MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	34	
Docket:	   Cum-17-375	
Argued:	   February	15,	2018	
Decided:	  March	15,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                      JENNIFER	L.	DEAH	
                                              	
                                             v.	
                                              	
                                     TRISTAN	CUTHBERT	
	
	
PER	CURIAM	

        [¶1]		Tristan	Cuthbert	appeals	from	an	order	for	protection	from	abuse	

entered	 in	 the	 District	 Court	 (Portland,	 Oram,	 J.)	 following	 a	 hearing	 on	 a	

complaint	 filed	 by	 Jennifer	 L.	 Deah.	 	 See	 19-A	 M.R.S.	 §§	 4002(1),1	 4007(1)	

(2017).	 	 Cuthbert	 contends	 that	 the	 court	 erred	 and	 disregarded	 substantial	

evidence	in	its	ultimate	finding	that	he	abused	Deah.		Cuthbert	also	challenges	

the	 court’s	 application	 of	 the	 best	 evidence	 rule,	 M.R.	 Evid.	 1002,	 when	 it	

required	 him	 to	 allow	 Deah	 to	 review	 either	 printed	 copies	 or	 the	 electronic	

versions	of	emails	and	texts	prior	to	his	cross-examination	of	her.		Because	the	




    1		Section	4002(1)	was	amended	effective	July	15,	2017.		See	P.L.	2017,	ch.	288,	§§	A-17	to	A-19.		

These	amendments	do	not	affect	the	present	case.		
2	

court	did	not	err	in	its	findings	or	abuse	its	discretion	in	its	evidentiary	rulings,	

we	affirm	the	judgment.			

                                   I.		CASE	HISTORY	

      [¶2]		Deah	filed	a	petition	for	a	protection	from	abuse	order	against	her	

boyfriend,	 Cuthbert,	 in	 July	 2017.	 	 The	 court	 held	 a	 final	 hearing	 on	 the	

complaint	 on	 August	 11,	 2017.	 	 Both	 parties	 were	 represented	 by	 counsel.		

During	 the	 hearing,	 Deah	 testified	 about	 several	 incidents	 of	 Cuthbert’s	

aggression	towards	her—two	of	which	involved	Cuthbert	kicking	her,	pushing	

her,	and	hitting	her.			

      [¶3]		Deah	 also	testified	that	 a	third	 incident	occurred	on	July	 5,	2017.		

While	 staying	 at	 a	 home	 that	 Cuthbert	 used	 in	 western	 Maine,	 Deah	 and	

Cuthbert	had	a	disagreement.		Cuthbert	began	“slamming	things	around,”	and	

the	situation	escalated.		Cuthbert	kicked	Deah	and	threw	a	bookcase	at	her.		He	

then	 took	 a	 bottle	 of	 charcoal	 lighter	 fluid,	 sprayed	 it	 over	 Deah,	 grabbed	 a	

lighter,	and	threatened	to	kill	her.			

      [¶4]		Deah	left	the	house	and	went	to	her	car.		Cuthbert	followed.		Deah	

began	backing	her	car	out	of	the	driveway	when	Cuthbert	reached	through	her	

open	driver’s	side	window	with	the	lighter	and	started	clicking	it,	attempting	to	

produce	 a	 flame.	 	 Deah	 tried	 to	 defend	 herself	 through	 the	 window,	 during	
                                                                                          3	

which	time	Cuthbert	caused	significant	damage	to	her	vehicle.		Deah	testified	

that	she	was	terrified	that	Cuthbert	was	going	to	light	her	on	fire	and	kill	her.			

       [¶5]	 	 During	 cross-examination	 of	 Deah,	 Cuthbert	 sought	 to	 have	 Deah	

look	at	“a	whole	stack”	of	printouts	of	text	messages	and	emails	that	he	claimed	

were	sent	by	Deah.		Citing	the	best	evidence	rule,	M.R.	Evid.	1002,	counsel	for	

Deah	argued	that	he	and	Deah	had	a	right	to	view	the	originals	to	determine	

whether	the	printouts	were	accurate.			

       [¶6]	 	 The	 court	 ruled	 that	 Cuthbert	 must	 either	 (1)	 show	 Deah	 the	

original	 texts	 and	 emails	 from	 Cuthbert’s	 phone	 itself	 or	 (2)	 provide	 the	

printouts	of	the	texts	and	emails	to	Deah,	prior	to	his	cross-examination	of	her,	

so	that	she	could	review	them	and	determine	whether	there	were	any	disputes	

about	 their	 authenticity.	 	 The	 court	 then	 took	 a	 brief	 recess	 so	 that	 Cuthbert	

could	show	Deah	the	original	texts	and	emails	or	the	printouts.			

       [¶7]		After	allowing	Deah	to	review	the	printouts	of	the	text	messages	and	

emails,	Cuthbert	questioned	her	about	certain	messages.		During	questioning,	

Cuthbert	read	some	of	the	texts	aloud,	and	Deah	testified	as	to	whether	she	sent	

the	messages.		After	reading	the	messages	and	having	Deah	acknowledge	that	

she	 sent	 the	 messages,	 Cuthbert	 sought	 to	 enter	 the	 documents	 in	 evidence.		

Because	 Cuthbert	 had	 not	 had	 Deah	 authenticate	 all	 of	 the	 messages	 in	 one	
4	

exhibit,	 the	 court	 sustained	 Deah’s	 objection	 to	 admitting	 that	 exhibit.	 	 The	

court	noted	that	some	of	the	messages	were	already	in	evidence,	having	been	

read	by	Cuthbert	and	acknowledged	by	Deah.		

          [¶8]		At	the	conclusion	of	the	hearing,	the	court	found	that	Cuthbert	had	

abused	 Deah	 and	 issued	 a	 two-year	 protection	 order.	 	 Cuthbert	 timely	

appealed.		M.R.	App.	P.	2	(Tower	2016).	2	


     2	 	 Cuthbert	 filed	 his	 appeal	 on	 August	 31,	 2017,	 one	 day	 before	 the	 restyled	 Maine	 Rules	 of	

Appellate	Procedure	took	effect.		See	M.R.	App.	P.	1	(restyled).		Cuthbert	filed	an	appendix	to	support	
his	 appeal,	 pursuant	 to	 M.R.	 App.	 P.	 8	 (Tower	 2016).	 	 Rule	 8	 of	 the	 Maine	 Rules	 of	 Appellate	
Procedure,	governing	the	appendix	to	the	briefs,	was	significantly	revised	in	the	restyled	Maine	Rules	
of	Appellate	Procedure.		Of	particular	importance,	restyled	Rule	8(g)	provides	a	list	of	items	that	must	
not	be	included	in	an	appendix.		The	appendix	filed	to	support	this	appeal	includes	items	that	would	
be	prohibited	if	Rule	8(g)	of	the	restyled	Rules	applied.		Including	items	prohibited	by	Rule	8(g)	in	an	
appendix	to	which	the	restyled	Rules	apply	could	result	in	rejection	of	the	appendix	or	dismissal	of	
the	entire	appeal.		See	M.R.	App	P.	8(h)	(restyled).		The	restyled	Rule	8	provides:		

                  (g)	Exclusions	from	the	Appendix.		The	appendix	shall	not	include:	

                  (1)	any	documents	or	images	that	are	not	a	part	of	the	trial	court	file	or	the	
          record	 on	 appeal,	 other	 than	 a	 supplement	 of	 legal	 authorities	 authorized	 in	
          subdivision	(n)	hereof;	

                  (2)	any	documents	that	are,	or	include,	pictures,	videos,	or	other	images	(A)	
          of	persons	under	18	years	of	age,	(B)	of	adults	subject	to	a	guardianship	or	mental	
          health	commitment	proceeding,	or	(C)	that	depict	nudity	or	sexual	or	sexualized	acts;	

                  (3)	except	for	an	appendix	prepared	by	the	State	in	a	child	protective	case,	
          any	documents	made	confidential	by	statute	or	court	order	that	are	not	required	to	
          be	included	in	the	appendix	by	subdivisions	(d)	or	(e)	hereof;	or	

                  (4)	any	portion	of	the	transcript	from	the	trial	court	other	than	on	the	record	
          statements	or	discussions	required	to	be	included	in	the	appendix	by	subdivisions	
          (d)	or	(e)	hereof.	

                 (h)	 Failure	 to	 Comply	 with	 Rules.	 	 An	 appendix	 that	 (1)	 fails	 to	 include	
          mandatory	documents;	(2)	does	not	present	documents	in	the	required	order:	first	
          documents	required	by	subdivision	(d),	then	documents	required	by	subdivision	(e),	
          then	documents,	if	any,	included	pursuant	to	subdivision	(f);	(3)	includes	duplicate	
                                                                                                    5	

                                     II.		LEGAL	ANALYSIS	

      [¶9]		Cuthbert	argues	that	the	court	erred	in	(1)	requiring	him	to	show	

Deah	the	copies	of	the	text	messages	and	emails	before	he	questioned	her	about	

them	and	excluding	from	evidence	the	written	communications,	and	(2)	finding	

that	he	had	abused	Deah.		Cuthbert	specifically	argues	that	the	evidence	before	

the	 court,	 including	 Deah’s	 electronic	 communications,	 demonstrated	 Deah’s	

lack	of	credibility,	preventing	the	court	from	finding	abuse.		

A.    Evidentiary	Rulings	

      [¶10]	 	 Deah	 was	 the	 only	 witness	 to	 testify	 at	 the	 hearing.	 	 Although	

identified	as	a	“best	evidence”	objection,	Deah’s	purported	objection	appears	to	

have	actually	been	a	request	that	she	be	permitted	to	review	the	printouts	of	

statements	being	attributed	to	her	for	accuracy	and	authenticity.			

      [¶11]		To	create	an	appropriate	record	on	appeal,	every	document	used	

during	 a	 trial	 must	 be	 identified.	 	 When,	 as	 here,	 counsel	 hopes	 to	 have	 a	

document	 admitted	 in	 evidence,	 counsel	 should	 mark	 the	 document	 as	 an	

exhibit,	identify	it	at	the	hearing	as	an	exhibit	marked	“for	identification,”	and	



      copies	of	documents;	(4)	includes	documents	or	images	excluded	by	subdivision	(g);	
      or	(5)	otherwise	is	not	prepared	in	compliance	with	these	Rules	may	be	rejected,	with	
      the	 party	 that	 prepared	 the	 appendix	 being	 required	 to	 prepare	 and	 file	 a	
      replacement	 appendix	 that	 complies	 with	 these	 Rules	 or	 being	 subject	 to	 another	
      appropriate	sanction,	including	dismissal	of	the	appeal.
6	

then	have	it	authenticated.3		See	M.R.	Evid.	901(a).		Cuthbert	obviously	intended	

to	have	the	documents	authenticated	by	Deah;	therefore,	Deah	had	to	be	able	

to	 review	 the	 documents	 to	 determine	 whether	 she	 had	 sent	 each	 of	 the	

messages.	

         [¶12]	 	 To	 avoid	 having	 Deah	 take	 the	 time	 to	 review	 and	 then	

acknowledge	 or	 challenge	 each	 of	 the	 messages	 in	 the	 “stack”	 of	 documents	

through	repetitive	and	time-consuming	questions	during	a	hearing	that	should	

be	expedited,	the	court	appropriately	required	that	all	of	the	exhibits	be	shown	

to	 Deah	 at	 one	 time.	 	 See	 19-A	 M.R.S.	 §	 4001(2)	 (2017);	 M.R.	 Evid.	 611(a),	

901(a).			

         [¶13]	 	 Because	 Cuthbert	 had	 identified	 the	 documents	 as	 containing	

statements	attributed	to	Deah,	and	because	Deah’s	attorney	asked	to	have	the	

statements	 disclosed,	 M.R.	 Evid.	 613	 mandated	 that	 Cuthbert	 show	 Deah’s	

attorney	the	printouts.		M.R.	Evid.	613	(“When	examining	a	witness	about	the	

witness’s	prior	statement,	a	party	need	not	show	it	or	disclose	its	contents	to	

the	witness.		But	the	party	must,	on	request,	show	it	or	disclose	its	contents	to	

an	adverse	party’s	attorney.”).		Thus,	although	Rule	1002	provided	no	basis	for	


     3		To	ensure	a	complete	record	of	the	hearing	for	any	appeal,	any	exhibit	marked	for	identification	

and	mentioned	at	a	hearing,	whether	offered	or	admitted	into	evidence,	should	be	provided	to	the	
clerk	for	inclusion	in	the	record.	
                                                                                                         7	

the	review	of	the	documents,	Rules	611(a),	613,	and	901(a)	support	the	court’s	

actions	 in	 requiring	 Cuthbert	 to	 disclose	 the	 printouts	 to	 both	 Deah	 and	 her	

attorney	before	cross-examination.4	

B.	     Sufficiency	of	the	Evidence	

        [¶14]		“We	review	a	trial	court’s	finding	of	abuse	for	clear	error	and	will	

affirm	a	trial	court’s	findings	if	they	are	supported	by	competent	evidence	in	

the	 record,	 even	 if	 the	 evidence	 might	 support	 alternative	 findings	 of	 fact.”		

Walton	v.	Ireland,	2014	ME	130,	¶	22,	104	A.3d	883.		We	will	defer	to	the	trial	

court’s	determination	of	witness	credibility	and	to	its	resolution	of	conflicts	in	

testimony.		Gordon	v.	Cheskin,	2013	ME	113,	¶	12,	82	A.3d	1221.		

        [¶15]	 	 For	 the	 court	 to	 find	 abuse,	 the	 moving	 party	 must	 prove	 by	 a	

preponderance	 of	 the	 evidence	 that	 the	 parties	 were	 “family	 or	 household	

members	 or	 dating	 partners.”	 	 19-A	 M.R.S.	 §	 4002(1);	 see	 19-A	 M.R.S.	

§	4002(3-A),	 (4)	 (2017);	 Jacobs	 v.	 Jacobs,	 2007	 ME	 14,	 ¶	 7,	 915	 A.2d	 409.		



    4		Cuthbert	also	appears	to	argue	that	the	court	erred	by	excluding	an	exhibit	that	contained	text	

messages	and	emails.		At	oral	argument,	Cuthbert	clarified	that	he	was	not	ascribing	error	as	to	those	
text	messages	and	emails	that	Deah	acknowledged	having	sent	and	that	were	read	into	the	record.		
Beyond	that,	it	appears	that	there	were	other	text	messages	and	emails	that	Cuthbert	did	not	offer	in	
evidence	or	ask	Deah	about	and	therefore	were	not	admitted	in	evidence	in	any	form.		Cuthbert	did	
not	make	an	offer	of	proof	or	otherwise	create	a	record	regarding	the	contents	of	those	remaining	
communications;	accordingly,	he	has	not	preserved	that	challenge	for	consideration	on	appeal.		See	
M.R.	Evid.	103(a);	Field	&	Murray,	Maine	Evidence	§	103.4	at	16	(6th	ed.	2007)	(“If	the	proof	offered	
is	a	writing	.	.	.	,	the	writing	.	.	.	should	be	marked	and	included	as	a	part	of	the	record	in	the	case	so	
that	the	appellate	court	can	appreciate	the	actuality	of	the	proffer.”).	
8	

Additionally,	the	court	must	find	that	abuse	occurred	between	the	parties.		See	

19-A	 M.R.S.	 §	 4002(1)	 (defining	 abuse	 to	 include	 “[a]ttempting	 to	 cause	 or	

causing	bodily	injury	or	offensive	physical	contact”).	

         [¶16]	 	 There	 is	 no	 dispute	 that	 Cuthbert	 and	 Deah	 were	 household	

members	or	dating	 partners.		On	the	contested	issue	of	abuse,	Deah	testified	

that	Cuthbert	hit	her,	kicked	her,	sprayed	her	with	lighter	fluid,	threatened	to	

light	 her	 on	 fire,	 and	 attacked	 her	 vehicle	 causing	 significant	 damage.	 	 The	

court’s	finding	of	abuse	as	defined	in	19-A	M.R.S.	§	4002(1)	is	fully	supported	

by	the	record.			

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	     	     	     	      	
	
John H. Branson, Esq. (orally), Branson Law Office, P.A., Portland, for appellant
Tristan Cuthbert

Benjamin P Campo, Jr., Esq. (orally), Douglas McDaniel & Campo LLC, PA,
Westbrook, for appellee Jennifer L. Deah


Portland	District	Court	docket	number	PA-2017-535	
FOR	CLERK	REFERENCE	ONLY	
