MAINE	SUPREME	JUDICIAL	COURT	                                                         Reporter	of	Decisions	
Decision:	 2018	ME	113	
Docket:	   Cum-17-297	
Argued:	   May	15,	2018	
Decided:	  August	9,	2018	
	
Panel:	    ALEXANDER,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                          STATE	OF	MAINE	
                                                  	
                                                 v.	
                                                  	
                                          GREGORY	NISBET	
	
	
JABAR,	J.		

        [¶1]		Gregory	Nisbet	appeals	from	a	judgment	of	conviction	for	violating	

a	public	safety	fire	rule	(Class	E),	25	M.R.S.	§	2452(3)	(2017),	entered	by	the	

Unified	 Criminal	 Docket	 (Cumberland	 County,	 Warren,	 J.)	 after	 a	 bench	 trial.		

Nisbet	 was	 convicted	 of	 failing	 to	 comply	 with	 section	 24.2.2.3.3	 of	 the	

2009	edition	 of	 the	 National	 Fire	 Protection	 Association	 (NFPA)	 101:	 Life	

Safety	Code,	as	incorporated	by	rule	by	the	Commissioner	of	the	Department	

of	Public	Safety.1		See	25	M.R.S.	§	2452(3);	9	C.M.R.	16	219	020-1	§	1	(2011);	


    1		“The	Life	Safety	Code	is	a	model	code	established	by	the	National	Fire	Protection	Association.”		

Estate	 of	 Smith	 v.	 Salvesen,	 2016	 ME	 100,	 ¶	 7	 n.2,	 143	 A.3d	 780.	 	 The	 Commissioner	 of	 the	
Department	of	Public	Safety	promulgated	rules	incorporating	the	2009	edition	of	the	National	Fire	
Protection	 Association	 (NFPA)	101:	Life	 Safety	 Code,	 by	 reference,	 with	 certain	 modifications	 not	
applicable	here.		See	25	M.R.S.	§	2452(3)	(2017);	9	C.M.R.	16	219	020-1	§	1	(2011);	NFPA	101:	Life	
Safety	Code	(Nat’l	Fire	Prot.	Ass’n	2009	ed.)	(hereinafter	“Life	Safety	Code”).		Thus,	the	public	fire	
safety	 rules	 Nisbet	 was	 charged	 with	 violating	 were	 specific	 provisions	 of	 the	 Life	 Safety	 Code,	
incorporated	 into	 the	 Code	 of	 Maine	 Rules	 by	 reference,	 and	 this	 opinion	 will	 reference	 those	
provisions	directly.	
2	

NFPA	 101:	 Life	 Safety	 Code	 §	 24.2.2.3.3	 (Nat’l	 Fire	 Prot.	 Ass’n	 2009	 ed.)	

(hereinafter	 “Life	 Safety	 Code”).	 	 On	 appeal,	 Nisbet	 makes	 the	 following	

arguments:	 that	 (1)	 section	 24.2.2.3.3	 of	 the	 Life	 Safety	 Code	 is	 void	 for	

vagueness	pursuant	to	the	due	process	clauses	of	the	United	States	and	Maine	

Constitutions;	 (2)	 the	 court	 abused	 its	 discretion	 in	 determining	 that	 the	

State’s	 failure	 to	 provide	 him	 with	 a	 policy	 statement	 regarding	 the	

enforcement	 of	 section	 24.2.2.3.3	 did	 not	 constitute	 a	 violation	 pursuant	 to	

Brady	v.	Maryland,	373	U.S.	83	(1963);	and	(3)	the	evidence	presented	at	trial	

was	 insufficient	 to	 sustain	 a	 conviction	 for	 failure	 to	 comply	 with	 section	

24.2.2.3.3.		We	affirm	the	judgment.	

                                   I.		BACKGROUND	

A.    Factual	History	

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

trial	 record	 supports	 the	 following	 facts,”	 which	 the	 court	 found	 after	 a	

five-day	trial.		State	v.	Jeskey,	2016	ME	134,	¶	2,	146	A.3d	127.		Nisbet	was	the	

owner	 of	 an	 apartment	 building	 located	 on	 20	 Noyes	 Street	 in	 Portland.	 	 In	

that	 capacity,	 he	 collected	 rent	 from	 the	 building’s	 occupants	 and	 exercised	

management	 responsibility	 over	 the	 property.	 	 On	 November	 1,	 2014,	 a	 fire	

occurred	 at	 20	 Noyes	 Street,	 resulting	 in	 the	 death	 of	 six	 people.	 	 The	 fire	
                                                                                         3	

began	on	the	porch	outside	the	front	door	and	proceeded	up	the	stairway	that	

served	 as	 the	 primary	 means	 of	 escape	 for	 those	 on	 the	 second	 and	 third	

floors.		On	that	particular	day,	the	entrance	to	the	back	stairway	on	the	second	

floor	was	blocked	by	furniture	because	a	tenant	had	recently	moved	in.			

      [¶3]	 	 Three	 of	 the	 building’s	 occupants	 survived	 the	 fire	 by	 exiting	 the	

building	 through	 a	 window	 onto	 the	 back	 porch	 within	 ninety	 seconds	 after	

two	of	them	woke	up.		One	of	those	survivors	testified	that	before	he	escaped,	

the	 front	 door	 was	 fully	 engulfed	 in	 flames,	 thick	 smoke	 was	 billowing	 from	

the	door	and	rising	up	the	stairway,	and	he	was	having	difficulty	breathing.		As	

the	 survivors	 escaped,	 the	 front	 door	 opened	 and	 the	 fire	 proceeded	 up	 the	

stairway	very	quickly,	bringing	intense	heat	with	it.		Smoke	and	accompanying	

gases,	 including	 carbon	 monoxide,	 preceded	 the	 heat	 and	 rose	 up	 the	

stairways	to	the	third	floor	before	spreading	throughout	the	first	and	second	

floors.		According	to	expert	testimony,	a	person	could	become	unconscious	in	

as	 little	 as	 thirty	 seconds	 after	 breathing	 a	 significant	 amount	 of	 carbon	

monoxide-laden	smoke.			

      [¶4]	 	 Each	 victim	 except	 for	 one	 died	 from	 smoke	 inhalation.	 	 The	

third-floor	bedroom	windows	were	considerably	smaller	than	required	by	the	

Life	 Safety	 Code	 and	 too	 small	 to	 use	 as	 a	 secondary	 means	 of	 escape.	 	 They	
4	

were	double	hung,	and	one	witness	testified	that	they	could	only	be	opened	as	

little	 as	 eight	 inches.	 	 There	 was	 also	 testimony	 that	 a	 person	 could	 remove	

the	entire	window	frame	by	removing	certain	clips—if	the	person	knew	how	

to	do	that.		Long	before	the	fire,	a	contractor	working	for	Nisbet	told	him	that	

the	third-floor	windows	were	not	large	enough	to	be	a	legal	secondary	means	

of	escape,	and	Nisbet	brushed	off	those	comments.			

B.     Preliminary	Proceedings	

       [¶5]	 	 On	 July	 10,	 2015,	 Nisbet	 was	 charged	 by	 indictment	 with	 six	

counts	 of	 manslaughter	 (Class	 A),	 17-A	 M.R.S.	 203(1)(A)	 (2017),	 and	 four	

counts	 of	 violating	 public	 fire	 safety	 rules	 (Class	 E),	 25	 M.R.S.	 §	 2452(3),	

namely,	 provisions	 of	 the	 Life	 Safety	 Code.	 	 On	 September	 31,	 2016,	 after	

Nisbet	 waived	 his	 right	 to	 a	 jury	 trial	 pursuant	 to	 M.R.U.	 Crim.	 P.	 23(a),	 the	

State	charged	 an	 eleventh	count	by	information,	alleging	violation	of	the	Life	

Safety	Code	provision	that	is	the	subject	of	this	appeal,	section	24.2.2.3.3.		See	

25	M.R.S.	§	2452(3);	9	C.M.R.	16	219	020-1	§	1.		That	provision	requires	that	

every	sleeping	area	in	one-	and	two-family	dwellings	have	windows	available	

as	a	secondary	means	of	escape,	that	the	windows	be	operable	from	the	inside	

without	 “special	 effort,”	 and	 that	 the	 windows	 have	 a	 “clear	 opening”	 of	
                                                                                                                5	

5.7	square	feet,	a	minimum	width	of	twenty	inches,	and	a	minimum	height	of	

twenty-four	inches.		Life	Safety	Code	§	24.2.2.3.3.	

C.       Trial	and	Sentencing	

	        [¶6]	 	 The	 parties	 proceeded	 to	 a	 bench	 trial	 on	 October	 3,	 2016,	 and	

evidence	was	presented	over	five	days.		On	October	21,	2016,	the	court	found	

Nisbet	 not	 guilty	 on	 the	 six	 counts	 of	 manslaughter	 and	 the	 four	 counts	 of	

violation	 of	 the	 Life	 Safety	 Code	 originally	 charged,	 and	 guilty	 on	 the	

later-charged	violation	of	section	24.2.2.3.3.		On	December	1,	2016,	the	court	

sentenced	Nisbet	to	ninety	days’	imprisonment	and	a	$1,000	fine.	

D.       Motion	for	a	New	Trial	

         [¶7]	 	 On	 December	 19,	 2016,	 Nisbet	 filed	 a	 motion	 for	 a	 new	 trial	

pursuant	 to	 M.R.U.	 Crim.	 P.	 33.	 	 In	 that	 motion,	 Nisbet	 alleged	 that	 the	 State	

had	 failed	 to	 provide	 him	 with	 a	 policy	 memorandum	 that	 the	 State	 Fire	

Marshal	 issued	 in	 October	 2013	 (2013	 Memorandum).2	 	 That	 document,	

which	indicates	that	it	is	in	reference	to	a	“[p]olicy	for	clarification	of	existing	

egress	windows,”	states	in	pertinent	part:	




     2		Pursuant	to	section	4.6.5	of	the	Life	Safety	Code,	“Where	it	is	evident	that	a	reasonable	degree	

of	 safety	 is	 provided,	 the	 requirements	 for	 existing	 buildings	 shall	 be	 permitted	 to	 be	 modified	 if	
their	 application	 would	 be	 impractical	 in	 the	 judgment	 of	 the	 authority	 having	 jurisdiction.”	 	 The	
2013	Memorandum	appears	to	have	been	issued	pursuant	to	section	4.6.5.	
6	

             Any	 building	 constructed	 before	 1976	 will	 be	 allowed	 to	
       meet	the	following	specifications.		The	net	clear	opening	would	be	
       allowed	to	meet	the	minimum	20”	in	width	and	24”	in	height	with	
       a	total	net	clear	opening	of	3.3	sq.	ft.;	if	the	window	is	constructed	
       of	 wood	 or	 vinyl	 and	 the	 overall	 window	 sash	 size	 meets	 a	
       minimum	of	5.0	sq.	ft.	
	
The	“special	effort”	provision	from	section	24.2.2.3.3	remained	the	same.			

       [¶8]	 	 According	 to	 Nisbet,	 because	 the	 size	 of	 his	 third-floor	 windows	

met	the	minimum	dimensions	set	forth	in	the	memorandum—and	there	was	

no	 dispute	 that	 his	 apartment	 building	 was	 built	 before	 1976—the	 State’s	

failure	 to	 provide	 the	 memorandum	 constituted	 a	 failure	 to	 disclose	

exculpatory	evidence	pursuant	to	Brady,	373	U.S.	at	87	(“We	now	hold	that	the	

suppression	 by	 the	 prosecution	 of	 evidence	 favorable	 to	 an	 accused	

.	.	.	violates	 due	 process	 where	 the	 evidence	 is	 material	 either	 to	 guilt	 or	 to	

punishment,	 irrespective	 of	 the	 good	 faith	 or	 bad	 faith	 of	 the	 prosecution.”).		

Nisbet	 argued	 that	 he	 could	 not	 have	 discovered	 the	 memorandum	 before	

trial	through	the	exercise	of	due	diligence,	and	if	the	memorandum	had	been	

provided	to	him,	“it	probably	would	have	changed	the	verdict	in	this	case.”			

       [¶9]	 	 A	 hearing	 on	 the	 motion	 for	 a	 new	 trial	 was	 held	 on	

February	23,	2017,	during	which	the	court	heard	testimony	from	both	parties	

regarding	the	State’s	nondisclosure	of	the	2013	Memorandum.		The	court	then	

denied	Nisbet’s	motion	in	an	order	dated	June	15,	2017,	in	which	it	made	the	
                                                                                                         7	

following	 findings	 of	 fact,	 which	 are	 supported	 competent	 evidence	 in	 the	

motion	record.		See	State	v.	Twardus,	2013	ME	74,	¶	29,	72	A.3d	523	(“When	

reviewing	the	denial	of	a	motion	for	a	new	trial	pursuant	to	M.R.	Crim.	P.	33	on	

the	basis	of	newly	discovered	evidence,	we	review	the	court’s	findings	of	fact	

for	clear	error	.	.	.	.”).3	

        [¶10]		Neither	of	the	Assistant	Attorneys	General	(AAG)	prosecuting	the	

case	 was	 aware	 of	 the	 2013	 Memorandum	 until	 an	 assistant	 fire	 marshal	

mentioned	it	to	one	of	the	AAGs	on	the	evening	of	October	4,	2016—after	the	

second	 day	 of	 trial.	 	 The	 AAG	 told	 the	 assistant	 fire	 marshal	 to	 bring	 the	

memorandum	 to	 court	the	 next	 morning,	 but	 after	 receiving	 it	 on	 October	 5,	

the	AAG	read	it	quickly	and	did	not	correctly	understand	its	contents.		At	the	

time,	he	was	primarily	focused	on	drafting	a	stipulation	with	defense	counsel.		

When	he	and	defense	counsel	first	spoke	via	telephone	on	October	5,	the	AAG	

told	 defense	 counsel	 that	 they	 needed	 to	 discuss	 the	 stipulation	 and	

mentioned	that	he	had	a	document	to	provide.		The	AAG	and	defense	counsel	

subsequently	 met	 to	 work	 on	 revisions	 to	 the	 stipulation,	 and	 although	 the	

AAG	 had	 no	 specific	 recollection	 of	 giving	 defense	 counsel	 a	 copy	 of	 the	

   3		Although,	unlike	Twardus,	this	case	involves	the	denial	of	a	M.R.U.	Crim.	P.	33	motion	for	a	new	

trial	based	on	alleged	violations	pursuant	to	Brady	v.	Maryland,	373	U.S.	83	(1963),	and	not	newly	
discovered	 evidence,	 we	 nonetheless	 apply	 the	 same	 standard	 of	 review.	 	 See	 State	 v.	 Twardus,	
2013	ME	74,	¶	29,	72	A.3d	523.	
8	

2013	Memorandum,	it	was	evident	from	his	testimony	that	he	believed	he	did.		

Thus,	 although	 the	 AAG	 intended	 to	 provide	 the	 defense	 with	 the	 2013	

Memorandum,	he	failed	to	do	so.		For	her	part,	defense	counsel	did	not	recall	

receiving	the	2013	Memorandum.			

      [¶11]	 	 The	 court	 found	 that	 each	 of	 the	 third-floor	 windows	 was	

double-hung,	 with	 a	 bottom	 sash	 covering	 two-thirds	 of	 the	 window	 height	

and	 a	 top	 sash	 covering	 one-third	 of	 the	 window	 height.	 	 As	 a	 result,	 the	

windows	 could	 only	 be	 opened	 to	 a	 height	 that	 was	 one-third	 of	 the	 total	

window	 height.	 	 The	 court	 also	 recognized	 that	 the	 only	 window	

measurements	 offered	 at	 trial	 indicated	 that	 the	 window	 frames	 measured	

34	inches	high	and	21.5	inches	wide,	but	that	it	had	previously	declined	to	rely	

on	 those	 measurements	 because—contrary	 to	 all	 photographic	 evidence—

those	measurements	would	make	the	third-floor	window	openings	taller	than	

the	second-floor	window	openings,	which	the	court	found	not	to	be	the	case.	

      [¶12]		Even	assuming	that	those	measurements	were	reliable,	however,	

the	court	again	noted	that	the	window	could	then	only	be	opened	to	a	height	

of	 approximately	 11.3	 inches.	 	 Assuming	 also	 that	 the	 windows	 were	

21.5	inches	wide,	the	clear	opening	they	provided	would	have	been	1.7	square	

feet—only	half	of	the	clear	opening	required	by	the	2013	Memorandum.		This	
                                                                                      9	

determination	 was	 consistent	 with	 witnesses’	 testimony	 that	 the	 windows	

only	opened	“eight	inches,”	“six	inches,”	“not	very	far	.	.	.	maybe	about	a	foot,”	

and	“less	than	twelve	inches.”			

      [¶13]	 	 Applying	 the	 test	 articulated	 by	 the	 Supreme	 Court	 in	 Brady,	

373	U.S.	 at	 87,	 the	 court	 reached	 several	 conclusions	 of	 law	 based	 on	 these	

findings.	 	 First,	 the	 court	 reasoned	 that	 the	 2013	 Memorandum	 qualified	 as	

exculpatory	 evidence,	 and	 that	 it	 was	 in	 the	 possession	 of	 the	 prosecution.		

Second,	 the	 court	 determined	 that	 although	 the	 2013	 Memorandum	 was	 not	

in	 the	 exclusive	 possession	 of	 the	 Fire	 Marshal’s	 Office—it	 had	 apparently	

been	 made	 available	 to	 defense	 counsel	 by	 someone	 in	 the	 real	 estate	

industry—there	was	“no	evidence	that	the	policy	statement	itself	.	.	.	had	been	

widely	 publicized,	 was	 readily	 available	 from	 public	 sources,	 or	 would	 likely	

have	 been	 obtained	 by	 defense	 counsel	 through	 the	 exercise	 of	 reasonable	

diligence	 in	 preparing	 for	 trial.”	 	 As	 such,	 the	 court	 concluded	 that	 the	

memorandum’s	nondisclosure	was	not	excused	by	the	possibility	that	it	could	

have	come	to	defense	counsel’s	attention	through	another	source	before	trial.		

Finally,	the	court	determined	that	the	2013	Memorandum	was	not	“material”	

for	purposes	of	the	Brady	analysis	because	“all	of	the	evidence	offered	at	the	

trial	demonstrated	beyond	a	reasonable	doubt	that	.	.	.	the	third	floor	windows	
10	

did	 not	 comply	 with	 the	 Fire	 Code	 even	 applying	 [the	 more	 lenient	

requirement	contained	in	the	2013	Memorandum].”			

         [¶14]	 	 As	 such,	 the	 court	 denied	 Nisbet’s	 motion	 for	 a	 new	 trial.	 	 This	

appeal	followed.		See	15	M.R.S.	§	2115	(2017);	M.R.	App.	P.	2(b)(2)(A)	(Tower	

2016).4			

                                         II.		DISCUSSION	

A.       Life	Safety	Code	Constitutionality	

         [¶15]		Nisbet	contends	that	Life	Safety	 Code	§	24.2.2.3.3	“is	simply	too	

vague	 to	 comport	 with	 due	 process	 requirements,”	 such	 that	 “[n]o	 ordinary	

person	 could	 reasonably	 be	 held	 to	 answer	 to	 its	 standard.”	 	 Nisbet	

specifically	takes	issue	with	the	section’s	use	of	the	terms	“special	effort”	and	

“clear	 opening,"	 which	 he	 argues	 are	 void	 for	 vagueness.	 	 Life	 Safety	 Code	

§	24.2.2.3.3.	 	 He	 also	 argues	 that	 25	 M.R.S.	 §	2452(3)	 and	 section	 24.2.2.3.3	

violate	his	rights	pursuant	to	the	due	process	clause	of	the	Maine	and	United	

States	Constitutions	because	he	lacked	notice	of	them.			

         [¶16]	 	 We	 normally	 review	 the	 constitutionality	 of	 a	 Maine	 statute	

de	novo.	 	 See	 State	 v.	 McLaughlin,	 2002	 ME	 55,	 ¶	 5,	 794	 A.2d	 69.	 	 However,	

because	 Nisbet	 failed	 to	 raise	 this	 issue	 during	 the	 trial	 proceedings,	 we	

     4		The	restyled	Maine	Rules	of	Appellate	Procedure	 do	not	apply	because	this	appeal	was	filed	

before	September	1,	2017.		See	M.R.	App.	P.	1	(restyled	Rules).	
                                                                                                             11	

review	 for	 obvious	 error	 the	 trial	 court’s	 failure	 to	 declare	 the	 statute	

unconstitutional.5		M.R.U.	Crim.	P.	52(b);	 see	State	v.	Greenleaf,	2004	ME	149,	

¶	34,	863	A.2d	877.	

        [¶17]	 	 The	 due	 process	 clauses	 of	 the	 United	 States	 and	 Maine	

Constitutions	 “require	 that	 criminal	 defendants	 be	 given	 fair	 notice	 of	 the	

standard	of	conduct	to	which	they	can	be	held	accountable.”		State	v.	Witham,	

2005	ME	79,	¶	7,	876	A.2d	40	(alteration	omitted)	(quotation	marks	omitted).		

Because	 a	 statute	 is	 presumed	 to	 be	 constitutional,	 Union	 Mut.	 Life	 Ins.	 Co.	 v.	

Emerson,	 345	 A.2d	 504,	 507	 (Me.	 1975),	 “[a]	 party	 claiming	 a	 statute	 is	 void	

for	 vagueness	 must	 demonstrate	 that	 the	 statute	 has	 no	 valid	 application	 or	

logical	construction,”	Stewart	Title	Guar.	Co.	v.	State	Tax	Assessor,	2009	ME	8,	

¶ 40,	 963	 A.2d	 169.	 	 In	 order	 to	 find	 a	 statute	 void	 for	 vagueness,	 “we	 must	

find	 that	 the	 statute	 fails	 to	 define	 the	 criminal	 offense	 with	 sufficient	

definiteness	that	ordinary	people	can	understand	what	conduct	is	prohibited	

and	 in	 a	 manner	 that	 does	 not	 encourage	 arbitrary	 and	 discriminatory	

enforcement.”	 	 State	 v.	 Falcone,	 2006	 ME	 90,	 ¶	 6,	 902	 A.2d	 141	 (quotation	

marks	omitted).		“Such	an	unacceptable	statute	would	often	be	‘so	vague	and	

   5  “For	an	error	or	defect	to	be	obvious	for	purposes	of	Rule	52(b),	there	must	be	(1)	an	error,	
(2)	that	is	plain,	and	(3)	that	affects	substantial	rights.		If	these	conditions	are	met,	we	will	exercise	
our	discretion	to	notice	an	unpreserved	error	only	if	we	also	conclude	that	(4)	the	error	seriously	
affects	 the	 fairness	 and	 integrity	 or	 public	 reputation	 of	 judicial	 proceedings.”	 	 State	 v.	 Pabon,	
2011	ME	100,	¶	29,	28	A.3d	1147.	
12	

indefinite	as	really	to	be	no	rule	or	standard	at	all.’”		Shapiro	Bros.	Shoe	Co.	v.	

Lewiston-Auburn	Shoeworkers	Protective	Ass’n,	320	A.2d	247,	253	(Me.	1974)	

(quoting	A.	B.	Small	Co.	v.	Am.	Sugar	Ref.	Co.,	267	U.S.	233,	239	(1925)).	

      [¶18]	 	 However,	 “[i]n	 examining	 the	 sufficiency	 of	 statutory	 language,	

[o]bjective	quantification,	mathematical	 certainty,	 and	absolute	precision	 are	

not	 required.”	 	 Witham,	 2005	 ME	 79,	 ¶	 7,	 876	 A.2d	 40	 (quotation	 marks	

omitted).	 	 Indeed,	 a	 void-for-vagueness	 challenge	 will	 fail	 “[w]here	 the	

meaning	 of	 a	 term	 can	 be	 adequately	 determined	 by	 examining	 the	 plain	

language	 definition	 or	 the	 common	 law	 definition.”	 	 Falcone,	 2006	 ME	 90,	

¶	10,	902	A.2d	141.		“In	a	facial	challenge	to	a	statute	on	vagueness	grounds,	

we	 need	 not	 examine	 the	 facial	 validity	 of	 the	 statute	 and	 test	 its	

constitutionality	 in	 all	 conceivable	 factual	 contexts.”	 	 State	 v.	 Aboda,	

2010	ME	125,	 ¶	 15,	 8	 A.3d	 719	 (quotation	 marks	 omitted).	 	 Rather,	 “[w]e	

address	 a	 void	 for	 vagueness	 challenge	 by	 testing	 it	 in	 the	 circumstances	 of	

the	individual	case.”		State	v.	Thongsavanh,	2007	ME	20,	¶	36,	915	A.2d	421.	

      1.     The	Regulatory	Language	

      [¶19]	 	 The	 rule	 Nisbet	 allegedly	 violated,	 Life	 Safety	 Code	 §	 24.2.2.3.3,	

provides	in	relevant	part	that	a	secondary	means	of	escape	

      shall	 be	 an	 outside	 window	 or	 door	 operable	 from	 the	 inside	
      without	the	use	of	tools,	keys,	or	special	effort	and	shall	provide	a	
                                                                                       13	

      clear	opening	of	not	less	than	5.7	ft2	(0.53	m2).		The	width	shall	be	
      not	less	than	20	in.	(510	mm),	and	the	height	shall	be	not	less	than	
      24	in.	(610	mm).	
	

	     [¶20]	 	 Although	 the	 Life	 Safety	 Code	 does	 not	 define	 the	 terms	 “clear	

opening”	 or	 “special	 effort,”	 it	 provides	 that	 “[w]here	 terms	 are	 not	 defined	

.	.	.	they	 shall	 be	 defined	 using	 their	 ordinarily	 accepted	 meanings	 within	 the	

context	 in	 which	 they	 are	 used.”	 	 Life	 Safety	 Code	 §	 3.1.	 	 The	 Code	 further	

specifies	 “Webster’s	 Third	 New	 International	 Dictionary	 of	 the	 English	

Language,	Unabridged,”	as	a	source	for	ordinarily	accepted	meanings.		Id.		We	

address	each	term	in	turn.	

             a.     “Clear	Opening”	

      [¶21]	 	 Webster’s	 Third	 New	 International	 Dictionary	 defines	 “clear”	 as	

“free	 from	 obstruction,	 burden,	 limitation,	 defect,	 or	 other	 restricting	

features,”	and	defines	“opening”	as	“something	that	is	open.”		Webster’s	Third	

New	International	Dictionary	of	the	English	Language	Unabridged	 (Webster’s)	

419,	1580	(2002).		That	dictionary	defines	“open”	as	“fit	to	be	traveled	over	or	

through:	 presenting	 no	 serious	 obstacle	 to	 passage	 or	 view.”	 	 Id.	 at	 1579.		

Accordingly,	the	ordinarily	accepted	meaning	of	the	term	“clear	opening”—in	

the	 context	 of	 section	 24.2.2.3.3—plainly	 requires	 that	 a	 door	 or	 window	

serving	 as	 a	 secondary	 means	 of	 escape	 must	 provide	 an	 obstruction-free	
14	

space	 that	 is	 fit	 to	 be	 traveled	 through.	 	 See	 Falcone,	 2006	 ME	 90,	 ¶	 10,	

902	A.2d	141.	

       [¶22]	 	 Even	 if	 this	 plain	 language	 were	 not	 so	 clear,	 however,	 Nisbet’s	

void-for-vagueness	 argument	 is	 foreclosed	 by	 the	 fact	 that	 the	 term	 “clear	

opening”	is	modified	by	precise	measurements	requiring	that	the	space	be	at	

least	20	inches	(510	mm)	wide	and	24	inches	(610	mm)	tall,	and	a	minimum	

of	 5.7	 square	 feet	 (0.53	 m2)	 in	 size.	 	 Life	 Safety	 Code	 §	 24.2.2.3.3.	 	 This	

standard	can	hardly	be	deemed	to	be	so	vague	or	indefinite	“as	really	to	be	no	

rule	 or	 standard	 at	 all.”	 	 Shapiro	 Bros.	 Shoe	 Co.,	 320	 A.2d	 at	 253	 (quotation	

marks	omitted).	

              b.     “Special	Effort”	

       [¶23]	 	 Webster’s	 Third	 New	 International	 Dictionary	 defines	 “effort”	 as	

“conscious	 exertion	 of	 physical	 or	 mental	 power,”	 and	 defines	 “special”	 as	

“one	 outside	 of	 or	 in	 addition	 to	 the	 regular	 or	 normal	 number,	 quantity,	

series,	range,	or	similar	category.”		Webster’s	at	725,	2186.		As	such,	the	plain	

language	 of	 the	 term	 “special	 effort”—in	 the	 context	 of	 section	 24.2.2.3.3—

requires	 that	 an	 occupant	 be	 able	 to	 operate	 a	 door	 or	 window	 serving	 as	 a	

secondary	 means	 of	 escape	 without	 using	 an	 amount	 of	 physical	 exertion	

greater	than	normally	required.		Although	lacking	in	“mathematical	certainty	
                                                                                       15	

[and]	 absolute	 precision,”	 Witham,	 2005	 ME	 79,	 ¶	 7,	 876	 A.2d	 40	 (quotation	

marks	 omitted),	 the	 term	 is	 sufficiently	 definite	 that	 ordinary	 people	 can	

understand	 its	 meaning,	 see	 Falcone,	 2006	 ME	 90,	 ¶	 6,	 902	 A.2d	 141.	 	 As	

Nisbet	 contends,	 the	 standard	 established	 by	 this	 term	 may	 be	 difficult	 to	

apply	 in	 different	 scenarios.	 	 However,	 the	 fact	 that	 “in	 some	 hypothetical	

instances	 [regulatory	 language]	 might	 require	 interpretation	 or	 present	

formidable	factual	issues	of	proof	.	.	.	does	not	mean	that	the	judiciary	cannot	

apply	the	law	in	accordance	with	the	spirit	of	the	legislative	intent.”		Shapiro	

Bros.	Shoe	Co.,	320	A.2d	at	253-54.	

      [¶24]	 	 Finally—of	 equal	 applicability	 to	 the	 terms	 “clear	 opening”	 and	

“special	 effort”—we	 have	 previously	 held	 that,	 when	 determining	 whether	 a	

statute	 is	 void	 for	 vagueness,	 that	 statute	 may	 be	 construed	 “in	 light	 of	 its	

context	and	purpose.”		Stewart	Title	Guar.	Co.,	2009	ME	8,	¶	41,	963	A.2d	169.		

Here,	 the	 Life	 Safety	 Code’s	 stated	 purpose	 is	 “to	 provide	 minimum	

requirements,	 with	 due	 regard	 to	 function,	 for	 the	 design,	 operation,	 and	

maintenance	 of	 buildings	 and	 structures	 for	 safety	 to	 life	 from	 fire.”	 	 Life	

Safety	Code	§	1.2.		In	light	of	that	purpose,	the	meanings	of	the	terms	at	issue	

are	further	clarified—given	that	the	Code	is	intended	to	ensure	“safety	to	life	

from	 fire,”	 id.,	 it	 is	 reasonable	 to	 conclude	 that	 the	 regulation	 must	 be	
16	

construed	 to	 afford	 building	 occupants	 an	 unobstructed,	 easy-to-open	

window	or	door	in	the	 event	of	a	fire.		 Thus,	construed	both	in	isolation	and	

“in	 light	 of	 its	 context	 and	 its	 purpose,”	 Stewart	 Title	 Guar.	 Co.,	 2009	 ME	 8,	

¶	41,	 963	 A.2d	 169,	 the	 terms	 “clear	 opening”	 and	 “special	 effort”	 are	

sufficiently	 clear	 to	 put	 ordinary	 people	 on	 fair	 notice	 that	 they	 can	 be	 held	

accountable	for	failing	to	provide	a	secondary	means	of	escape	that	is	easy	to	

operate	and	large	enough	to	travel	through.	

       2.     Lack	of	Notice	

       [¶25]	 	 Nisbet	 additionally	 argues	 that	 both	 “the	 statutory	 scheme	

created	by	[25	M.R.S.	§	2452(3)]	and	the	Life	Safety	Code	[are]	fundamentally	

unfair”	 because	 he	 did	 not	 have	 notice	 of	 that	 scheme.	 	 This	 argument	 is	

unavailing,	given	that	the	Life	Safety	Code	is	not	unconstitutionally	vague	and	

citizens	“are	generally	required	to	 know	the	law	and	cannot	claim	ignorance	

of	 the	 law	 as	 a	 defense.”	 	 Falcone,	 2006	 ME	 90,	 ¶	 23,	 902	A.2d	141	 (Dana,	 J.,	

dissenting);	 see	 also	 State	 v.	 Goodenow,	 65	 Me.	 30,	 32-33	 (1876)	 (“[The	

defendants]	 plead	 their	 ignorance	 of	 the	 law.	 	 This	 cannot	 excuse	 them.		

Ignorance	 of	 the	 law	 excuses	 no	 one.”);	 Jenks	 v.	 Mathews,	 31	 Me.	 318,	 320	

(1850)	 (“It	 is	 a	 well	 known	 maxim	 that	 ignorance	 of	 law	 will	 not	 furnish	 an	
                                                                                   17	

excuse	for	any	person,	either	for	a	breach	or	an	omission	of	duty.”	(quotation	

marks	omitted)).	

      [¶26]	 	 Moreover,	 even	 if	 Nisbet	 were	 not	 specifically	 aware	 of	 the	

requirements	set	forth	in	section	24.2.2.3.3,	he	was	at	least	generally	aware	of	

them	 because	 a	 contractor	 informed	 him	 that	 the	 windows	 were	 not	 large	

enough	to	serve	as	a	legal	secondary	means	of	escape.		Cf.	Nichols	v.	Marsden,	

483	 A.2d	 341,	 343	 (Me.	 1984)	 (stating	 that	 although	 the	 common	 law	 rule	

provides	that	“a	landlord	is	not	liable	to	a	tenant	for	personal	injuries	caused	

by	a	defective	condition	in	premises	under	the	tenant’s	exclusive	control,”	an	

exception	to	this	rule	occurs	where	the	landlord	“fails	to	disclose	the	existence	

of	 a	 latent	 defect	 which	 he	 knows	 or	 should	 have	 known	 existed”	 (emphasis	

added)).	

B.	   Brady	Violation	

	     [¶27]	 	 Nisbet	 next	 argues	 that	 the	 court	 abused	 its	 discretion	 in	

determining	 that	 the	 State’s	 failure	 to	 provide	 him	 with	 a	 copy	 of	 the	

2013	Memorandum	was	not	material	and	therefore	not	a	Brady	violation.		He	

contends	 that	 the	 2013	 Memorandum	 “could	 reasonably	 be	 taken	 to	 put	 the	

whole	case	in	such	a	different	light	as	to	undermine	confidence	in	the	verdict”	

because,	inter	alia,	both	the	court	and	the	parties	“prepared	for	the	entire	trial,	
18	

examined	 all	 the	 witnesses	 and	 evidence,	 deliberated	 and	 reached	 a	 verdict	

informed	by	the	wrong	legal	standard.”	

        [¶28]	 	 The	 denial	 of	 a	 motion	 for	 a	 new	 trial	 based	 on	 an	 alleged	

Brady	violation	is	reviewed	for	an	abuse	of	discretion.6		Twardus,	2013	ME	74,	

¶	32,	72	A.3d	523	(citing	United	States	v.	Connolly,	504	F.3d	206,	211-12,	219	

(1st	Cir.	 2007)).	 	 “[A]	 trial	 court	 has	 exceeded	 the	 bounds	 of	 its	 discretion	

when,	 in	 discretionary	 decision-making,	 the	 court:	 (1)	 considers	 a	 factor	

prohibited	 by	 law;	 (2)	 declines	 to	 consider	 a	 legally	 proper	 factor	 under	 a	

mistaken	belief	that	the	factor	cannot	be	considered;	(3)	acts	or	declines	to	act	

based	on	a	mistaken	view	of	the	law;	or	(4)	expressly	or	implicitly	finds	facts	

not	 supported	 by	 the	 record	 according	 to	 the	 clear	 error	 standard	 of	

review.”		Smith	v.	Rideout,	2010	ME	69,	¶	13,	1	A.3d	441	(citations	omitted).	

        [¶29]	 	 “A	 defendant’s	 due	 process	 rights	 are	 violated	 when	 the	

prosecution	 withholds	 evidence	 favorable	 to	 him.”	 	 State	 v.	 Jobin,	

510	A.2d	527,	 529-30	 (Me.	 1986)	 (citing	 Brady,	 373	 U.S.	 at	 87).	 	 A	 Brady	

violation	 has	 three	 elements:	 (1)	 the	 evidence	 must	 be	 favorable	 to	 the	

   6	 	 Although	 we	 generally	 review	 an	 alleged	 due	 process	 violation	de	 novo,	 State	 v.	 Williamson,	

2017	ME	108,	¶	21,	163	A.3d	127,	in	the	context	of	a	denial	of	a	M.R.U.	Crim.	P.	33	motion	for	a	new	
trial	based	upon	a	Brady	violation,	“an	appreciable	measure	of	respect	is	due	to	the	presider’s	sense	
of	 the	 ebb	 and	 flow	 of	 the	 recently	 concluded	 trial,”	 United	 States	 v.	 Connolly,	 504	 F.3d	 206,	 211	
(1st	Cir.	 2007)	 (quotation	 marks	 omitted).	 	 However,	 that	 distinction	 is	 minimal	 here	 because	 “a	
[trial]	court	abuses	its	discretion	whenever	it	predicates	its	ruling	on	an	erroneous	view	of	the	law	
and	abstract	questions	of	law	engender	de	novo	review.”		Id.	at	211-12	(citation	omitted).	
                                                                                                             19	

defendant	 because	 it	 was	 exculpatory	 or	 impeaching;	 (2)	 the	 evidence	 must	

have	 been	 suppressed	 by	 the	 State,	 either	 willfully	 or	 inadvertently;	 and	

(3)	prejudice	 must	 have	 ensued.	 	 Twardus,	 2013	 ME	 74,	 ¶	 32,	 72	 A.3d	 523	

(citing	 Strickler	 v.	 Greene,	 527	 U.S.	 263,	 281-82	 (1999)).	 	 Evidence	 is	

prejudicial	 when	 it	 is	 “material”—that	 is,	 “the	 nondisclosure	 was	 so	 serious	

that	there	is	a	reasonable	probability	that	the	suppressed	evidence	would	have	

produced	a	different	verdict.”		Strickler,	527	U.S.	at	281	(emphasis	added).		A	

“reasonable	 probability”	 exists	 when	 “the	 likelihood	 of	 a	 different	 result	 is	

great	 enough	 to	 undermine	 confidence	 in	 the	 outcome	 of	 the	 trial.”	 	Smith	 v.	

Cain,	565	U.S.	73,	75	(2012)	(alteration	omitted)	(quotation	marks	omitted).	

        [¶30]		Here,	the	State	does	not	dispute	that	the	2013	Memorandum	was	

favorable	to	Nisbet	and	that	it	was	not	disclosed	to	him.7		Thus,	the	sole	issue	

before	 us	 is	 whether	 the	 2013	 Memorandum	 was	 material	 to	 the	

determination	of	Nisbet’s	guilt.	

        [¶31]		We	conclude	the	trial	court	did	not	abuse	its	discretion	in	holding	

that,	 if	 the	 2013	 Memorandum	 had	 not	 been	 suppressed	 and	 Nisbet	 had	


   7		The	State	does	cite	to	federal	case	law	for	the	proposition	that,	pursuant	to	Brady,	evidence	is	

not	 deemed	 to	 be	 suppressed	 where	 it	 is	 available	 to	 the	 defense	 through	 another	 source	 in	 the	
exercise	of	due	diligence.		See	United	States	v.	Shields,	789	F.3d	733,	747	(7th	Cir.	2015);	Matthews	v.	
Ishee,	 486	 F.3d	 883,	 891	 (6th	 Cir.	 2007).	 	 However,	 we	 decline	 to	 address	 the	 issue	 because	 the	
State	 acknowledges	 that	 the	 court	 determined	 the	 2013	 Memorandum	 had	 been	 suppressed	 and	
does	not	affirmatively	argue	that	we	should	conclude	otherwise.			
20	

planned	 his	 “defense	 strategy,	 cross	 examination,	 witness	 presentations,	

decisions	 about	 objections	 and	 stipulations,	 and	 arguments	 to	 the	 court”	

based	 on	 that	 memorandum,	 there	 is	 no	 possibility	 that	 he	 could	 have	

established	 that	 the	 window	 could	 have	 been	 opened	 to	 provide	 a	 clear	

opening	of	3.3	square	feet.8		Each	of	the	third-floor	windows	was	double	hung,	

with	a	bottom	sash	covering	two-thirds	of	the	window	and	a	top	sash	covering	

one	third	of	the	window,	thereby	permitting	the	window	to	be	opened	only	to	

one-third	 of	 its	 total	 height.	 	 Therefore,	 even	 crediting	 the	 accuracy	 of	 the	

measurements	introduced	at	trial	that	the	window	frames	were	34	inches	tall	

and	 21.5	 inches	 wide—which	 the	 court	 did	 not,	 given	 that	 those	

measurements	 would,	 contrary	 to	 photographic	 evidence,	 make	 them	 larger	

than	the	second-floor	windows—the	window	could	only	have	been	opened	to	

a	height	of	11.3	inches,	creating	a	clear	opening	of	only	1.7	square	feet.	

       [¶32]	 	 This	 conclusion	 is	 buttressed	 by	 the	 testimony	 of	 former	

third-floor	 inhabitants,	 all	 of	 whom	 stated	 that	 the	 windows	 opened	 only	

between	 six	 to	 twelve	 inches.	 	 Even	 using	 the	 most	 generous	 of	 these	

recollections,	 the	 clear	 opening	 provided	 by	 the	 window	 would	 only	 then	


   8		As	the	court	noted	in	its	order	denying	Nisbet’s	Rule	33	motion,	“The	trial	testimony	of	defense	

witnesses	.	.	.	demonstrates	that	the	defense	was	aware	at	the	time	of	trial	that	the	5.7	square	foot	
requirement	did	not	necessarily	apply.		It	did	not	pursue	that	issue.”			
                                                                                                               21	

equal	just	over	one	square	foot,	less	than	half	of	the	3.3	square	feet	required	

pursuant	 to	 the	 2013	 Memorandum.9	 	 Accordingly,	 the	 2013	 Memorandum	

was	not	material	within	the	meaning	of	Brady	because	there	is	no	reasonable	

probability	 that	 the	 State’s	 production	 of	 the	 2013	 Memorandum	 and	 its	

admission	in	evidence	would	have	produced	a	different	result	for	Nisbet	in	the	

sense	that	confidence	in	the	outcome	of	his	trial	has	been	undermined.10		See	

Strickler,	527	U.S.	at	281;	Smith,	565	U.S.	at	75.	




    9	 	 At	 oral	 argument,	 Nisbet	 for	 the	 first	 time	 raised	 the	 alternative	 contention	 that	 if	 the	

2013	Memorandum	had	been	available	to	him,	 he	 would	not	have	attempted	to	establish	that	the	
windows	 met	the	 minimum	 size	 requirements	and	 would	 instead	 have	 focused	 on	demonstrating	
that	 the	 windows	 did	 not	 require	 “special	 effort”	 to	 operate.	 	 See	 Life	 Safety	 Code	 §	24.2.2.3.3.		
However,	because	Nisbet	failed	to	advance	this	theory	both	in	his	motion	for	a	new	trial	and	in	his	
briefs	before	us,	we	decline	to	consider	it.		See	Laqualia	v.	Laqualia,	2011	ME	114,	¶	16	n.6,	30	A.3d	
838;	 Teel	 v.	 Colson,	 396	 A.2d	529,	 534	 (Me.	 1979).	 	 Even	 if	 preserved,	 the	 issue	 would	 have	 been	
unavailing	given	the	court’s	supported	factual	finding	that	removing	the	window	altogether—which	
is	how	Nisbet	argues	the	opening	permitted	by	the	2013	Memorandum	would	have	been	satisfied—
would	 require	 “special	 effort”	 because	 someone	 trying	 to	 escape	 could	 well	 be	 unaware	 that	 the	
window	 could	 be	 removed	 and,	 in	 any	 event,	 would	 not	 have	 time	 to	 remove	 the	 window	 in	 an	
emergency.	
    	
    10		Nisbet’s	more	generalized	argument,	that	the	2013	Memorandum	was	“material”	because	the	

parties	and	the	court	had	failed	to	apply	the	correct	legal	standard,	is	therefore	misplaced.		As	the	
case	law	makes	clear,	the	Supreme	Court’s	reasoning	regarding	“confidence	in	the	outcome	of	the	
trial”	is	centered	on	the	reasonable	probability	that	a	different	outcome	would	have	resulted	with	
the	inclusion	of	the	suppressed	evidence,	and	not	on	the	nature	of	the	proceedings	that	occurred—
however	erroneously—in	the	absence	of	that	evidence.		United	States	v.	Bagley,	473	U.S.	667,	682-
84	 (1985);	 see	 Smith	 v.	 Cain,	 565	 U.S.	 73,	 75-77	 (2012);	 Strickler	 v.	 Greene,	 527	 U.S.	 263,	 290-96	
(1999);	 Kyles	 v.	 Whitney,	 514	 U.S.	 419,	 434-35,	 441-54	 (1995);	 see	 also	 Twardus,	 2013	 ME	 74,	
¶¶	34-50,	72	A.3d	523;	State	v.	Silva,	2012	ME	120,	¶	10,	56	A.3d	1230;	State	v.	Harnish,	560	A.2d	5,	
7	(Me.	1989).	
22	

C.	    Sufficiency	of	the	Evidence	

       [¶33]	 	 Finally,	 Nisbet	 argues	 that	 the	 evidence	 was	 insufficient	 to	

support	 his	 conviction	 for	 two	 reasons.	 	 First,	 he	 contends	 that	 due	 to	 the	

existence	 of	 the	 2013	 Memorandum,	 the	 State	 was	 required	 to	 prove	 that	

20	Noyes	Street	was	constructed	after	1976	in	order	for	the	court	to	apply	the	

standard	 set	 forth	 in	 section	 24.2.2.3.3.	 	 Second,	 Nisbet	 argues	 that	 his	

contractor’s	testimony—that	he	informed	Nisbet	that	the	third-floor	windows	

were	 not	 large	 enough	 to	 be	 a	 legal	 secondary	 means	 of	 escape—was	

insufficient	 to	 support	 the	 court’s	 finding	 that	 he	 knowingly	 violated	 section	

24.2.2.3.3.			

	      [¶34]	 	 “In	 assessing	 the	 sufficiency	 of	 evidence	 to	 support	 a	 criminal	

conviction,	we	review	the	evidence,	and	all	reasonable	inferences	drawn	from	

that	 evidence,	 in	 the	 light	 most	 favorable	 to	 the	 State	 to	 determine	 whether	

the	trier	of	fact	could	have	found	every	element	of	the	offense	charged	beyond	

a	reasonable	doubt.”		State	v.	Tayman,	2008	ME	177,	¶	4,	960	A.2d	1151.		“In	

dwellings	 or	 dwelling	 units	 of	 two	 rooms	 or	 more,”	 Life	 Safety	 Code	

§	24.2.2.1.1,	 it	 is	 a	 Class	 E	 crime	 pursuant	 to	 25	 M.R.S.	 §	 2452(3)	 to	 fail	 to	

provide	a	secondary	means	of	escape	in	compliance	with	the	requirements	of	
                                                                                                        23	

section	24.2.2.3.3.		Although	section	2542(3)	does	not	specify	a	culpable	state	

of	mind,	the	court	found	that	Nisbet’s	violation	had	been	knowing.11			

        1.      The	2013	Memorandum	

        [¶35]		Nisbet	contends	that	“the	State	did	not	meet	its	threshold	burden	

of	 proving	 beyond	 a	 reasonable	 doubt	 that	 [section]	 24.2.2.3.3	 actually	

applied	to	the	Appellant,	as	the	building	in	question	was	constructed	prior	to	

1976	and	that	section,	unmodified,	does	apply	to	buildings	constructed	in	that	

time	 period.”	 	 This	 argument	 is	 unpersuasive.	 	 Although	 the	 court	 found	

Nisbet	 guilty	 after	 considering	 section	 24.2.2.3.3—rather	 than	 the	 more	

lenient	 specifications	 required	 by	 the	 2013	 Memorandum—any	 error	 was	

harmless	 because,	 upon	 consideration	 of	 Nisbet’s	 motion	 for	 a	 new	 trial,	 the	

court	 found	 that	 its	 determination	 of	 guilt	 would	 have	 remained	 the	 same	

even	if	it	had	applied	the	2013	Memorandum’s	requirements.		See	M.R.U.	Crim.	

P.	52(a);	State	v.	Larsen,	2013	ME	38,	¶	23,	65	A.3d	1203.			

        2.      The	Contractor’s	Testimony	

        [¶36]	 	 Finally,	 Nisbet	 argues	 that	 his	 contractor’s	 testimony—that	 he	

informed	 Nisbet	 that	 the	 third-floor	 windows	 were	 legally	 too	 small—is	
   11		In	post-trial	memoranda,	the	State	argued	that	a	culpable	state	of	mind	was	not	required	for	a	

violation	pursuant	to	25	M.R.S.	§	2452(3)	(2017),	while	Nisbet	argued	that	“the	appropriate	mental	
state	to	use	is	either	intentional,	knowing	or	reckless.”		Because	neither	party	on	appeal	contends	
that	 the	 court	 erred	 in	 applying	 the	 culpable	 state	 of	 mind	 of	 “knowing,”	 we	 assume,	 without	
deciding,	that	this	is	the	mental	state	required	by	section	2453(3).	
24	

insufficient	 to	 support	 a	 finding	 that	 Nisbet	 knowingly	 violated	 section	

24.2.2.3.3.		“In	a	jury-waived	trial,	it	is	the	duty	of	the	fact-finder	to	reconcile	

conflicting	testimony,	to	determine	its	relative	weight,	and	to	determine	what	

part	 of	 the	 testimony	 is	 credible	 and	 worthy	 of	 belief.”	 	 State	 v.	 Cotton,	

673	A.2d	 1317,	 1321	 (Me.	 1996)	 (alteration	 omitted)	 (quotation	 marks	

omitted).	 	 Viewing	 the	 evidence	 in	 the	 light	 most	 favorable	 to	 the	 State,	 the	

court,	 as	 the	 fact-finder,	 could	 have	 attached	 sufficient	 weight	 to	 Nisbet’s	

interaction	with	his	contractor	to	find	beyond	a	reasonable	doubt	that	Nisbet	

was	aware	that	the	third-floor	windows	were	impermissibly	small.		See	id.;	see	

also	Tayman,	2008	ME	177,	¶	4,	960	A.2d	1151.	

         The	entry	is:	

                            Judgment	affirmed.	
	      	      	             	    	     	
	
Luke	S.	Rioux,	Esq.	(orally),	Rioux,	Donahue,	Chmelecki	&	Peltier,	Portland,	for	
appellant	Gregory	Nisbet	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Donald	 W.	 Macomber,	 Asst.	 Atty.	 Gen.	
(orally),	Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine		
	
	
Cumberland	County	Unified	Criminal	Docket	docket	number	CR-2015-4030	
FOR	CLERK	REFERENCE	ONLY	
