MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	40	
Docket:	   Pen-16-514	
Argued:	   October	25,	2017	
Decided:	  March	20,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                  STATE	OF	MAINE	
                                          	
                                         v.	
                                          	
                                 JOHN	A.	WECKERLY	
	
	
GORMAN,	J.	

	     [¶1]		John	A.	Weckerly	appeals	from	a	judgment	of	conviction	for	arson	

(Class	 A),	 17-A	 M.R.S.	 §	 802(1)(B)(2)	 (2017),	 entered	 by	 the	 trial	 court	

(Penobscot	 County,	 Anderson,	 J.)	 after	 a	 jury	 trial.	 	 Weckerly	 argues	 that	 the	

court’s	admission	of	evidence	of	crimes	 of	which	he	 was	 acquitted	in	a	 prior	

trial	violated	the	collateral	estoppel	component	of	double	jeopardy.		Given	the	

unique	circumstances	presented	in	this	case,	we	agree	and	vacate	the	judgment.	

                                   I.		BACKGROUND	

      [¶2]	 	 In	 November	 of	 2011,	 a	 Penobscot	 County	 grand	 jury	 indicted	

Weckerly	on	one	count	of	arson	(Class	A),	17-A	M.R.S.	§	802(1)(B)(2)	(Count	1),	

for	 setting	 fire	 to	 a	 vehicle	 driven	 by	 an	 investigator	 with	 the	 State	 Fire	

Marshal’s	office	on	August	3,	2011,	in	Prentiss	Plantation,	a	remote	area	of	the	
2	

county.		Five	months	later,	in	April	of	2012,	the	same	grand	jury	issued	a	second	

indictment	against	Weckerly	containing	eleven	additional	charges,	all	alleged	

to	 have	 been	 committed	 by	 Weckerly	 in	 Prentiss	 Plantation	 between	 May	 of	

2010	 and	 July	 of	 2011:	 aggravated	 criminal	 mischief	 (Class	 C),	 17-A	M.R.S.	

§	805(1)(A)	 (2017)	 (Count	 2);	 burglary	 (Class	B),	 17-A	M.R.S.	 §	401(1)(B)(4)	

(2017)	 (Count	 6);	 theft	 by	 unauthorized	 taking	 (Class	 E),	 17-A	M.R.S.	

§	353(1)(A)	 (2017)	 (Count	 7);	 five	 counts	 of	 criminal	 mischief	 (Class	 D),	

17-A	M.R.S.	 §	 806(1)(A)	 (2017)	 (Counts	 3-5,	 8,	 11);	 two	 additional	 counts	 of	

arson	(Class	A),	17-A	M.R.S.	§	802(1)(B)(2)	(Counts	9-10);	and	another	count	

of	arson	(Class	A),	17-A	M.R.S.	§	802(1)(A)	(2017)	(Count	12).		In	particular,	in	

Counts	9	and	10,	the	State	alleged	that	Weckerly	had	committed	arson	on	the	

property	of	Chris	Jones	on	November	16,	2010,	and	July	3,	2011,	respectively;	

in	Count	11,	the	State	alleged	that	Weckerly	had	committed	criminal	mischief	

by	spray-painting	graffiti	on	the	property	of	Joseph	Couture	on	July	11,	2011;	

and	in	Count	12,	the	State	alleged	that	Weckerly	had	committed	arson	on	the	

property	 of	 John	 Dreon	 on	 July	 20,	 2011.	 	 Weckerly	 pleaded	 not	 guilty	 to	 all	

counts.			

       [¶3]		After	a	six-day	trial	in	2013,	the	jury	found	Weckerly	not	guilty	of	

Counts	 2-12,	 but	 could	 not	 reach	 a	 verdict	 on	 Count	 1,	 the	 arson	 of	 the	 fire	
                                                                                                             3	

marshal’s	 vehicle.	 	 The	 court	 entered	 a	 judgment	 acquitting	 Weckerly	 of	

Counts	2-12	and,	with	Weckerly’s	agreement,	declared	a	mistrial	on	Count	1.	

	       [¶4]	 	 In	 preparation	 for	 the	 second	 trial,	 Weckerly	 moved	 in	 limine	 to	

exclude	any	evidence	relating	to	Counts	2-12	on	the	ground	that	such	evidence	

would	 violate	 double	 jeopardy	 principles	 because	 he	 had	 already	 been	

acquitted	 of	 those	 charges.	 	 After	 a	 hearing,	 the	 court	 denied	 the	 motion,	

concluding	that	double	jeopardy	did	not	preclude	the	admission	of	the	evidence	

and	that	the	evidence	was	admissible	to	show	Weckerly’s	motive,	intent,	and	

state	of	mind.1			

	       [¶5]		In	2015,	the	court	conducted	a	second	jury	trial	on	Count	1.		During	

the	second	trial,	the	court	admitted	evidence	relating	to	Counts	9-12	that	was	

presented	in	the	first	trial.		Three	times	during	the	trial,	the	court	instructed	the	

jury	 that	 Weckerly	 had	 already	 been	 charged	 with—and	 acquitted	 of—those	

four	 crimes.	 	 The	 court	 denied	 Weckerly’s	 later	 motion	 for	 a	 judgment	 of	

acquittal.			


    1	 	 We	 dismissed	 as	 interlocutory	 Weckerly’s	 appeal	 from	 the	 denial	 of	 this	 motion	 in	 limine;	

because	Weckerly’s	appeal	did	not	challenge	the	denial	of	a	motion	to	dismiss	on	double	jeopardy	
grounds,	it	did	not	qualify	for	the	double	jeopardy	exception	to	the	final	judgment	rule.		See	State	v.	
Nielsen,	2000	ME	202,	¶	1	n.1,	761	A.2d	876.		In	January	of	2014,	Weckerly	moved	to	dismiss	Count	1	
of	 the	 indictment	 on	 double	 jeopardy	 grounds.	 	 We	 affirmed	 the	 court’s	 denial	 of	 the	 motion	 to	
dismiss.	 	 State	 v.	 Weckerly,	 Mem-14-146	 (Nov.	 4,	 2014).	 	 In	 that	 decision,	 we	 determined	 that	
Weckerly’s	challenge	to	the	court’s	denial	of	his	motion	in	limine	to	exclude	from	the	second	trial	the	
evidence	 underlying	 Counts	 2-12	 was	 interlocutory,	 and	 we	 therefore	 declined	 to	 consider	 the	
argument.		Id.			
4	

          [¶6]	 	 The	 jury	 found	 Weckerly	 guilty	 of	 the	 arson	 of	 the	 fire	 marshal’s	

vehicle.		The	court	entered	a	judgment	on	the	verdict,	sentencing	Weckerly	to	

seven	years	in	prison,	all	suspended,	with	four	years	of	probation	and	$5,000	

in	restitution.2		Weckerly	appeals.			

                                           II.		DISCUSSION	

          [¶7]	 	 Both	 the	 United	 States	 and	 Maine	 Constitutions	 offer	 protections	

against	 double	 jeopardy.	 	 U.S.	 Const.	 amend.	 V	 (“[N]or	 shall	 any	 person	 be	

subject	for	the	same	offence	to	be	twice	put	in	jeopardy	of	life	or	limb	.	.	.	.”);	

Me.	Const.	 art.	 I,	 §	 8	 (“No	 person,	 for	 the	 same	 offense,	 shall	 be	 twice	 put	 in	

jeopardy	 of	 life	 or	 limb.”);	 Ayotte	 v.	 State,	 2015	 ME	 158,	 ¶	 11,	 129	A.3d	 285.		

These	provisions	prevent	a	second	prosecution	for	the	same	offense	after	 an	

acquittal	or	conviction,	or	the	imposition	of	multiple	punishments	for	the	same	

offense.		Ayotte,	2015	ME	158,	¶	13,	129	A.3d	285.		As	the	United	States	Supreme	

Court	has	explained,	the	prohibition	against	double	jeopardy	serves	

          two	 vitally	 important	 interests.	 	 The	 first	 is	 the	 deeply	 ingrained	
          principle	that	the	State	with	all	its	resources	and	power	should	not	
          be	allowed	to	make	repeated	attempts	to	convict	an	individual	for	
          an	 alleged	 offense,	 thereby	 subjecting	 him	 to	 embarrassment,	
          expense	and	ordeal	and	compelling	him	to	live	in	a	continuing	state	
          of	anxiety	and	insecurity,	as	well	as	enhancing	the	possibility	that	
          even	though	innocent	he	may	be	found	 guilty.		The	second	is	the	
          preservation	of	the	finality	of	judgments.	

     2	
     	 Weckerly’s	 application	 for	 leave	 to	 appeal	 his	 sentence	 was	 denied.	 	 State	 v.	 Weckerly,	
No.	SRP-16-518	(Me.	Sent.	Rev.	Panel	Jan.	26,	2017).	
                                                                                                        5	

     	
Yeager	 v.	 United	 States,	 557	 U.S.	 110,	 117-18	 (2009)	 (citations	 omitted)	

(quotation	marks	omitted).			

        [¶8]		Weckerly	contends	that	the	court	violated	his	right	to	be	protected	

against	double	jeopardy	by	admitting	in	his	second	trial	evidence	on	which	the	

State	relied	to	try	to	prove	some	of	the	charges	of	which	he	was	acquitted	in	his	

first	trial—namely,	evidence	for	Counts	9-12	regarding	three	arsons	(two	fires	

on	Jones’s	property	and	one	fire	on	Dreon’s	property)	and	one	count	of	criminal	

mischief	(spray-painted	graffiti	on	Couture’s	property).3		Weckerly’s	argument	

requires	 us	 to	 determine	 whether	 and	 to	 what	 extent	 evidence	 that	 was	

admitted	in	a	prior	prosecution	to	prove	different	criminal	charges	of	which	the	

defendant	 ultimately	 was	 acquitted	 may	 be	 admitted	 in	 a	 later	 prosecution.4		

We	 consider	 de	 novo	 whether	 the	 application	 of	 double	 jeopardy	 principles	




   3		There	is	no	dispute	that	double	jeopardy	considerations	did	not	bar	the	prosecution	of	Weckerly	

for	arson	of	the	fire	marshal’s	vehicle	in	the	second	trial	given	the	hung	jury	on	that	count	in	the	first	
trial.		See	Yeager	v.	United	States,	557	U.S.	110,	118	(2009)	(holding	that	a	mistrial	for	a	hung	jury	is	
a	“manifest	necessity”	that	has	no	preclusive	effect	on	a	subsequent	prosecution	for	the	same	crime	
(quotation	marks	omitted));	State	v.	Linscott,	416	A.2d	255,	258-59	(Me.	1980)	(same);	see	also	State	
v.	Weckerly,	Mem-14-146	(Nov.	4,	2014)	(affirming	the	court’s	denial	of	Weckerly’s	motion	to	dismiss,	
on	double	jeopardy	grounds,	the	second	prosecution	of	Count	1).	
	
   4		We	are	not	persuaded	by	Weckerly’s	additional	argument—that	the	court	erred	by	admitting	

dog	tracking	evidence	and	failing	to	instruct	the	jury	regarding	the	reliability	of	such	evidence.		See	
State	v.	Logan,	2014	ME	92,	¶	17,	97	A.3d	121	(holding	that	the	weight	and	credibility	of	all	admitted	
evidence	are	matters	for	the	fact-finder’s	decision	alone);	State	v.	Tibbetts,	604	A.2d	20,	22	(Me.	1992)	
(stating	that	it	is	for	the	fact-finder	to	determine	the	weight	to	assign	an	expert	opinion);	see	also	
State	v.	Cole,	1997	ME	112,	¶	9,	695	A.2d	1180	(approving	the	use	of	dog	tracking	evidence).			
6	

precludes	the	admission	of	evidence.		Gray	v.	TD	Bank,	N.A.,	2012	ME	83,	¶	10,	

45	A.3d	735;	State	v.	Mitchell,	1998	ME	128,	¶	4,	712	A.2d	1033.	

      [¶9]	 	 Two	 United	 States	 Supreme	 Court	 cases	 are	 instructive.	 	 First,	 in	

Ashe	 v.	 Swenson,	 six	 men	 were	 playing	 poker	 when	 they	 were	 robbed	 at	

gunpoint	by	three	or	four	assailants.		397	U.S.	436,	437	(1970).		Each	defendant	

was	charged	with	a	separate	count	of	armed	robbery	as	to	each	victim,	and	the	

charges	were	considered	in	separate	trials.		Id.	at	438-39.		After	a	jury	trial,	one	

of	 the	 defendants,	 Bob	 Ashe,	 was	 acquitted	 of	 the	 robbery	 as	 to	 one	 of	 the	

victims	by	a	general	verdict	finding	him	“not	guilty	due	to	insufficient	evidence.”		

Id.	at	439	(quotation	marks	omitted).		In	Ashe’s	second	trial,	he	was	convicted	

of	the	robbery	of	a	different	victim	at	the	same	poker	game.		Id.	at	439-40.		

      [¶10]		Based	on	its	determination	that	the	“established	rule	[of	collateral	

estoppel]	 is	 embodied	 in	 the	 Fifth	 Amendment	 guarantee	 against	 double	

jeopardy,”	id.	at	445,	the	Supreme	Court	held	that	“when	an	issue	of	ultimate	

fact	has	once	been	determined	by	a	valid	and	final	judgment,	that	issue	cannot	

again	be	litigated	between	the	same	parties	in	any	future	lawsuit,”	id.	at	443.		

The	Court	held	that	when	the	first	acquittal	is	based	on	a	general	jury	verdict,	

the	court	in	the	second	trial	must	“examine	the	record	of	[the]	prior	proceeding,	

taking	into	account	the	pleadings,	evidence,	charge,	and	other	relevant	matter”	
                                                                                        7	

to	determine	“whether	a	rational	jury	could	have	grounded	its	verdict	upon	an	

issue	 other	 than	 that	 which	 the	 defendant	 seeks	 to	 foreclose	 from	

consideration”	in	the	second	trial.		Id.	at	444	(quotation	marks	omitted).	

      [¶11]		After	reviewing	the	record	of	Ashe’s	first	trial,	the	Supreme	Court	

determined,	“[T]he	record	is	utterly	devoid	of	any	indication	that	the	first	jury	

could	rationally	have	found	that	an	armed	robbery	had	not	occurred,	or	that	

[the	first	victim]	had	not	been	a	victim	of	that	robbery.”		Id.	at	445.		The	Court	

concluded	 that	 the	 “single	 rationally	 conceivable	 issue	 in	 dispute	 before	 the	

jury	was	whether	the	petitioner	had	been	one	of	the	robbers.”		Id.		Because	the	

first	 jury	 necessarily	 found	 that	 Ashe	 was	 not	 one	 of	 the	 robbers,	 the	 Court	

concluded	that	the	State	was	barred	from	introducing	in	the	second	trial	any	of	

the	evidence	used	at	the	first	trial	to	suggest	that	the	defendant	was	one	of	the	

robbers.		Id.	at	445-46.		Although	the	second	trial	involved	a	different	victim,	all	

of	the	other	circumstances	of	the	two	crimes	were	identical,	and	a	conviction	in	

the	second	trial	would	have	required	the	jury	to	make	findings	directly	contrary	

to	those	reached	in	the	first	trial.		Id.	

      [¶12]	 	 In	 the	 second	 instructive	 decision,	 Dowling	 v.	 United	 States,	 the	

Supreme	Court	distinguished	Ashe.		493	U.S.	342,	348	(1990).		In	Dowling,	the	

defendant	was	charged	with	the	armed	robbery	of	a	bank.		Id.	at	344.		His	first	
8	

trial	resulted	in	a	hung	jury,	and	his	conviction	in	the	second	trial	was	reversed	

on	 appeal	 on	 different	 grounds.	 	 Id.;	 see	 Gov’t	 of	 Virgin	 Islands	 v.	 Dowling,	

814	F.2d	134,	140-41	(3d	Cir.	1987).		Between	the	second	and	third	trials,	the	

defendant	was	tried	for	and	acquitted	of	burglary,	attempted	robbery,	assault,	

and	 weapons	 charges	 in	 connection	 with	 a	 home	 invasion	 that	 had	 occurred	

two	 weeks	 after	 the	 bank	 robbery.	 	 Dowling,	 493	 U.S.	 at	 344-45.	 	 In	 the	

defendant’s	third	trial	for	bank	robbery,	the	State	introduced	the	testimony	of	

the	 victim	 of	 the	 home	 invasion,	 who	 identified	 the	 defendant	 as	 one	 of	 the	

assailants.		Id.	at	344-45.		The	defendant	appealed	the	bank	robbery	conviction,	

arguing	 that	 the	 admission	 of	 the	 evidence	 regarding	 the	 home	 invasion	

violated	double	jeopardy	collateral	estoppel	as	set	forth	in	Ashe.		Id.	at	347.			

      [¶13]	 	 In	 its	 evaluation	 of	 the	 record	 of	 the	 home	 invasion	 trial,	 the	

Supreme	Court	determined	that	there	were	multiple	possible	explanations	for	

the	 jury’s	 general	 acquittal	 on	 the	 home	 invasion	 charges	 given	 that	 the	

defendant	did	not	dispute	that	he	had	been	in	the	victim’s	home	on	the	day	in	

question;	the	theory	of	the	defense	was	instead	that	no	robbery	had	occurred	

because	the	defendant	had	gone	to	the	victim’s	house	to	retrieve	money	from	

an	 individual	 in	 the	 house.	 	 Id.	 at	 351-52.	 	 The	 Supreme	 Court	 approved	 the	

court’s	 admission	 at	 the	 third	 bank	 robbery	 trial	 of	 the	 evidence	 that	 the	
                                                                                                               9	

defendant	 was	 present	 at	 the	 home	 invasion	 because	 the	 jury	 in	 the	 home	

invasion	trial	had	not	already	“determine[d]	an	ultimate	issue	in	the	[third	bank	

robbery]	case,”	id.	at	348,	that	is,	the	jury	had	not	necessarily	decided	that	the	

defendant	 was	 not	 involved	 in	 the	 incident	 that	 led	 to	 the	 home	 invasion	

charges:	“Because	a	jury	might	reasonably	conclude	that	[the	defendant]	was	

the	masked	man	who	entered	[the	home	invasion	victim’s]	home,	even	if	it	did	

not	 believe	 beyond	 a	 reasonable	 doubt	 that	 [the	 defendant]	 committed	 the	

crimes	 charged	 at	 the	 first	 trial,	 the	 collateral-estopped	 component	 of	 the	

Double	Jeopardy	Clause	is	inapposite,”5	id.	at	348-49.	

        [¶14]	 	 Our	 approach	 in	 Maine	 is	 consistent	 with	 that	 employed	 by	 the	

Supreme	Court.		In	State	v.	Dean,	589	A.2d	929,	930	(Me.	1991),	the	defendant	

was	 indicted	 on	 one	 count	 of	 gross	 sexual	 assault,	 17-A	 M.R.S.A.	 §	 253(1)(B)	




   5	 	 Having	 determined	 that	 collateral	 estoppel	 on	 double	 jeopardy	 grounds	 did	 not	 require	 the	

exclusion	of	the	evidence	of	the	home	invasion,	the	Supreme	Court	declared	such	evidence	admissible	
as	 long	 as	 it	 is	 “relevant	 and	 probative	 evidence	 that	 is	 otherwise	 admissible	 under	 the	 Rules	 of	
Evidence.”		Dowling	v.	United	States,	493	U.S.	342,	348	(1990).		Thus,	the	double	jeopardy	collateral	
estoppel	analysis	requires	a	determination	of	the	overlap	between	the	two	trials	without	regard	for	
the	purposes	for	which	the	evidence	is	offered	in	the	second	trial	or	the	indicia	of	reliability	of	that	
evidence.		See	id.		Evidence	that	does	not	violate	double	jeopardy	collateral	estoppel	requirements,	
however,	might	nevertheless	be	inadmissible	for	other	evidentiary	reasons—as	irrelevant,	see	M.R.	
Evid.	401,	402;	as	unfairly	prejudicial,	see	M.R.	Evid.	403;	or	as	evidence	of	prior	bad	acts	to	establish	
the	defendant	acted	in	conformity	therewith,	see	M.R.	Evid.	404,	for	example.		In	Dowling,	the	Court	
held	 that	 the	 evidence	 of	 the	 home	 invasion	 was	 admissible	 because	 the	 government	 sought	 the	
admission	of	that	evidence	in	the	bank	robbery	trial	not	to	establish	the	defendant’s	prior	bad	acts	
exhibiting	 his	 poor	 character,	 but	 rather	 to	 establish	 a	 link	 between	 the	 defendant	 and	 a	
co-defendant,	and	to	show	that	the	defendant	possessed	a	mask	and	gun	as	used	in	the	home	invasion	
that	were	identical	to	those	used	in	the	bank	robbery.		493	U.S.	at	345.	
10	

(Supp.	 1990),	 and	 two	 counts	 of	 unlawful	 sexual	 contact,	 17-A	 M.R.S.A.	

§	255(1)(C)	(Supp.	1990).6		He	was	acquitted	in	his	first	trial	on	the	charge	of	

gross	sexual	assault,	but	the	jury	was	unable	to	reach	a	verdict	on	the	charges	

of	unlawful	sexual	contact,	and	the	court	declared	a	mistrial.		Dean,	589	A.2d	at	

930.	 	 In	 the	 second	 trial,	 the	 court	 admitted	 evidence	 of	 the	 defendant’s	

oral-genital	 contact	 with	 the	 victim	 of	 the	 alleged	 gross	 sexual	 assault	

notwithstanding	 the	 defendant’s	 acquittal	 of	 that	 charge.	 	 Id.	 at	 932.	 	 The	

defendant	 was	 convicted	 of	 the	 two	 unlawful	 sexual	 contact	 charges	 in	 the	

second	trial.		Id.	at	930-31.	

        [¶15]		In	Dean,	we	first	noted	that	the	two	trials	involved	no	overlap	of	

facts:	“The	charge	of	gross	sexual	[assault]	involved	an	allegation	of	a	sexual	act	

completely	 separate	 and	 distinct	 from	 the	 acts	 constituting	 unlawful	 sexual	

contact	at	issue	in	the	second	trial.”		Id.	at	933.		We	next	determined,	albeit	with	

little	 discussion,	 that	 double	 jeopardy	 collateral	 estoppel	 did	 not	 bar	 in	 the	

second	trial	the	admission	of	the	evidence	of	oral-genital	contact	admitted	 in	

the	 first	 trial	 because	 the	 jury,	 by	 acquitting	 the	 defendant	 of	 gross	 sexual	

assault,	 did	 not	 necessarily	 decide	 the	 ultimate	 fact	 at	 issue—whether	 such	


   6		Section	253(1)(B)	has	since	been	amended.		See	P.L.	2003,	ch.	711,	§	B-2	(effective	July	30,	2004)	

(codified	at	17-A	M.R.S.	§	253	(2017)).		Section	255	has	been	repealed	and	replaced	by	17-A	M.R.S.	
§	255-A	(2017).		See	P.L.	2001,	ch.	383,	§§	22-23	(effective	Jan.	31,	2003).		These	amendments	are	not	
relevant	to	the	matter	now	before	us.	
                                                                                   11	

oral-genital	contact	had	occurred:	“The	record	in	this	case	does	not	reflect	that	

the	acquittal	on	the	charge	of	gross	sexual	[assault]	was	based	on	a	finding	that	

no	such	oral-genital	contact	occurred.”		Id.	at	933	&	n.5.			

      [¶16]	 	 Because	 double	 jeopardy	 collateral	 estoppel	 did	 not	 bar	 the	

admission	 of	 the	 evidence,	 we	 next	 considered	 whether	 the	 evidence	 was	

otherwise	inadmissible.		Id.		We	determined	that	the	evidence	was	not	evidence	

of	prior	bad	acts	rendered	inadmissible	by	M.R.	Evid.	404	because	it	was	instead	

admitted	 for	 the	 limited	 purpose	 of	 establishing	 the	 defendant’s	 “motive,	

opportunity,	 state	 of	 mind	 and	 the	 relationship	 between	 the	 parties,”	 and	

because	the	court	gave	an	appropriate	limiting	instruction	to	the	jury	that	“it	

could	not	consider	the	evidence	as	indicative	of	Dean’s	character,	see	M.R.	Evid.	

404(b),	and	that	Dean	could	not	be	convicted	of	unlawful	sexual	contact	based	

on	that	evidence	of	oral-genital	contact.”		Dean,	589	A.2d	at	932-33	&	n.5.		We	

further	 concluded	 that	 the	 admission	 of	 the	 evidence	 was	 not	 unfairly	

prejudicial	pursuant	to	M.R.	Evid.	403.		Dean,	589	A.2d	at	933.			

      [¶17]	 	 To	 evaluate	 a	 double	 jeopardy	 collateral	 estoppel	 argument,	 we	

conduct	a	case-by-case	inquiry	by	examining	the	evidence	presented	and	the	

theory	of	the	defense	in	the	first	trial	compared	to	the	charges	levied	and	the	
12	

evidence	 offered	 in	 the	 second	 trial.	 	 See	 Dowling,	 493	 U.S.	 at	 347-48;	 Ashe,	

397	U.S.	at	444.		In	particular,	the	Supreme	Court	in	Ashe	required	as	follows:	

        [T]his	approach	requires	a	court	to	examine	the	record	of	a	prior	
        proceeding,	 taking	 into	 account	 the	 pleadings,	 evidence,	 charge,	
        and	 other	 relevant	 matter,	 and	 conclude	 whether	 a	 rational	 jury	
        could	 have	 grounded	 its	 verdict	 upon	 an	 issue	 other	 than	 that	
        which	 the	 defendant	 seeks	 to	 foreclose	 from	 consideration.	 	 The	
        inquiry	must	be	set	in	a	practical	frame	and	viewed	with	an	eye	to	
        all	the	circumstances	of	the	proceedings.	
	
397	U.S.	at	444	(footnote	omitted)	(quotation	marks	omitted);	see	United	States	

v.	 Bravo-Fernandez,	 790	 F.3d	 41,	 53-54	 (1st	 Cir.	 2015)	 (noting	 that	 the	 jury	

instructions	and	the	parties’	closing	arguments	are	 particularly	useful	in	this	

inquiry).	 	 It	 is	 Weckerly’s	 burden	 to	 demonstrate	 that,	 by	 “any	 reasonable	

assessment	 of	 the	 verdict,”	 the	 ultimate	 issue	 for	 which	 the	 evidence	 was	

offered	 in	 his	 second	 trial	 was	 necessarily	 decided	 in	 his	 first	 trial.7		

Bravo-Fernandez,	 790	 F.3d	 at	 54	 (quotation	 marks	 omitted);	 see	 Dowling,	

493	U.S.	at	350.		




   7		Neither	the	Supreme	Court	nor	we	have	set	forth	the	means	by	which	that	burden	must	be	met	

or	how	it	is	reviewed	on	appeal,	that	is,	whether	Weckerly’s	burden	was	to	establish	that	the	ultimate	
issue	was	decided	in	the	first	trial	as	a	matter	of	fact	before	the	trial	court	(and	whether	we	therefore	
review	the	court’s	factual	determination	for	clear	error	on	appeal),	or	whether	Weckerly’s	burden	is	
to	establish	before	us	that	the	ultimate	issue	was	decided	in	the	first	trial	as	a	matter	of	law	(and	
whether	we	therefore	review	the	record	from	the	first	trial	on	a	de	novo	basis).		We	need	not	address	
this	portion	of	the	analysis	in	any	detail	in	this	matter,	however,	because	 by	either	approach,	our	
conclusion	is	the	same.	
                                                                                      13	

      [¶18]	 	 We	 now	 compare	 Weckerly’s	 two	 trials	 according	 to	 this	

procedure.		As	applied	here,	the	ultimate	issue	that	bears	on	the	application	of	

double	jeopardy	collateral	estoppel	is	whether	Weckerly	committed	arson	on	

Jones’s	 or	 Dreon’s	 property	 or	 criminal	 mischief	 on	 Couture’s	 property.	 	 We	

must	therefore	ascertain	whether	the	jury	in	the	first	trial	necessarily	acquitted	

Weckerly	on	the	eleven	counts	on	the	ground	that	he	was	not	the	person	who	

committed	 arson	 on	 Jones’s	 or	 Dreon’s	 property	 or	 criminal	 mischief	 on	

Couture’s	property,	or	whether	the	jury	could	have	acquitted	Weckerly	based	

on	 some	 finding	 other	 than	 the	 identification	 of	 Weckerly	 as	 the	 actor—for	

example,	(1)	as	to	the	arson	charges,	that	no	fires	were	set	at	all,	that	the	fires	

were	not	set	with	the	intent	to	damage	or	destroy	the	property,	or	that	the	fires	

did	not	recklessly	endanger	any	person	or	property,	and	(2)	as	to	the	criminal	

mischief	charge,	that	no	spray-painting	occurred,	that	Weckerly	spray-painted	

Couture’s	property	but	lacked	the	requisite	intent	in	doing	so,	that	the	property	

belonged	to	Weckerly	rather	than	to	Couture,	that	the	graffiti	did	not	damage	

or	destroy	the	property,	or	that	Weckerly	had	reasonable	grounds	to	believe	he	

had	the	right	to	spray-paint	the	property.		See	17-A	M.R.S.	§§	802(1)(A),	(B)(2),	

806(1)(A).		If	the	jury	in	Weckerly’s	first	trial	rationally	could	have	acquitted	

him	 only	 on	 the	 ground	 that	 he	 was	 not	 the	 perpetrator	 of	 those	 crimes,	 the	
14	

prohibition	 of	 double	 jeopardy	 demands	 that	 any	 evidence	 presented	 by	 the	

State	to	prove	Weckerly	was	the	perpetrator	of	those	crimes	in	the	first	trial	is	

inadmissible	 for	 any	 purpose	 in	 the	 second	 trial.	 	 If	 the	 jury	 in	 the	 first	 trial	

rationally	 could	 have	 acquitted	 Weckerly	 on	 some	 ground	 other	 than	 his	

identification	 as	 the	 perpetrator,	 the	 evidence	 relating	 to	 those	 crimes	 was	

admissible	 in	 the	 second	 trial	 as	 long	 as	 it	 was	 “relevant	 and	 probative”	 and	

“otherwise	admissible	under	the	Rules	of	Evidence.”		Dowling,	493	U.S.	at	348.		

         [¶19]		The	trial	court	explicitly	found	that	“there	is	little	doubt	that	the	

basis	for	the	jury’s	decision	[in	the	first	trial]	was	that	the	State	had	not	proven,	

beyond	 a	 reasonable	 doubt,	 that	 [Weckerly]	 was	 the	 person	 who	 had	

committed	the	acts	alleged.”8		Our	review	of	Weckerly’s	first	trial	unequivocally	

leads	us	to	the	same	conclusion.		In	particular,	we	note	the	following	aspects	of	

Weckerly’s	first	trial:	

      • In	seeking	the	exclusion	of	certain	evidence,	Weckerly’s	attorney	argued	
        that	evidence	regarding	other	crimes	in	the	area	was	not	relevant	and	
        was	 unfairly	 prejudicial	 because	 “there’s	 nothing	 linking	 any	 of	 these	
        other	crimes	in	this	area	during	this	two-year	period	to	Mr.	Weckerly,”	
        but	did	not	argue	that	those	other	crimes	were	not	committed	at	all.			
	
      • In	 Weckerly’s	 brief	 cross-examination	 of	 Couture	 after	 Couture’s	
        testimony	 about	 how	 someone	 had	 spray-painted	 graffiti	 on	 his	


    8		As	noted,	the	judge	who	presided	over	the	second	trial	had	also	presided	over	the	first	trial.		His	

determination	that	the	acquittals	were	due	to	the	jury’s	decision	that	the	State	had	failed	to	prove	
that	Weckerly	had	committed	the	crimes	charged	was	never	challenged	by	the	State.	
                                                                                   15	

       property,	Weckerly	did	not	ask	a	single	question	regarding	the	graffiti	on	
       Couture’s	property.			
	
    • After	John	Dreon’s	initial	testimony	regarding	the	burning	of	his	camp,	
      Weckerly	asked	Dreon	no	questions	on	cross-examination.			
	
    • After	 another	 witness	 testified	 regarding	 the	 fire	 at	 Dreon’s	 camp,	
      Weckerly	again	asked	no	questions	on	cross-examination.			
	
    • Weckerly	 himself	 took	 the	 stand	 and	 gave	 the	 following	 testimony	 on	
      direct	examination	and	on	cross-examination:	
	
      Q:	    .	.	.	.	Now,	John,	did	you	spray-paint	anybody	else’s	property?	
      	
      A:	    No.		As	a	matter	of	fact,	I	don’t	ever	go	off	my	property	except	
             when	I	go	into	town	to	go	to	the	store.	
      	
      .	.	.	.	
      	
      Q:	 Now,	 John,	 you	 believe	 there’s	 a	 certain	 group	 of	 people	
                responsible	 for	 these	 problems	 that--that’s	 going	 on	 in	
                Prentiss	Township,	right?	
      	
      A:	 Um--yeah.	 	 I	 have	 always	 thought	 that	 it	 was	 the	 logging	
                company,	 but	 I’m	 not--you	 know,	 I	 mean,	 that’s	 just	 my	
                personal	opinion.	
      	
      .	.	.	.	
      	
      Q:	 [H]ow	 firm	 was	 your	 belief	 that	 the	 logging	 company	 or	
                someone	associated	with	the	logging	company	was	involved	
                in	what	was	going	on	in	Prentiss	Township?	
      	
      A:	 Virtually	a	hundred	percent.	.	.	.		
      	
      .	.	.	.		
      	
16	

      Q:	         Who	 is	 that	 [referring	 to	 a	 photograph	 taken	 by	 a	 game	
                  camera	set	up	in	the	area	of	the	crimes]?	
      	
      A:	         Not	me.		Do	you	want	me	to	tell	you	who	I	thought	that	it	was?		
                  You	know,	there’s	several	different	 people	that	I	thought	it	
                  might	have	been.	
      	
      Q:	         Now,	Mr.	Weckerly--	
      	
      A:	         It’s	not	me,	though.	
      	
      .	.	.	.	
      	
      Q:	         Did	you	spray-paint	that	sign	there	.	.	.	?	
      	
      A:	         No.	
      	
      .	.	.	.		
      	
      Q:	         Did	you	put	that	black	lettering	on	Mr.	Couture’s	shed?	
      	
      A:	         No.	
	
	     [¶20]	 	 The	 record	 of	 Weckerly’s	 first	 trial	 therefore	 establishes	 no	

challenge	 to	 whether,	 when,	 or	 how	 the	 alleged	 crimes	 occurred;	 Weckerly	

defended	the	counts	for	arson	and	criminal	mischief	(Counts	9-12)	based	only	

on	the	ground	that	he	was	not	the	person	who	had	perpetrated	those	crimes.		

Because	the	jury	in	Weckerly’s	first	trial	necessarily	found	that	Weckerly	was	

not	 the	 person	 who	 set	 fire	 to	 Jones’s	 or	 Dreon’s	 property,	 and	 was	 not	 the	

person	who	spray-painted	Couture’s	property,	evidence	that	Weckerly	was	the	

person	who	committed	those	acts	was	not	admissible	in	his	second	trial	for	any	
                                                                                                            17	

purpose.9	 	 See	 Dowling,	 493	 U.S.	 at	 348-49;	 Ashe,	 397	 U.S.	 at	 444-46.	 	 We	

therefore	conclude	that	the	admission	of	that	evidence	was	barred	by	collateral	

estoppel	and	violated	Weckerly’s	right	to	be	protected	from	double	jeopardy.		

        [¶21]		We	also	conclude	that	the	error	was	not	harmless,	at	least	as	to	the	

three	arson	charges.		Cf.	M.R.U.	Crim.	P.	52(a)	(“Any	error,	defect,	irregularity,	

or	 variance	 that	 does	 not	 affect	 substantial	 rights	 shall	 be	 disregarded.”).	 	 In	

particular,	 the	 circumstantial	 evidence	 of	 Weckerly’s	 role	 in	 the	 prior	 arsons	


   9		Notwithstanding	its	determination	that	the	failure	of	proof	that	Weckerly	was	the	perpetrator	

of	the	prior	arsons	and	criminal	mischief	was	the	only	rational	ground	for	the	jury’s	acquittal,	the	
trial	court	concluded	that	the	evidence	was	admissible	in	Weckerly’s	second	trial,	reasoning,	“Such	a	
finding	does	not,	however,	preclude	the	State	from	offering	evidence	that	[Weckerly]	was	the	person	
who	did	those	very	same	crimes	under	the	lesser	preponderance	of	the	evidence	standard.”			
    	
    		There	 are	 two	 ways	 in	 which	 a	 preponderance	 standard	 could	 be	 triggered	 in	 these	
circumstances.		First,	a	failure	to	prove	a	particular	fact	beyond	a	reasonable	doubt	in	a	criminal	case	
does	 not	 preclude	 the	 government	 from	 offering	 evidence	 of	 that	 same	 fact	 in	 a	 subsequent	 civil	
matter,	such	as	a	forfeiture	proceeding,	in	which	the	preponderance	of	the	evidence	standard	applies.		
Dowling,	493	U.S.	at	349;	One	Lot	Emerald	Cut	Stones	v.	United	States,	409	U.S.	232,	235-36	(1972)	
(per	curiam).		This	type	of	analysis	has	no	application	here,	where	the	beyond	a	reasonable	doubt	
analysis	applies	to	both	trials	at	issue.	
    			
    		The	second	means	by	which	a	preponderance	standard	is	triggered	in	a	subsequent	criminal	trial	
is	based	on	the	rule	of	Huddleston	v.	United	States,	485	U.S.	681,	690	(1988).		In	that	case,	the	Supreme	
Court	held	that	when	a	trial	court	must	decide	whether	to	admit	evidence	of	a	conditional	fact,	see	
Fed.	R.	Evid.	104—such	as	evidence	of	the	defendant’s	prior	bad	acts	as	an	exception	to	Fed.	R.	Evid.	
404(b)—the	court	need	only	conclude	that	“the	jury	could	reasonably	find	the	conditional	fact,	[i.e.,	
that	the	defendant	did	the	prior	act,]	by	a	preponderance	of	the	evidence.”		Huddleston,	485	U.S.	at	
690.	 	 Such	 an	 analysis,	 however,	 would	 apply	 to	 the	 court’s	 determination	 of	 the	 admissibility	 of	
evidence	only	after	it	has	been	determined	that	the	double	jeopardy	collateral	estoppel	hurdle	does	
not	bar	its	admission.		See	Dowling,	493	U.S.	at	348.		Huddleston	was	not	a	double	jeopardy	case,	and	
the	preponderance	standard	enunciated	in	Huddleston	has	no	application	in	evaluating,	as	a	matter	
of	law,	the	threshold	issue	of	double	jeopardy	collateral	estoppel.		Indeed,	we	relied	on	Huddleston	in	
discussing	the	admissibility	of	the	evidence	at	issue	in	State	v.	Dean,	but	not	in	relation	to	double	
jeopardy	collateral	estoppel;	we	instead	cited	to	Huddleston	in	our	discussion	of	the	admissibility	of	
the	 evidence	 for	 purposes	 of	 establishing	 the	 defendant’s	 motive	 and	 opportunity	 after	 we	 had	
already	concluded	that	no	double	jeopardy	collateral	estoppel	violation	had	occurred.		589	A.2d	929,	
933	n.5	(Me.	1991).	
18	

likely	 served	 as	 a	 major	 component	 of	 the	 jury’s	 findings	 that	 Weckerly	 had	

both	 the	 means	 and	 motivation	 to	 also	 set	 fire	 to	 the	 fire	 marshal’s	 vehicle.		

Given	the	similarity	of	the	acts	and	the	timing	and	location	of	the	prior	arsons,	

we	cannot	say	that	the	evidence	had	no	effect	on	the	jury’s	verdict.		Cf.	State	v.	

Larsen,	2013	ME	38,	¶¶	23-24,	65	A.3d	1203	(defining	an	error	as	harmless	if	it	

“did	not	contribute	to	the	verdict	obtained”	(quotation	marks	omitted)).					

         The	entry	is:	

                            Judgment	 vacated.	 	 Remanded	 for	 further	
                            proceedings	consistent	with	this	opinion.	
	
	    	      	     	     	      	
	
Hunter	J.	Tzovarras,	Esq.	(orally),	Bangor,	for	appellant	John	A.	Weckerly	

R.	 Christopher	 Almy,	 District	 Attorney,	 and	 Mark	 A.	 Rucci,	 Asst.	 Dist.	 Atty.	
(orally),	Prosecutorial	District	V,	Bangor,	for	appellee	State	of	Maine	
	
	
Penobscot	County	Unified	Criminal	Docket	docket	number	CR-2011-2754	
FOR	CLERK	REFERENCE	ONLY	
