MAINE	SUPREME	JUDICIAL	COURT	                                               Reporter	of	Decisions	
Decision:	 2017	ME	92	
Docket:	   Ken-16-350	
Argued:	   April	13,	2017	 	         	      	      	      	      	      	
Decided:	  May	11,	2017	
                                                                                                 	
Panel:	        SAUFLEY	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                     STATE	OF	MAINE	
                                              	
                                             v.	
                                              	
                                   JUSTIN	G.	PILLSBURY	
	
	
ALEXANDER,	J.	

          [¶1]	 	 Justin	 G.	 Pillsbury	 appeals	 from	 a	 judgment	 of	 conviction	 for	 one	

count	of	intentional	or	knowing	or	depraved	indifference	murder,	17-A	M.R.S.	

§	 201(1)(A)	 and	 (B)	 (2016),	 entered	 by	 the	 trial	 court	 (Kennebec	 County,	

Murphy,	J.)	following	a	four-day	jury	trial.		On	appeal,	Pillsbury	argues	that	the	

trial	 court	 abused	 its	 discretion	 in	 denying	 his	 motion	 for	 a	 new	 trial.		

Specifically,	 he	 argues	 that	 the	 trial	 court	 clearly	 erred	 when	 it	 found	 (1)	 no	

prosecutorial	misconduct	and	(2)	that	evidence	of	prior	bad	acts	was	properly	

admitted.		We	affirm	the	judgment.	

                                      I.		CASE	HISTORY	

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

jury	 could	 rationally	 have	 found	 the	 following	 facts	 beyond	 a	 reasonable	
2	

doubt.1	 	 See	 State	 v.	 Morrison,	 2016	 ME	 47,	 ¶	 2,	 135	 A.3d	 343.	 	 The	

forty-one-year-old	defendant,	Justin	G.	Pillsbury,	and	the	twenty-four-year-old	

victim	were	dating	in	the	fall	of	2013,	and	had	been	dating	on	and	off	for	over	

two	 years.	 	 In	 November	 2013,	 Pillsbury	 was	 living	 with	 a	 friend	 in	 an	

apartment	on	Crosby	Street	in	Augusta.	

          [¶3]	 	 On	 the	 evening	 of	 November	 13,	 2013,	 Pillsbury	 and	 the	 victim	

were	drinking	in	the	Crosby	Street	apartment.		While	the	two	were	alone,	the	

victim	 was	 texting	 on	 her	 phone,	 and	 Pillsbury	 became	 jealous	 and	 began	

asking	 to	 see	 the	 phone.	 	 The	 victim	 refused	 to	 turn	 over	 her	 phone,	 and	

Pillsbury,	 who	 was	 a	 foot	 taller	 and	 100	 pounds	 heavier,	 physically	 took	 it	

from	 her.	 	 The	 phone	 had	 a	 pattern	 lock	 on	 it,	 and	 Pillsbury	 was	 unable	 to	

unlock	the	phone,	which	angered	him.	

          [¶4]	 	 In	 a	 recorded	 interview	 with	 police	 detectives	 following	 the	

homicide,	 Pillsbury	 stated	 that	 the	 victim	 grabbed	 a	 knife	 from	 a	 butcher’s	

block	on	the	kitchen	counter,	pointed	it	at	Pillsbury,	and	demanded	her	phone	

back.2		Pillsbury	stated	that	he	attempted	to	take	the	knife	from	the	victim	and	

cut	his	finger	in	the	process.		He	was	ultimately	successful	in	taking	the	knife	

     1		Pillsbury	does	not	challenge	the	sufficiency	of	the	evidence,	and	the	evidence	does	support	the	

jury’s	finding	of	guilt	as	to	the	charge	of	murder.		See	17-A	M.R.S.	§	201(1)(A)	and	(B)	(2016).	

     2	 	 In	 that	 recorded	 interview,	 Pillsbury	 stated	 that	 the	 victim	 grabbed	 the	 knife	 “jokingly”	 and	

also	stated	that	he	never	thought	that	she	would	actually	use	the	knife	against	him.	
                                                                                         3	

from	the	victim	and	began	stabbing	her	with	it.		The	victim	retreated	into	the	

bathroom.	 	 Pillsbury	 followed	 her	 into	 the	 bathroom	 where	 he	 continued	 to	

stab	the	her	in	the	neck	and	back.	

      [¶5]		Realizing	what	he	had	done,	Pillsbury	then	took	another	knife	from	

the	butcher	block	and	began	stabbing	himself	in	the	neck	and	slashing	at	his	

arms.		Pillsbury’s	friend—with	whom	he	had	been	staying—returned	home	at	

some	point	between	7:30	and	7:45	p.m.	and	noticed	blood	on	the	floor	of	his	

apartment.		When	he	asked	Pillsbury	what	happened,	Pillsbury	stated	that	the	

victim	was	talking	to	another	man	on	her	phone,	he	blacked	out	and	killed	her,	

and	 now	 he	 was	 trying	 to	 kill	 himself.	 	 The	 friend	 went	 to	 a	 neighbor’s	

apartment	where	the	friend	and	the	neighbor	each	called	the	police.	

      [¶6]	 	 Paramedics	 arrived	 and	 transported	 Pillsbury	 to	 an	 Augusta	

hospital.	 	 During	 transport,	 Pillsbury	 requested	 that	 the	 paramedics	 let	 him	

die	 because	 he	 had	 killed	 his	 girlfriend	 and	 was	 trying	 to	 kill	 himself.	 	 An	

autopsy	 of	 the	 victim	 revealed	 twelve	 stab	 wounds	 to	 her	 back,	 head,	 eye,	

hand,	 and	 neck.	 	 These	 stab	 wounds	 were	 determined	 to	 have	 caused	 the	

victim’s	death.	
4	

          [¶7]	 	 Two	 days	 after	 Pillsbury	 was	 taken	 to	 the	 hospital,	 he	 was	

interviewed	 by	 detectives	 from	 the	 Maine	 State	 Police.3	 	 The	 detectives	 read	

Pillsbury	 the	 Miranda	 warnings,	 and	 he	 agreed	 to	 answer	 questions.	 	 During	

his	 discussion	 with	 police,	 Pillsbury	 admitted	 that	 he	 stabbed	 the	 victim	 to	

death	because	of	his	insecurities,	that	he	had	caused	all	of	the	injuries	to	the	

victim,	 and	 that	 he	 was	 not	 acting	 in	 self-defense.	 	 Following	 the	 interview,	

Pillsbury	was	arrested	for	murder.	

          [¶8]	 	 A	 Kennebec	 County	 grand	 jury	 returned	 an	 indictment	 charging	

Pillsbury	 with	 knowing	 or	 intentional	 or	 depraved	 indifference	 murder	

pursuant	to	17-A	M.R.S.	§	201(1)(A)	and	(B)	(2016),	on	January	24,	2014.		A	

four-day	jury	trial	was	held	on	March	14-17,	2016.	

          [¶9]	 	 During	 the	 State’s	 opening	 statement,	 the	 prosecutor	 remarked,	

“Why	did	Justin	Pillsbury	stab	[the	victim]	to	death?		Because	he	was	jealous.		

Jealousy	 has	 been	 described	 as	 a	 green-eyed	 monster.	 	 Well,	 ladies	 and	

gentlemen,	 on	 November	 13,	 2013,	 that	 green-eyed	 monster	 was	 uncaged	 at	

[the]	apartment	[on]	Crosby	Street	here	in	Augusta.”		Pillsbury	did	not	object.	

          [¶10]		Following	the	State’s	opening	statement,	at	sidebar,	Pillsbury	did	

raise	 a	 concern	 with	 the	 prosecutor’s	 reference	 to	 his	 arrest	 following	 the	

     3	
    	 Detectives	 had	 attempted	 to	 interview	 Pillsbury	 the	 previous	 day;	 but,	 after	 the	 Miranda	
warnings	were	read,	he	had	informed	detectives	that	he	was	not	feeling	up	to	talking	at	that	time.	
                                                                                        5	

interview	 with	 detectives,	 and	 he	 requested	 a	 limiting	 instruction	 that	 an	

arrest	“means	nothing,	or	words	to	that	effect.”		The	court	told	the	parties	that	

the	final	instructions	would	address	the	presumption	of	innocence.		The	court	

then,	sua	sponte,	stated	to	the	prosecutor,	“I	do	want	to	talk	to	you	before	we	

do	 closing	 about	 whether	 or	 not	 you’re	 going	 to	 refer	 to	 the	 defendant	 as	 a	

monster.”	 	 Pillsbury	 did	 not	 request	 any	 further	 relief,	 and	 no	 instructions	

were	given	at	that	time.	

      [¶11]		During	his	opening	statement,	Pillsbury	asserted	that	“he	did	not	

murder	 [the	 victim]	 because	 he	 acted	 in	 self-defense.”	 	 He	 went	 on	 to	 assert	

that	 the	 evidence	 would	 show	 that	 the	 victim	 stabbed	 him	 in	 the	 throat,	 the	

finger,	 and	 above	 the	 eye,	 and	 that	 he	 grabbed	 a	 knife	 out	 of	 the	 sink	 and	

stabbed	the	victim	in	self-defense.	

      [¶12]	 	 The	 following	 morning,	 Pillsbury	 moved	 for	 a	 mistrial,	 arguing	

that	because	“this	is	a	mixed	race	sort	of	case,	[and]	there	have	been	a	number	

of	recent	racial	headlines	unrelated	to	this	case,”	the	prosecutor’s	reference	to	

a	 green-eyed	 monster	 contained	 problematic	 racial	 overtones.	 	 The	

prosecutor	responded	that	“green-eyed	monster”	was	a	well-known	reference	

to	jealousy,	and	was	a	“Shakespearian	thing”	having	nothing	to	do	with	race.		
6	

The	court	denied	the	motion	for	a	mistrial	but	instructed	the	prosecutor	not	to	

refer	to	Pillsbury	as	a	monster	during	closing.	

          [¶13]	 	 During	 its	 case-in-chief,	 the	 State	 called	 an	 acquaintance	 of	 the	

victim	 and	 of	 Pillsbury,	 who	 testified	 to	 an	 incident	 where	 she	 observed	

Pillsbury—due	to	jealousy—physically	assault	the	victim.		Pillsbury	objected,	

arguing	that	the	testimony	contained	evidence	of	prior	bad	acts	prohibited	by	

M.R.	 Evid.	 404(b),	 and	 further	 argued	 that	 any	 probative	 value	 was	

substantially	 outweighed	 by	 the	 danger	 of	 unfair	 prejudice	 under	

M.R.	Evid.	403.		Following	a	voir	dire	of	the	witness,	the	court	concluded	that	

the	 testimony	 was	 relevant	 to	 Pillsbury’s	 motive	 and	 intent,	 and	 to	 the	

relationship	of	the	parties,	and	was	not	unfairly	prejudicial.	

          [¶14]	 	 Pillsbury	 testified	 in	 his	 own	 defense.	 	 During	 his	 testimony	 he	

stated	that	the	victim	became	violent	when	she	was	drunk,	that	she	was	drunk	

on	the	night	of	November	13,	2013,	and	that	he	acted	in	self-defense	after	she	

had	stabbed	him	with	the	knife.		He	also	stated	that	he	did	not	intend	to	kill	

the	victim,	but	only	wanted	to	“neutralize	the	threat.”	

          [¶15]		The	jury	returned	a	verdict	of	guilty	on	the	charge	of	intentional	

or	 knowing	 or	 depraved	 indifference	 murder.4	 	 Pillsbury	 moved	 for	 a	 new	


     4	
     	 Pillsbury	 was	 sentenced	 to	 fifty	 years’	 incarceration	 and	 ordered	 to	 pay	 $3,900	 to	 the	
Victim’s	Compensation	Fund.	
                                                                                             7	

trial,	 M.R.U.	 Crim.	 P.	 33,	 arguing	 that	 he	 was	 deprived	 of	 a	 fair	 trial	 and	 was	

unfairly	 prejudiced	 by	 the	 prosecutor’s	 “uncaged”	 “green-eyed	 monster”	

comment,	 and	 that	 the	 testimony	 about	 his	 prior	 bad	 acts	 was	 barred	 by	

M.R.	Evid.	 403	 and	 404(b).	 	 A	 hearing	 on	 the	 motion	 was	 held	 on	

May	10,	2016.		After	the	hearing,	the	court	orally	denied	the	motion.		Pillsbury	

then	 brought	 this	 appeal.	 	 See	 15	M.R.S.	 §	 2115	 (2016);	 M.R.	 App.	 P	 2(a)(1),	

(b)(2)(A).	

                                  II.		LEGAL	ANALYSIS	

       [¶16]	 	 On	 appeal,	 Pillsbury	 argues	 that	 the	 trial	 court	 abused	 its	

discretion	 in	 denying	 his	 motion	 for	 a	 new	 trial.	 	 Specifically,	 he	 argues	 that	

the	 trial	 court	 erred	 when	 it	 found	 (1)	 no	 prosecutorial	 misconduct,	 and	

(2)	that	the	evidence	of	prior	bad	acts	was	admissible.	

       [¶17]		We	review	the	factual	findings	underlying	the	denial	of	a	motion	

for	 a	 new	 trial	 for	 clear	 error,	 and	 the	 overall	 decision	 for	 an	 abuse	 of	

discretion.		See	State	v.	Carey,	2013	ME	83,	¶	26,	77	A.3d	471.		We	will	vacate	a	

conviction	only	when	the	defendant	was	deprived	of	a	fair	trial.		Id.	

A.		   Prosecutor’s	Statements	

       [¶18]	 	 We	 review	 a	 preserved	 claim	 of	 prosecutorial	 misconduct	 for	

harmless	 error.	 	 See	 State	 v.	 Dolloff,	 2012	 ME	 130,	 ¶¶	 31-34,	 58	 A.3d	 1032.		
8	

“Any	 error,	 defect,	 irregularity,	 or	 variance	 that	 does	 not	 affect	 substantial	

rights	 shall	 be	 disregarded.”	 	 M.R.U.	 Crim.	 P.	 52(a).	 	 “When	 an	 objection	 has	

been	 made	 to	 a	 prosecutor’s	 statements	 at	 trial,	 we	 review	 to	 determine	

whether	 there	 was	 actual	 misconduct,	 and,	 if	 so,	 whether	 the	 trial	 court’s	

response	 remedied	 any	 prejudice	 resulting	 from	 the	 misconduct.”	 	 Dolloff,	

2012	ME	130,	¶	32,	58	A.3d	1032	(citations	omitted).		“Harmful	error	is	error	

that	affects	the	criminal	defendant’s	substantial	rights,	meaning	that	the	error	

was	 sufficiently	 prejudicial	 to	 have	 affected	 the	 outcome	 of	 the	 proceeding.”		

Id.	¶	33	(citations	omitted).	

      [¶19]	 	 Here,	 Pillsbury	 did	 not	 initially	 express	 concern	 about	 the	

“monster”	 references	 in	 the	 prosecutor’s	 opening	 statement;	 it	 was	 the	 trial	

court,	sua	sponte,	that	raised	the	issue.		Although	the	court	expressed	concern	

about	 that	 portion	 of	 the	 prosecutor’s	 statement,	 the	 court	 addressed	 that	

concern	appropriately.		The	court	instructed	the	State	not	to	refer	to	Pillsbury	

as	 a	 monster	 during	 closing.	 	 The	 court	 also	 specifically	 stated	 to	 the	 jury—

both	before	opening	statements	and	as	part	of	its	final	instructions—that	the	

opening	 and	 closing	 statements	 by	 the	 parties	 are	 not	 evidence	 from	 which	

the	jury	can	find	facts.		The	court	further	instructed	that	the	jury	should	find	

facts	 free	 from	 “any	 passion,	 any	 prejudice,	 any	 sympathy	 or	 any	 bias	
                                                                                                           9	

whatsoever.”	 	 “Juries	 are	 presumed	 to	 have	 followed	 jury	 instructions	 .	 .	 .	 .”		

Dolloff,	 2012	 ME	 130,	 ¶	55,	58	 A.3d	 1032.	 	 Pillsbury	 has	 cited	 nothing	 in	 the	

record	to	indicate	that	the	jury	was	unable	to	follow	those	instructions.	

        [¶20]	 	 As	 the	 trial	 court	 found,	 the	 prosecutor	 said	 nothing	 that	

constituted	prosecutorial	misconduct.		Although	the	court	also	stated,	“I	think	

[the	comment	about	the	uncaged	monster]	was	right	on	the	line	of	a	statement	

that	 could	 have	 resulted	 in	 inflaming	 the	 jury	 or	 prejudicing	 the	 jury,”	

Pillsbury	was	not	deprived	of	a	fair	trial.	

        [¶21]	 	 A	 prosecutor	 may	 use	 “wit,	 satire,	 invective	 and	 imaginative	

illustration	 in	 arguing	 the	 State’s	 case,”	 and	 may	 present	 an	 analysis	 of	 the	

evidence	 in	 opening	 or	 closing	 statements	 “with	 vigor	 and	 zeal”	 as	 long	 as	

those	 statements	 do	 not	 invite	 the	 jury	 to	 make	 its	 decision	 based	 on	

something	 other	 than	 the	 evidence.	 	 See	 Dolloff,	 2012	 ME	 130,	 ¶	 41,	

58	A.3d	1032	(quoting	State	v.	Weisbrode,	653	A.2d	411,	416	(Me.	1995)).		No	

such	invitation	was	made	here,	and	the	interests	of	justice	do	not	require	us	to	

vacate	Pillsbury’s	conviction,	especially	given	the	substantial	evidence	against	

him	that	was	presented	to	the	jury.5	



   5		As	discussed	previously,	this	evidence	included	Pillsbury’s	confession	to	the	murder	made	to	

both	responding	paramedics	and	the	friend	he	was	staying	with	at	the	Crosby	Street	apartment.		It	
also	 included	 the	 recorded	 interview	 with	 detectives	 in	 which	 Pillsbury	 admitted	 that	 he	 stabbed	
10	

B.		   Evidence	of	Prior	Bad	Acts		

	      [¶22]		We	review	a	trial	court’s	decision	to	admit	evidence	of	prior	bad	

acts	 pursuant	 to	 M.R.	 Evid.	 404(b)	 for	 clear	 error,	 and	 its	 determination	

pursuant	 to	 M.R.	 Evid.	 403	 for	 an	 abuse	 of	 discretion.	 	 Steadman	 v.	 Pagels,	

2015	 ME	 122,	 ¶	 18,	 125	 A.3d	 713;	 State	 v.	 Hassan,	 2013	 ME	 98,	 ¶	 29,	

82	A.3d	86.		Rule	404(b)	provides	that	“[e]vidence	of	a	crime,	wrong,	or	other	

act	is	not	admissible	to	prove	a	person’s	character	in	order	to	show	that	on	a	

particular	 occasion	 the	 person	 acted	 in	 accordance	 with	 the	 character.”		

M.R.	Evid.	 404(b).	 	 The	 rule,	 however,	 permits	 “the	 admission	 of	 evidence	 of	

prior	bad	acts	for	any	other	permissible	purpose,	such	as	motive,	opportunity,	

intent,	 preparation,	 plan,	 knowledge,	 identity,	 or	 absence	 of	 mistake	 or	

accident.”	 	 Steadman,	 2015	 ME	 122,	 ¶	 17,	 125	 A.3d	 713.	 	 Though	 otherwise	

admissible,	 a	 court	 may	 exclude	 evidence	 where	 “its	 probative	 value	 is	

substantially	 outweighed	 by	 a	 danger	 of	 .	 .	 .	 unfair	 prejudice	 .	 .	 .	 .”		

M.R.	Evid.	403.	

	      [¶23]	 	 Here,	 the	 testimony	 regarding	 Pillsbury’s	 prior	 assault	 of	 the	

victim	as	a	result	of	his	jealousy	was	admissible	because	it	went	to	his	motive	

and	 intent,	 and	 to	 the	 relationship	 between	 Pillsbury	 and	 the	 victim.	 	 The	

the	victim	to	death	because	of	his	insecurities,	that	he	had	caused	all	of	the	injuries	to	the	victim,	
and	that	he	was	not	acting	in	self-defense.	
                                                                                                           11	

State’s	theory	was	that	jealousy	was	prevalent	in	the	relationship	between	the	

victim	and	Pillsbury,	and	that	it	was	jealousy	that	caused	Pillsbury	to	murder	

the	 victim.	 	 The	 witness’s	 testimony	 supported	 that	 theory	 and	 was	

informative	about	the	relationship	because	the	witness	observed	Pillsbury—

due	to	jealousy—shove	the	victim	and	accuse	the	victim	of	cheating	on	him.6		

See	State	v.	Pratt,	2015	ME	167,	¶	25,	130	A.3d	381	(observing	that	evidence	

of	 a	 prior	 incident	 where	 the	 victim	 was	 physically	 abused	 by	 the	 defendant	

was	admissible	to	show	“motive,	intent,	identity.	.	.	and	the	relationship	of	the	

parties”).	

        [¶24]	 	 Rule	 403	 does	 not	 bar	 the	 admission	 of	 adverse	 or	 prejudicial	

evidence.	 	 The	 court	 may	 exclude	 evidence	 if	 the	 probative	 value	 is	

   6	 	 The	 admission	 of	 the	 evidence	 was	 also	 proper	 given	 Pillsbury’s	 statements	 pertaining	 to	

self-defense	 made	 during	 his	 opening.	 	 We	 have	 observed	 that	 statements	 made	 during	 a	 party’s	
opening	can	place	an	issue	before	the	jury.		See	State	v.	Lockhart,	2003	ME	108,	¶	49,	830	A.2d	433	
(observing	 that	 a	 reference	 in	 the	 prosecutor’s	 opening	 statement	 addressing	 the	 defendant’s	
theory	 of	 the	 case	 was	 proper	 because	 the	 defendant’s	 theory	 of	 the	 case	 was	 before	 the	 jury).		
Because	 Pillsbury	 stated	 in	 his	 opening	 that	 he	 acted	 in	 self-defense,	 which	 was	 contrary	 to	
statements	 he	 had	 previously	 made	 to	 paramedics	 and	 detectives,	 evidence	 of	 a	 prior	 incident	
where	 he	 became	 jealous	 and	 physically	 accosted	 the	 victim	 was	 proper.	 	 See	 State	 v.	 Gorman,	
2004	ME	90,	¶	41,	854	A.2d	1164	(observing	that	a	trial	court	action,	proper	under	the	law,	may	be	
affirmed,	even	for	a	different	reason	than	that	given	by	the	trial	court).	

     The	facts	of	this	case	are	distinguishable	from	the	facts	of	State	v.	Donovan,	1997	ME	181,	698	
A.2d	 1045,	 in	 which	 we	 held	 that	 a	 defendant’s	 statement	 during	 opening—that	 the	 victim	 had	
voluntarily	 returned	 to	 the	 defendant’s	 house,	 thus	 demonstrating	 the	 pretextual	 nature	 of	 her	
accusations—did	not	“open	the	door”	for	the	State	to	present	evidence	of	the	victim’s	prior	marital	
history	 and	 abusive	 relationships	 because	 those	 relationships	 were	 never	 placed	 in	 issue.		
Id.	¶¶	6-9.		Here,	Pillsbury’s	opening	statement	focused	squarely	on	how	the	evidence	would	show	
that	he	acted	in	self-defense	and	had	not	murdered	the	victim,	thus	placing	the	issue	of	self-defense	
before	 the	 jury.	 	 Because	 the	 issue	 of	 self-defense	 was	 before	 the	 jury,	 the	 admission	 of	 the	
witness’s	 testimony	 regarding	 Pillsbury’s	 prior	 attack	 on	 the	 victim	 stemming	 from	 jealousy	 was	
proper.	
12	

substantially	 outweighed	 by	 a	 danger	 of	 unfair	 prejudice.7	 	 Here,	 as	 the	 trial	

court	explicitly	found,	the	evidence	was	adverse	to	Pillsbury,	but	there	was	no	

“unfair	prejudice”	resulting	from	its	admission.		Because	the	trial	court	did	not	

clearly	err	or	abuse	its	discretion	in	admitting	the	evidence	of	Pillsbury’s	prior	

assault	of	the	victim,	we	affirm	the	conviction.	

         The	entry	is:	

                            Judgment	affirmed.		
	
	      	      	       	    	     	
	
Stephen	C.	Smith,	Esq.,	and	Caleb	J.	Gannon,	Esq.	(orally),	Lipman	&	Katz,	PA,	
Augusta,	for	appellant	Justin	Pillsbury	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Donald	 W.	 Macomber,	 Asst.	 Atty.	 Gen.	
(orally),	Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine	
	
	
Kennebec	County	Superior	Court	docket	number	CR-2013-1074	
FOR	CLERK	REFERENCE	ONLY	




   7		 The	 seminal	 treatise	 on	 evidence	 has	 succinctly	 observed	 that	 “prejudice,	 in	 this	 context,	
means	 more	 than	 simply	 damage	 to	 the	 opponent’s	 cause.	 	 A	 party’s	 case	 is	 always	 damaged	 by	
evidence	 that	 the	 facts	 are	 contrary	 to	 his	 contentions;	 but	 that	 cannot	 be	 ground	 for	 exclusion.		
What	 is	 meant	 here	 is	 an	 unfair	 tendency	 to	 move	 the	 tribunal	 to	 decide	 on	 an	 improper	 basis,	
commonly,	 though	 not	 always,	 an	 emotional	 one.”	 	 McCormick,	 Handbook	 on	 the	 Law	 of	 Evidence	
439	n.31	(2d	ed.	1972)	(quoted	in	State	v.	Hurd,	360	A.2d	525,	527	n.5	(Me.	1976)).	
