis	under	the	statute	.	.	.	to	impose	a	sentence	in	excess	of	the	

maximum.”		Both	of	the	court’s	determinations	are	supported	by	the	record.		

	      [¶24]	 	 With	 regard	 to	 the	 discrete	 events,	 the	 victim	 testified	 that,	

between	the	time	she	was	strangled	and	the	time	she	was	cut	with	the	knife,	

she	had	time	to	get	up,	go	into	the	bathroom,	and	take	a	shower.		Further,	in	

both	its	opening	statement	and	closing	argument,	the	State	made	clear	that	it	

was	 charging	 Perry	 with	 these	 separate	 assaultive	 actions.	 	 It	 argued	 to	 the	

jury	 that	 Count	 II—assault	 with	 extreme	 indifference	 to	 the	 value	 of	 human	

life—was	 supported	 by	 evidence	 that	 Perry	 strangled	 the	 victim	 and	 that	

Count	 III—assault	 with	 a	 dangerous	 weapon—correlated	 with	 evidence	 that	

Perry	cut	the	victim’s	hand	with	a	knife.		Aside	from	the	fact	that	both	assaults	

involved	 the	 same	 victim,	 there	 is	 no	 meaningful	 link	 between	 them.	 	 One	

assault	was	executed	with	Perry’s	hands	while	the	other	was	carried	out	with	

a	 knife	 and	 there	 is	 no	 indication	 that	 one	 assault	 facilitated	 the	 other.	 	 Cf.		

State	 v.	 Bunker,	 436	 A.2d	 413,	 418-19	 (Me.	 1981)	 (concluding	 that	 the	 court	

abused	 its	 discretion	 in	 ordering	 consecutive	 sentences	 for	 convictions	 for	

kidnapping,	 rape,	 and	 gross	 sexual	 misconduct	 where	 the	 purpose	 of	 the	

kidnapping	“was	to	facilitate	the	commission	of	the	sex	offenses”).		
                                                                                       15	

	        [¶25]	 	 With	 regard	 to	 the	 seriousness	 of	 Perry’s	 conduct,	 the	 evidence	

demonstrated	that	he	engaged	in	a	prolonged,	violent	course	of	conduct	which	

included	pushing	the	victim	to	the	floor,	fracturing	her	wrist,	strangling	her	to	

the	point	where	she	lost	control	of	her	bowels	and	bladder,	beating	her	head	

against	 the	 wall	 and	 toilet,	 and	 cutting	 her	 hand	 with	 a	 knife.	 	 No	 credible	

argument	can	be	made	that	the	seriousness	of	Perry’s	conduct	did	not	rise	to	

the	 level	 required	 for	 a	 sentence	 in	 excess	 of	 the	 maximum	 available	 for	 the	

most	serious	offense.		See	17-A	M.R.S.	§	1256(2)(D).		Thus,	the	court	did	not	

abuse	 its	 discretion	 in	 imposing	 consecutive	 sentences	 pursuant	 to	 either	

17-A	M.R.S.	§	1256(2)(A)	or	17-A	M.R.S.	§	1256(2)(D).			

         The	entry	is:	

                            Judgment	and	sentences	affirmed.		
	
	     	      	     	      	     	
	
Andrea	 S.	 Manthorne,	 Esq.	 (orally),	 Roach,	 Hewitt,	 Ruprecht,	 Sanchez	 &	
Bischoff,	Portland,	for	appellant	Lee	Perry	
	
Kathryn	Loftus	Slattery,	District	Attorney,	and	Shira	S.	Burns,	Asst.	Dist.	Atty.	
(orally),	Prosecutorial	District	#1,	Alfred,	for	appellee	State	of	Maine	
	
	
York	County	Superior	Court	docket	number	CR-2014-2697	
FOR	CLERK	REFERENCE	ONLY	
