MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	26	
Docket:	   Pen-17-196	
Argued:	   December	14,	2017	
Decided:	  February	13,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                  STATE	OF	MAINE	
                                          	
                                         v.	
                                          	
                                    ERIC	NOBLES	
	
	
SAUFLEY,	C.J.	

      [¶1]	 	 Eric	 Nobles	 appeals	 from	 a	 judgment	 of	 conviction	 of	 operating	

under	 the	 influence	 (OUI)	 (Class	 C),	 29-A	 M.R.S.	 §	 2411(1-A)(C)(4),	 (5)(D)	

(2017),	 operating	 after	 habitual	 offender	 revocation	 (Class	 C),	 29-A	 M.R.S.	

§	2557-A(2)(D)	 (2017),	 and	 driving	 to	 endanger	 (Class	 E),	 29-A	 M.R.S.	

§	2413(1)	(2017),	entered	by	the	court	(Penobscot	County,	Lucy,	J.)	after	a	jury	

trial.		Nobles	contends	that	(A)	the	court	abused	its	discretion	in	denying	his	

motion	for	a	mistrial	after	an	officer	testified	that	Nobles	was	on	probation	at	

the	 time	 of	 his	 arrest;	 (B)	 the	 prosecutor	 committed	 misconduct	 by	

(1)	commenting	 on	 Nobles’s	 reluctance	 to	 speak	 with	 the	 police	 before	 and	

after	 he	 was	 arrested	 and	 (2)	asking	 the	 jury	 to	 hold	 Nobles	 “accountable”	

during	closing	arguments;	and	(C)	the	court	erred	in	declining	to	instruct	the	
2	

jury	on	the	competing	harms	justification	as	to	the	counts	of	operating	under	

the	influence	and	driving	to	endanger.		We	affirm	the	judgment.	

                                  I.		BACKGROUND	

	     [¶2]		Viewing	the	evidence	admitted	at	trial	in	the	light	most	favorable	to	

the	 State,	 the	 jury	 could	 have	 found	 the	 following	 facts	 beyond	 a	 reasonable	

doubt.		State	v.	Guyette,	2012	ME	9,	¶	2,	36	A.3d	916.		On	July	6,	2016,	Nobles	

was	driving	his	vehicle	on	a	private	camp	road	with	a	friend	in	the	passenger	

seat.		At	around	7:00	p.m.,	a	witness,	who	had	left	her	camp	and	was	in	a	pickup	

truck	with	her	husband	and	their	two	grandchildren,	observed	Nobles’s	vehicle	

traveling	toward	them	erratically	and	at	a	high	rate	of	speed	on	the	narrow	dirt	

road.		His	vehicle	was	fishtailing,	and	they	were	forced	to	veer	off	the	road	to	

avoid	 being	 hit.	 	 The	 witness’s	 stepson,	 who	 drove	 away	 from	 the	 witness’s	

camp	soon	after	she	left,	also	encountered	Nobles’s	vehicle	barreling	down	the	

road	and	kicking	up	dust,	forcing	the	stepson	to	pull	off	the	road	to	get	out	of	

the	way.			

      [¶3]		The	witness	and	her	husband	delivered	the	grandchildren	to	their	

mother	at	the	end	of	the	road	and	then	waited	there	for	the	vehicle	they	had	

seen	to	pass	them	again	so	they	could	take	down	the	license	plate	number.		After	

about	forty	minutes,	the	witness	and	her	husband	heard	a	vehicle	approaching	
                                                                                          3	

at	a	high	rate	of	speed	and	saw	Nobles’s	vehicle	traveling	toward	them	from	

behind.	 	 When	 Nobles	 reached	 the	 end	 of	 the	 road,	 the	 witness’s	 husband	

pointed	at	him	and	told	him	to	slow	down.		The	passenger	in	Nobles’s	vehicle	

made	a	vulgar	gesture	with	his	hands	and	tongue	before	Nobles’s	vehicle	turned	

toward	town	and	proceeded	down	the	road.			

       [¶4]		The	witness	and	her	husband	followed	Nobles’s	vehicle	to	take	note	

of	the	license	plate	number	and	to	call	the	police.			Nobles’s	vehicle	was	traveling	

fast	down	the	road	ahead	of	them	and	suddenly	came	to	a	complete	stop.		They	

stopped	their	car	behind	his.		After	a	couple	of	minutes,	Nobles’s	vehicle	made	

a	 quick	 U-turn	 around	 the	 pickup	 truck	 and	 drove	 in	 the	 opposite	 direction.		

While	 the	 witness	 was	 on	 the	 phone	 with	 the	 police,	 the	 witness’s	 husband	

began	 to	 turn	 his	 pickup	 around	 to	 follow	 him.	 	 At	 this	 time,	 Nobles	 did	 two	

“three-sixties”	in	the	road	and	took	off	“like	a	shot	out	of	a	gun”	toward	State	

Route	11,	a	public	road	leading	to	the	center	of	town	in	Millinocket.			

       [¶5]		At	about	8:00	p.m.,	after	having	been	notified	about	the	erratically	

operated	 vehicle,	 a	 Millinocket	 police	 officer	 saw	 Nobles’s	 vehicle	 turn	 off	

Route	11	into	the	parking	lot	of	a	convenience	store.		The	officer	pulled	in	after	

Nobles	 and	 was	 later	 joined	 by	 another	 officer.	 	 Both	 officers	 observed	 that	

Nobles,	who	was	in	the	driver’s	seat,	had	bloodshot	eyes	and	that	there	was	an	
4	

odor	of	alcohol	emanating	from	his	vehicle	and	breath.		He	was	uncooperative,	

belligerent,	and	unresponsive,	except	to	say	that	he	would	exit	his	vehicle	only	

if	 the	 officers	 brought	 him	 a	 drink	 of	 water.	 	 During	 this	 encounter	 with	 law	

enforcement	officers,	Nobles	offered	no	explanation	for	his	erratic	driving.		

       [¶6]		After	placing	Nobles	under	arrest,	the	officers	took	him	to	the	police	

station.	 	 Once	 there,	 he	 refused	 to	 participate	 in	 the	 standard	 field	 sobriety	

tests,	to	take	a	breath	test,	or	to	sign	the	form	detailing	the	consequences	of	his	

refusal.	 	 He	 still	 offered	 no	 explanation	 for	 his	 actions.	 	 When	 asked	 for	 his	

address,	 Nobles	 responded	 that	 he	 was	 homeless	 and	 also	 stated,	 “I’m	 not	

taking	your	test,”	before	throwing	down	the	tube	to	the	breath	testing	machine.			

       [¶7]		Nobles	was	initially	charged	with	a	single	count	of	OUI	in	July	2016,	

with	 complaints	 alleging	 operating	 after	 habitual	 offender	 revocation	 and	

driving	to	endanger	filed	in	August.		He	was	charged	with	all	three	crimes	by	

indictment	in	September	2016.			

       [¶8]		The	court	held	a	jury	trial	on	April	18	and	19,	2017.		During	opening	

statements,	defense	counsel	informed	the	jury	that	Nobles	would	be	testifying.		

Counsel	stated,	“Now,	my	client	was	not	drinking	and	he	will	explain	that.		And	

you’re	going	to	hear	him	talk	about	how	frightened	and	confused	he	was	.	.	.	.		
                                                                                         5	

And	my	client,	who	is	a	rather	meek	man,	got	very	confused,	very	anxious.		He	

wasn’t	informed	about	what	was	going	on.		He	didn’t	cooperate.”			

	     [¶9]		The	witness,	the	witness’s	stepson,	and	the	two	officers	testified	for	

the	State	at	trial.		When	the	arresting	officer	testified,	Nobles	objected	after	the	

following	exchange:	

      Q.	    .	.	.	.	Now,	after	you	went	through	this	process	with	[arresting	
             and	attempting	to	test]	him,	did	you	allow	him	to	bail	or	what	
             happened	from	there?	
      	
      A.	    He	ended	up	being	on	probation.	
      	
      Q.	    Excuse	me.		Can	you	just	answer	my	question?		Did	you	allow	
             him	to	get	bail?	
     	
Nobles	 immediately	 moved	 for	 a	 mistrial.	 	 The	 court	 denied	 the	 motion	 but	

provided	 a	curative	instruction,	before	the	State	resumed	examination	of	the	

witness:	 “I	 instruct	 the	 jury	 to	 disregard	 the	 witness’s	 last	 answer	 to	 [the	

prosecutor]’s	question.”			

      [¶10]		The	prosecutor	also	asked	both	officers	if	Nobles	ever	mentioned	

that	 he	 was	 frightened	 by	 or	 was	 being	 harassed	 by	 the	 witness	 and	 her	

husband,	 or	 if	 he	 gave	 any	 explanation	 as	 to	 why	 he	 was	 driving	 on	 a	 public	

road.		Both	officers	testified	that	he	did	not,	and	defense	counsel	did	not	raise	

any	objection	to	this	line	of	questioning.	
6	

      [¶11]		After	the	State	presented	its	case,	Nobles	testified.		He	told	the	jury	

that	he	knew	at	the	time	of	the	incident	that	his	license	had	been	revoked.		He	

denied	having	driven	at	a	high	rate	of	speed	before	the	witness	and	her	husband	

began	 following	 him.	 	 He	 explained	 that	 the	 reason	 he	 had	 driven	 erratically	

and	onto	a	public	road	was	because	he	thought	the	witness	and	her	husband	

were	 chasing	 him,	 he	 had	 seen	 something	 black	 and	 shiny	 in	 the	 witness’s	

husband’s	hand	that	he	thought	was	a	gun,	he	was	scared	and	concerned	for	his	

safety,	and	he	needed	to	get	to	a	telephone	to	call	the	police	because	neither	he	

nor	his	passenger	had	a	cellphone	with	a	charged	battery.		Nobles	testified	that,	

although	he	had	driven	on	the	public	road	specifically	to	find	the	police,	he	did	

not	 tell	 them	 he	 was	 frightened	 or	 appear	 pleased	 to	 see	 them	 at	 the	

convenience	store	because	he	suffered	from	anxiety,	and	he	was	confused	and	

scared.		He	testified	that	he	did	not	remember	yelling	at	the	officers.			

      [¶12]	 	 At	 the	 close	 of	 trial,	 Nobles	 requested	 a	 jury	 instruction	 on	 the	

competing	 harms	 justification	 for	 the	 charge	 of	 operating	 after	 license	

revocation	 and,	 eventually,	 the	 charge	 of	 OUI	 as	 well,	 arguing	 that	 he	 was	

driving	only	because	he	was	trying	to	get	away	from	the	greater	harm	posed	by	

the	 witness’s	 allegedly	 threatening	 husband.	 	 The	 court	 ruled	 that	 the	

competing	harms	instruction	would	be	given	for	the	charge	of	operating	after	
                                                                                                        7	

license	revocation	because	that	is	the	only	crime	that	requires	operation	on	a	

public	 way	 as	 an	 element.	 	 The	 court	 declined	 to	 give	 a	 competing	 harms	

instruction	regarding	the	OUI	charge	because	Nobles	had	admitted	to	operating	

on	 the	 private	 way	 before	 encountering	 the	 witness’s	 and	 her	 stepson’s	

vehicles.	 	 Nobles	 did	 not	 seek	 a	 competing	 harms	 instruction	 regarding	 the	

charge	of	driving	to	endanger.1	

        [¶13]		During	his	closing	argument,	the	prosecutor	made	the	following	

statement	regarding	Nobles’s	behavior	when	approached	by	police:	

      If	this	defendant	was	so	concerned	about	what	was	happening	to	
      him,	and	his	cell	phone	was	dead,	and	he	needed	to	get	to	the	store	
      to	call	the	police,	what	happens?		They	show	up	and,	well,	officer,	
      just	what	I	was	waiting	for.		I	need	to	tell	you	something.		Nope.		He	
      shut	right	up.		He	didn’t	even—he	didn’t	even	want	to	tell	the	police	
      where	he	lived.		
             	
Also	during	closing	and	rebuttal	arguments,	the	prosecutor	characterized	the	

role	 of	 the	 jury	 in	 a	 way	 that	 Nobles	 now	 argues	 constituted	 prosecutorial	

misconduct.		The	prosecutor	stated,	

        [Y]ou	 are	 charged	 with	 a	 duty	 of	 holding	 people	 accountable	 for	
        misdeeds	in	our	communities,	that	it’s	not	just	a	job	that’s	confined	
        to	the	government	or	to	the	police.		It	depends	upon	quite	often	the	
        participation	of	citizens.			

    1		Nonetheless,	in	ruling	on	Nobles’s	requested	competing	harms	instructions,	the	court	stated,	

“I’m	not	persuaded	that	it	applies	to	either	the	driving	to	endanger	or	the	OUI,	both	 of	which	the	
evidence	 is	 clear	 that	 he	 was	 driving	 before	 he	 encountered	 the	 [other]	 vehicle	 and	 had	 the	
experiences	that	he	testified	to.”			
8	

      	
      .	.	.	.	
      	
      	        .	.	.	And	what	the	defendant’s	giving	you	here	today,	or	gave	
      you	yesterday,	was	an	exaggerated	set	of	facts	that	he	has	to	have	
      for	you	in	a	courtroom	to	avoid	being	held	accountable.	
      	
      	        Now,	 this	 process,	 folks,	 as	 I	 said,	 of	 holding	 people	
      accountable,	 people	have	different	roles	to	play.		 And	we	respect	
      those	roles.	.	.	.	You’re	not	here	to	punish.		You’re	to	decide	whether	
      or	not	[Nobles]	should	be	held	accountable.		If	there	is	punishment,	
      then	it’s	up	to	this	learned	presiding	justice.		You’re	not	punishing	
      him.	
      	
      	        But	folks,	think	about	this.		You	have	a	responsibility	and	it’s	
      different	 from	 everybody	 else’s.	 	 You	 too	 are	 members	 of	 the	
      community.		And	when	[the	witness]	says	that	she	called	the	police	
      because	she	was	concerned	about	the	danger	that	[Nobles]	posed,	
      she	took	her	responsibility	seriously.		She	did	what	her	part	was.		
      And	now	you	folks	have	a	responsibility.		That’s	how	this	process	
      works	 in	 this	 country.	 	 It	 is	 left	 to	 citizens	 on	 juries	 to	 make	
      decisions	about	whether	or	not	people	should	be	held	accountable.		
      Police	 can’t	 do	 that	 by	 themselves.	 	 Prosecutors	 can’t	 do	 it,	 the	
      government	can’t	do	it.		It	comes	down	to	people	in	your	situation,	
      based	 upon	 the	 evidence,	 and	 that’s	 what	 you	 should	 decide	 this	
      case	on.		Based	upon	the	evidence.			
               	
      [¶14]	 	 Defense	 counsel	 did	 not	 object	 to	 the	 prosecutor’s	 closing	

arguments.		The	jury	found	Nobles	guilty	of	all	three	charges.			

      [¶15]		For	operating	under	the	influence,	the	court	sentenced	Nobles	to	

four	 and	 one-half	 years’	 imprisonment,	 with	 all	 but	 two	 and	 one-half	 years	

suspended,	and	it	imposed	a	two-year	term	of	probation,	a	fine	of	$2,500,	and	
                                                                                                        9	

an	 eight-year	 license	 suspension.2	 	 For	 operating	 after	 habitual	 offender	

revocation,	the	court	sentenced	Nobles	to	two	years’	imprisonment	concurrent	

with	 the	 OUI	 sentence	 and	 a	 fine	 of	 $1,000;	 and	 for	 the	 driving	 to	 endanger	

count,	the	court	sentenced	Nobles	to	150	days’	imprisonment,	concurrent	with	

the	other	counts,	and	imposed	a	fine	of	$575	and	a	180-day	license	suspension.		

Nobles	appealed	from	the	judgment.		See	15	M.R.S.	§	2115	(2017);	M.R.	App.	P.	2	

(Tower	2016).3			

                                           II.		DISCUSSION	

A.	       Motion	for	Mistrial	

	         [¶16]	 	 Nobles	 first	 contends	 that	 the	 court	 abused	 its	 discretion	 in	

denying	his	motion	for	a	mistrial	after	the	officer	testified	that	Nobles	was	on	

probation	at	the	time	of	his	arrest.		He	argues	that	the	testimony	was	prejudicial	

because	it	painted	him	as	a	dangerous	criminal	with	prior	convictions.			

	         [¶17]		In	recognition	of	the	trial	court’s	superior	vantage	point	in	ruling	

on	a	motion	for	a	mistrial,	we	review	the	denial	of	such	a	motion	for	an	abuse	

of	discretion.		See	State	v.	Logan,	2014	ME	92,	¶	14,	97	A.3d	121.		We	will	vacate	



      2		In	the	preceding	ten	years,	Nobles	had	been	convicted	of	three	or	more	OUI	offenses.			


      3		The	notice	of	appeal	was	filed	before	September	1,	2017,	the	effective	date	of	the	restyled	Maine	

Rules	of	Appellate	Procedure.		See	M.R.	App.	P.	1	(providing	that	the	restyled	rules	apply	for	appeals	
in	which	the	notice	of	appeal	was	filed	before	September	1,	2017).	
10	

a	court’s	denial	of	a	motion	for	a	mistrial	“only	when	there	is	prosecutorial	bad	

faith	 or	 there	 are	 exceptionally	 prejudicial	 circumstances.”	 	 State	 v.	 Tarbox,	

2017	ME	71,	¶	18,	158	A.3d	957.	

	     [¶18]	 	 “Generally,	 when	 a	 witness	 testifies	 to	 inadmissible	 evidence,	 a	

defendant	 is	 only	 entitled	 to	 a	 curative	 jury	 instruction,	 not	 a	 mistrial.”		

State	v.	Winslow,	2007	ME	124,	¶	19,	930	A.2d	1080.		If	the	court	has	opted	to	

provide	a	curative	instruction,	we	will	not	disturb	its	decision	unless	the	court	

committed	 clear	 error	 by	 not	 finding	 that	 the	 jury’s	 exposure	 to	 prejudicial	

inadmissible	evidence	would	incurably	taint	the	jury’s	verdict.		See	Logan,	2014	

ME	 92,	 ¶	 14,	 97	 A.3d	 121.	 	 We	 presume	 that	 the	 jury	 follows	 the	 court’s	

delivered	jury	instructions,	including	any	curative	instructions.		Tarbox,	2017	

ME	71,	¶	18,	158	A.3d	957.	

	     [¶19]	 	 Here,	 there	 is	 no	 indication	 of	 prosecutorial	 bad	 faith.	 	 The	

prosecutor	 did	 not	 ask	 any	 questions	 that	 could	 be	 expected	 to	 result	 in	 a	

response	from	the	officer	about	Nobles’s	probation	status.		See	Winslow,	2007	

ME	 124,	 ¶	 20,	 930	 A.2d	 1080.	 	 Lack	 of	 prosecutorial	 bad	 faith	 is	 also	

demonstrated	 by	 the	 prosecutor’s	 immediate	 reaction,	 asking	 the	 officer	 to	

answer	only	the	question	that	he	had	posed.		See	id.		Nor	were	the	circumstances	

exceptionally	prejudicial,	given	that	the	statement	was	isolated	and	vague,	and	
                                                                                                     11	

that	 Nobles	 himself	 testified	 that	 his	 license	 had	 been	 revoked.4	 	 See	 Tarbox,	

2017	ME	71,	¶	19,	158	A.3d	957.		The	court	did	not	err	in	finding	that	a	curative	

jury	 instruction	 was	 a	 sufficient	 remedy	 and	 did	 not	 abuse	 its	 discretion	 in	

denying	Nobles’s	motion	for	a	mistrial.	

B.	      Prosecutorial	Misconduct	

	        [¶20]	 	 Nobles	 next	 argues	 that,	 although	 he	 did	 not	 challenge	 the	

prosecutor’s	 conduct	 during	 trial,	 the	 trial	 court	 committed	 obvious	 error	 in	

failing	to	take	any	action	to	remedy	prosecutorial	misconduct.		Specifically,	he	

argues	 that	 he	 was	 deprived	 of	 a	 fair	 trial	 because	 the	 prosecutor	

(1)	unconstitutionally	 commented	 on	 Nobles’s	 reluctance	 to	 speak	 with	 the	

police	before	and	after	he	was	arrested	and	(2)	impermissibly	argued	that	the	

jury	should	hold	Nobles	“accountable”	during	closing	arguments.			

	        [¶21]		Because	Nobles	did	not	object	at	trial	about	what	he	contends	on	

appeal	was	prosecutorial	misconduct,	we	review	for	obvious	error.		See	State	v.	

Dolloff,	 2012	 ME	 130,	 ¶	 35,	 58	 A.3d	 1032.	 	 To	 prevail	 on	 an	 argument	 that	

prosecutorial	 misconduct	 amounted	 to	 obvious	 error,	 a	 defendant	 must	 first	

demonstrate	 that	 (1)	 there	 was	 prosecutorial	 misconduct	 that	 went	


      4		Although	Nobles	also	stipulated	that	he	had	been	convicted	of	three	or	more	OUI	offenses	in	the	

preceding	ten	years,	that	information	was	not	presented	to	the	jury,	and	the	jury	was	not	asked	to	
reach	findings	about	those	prior	convictions.			
12	

unaddressed	by	the	court	and	(2)	the	error	was	plain.		See	id.	¶	36.		An	error	is	

plain	if	it	“is	so	clear	under	existing	law	that	the	court	and	the	prosecutor	were	

required	to	address	the	matter	even	in	the	absence	of	a	timely	objection.”		State	

v.	Robinson,	2016	ME	24,	¶	26,	134	A.3d	828	(quotation	marks	omitted).		If	the	

defendant	meets	this	burden,	the	defendant	must	next	demonstrate	(3)	that	the	

error	 was	 sufficiently	 prejudicial	 to	 have	 affected	 the	 outcome	 of	 the	

proceeding,	 thereby	 demonstrating	 a	 reasonable	 probability	 that	 the	 error	

affected	his	substantial	rights.		See	Dolloff,	2012	ME	130,	¶	37,	58	A.3d	1032.		

Finally,	we	will	set	aside	a	jury’s	verdict	only	if	we	further	conclude	that	(4)	the	

error	 seriously	 affects	 the	 fairness	 and	 integrity	 of	 judicial	 proceedings.	 	 Id.	

¶	35.	 	 “When	 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.”		Id.	¶	38.	

	      1.	    Pre-	and	Post-Arrest	Silence	

       [¶22]		Nobles	contends	that	the	prosecutor	engaged	in	misconduct	in	his	

closing	 argument	 when	 he	 referenced	 Nobles’s	 pre-	 and	 post-arrest	 silence	

with	the	police.		He	contends	that,	at	the	time	of	his	arrest	and	just	following	his	

arrest,	 he	 had	 the	 absolute	 constitutional	 right	 to	 remain	 silent	 and	 that	 the	
                                                                                                     13	

prosecutor’s	argument	violated	his	constitutional	protection	against	compelled	

self-incrimination.			

        [¶23]		When	a	defendant	does	not	testify	at	trial,	the	Fifth	and	Fourteenth	

Amendments	 of	 the	 United	 States	 Constitution5	 may	 be	 violated	 if	 state	

prosecutors	 comment	 on	 the	 accused’s	 invoked	 silence,	 including	 pretrial	

silence.		See	Griffin	v.	California,	380	U.S.	609,	615	(1965);	State	v.	Lovejoy,	2014	

ME	 48,	 ¶	22,	 89	 A.3d	 1066	 (“[I]ndividuals	 are	 endowed	 with	 the	 Fifth	

Amendment’s	 protections	 against	 compelled	 self-incrimination	 both	 before	

and	after	arrest.”);	State	v.	Diaz,	681	A.2d	466,	467-69	(Me.	1996).	

        [¶24]		Although	we	have	never	required	the	use	of	any	specific	words	for	

a	person	to	invoke	constitutional	protection	for	his	or	her	silence,	we	do	require	

that	 the	 record	 demonstrate	 the	 defendant’s	 actual	 intention	 to	 exercise	 the	

constitutional	right	to	 remain	silent.		See	Lovejoy,	2014	ME	48,	¶	25,	89	A.3d	

1066.		Here,	there	is	no	such	showing	in	the	record.		To	the	contrary,	Nobles	did	

not	remain	silent;	he	was	cursing	and	was	belligerent	and	offensive	in	making	




       5		The	Fifth	Amendment	to	the	United	States	Constitution	provides,	in	relevant	part,	“No	person	

.	.	.	shall	be	compelled	in	any	criminal	case	to	be	a	witness	against	himself,	nor	be	deprived	of	life,	
liberty,	or	property,	without	due	process	of	law	.	.	.	.”		Section	1	of	the	Fourteenth	Amendment	to	the	
United	States	Constitution	provides,	in	relevant	part,	“No	State	shall	.	.	.	deprive	any	person	of	life,	
liberty,	or	property,	without	due	process	of	law	.	.	.	.”	
14	

statements	to	the	officers	about	getting	out	of	his	vehicle	and	about	taking	the	

breath	test.			

       [¶25]		Moreover,	when	a	defendant	elects	to	testify	in	his	own	defense,	

the	use	of	prearrest	silence	to	impeach	a	criminal	defendant’s	credibility	does	

not	 violate	 the	 Fifth	 Amendment.	 	 See	 Jenkins	 v.	 Anderson,	 447	 U.S.	 231,	 238	

(1980).		“[I]mpeachment	follows	the	defendant’s	own	decision	to	cast	aside	his	

cloak	of	silence	and	advances	the	truthfinding	function	of	the	criminal	trial.”		Id.		

Impeachment	of	a	testifying	defendant	by	the	use	of	prearrest	silence	does	not	

violate	the	Fourteenth	Amendment.		See	id.	at	240.	

       [¶26]		In	this	case,	Nobles	had	not	yet	testified	when	the	prosecutor	asked	

the	 officers	 about	 Nobles’s	 statements	 and	 actions.	 	 Defense	 counsel	 had,	

however,	 announced	 during	 her	 opening	 statement	 that	 Nobles	 would	 be	

testifying,	and	she	had	summarized	the	version	of	the	facts	to	which	he	would	

testify.	 	 Nobles’s	 later	 testimony	 was	 consistent	 with	 counsel’s	 opening	

statement	 and	 included	 testimony	 that	 he	 was	 driving	 on	 Route	 11	 to	 find	 a	

telephone	 and	contact	the	police	for	protection,	which	was	inconsistent	with	

the	 observations	 of	 the	 officers	 in	 their	 initial	 encounter	 with	 Nobles.	 	 The	

prosecutor’s	closing	arguments	were	made	after	Nobles’s	testimony.		Because	

Nobles	did	not	invoke	his	right	to	remain	silent,	did	not	actually	remain	silent,	
                                                                                        15	

and	subsequently	chose	to	testify	at	trial,	he	has	not	established	any	error,	let	

alone	 obvious	 error	 “so	 clear	 under	 existing	 law	 that	 the	 court	 and	 the	

prosecutor	were	required	to	address	the	matter	even	in	the	absence	of	a	timely	

objection.”	 	 Robinson,	 2016	 ME	 24,	 ¶	 26,	 134	 A.3d	 828	 (quotation	 marks	

omitted).	

	      2.	    Arguments	Referring	to	Nobles’s	Accountability	

	      [¶27]		Nobles	contends	that	the	prosecutor’s	repeated	argument	that	the	

jury	 had	 a	 duty	 to	 determine	 his	 accountability	 amounted	 to	 prosecutorial	

misconduct	because	it	improperly	suggested	to	the	jury	that	it	had	a	civic	duty	

to	find	him	guilty,	resulting	in	prejudicial	error.			

	      [¶28]	 	 Here,	 the	 language	 preceding	 and	 following	 the	 prosecutor’s	

challenged	statements	provides	important	context.		See	Dolloff,	2012	ME	130,	

¶	70,	58	A.3d	1032.		The	prosecutor	did	not	argue	that	the	jury	had	an	obligation	

to	 hold	 Nobles	 accountable;	 he	 instead	 indicated	 that	 it	 was	 the	 jury’s	 job	 to	

determine	 whether	 Nobles	 should	 be	 held	 accountable.	 	 Additionally,	 the	

prosecutor	predicated	the	jury’s	duty	to	make	that	decision	on	its	consideration	

of	the	evidence,	stating,	“that’s	what	you	should	decide	this	case	on.		Based	upon	

the	 evidence.”	 	 Although	 some	 of	 the	 prosecutor’s	 comments,	 viewed	 in	

isolation,	may	appear	similar	to	the	comments	that	led	us	to	hold	that	there	was	
16	

prosecutorial	misconduct	upon	a	preserved	claim	of	error	in	State	v.	Begin,	2015	

ME	 86,	 ¶¶	 25-28,	 120	 A.3d	 97,	 the	 comments	 here,	 read	 in	 context,	 do	 not	

demonstrate	 obvious	 error	 requiring	 that	 we	 vacate	 the	 judgment	 of	

conviction.	

       [¶29]	 	 Moreover,	 any	 potential	 prejudice	 was	 fully	 remedied	 by	 the	

court’s	full	and	effective	instructions,	including	instructions	that	the	attorneys’	

arguments	are	not	evidence	and	that	the	jury’s	role	is	to	consider	the	evidence	

to	 determine	 whether	 the	 State	 has	 proved	 each	 crime	 beyond	 a	 reasonable	

doubt.		See	id.	¶	28.			

C.	    Competing	Harms	Justification		

       [¶30]		Nobles	finally	contends	that	the	court	erred	in	declining	to	instruct	

the	jury	on	the	justification	of	competing	harms	with	respect	to	the	charges	of	

operating	 under	 the	 influence	 and	 driving	 to	 endanger.	 	 He	 argues	 that	 the	

competing	harms	justification	was	generated	by	his	testimony	that	he	had	to	

continue	driving	to	reach	safety	to	avoid	any	physical	confrontation	with	the	

witness’s	husband.			

	      [¶31]	 	 When	 reviewing	 a	 court’s	 determination	 that	 the	 evidence	 was	

insufficient	to	generate	a	justification,	we	view	the	evidence	in	the	light	most	

favorable	to	the	defendant.		State	v.	Nadeau,	2007	ME	57,	¶	10,	920	A.2d	452.		
                                                                                       17	

Viewed	in	this	way,	the	justification	is	generated	if	the	evidence	is	“sufficient	to	

make	the	existence	of	all	facts	constituting	the	competing	harms	justification	a	

reasonable	 hypothesis	 for	 the	 fact	 finder	 to	 entertain.”	 	 State	 v.	 Lemieux,	

2001	ME	46,	¶	3,	767	A.2d	295	(quotation	marks	omitted).	

	     [¶32]	 	 There	 are	 four	 elements	 of	 the	 competing	 harms	 justification:	

“(1)	the	 defendant	 or	 another	 person	 must	 be	 threatened	 with	 imminent	

physical	harm,	when	viewed	objectively;	(2)	the	present	conduct	must	be	for	

the	purpose	of	preventing	a	greater	harm,	or	stated	another	way,	the	urgency	

of	the	present	harm	must	outweigh	the	harm	that	the	violated	statute	seeks	to	

prevent;	 (3)	 the	 defendant	 must	 subjectively	 believe	 that	 his	 conduct	 is	

necessary;	and	(4)	the	defendant	must	have	no	reasonable,	legal	alternatives	to	

the	 conduct.”	 	 Nadeau,	 2007	 ME	 57,	 ¶	 13,	 920	 A.2d	 452	 (citations	 omitted)	

(quotation	marks	omitted);	see	17-A	M.R.S.	§	103(1)	(2017).		If	generated,	the	

State	 has	 the	 burden	 of	 persuasion	 to	 disprove	 the	 justification	 beyond	 a	

reasonable	doubt.		See	State	v.	Ouellette,	2012	ME	11,	¶	8,	37	A.3d	921.	

	     1.	    OUI	

	     [¶33]		We	are	not	persuaded	by	Nobles’s	argument	that	the	jury	should	

have	been	instructed	on	the	justification	of	competing	harms	with	respect	to	

the	 OUI	 charge.	 	 To	 establish	 the	 elements	 of	 OUI,	 the	 State	 was	 required	 to	
18	

prove	that	Nobles	“[o]perate[d]	a	motor	vehicle	[w]hile	under	the	influence	of	

intoxicants.”	 	 29-A	M.R.S.	 §	 2411(1-A)(A)(1)	 (2017).	 	 Unlike	 the	 crime	 of	

operating	 after	 revocation,	 the	 crime	 of	 OUI	 does	 not	 require	 operation	 on	 a	

public	 way.	 	 Compare	 id.	 with	 29-A	 M.R.S.	 §	 2557-A(1)(A)	 (2017).	 	 Because	

Nobles,	who	denied	having	consumed	alcohol	at	all	on	July	6,	2016,	admitted	

that	he	was	operating	the	vehicle	before	he	encountered	the	witness	and	her	

husband,	even	viewing	the	facts	most	favorably	to	him,	he	has	admitted	that	he	

operated	 his	 vehicle	 at	 a	 time	 when	 no	 cause	 to	 evade	 them	 had	 yet	 arisen.		

Accordingly,	 the	 trial	 court	 did	 not	 err	 when	 it	 determined	 that	 a	 competing	

harms	instruction	was	not	generated	for	the	OUI	charge.	

	      2.	    Driving	to	Endanger	

	      [¶34]		Because	Nobles	did	not	request	the	competing	harms	instruction	

for	the	charge	of	driving	to	endanger,	his	argument	that	the	instruction	should	

have	been	given	for	that	charge	is	unpreserved.		If	a	defendant	explicitly	waives	

the	 delivery	 of	 an	 instruction	 or	 makes	 a	 strategic	 or	 tactical	 decision	 not	 to	

request	it,	we	will	decline	to	engage	in	appellate	review,	even	for	obvious	error.		

See	 State	 v.	 Ford,	 2013	 ME	 96,	 ¶¶	15-17,	 82	 A.3d	 75;	 see	 also	 17-A	 M.R.S.	

§	101(1),	 (3)	 (2017)	 (stating	 that,	 with	 respect	 to	 statutory	 defenses—
                                                                                                             19	

including	 justifications—a	 trial	 court	 is	 not	 required	 “to	 instruct	 on	 an	 issue	

that	has	been	waived	by	the	defendant”).	

	       [¶35]		Here,	although	Nobles	did	not	expressly	waive	the	instruction	for	

the	charge	of	driving	to	endanger,	when	he	was	specifically	asked	to	identify	

the	charges	for	which	he	sought	the	instruction,	he	did	not	include	that	charge.		

He	first	requested	the	instruction	only	with	respect	to	the	charge	of	operating	

after	revocation.		After	some	discussion	about	whether	the	evidence	generated	

the	instruction	for	that	charge,	Nobles	added,	“I’ll	tag	it	on	to	the	OUI	but,	you	

know,	 my	 client	 .	 .	 .	 he’s	 saying	 .	 .	 .	 he	 wasn’t	 drinking.”	 	 The	 court	 asked,	

“[Y]ou’re	now	asking	for	it	.	.	.	on	the	OUI?”	and	Nobles	responded,	“Yes,	I	am.”		

Never	 did	 Nobles	 identify	 the	 charge	 of	 driving	 to	 endanger	 as	 a	 charge	 for	

which	the	competing	harms	instruction	was	generated.6		Given	Nobles’s	explicit	

decision	 to	 request	 the	 competing	 harms	 instruction	 only	 for	 the	 two	 other	

charges,	we	do	not	entertain	his	challenge	to	the	court’s	instructions	on	driving	

to	endanger.		See	Ford,	2013	ME	96,	¶¶	15-17,	82	A.3d	75.	

        The	entry	is:	

                         Judgment	affirmed.	

    6	 	 This	 choice	 is	 understandable;	 the	 instructions	 on	 driving	to	 endanger	 required	 the	 jury	 to	

consider	more	broadly	whether	Nobles,	in	driving	as	he	did	on	July	6,	2016,	acted	in	“gross	deviation	
from	 the	 standard	 of	 conduct	 that	 a	 reasonable	 and	 prudent	 person	 would	 observe	 in	 the	 same	
situation.”		17-A	M.R.S.	§	35(4)(C)	(2017)	(emphasis	added);	see	also	29-A	M.R.S.	§	2413(1)	(2017).			
20	

	     	      	     	     	      	
	
Tina	Heather	Nadeau,	Esq.	(orally),	The	Law	Office	of	Tina	Heather	Nadeau,	
PLLC,	Portland,	for	appellant	Eric	Nobles	
	
R.	Christopher	Almy,	District	Attorney,	and	Chris	Ka	Sin	Chu,	Asst.	Dist.	Atty.	
(orally),	Prosecutorial	District	V,	Bangor,	for	appellee	State	of	Maine	
	
	
Penobscot	County	Unified	Criminal	Docket	docket	number	CR-2016-2580	
FOR	CLERK	REFERENCE	ONLY	
