MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision:    2016 ME 72
Docket:      Pen-15-243
Submitted
  On Briefs: April 21, 2016
Decided:     May 17, 2016

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.



                               LISA-MARIE SEGER

                                         v.

                                  KARLA NASON

GORMAN, J.

         [¶1] Karla Nason appeals from an amended protection from abuse order

entered in the District Court (Bangor, Lucy, J.) on a complaint filed by Lisa-Marie

Seger. Nason argues that the court erred by (1) admitting, as excited utterances,

hearsay testimony offered by Seger; (2) finding that Seger’s child was entitled to a

protection from abuse order against Nason’s child; and (3) finding that Nason’s

child presents a credible threat to the physical safety of Seger’s child. Because we

conclude that the court’s “credible threat” finding was in error, we remand the case

to the trial court with the directive that it issue a second amended protection order

that does not include that finding.
2

                                I. BACKGROUND

      [¶2] On April 9, 2015, Seger, on behalf of her child, filed a complaint for

protection from abuse in the District Court (Bangor) against a neighbor, Nason, on

behalf of Nason’s child. In her complaint, Seger stated that she did not know if

Nason’s child had access to a firearm, but that the child had never used a firearm in

an intimidating, threatening or abusive way. She did not request that the child’s

access to firearms or weapons be limited in any way. The court (Campbell, J.)

entered a temporary protection from abuse order that did not prohibit the child

from possessing firearms or other dangerous weapons.

      [¶3]   Nason and her child were served with the temporary order, and

appeared, with counsel, at the final hearing. During that hearing, Seger was the

only witness. She testified that she was not present when the events giving rise to

the complaint occurred. Over Nason’s hearsay objection, the court (Lucy, J.)

permitted Seger to recount those events as described to her by her children,

determining that the children’s statements constituted excited utterances pursuant

to M.R. Evid. 803(2).

      [¶4] At the conclusion of the hearing, the court announced its findings

concerning Nason’s child’s acts.      Those announced findings—which did not

include a finding that the child presents a credible threat to Seger’s child—are all

supported by competent evidence in the record.            See Walton v. Ireland,
                                                                                   3

2014 ME 130, ¶ 22, 104 A.3d 883. The court entered a protection order and, in

response to Nason’s motion for reconsideration, stated that it was “also” finding

that the child presents a credible threat to the safety of Seger’s child. The court’s

amended final protection order included this finding, but it did not prohibit the

child from possessing a firearm or other dangerous weapon. Nason appealed from

the amended final order.

                                 II. DISCUSSION

      [¶5] After careful review of the record, we conclude that Nason’s arguments

regarding the court’s evidentiary rulings and the sufficiency of the evidence

supporting the protection order are not persuasive. See 19-A M.R.S. §§ 4005(1),

4006(1), 4007(1) (2015); Walton, 2014 ME 130, ¶ 12, 104 A.3d 883; Smith v.

Hawthorne, 2002 ME 149, ¶¶ 15-16, 804 A.2d 1133.

      [¶6] Thus, we do not disturb the court’s determination that Seger was

entitled to a protection order, and we write only to address Nason’s argument that

the evidence is insufficient to support the finding that her child poses a

firearm-related “credible threat” to the safety of Seger’s child. This argument

requires that we review the factual finding for clear error, Walton, 2014 ME 130,

¶ 22, 104 A.3d 883, and also requires an interpretation of 19-A M.R.S. § 4007(1),

which we undertake de novo, L’Heureux v. Michaud, 2007 ME 149, ¶ 5,

938 A.2d 801.
4

        [¶7] Section 4007(1) grants a court the authority to enter a protection order

based on the grounds specified in 19-A M.R.S. § 4005(1).                      The statute also

provides: “The court may enter a finding that the defendant represents a credible

threat to the physical safety of the plaintiff or a minor child residing in the

plaintiff’s household.” 19-A M.R.S. § 4007(1). In Michaud, we held that a

credible threat finding cannot by itself give rise to the entry of a protection from

abuse order because the statutory credible threat provision “does not change the

preexisting and still-explicit requirement that a finding of abuse is necessary to the

issuance of a contested protective order.”1 2007 ME 149, ¶ 10, 938 A.2d 801.

        [¶8] Reviewing the legislative history of section 4007, we concluded that

the credible threat language was included as part of a legislative amendment

“intended to bring Maine into compliance with federal firearms provisions.”

Id. ¶¶ 9-10. “[T]he credible threat language,” we held, “is to be used in protection

from abuse orders for the purpose of supporting a firearms prohibition provision in

an order based on [the grounds otherwise specified in the protection from abuse

statute].” Id. ¶ 10; see also 18 U.S.C.S. § 922(g)(8) (LEXIS through Pub. L.

No. 114-46) (criminalizing firearm possession by persons subject to certain

protection from abuse orders).


    1
    The protection from abuse statute has been amended several times since we decided L’Heureux v.
Michaud, 2007 ME 149, 938 A.2d 801, but the credible threat provision has not changed.
                                                                                     5

        [¶9] We now hold expressly that, even where sufficient evidence supports

entry of a protection order, the credible threat finding is to be reserved for those

instances in which the court finds that a specific risk related to firearms exists, and

the court intends to order that the defendant not possess a firearm or other

dangerous weapon. Here, there was no evidence to suggest that a prohibition on

the use of firearms was warranted. In fact, the court did not prohibit the possession

of firearms in its amended order. Under these circumstances, the court’s finding of

a credible threat was in error. We therefore remand the case for entry of a second

amended order that does not include the credible threat finding.

        The entry is:

                           Remanded with instructions that the court issue a
                           second amended order that does not include the
                           credible threat finding.



On the briefs:

        Eugene M. Sullivan Jr., Esq., Law Office of Joseph M.
        Baldacci, Bangor, for appellant Karla Nason

        Lisa-Marie Seger did not file a brief



Bangor District Court docket number PA-2015-188
FOR CLERK REFERENCE ONLY
