MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	33	
Docket:	   Ken-17-518	
Argued:	   September	11,	2018	
Decided:	  March	5,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   STATE	OF	MAINE	
                                           	
                                          v.	
                                           	
                                   ARTHUR	J.	JONES	
	
	
SAUFLEY,	C.J.	

       [¶1]		Arthur	J.	Jones	appeals	from	a	judgment	of	conviction	entered	by	the	

Superior	Court	(Kennebec	County,	Mullen,	J.)	as	a	result	of	a	jury	verdict	finding	

him	 guilty	 of	 unlawful	 sexual	 contact	 (Class	 C),	 17-A	 M.R.S.	 §	 255-A	 (1)(B)	

(2018),	 and	 assault	 (Class	 D),	 17-A	 M.R.S.	 §	 207(1)(A)	 (2018).	 	 Over	 Jones’s	

objections	 at	 trial,	 the	 court,	 pursuant	 to	 16	 M.R.S.	 §	 357	 (2018),	 admitted	 a	

portion	of	a	report	of	a	sexual	assault	forensic	examination	(SAFE)	performed	

on	the	adult	female	victim	upon	her	arrival	at	Maine	General	Hospital.		Jones	

argues	that	(1)	the	court	erred	or	abused	its	discretion	in	admitting	part	of	the	

SAFE	report	because	the	admitted	portion	did	not	satisfy	the	requirements	of	

Maine	 Rule	 of	 Evidence	 803(4)	 and	 (2)	 even	 if	 the	 report	 were	 admissible	

pursuant	 to	 a	 hearsay	 exception,	 the	 report	 was	 cumulative	 or	 unduly	
2	

prejudicial	and	should	have	been	excluded	pursuant	to	M.R.	Evid.	403.		We	take	

this	opportunity	to	address	the	interplay	between	the	Maine	Rules	of	Evidence	

and	16	M.R.S.	§	357—a	statutory	exception	to	the	general	exclusion	of	hearsay	

evidence,	 allowing	 the	 admission	 of	 certain	 hospital	 records.	 	 We	 affirm	 the	

judgment.		

                                           I.		BACKGROUND	

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

jury	rationally	could	have	found	the	following	facts.		See	State	v.	Fay,	2015	ME	

160,	¶	2,	130	A.3d	364.1		On	the	evening	of	December	21,	2016,	Jones	and	the	

victim,	who	were	social	acquaintances,	were	at	Jones’s	house	when	the	victim	

got	up	and	walked	toward	the	bathroom,	and	Jones	stood	in	her	way	and	threw	

her	on	a	bed.		The	victim	escaped,	but	Jones	dragged	her	up	the	stairs	by	the	

neck.		Jones	then	took	her	pants	off,	touched	his	mouth	to	her	genitals,	further	

assaulted	her	with	his	finger,	and	“penetrated	[her]	with	his	penis.”		The	victim	

fled	Jones’s	home,	without	clothes	except	for	a	shirt,	and	called	9-1-1.		A	police	

officer	took	the	victim	to	Maine	General	Hospital,	and	a	nurse	performed	a	SAFE	




     1		To	the	extent	that	Jones	also	disputes	the	sufficiency	of	the	evidence	to	support	his	conviction,	

there	was	sufficient	evidence	for	a	jury	to	conclude	beyond	a	reasonable	doubt	that	Jones	was	guilty	
of	 the	 crimes	 of	 assault	 (Class	 D),	 17-A	 M.R.S.	 §	 207(1)(A)	 (2018),	 and	 unlawful	 sexual	 contact	
(Class	C),	17-A	M.R.S.	§	255-A(1)(B)	(2018).		See	State	v.	Ouellette,	2012	ME	11,	¶	17,	37	A.3d	921.	
                                                                                                     3	

procedure,	 gathering	 information	 from	 the	 victim	 and	 examining	 her	

physically.			

        [¶3]	 	 Jones	 was	 charged	 by	 complaint	 in	 December	 2016,	 and	 an	

indictment	was	issued	in	March	2017,	charging	Jones	with	gross	sexual	assault	

(Class	 A),	 17-A	 M.R.S.	 §	 253(1)(A)	 (2018),	 aggravated	 assault	 (Class	 B),	

17-A	M.R.S.	 §	 208(1)(C)	 (2018),	 and	 unlawful	 sexual	 contact	 (Class	 C),	

17-A	M.R.S.	§	255-A(1)(B).		Jones	pleaded	not	guilty	to	all	charges,	and	a	jury	

trial	was	held	over	the	course	of	two	days.			

        [¶4]		At	trial,	the	victim	recounted	the	assault	in	detail.		The	nurse	who	

conducted	 the	 SAFE	 procedure	 also	 testified.	 	 She	 explained	 that	 while	

conducting	 the	 SAFE	 procedure,	 she	 inquired	 of	 the	 victim	 about	 the	 sexual	

assault	“to	understand	what	it	was	that	I	needed	to	be	looking	for	.	.	.	moving	

forward	into	a	physical	exam	.	.	.	.”		She	documented	the	victim’s	responses	in	

the	SAFE	report.2		And,	relying	on	the	SAFE	report	to	refresh	her	recollection,	

the	nurse	described	the	victim’s	statements	on	the	night	of	the	incident	that	the	

nurse	used	to	treat	the	patient.3			


   2		The	SAFE	report	contained	the	victim’s	descriptions	of	her	injuries	as	the	nurse	depicted	them	

on	standard	exemplars,	as	well	as	the	nurse’s	notes	of	the	victim’s	various	statements.			
   3		 As	 noted	 below,	 although	 Rule	 803(4)	 would	 allow	 the	 medical	 professional’s	 testimony	
regarding	hearsay	statements	related	to	treatment,	section	357	allows	those	statements	to	be	offered	
through	hospital	or	medical	records.	
4	

       [¶5]		In	addition	to	the	victim	and	the	nurse,	the	officer	who	responded	

to	the	victim’s	9-1-1	call	and	a	detective	from	the	Maine	State	Police	testified.		

They	 identified	 photographs,	 entered	 in	 evidence,	 showing	 extensive	 and	

significant	bruising	of	the	victim’s	body.		The	State	also	played	a	portion	of	a	

video	 recording	 of	 the	 detective’s	 interview	 with	 Jones,	 in	 which	 Jones	

acknowledged	that	he	had	placed	the	victim	in	a	“chokehold”	and	that	he	had	

touched	the	victim’s	genitals	with	his	mouth.			

       [¶6]	 	 Jones	 testified	 on	 his	 own	 behalf	 and	 presented	 testimony	 from	

several	witnesses.		The	essence	of	Jones’s	defense	was	that	he	and	the	victim	

were	 romantically	 involved	 and	 that	 they	 had	 consensual	 oral	 sex	 on	 the	

evening	in	question.		At	trial,	in	contrast	to	his	earlier	statement,	Jones	denied	

putting	the	victim	in	a	chokehold,	and	he	denied	biting	her.		He	testified	that	he	

did	not	remember	sexually	assaulting	her	with	his	fingers,	and	never	“put	[his]	

penis	in	.	.	.	or	near	her	vagina.”			

       [¶7]		In	rebuttal,	the	State	moved	to	admit	the	SAFE	report,	which	was	

consistent	with	the	victim’s	and	nurse’s	testimony.		Jones	objected.		The	court	

reviewed	the	entire	report	and	admitted	only	a	portion	of	it,	determining	that	

the	partial	report	was	admissible	pursuant	to	the	statutory	hearsay	exception	

for	hospital	records	that	relate	to	treatment	and	medical	history.		See	16	M.R.S.	
                                                                                      5	

§	357.		The	court	excluded	a	portion	of	the	report	documenting	a	“Summary	of	

Patient’s	Description	of	Assault	(in	patient’s	own	words	.	.	.	),”	however,	because	

it	 determined	 that	 this	 portion	 of	 the	 report	 was	 tantamount	 to	 a	 witness’s	

statement	made	to	a	police	officer,	not	a	statement	made	for	medical	diagnosis	

or	treatment.			

      [¶8]		The	jury	found	Jones	not	guilty	of	gross	sexual	assault	but	guilty	of	

unlawful	sexual	contact.		On	the	aggravated	assault	charge,	the	jury	found	Jones	

guilty	 of	 the	 lesser	 included	 offense	 of	 assault	 (Class	 D),	 17-A	 M.R.S.	

§	207(1)(A).		See	17-A	M.R.S.	§	13-A	(2018);	M.R.U.	Crim.	P.	7(e).		Following	a	

sentencing	hearing,	the	court	sentenced	Jones	to	four	years’	imprisonment	for	

unlawful	 sexual	 contact	 and	 to	 nine	 months’	 imprisonment,	 to	 be	 served	

concurrently	 with	the	four-year	sentence,	for	the	assault,	with	no	 part	of	the	

sentences	 suspended.	 	 Jones	 timely	 appealed	 the	 resulting	 conviction.	 	 See	

15	M.R.S.	§	2115	(2018);	M.R.	App.	P.	2B(b)(1).				

                                   II.		DISCUSSION	

      [¶9]		Jones	argues	that	the	court	erred	in	admitting	a	portion	of	the	SAFE	

report	 because,	 in	 his	 view,	 the	 report	 was	 not	 excepted	 from	 the	 hearsay	
6	

exclusion	set	out	in	Rule	803(4).4		He	also	argues	that	even	if	the	report	were	

otherwise	admissible,	it	should	have	been	excluded	as	unfairly	prejudicial.5			

         [¶10]	 	 Although	 Jones	 bases	 his	 argument	 on	 the	 application	 of	 Maine	

Rule	 of	 Evidence	 803(4),	 an	 exception	 to	 the	 rule	 against	 the	 admission	 of	

hearsay,	 see	 M.R.	 Evid.	 802,	 the	 presiding	 judge	 unmistakably	 admitted	 the	

report	 pursuant	 to	 16	 M.R.S.	 §	 357.6	 	 Jones’s	 argument	 challenging	 the	

admissibility	of	the	SAFE	report	is	based	entirely	on	M.R.	Evid.	803(4),	and	he	

does	not	mention	section	357	in	his	brief	to	us.		Instead,	Jones	insists	that	the	

court	was	required	to	exclude	the	report	because	the	report	did	not	satisfy	the	



     4		Maine	Rule	of	Evidence	803(4)	provides	as	follows:	


        The	following	are	not	excluded	by	the	rule	against	hearsay,	regardless	of	whether	
        the	declarant	is	available	as	a	witness:		
        	
        .	.	.	.	
        	
        (4)		Statement	made	for	medical	diagnosis	or	treatment.	A	statement	that:		
        	
                 (A)	Is	made	for—and	is	reasonably	pertinent	to—medical	diagnosis	or	
                      treatment;	and		
                 	
                 (B)	Describes	medical	history;	past	or	present	symptoms	or	sensations;	their	
                      inception;	or	their	general	cause.		
        	
M.R.	Evid.	803(4).	
	
   5		We	are	not	persuaded	by	Jones’s	argument—raised	for	the	first	time	in	his	reply	brief—that	

admission	of	the	report	here	violated	his	right	to	confront	his	accuser.		Cf.	State	v.	Gorman,	2004	ME	
90,	¶	55,	854	A.2d	1164	(explaining	that	a	defendant’s	right	to	confront	witnesses	is	satisfied	when	a	
hearsay	declarant	testifies	and	can	be	cross-examined).			
     6		The	State	also	addressed	only	the	Maine	Rules	of	Evidence	on	appeal.			
                                                                                             7	

requirements	of	M.R.	Evid.	803(4).		In	most	instances,	we	would	conclude	that	

“[t]he	failure	to	mention	an	 issue	in	the	brief	or	 at	argument	is	construed	 as	

either	an	abandonment,”	Holland	v.	Sebunya,	2000	ME	160,	¶	9	n.6,	759	A.2d	

205,	 or	 a	 waiver,	 State	 v.	 Haskell,	 2001	 ME	 154,	 ¶	 2	 n.3,	 784	 A.2d	 4,	 of	 that	

argument.	 	 Nevertheless,	 because	 of	 the	 potential	 confusion	 regarding	 the	

interplay	between	16	M.R.S.	§	357	and	the	Maine	Rules	of	Evidence,	we	address	

Jones’s	 argument	 that	 the	 report	 should	 have	 been	 excluded	 as	 hearsay	

pursuant	to	Rules	802	and	803(4).			

       [¶11]	 	 We	 begin	 the	 analysis	 with	 the	 language	 of	 section	 357,	 which	

provides,	in	pertinent	part,	as	follows:		

             Records	 kept	 by	 hospitals	 .	 .	 .	 and	 other	 medical	 facilities	
     similarly	conducted	or	operated	or	which,	being	incorporate,	offer	
     treatment	 free	 of	 charge,	 shall	 be	 admissible,	 as	 evidence	 in	 the	
     courts	of	this	State	so	far	as	such	records	relate	to	the	treatment	and	
     medical	history	of	such	cases	and	the	court	shall	admit	copies	of	such	
     records,	if	certified	by	the	persons	in	custody	thereof	to	be	true	and	
     complete,	 but	 nothing	 therein	 contained	 shall	 be	 admissible	 as	
     evidence	which	has	reference	to	the	question	of	liability.		
     	
16	M.R.S.	§	357	(emphasis	added).			

       [¶12]		By	its	terms,	section	357	provides	a	method	of	authenticating	the	

hospital	records	and	provides	an	exception	to	Rule	802	of	the	Maine	Rules	of	

Evidence,	which,	as	a	general	matter,	bars	the	admission	of	hearsay	evidence.		

The	statute’s	effect	is	similar	to	the	hearsay	exception	provided	in	Rule	803(4)	
8	

in	 that	 the	 statute	 creates	 an	 exception	 to	 the	 exclusion	 of	 the	 records	 as	

hearsay	despite	the	fact	that	they	contain	statements	made	out	of	court,	offered	

for	the	truth	of	the	matter	asserted	related	to	treatment	and	medical	history.		

Accordingly,	 Rule	 803(4)	 need	 not	 be	 analyzed	 when	 the	 record	 meets	 the	

qualifications	of	section	357.7		

          [¶13]		Section	357	does	not,	however,	override	the	application	of	other	

Maine	Rules	of	Evidence	not	pertaining	to	hearsay.		Accordingly,	a	SAFE	report	

may	be	admitted	over	a	hearsay	objection	if	it	also	meets	all	other	evidentiary	

rules	and	complies	with	the	requirements	of	section	357	itself.			

          [¶14]	 	 Thus,	 for	 the	 proper	 admission	 of	 a	 hospital	 record	 pursuant	 to	

section	357,	the	party	offering	the	record	must	(A)	establish	that	the	report	is	

relevant	 to	 the	 matter	 before	 the	 court,	 see	 M.R.	 Evid.	 401;	 (B)	 satisfy	 the	

requirements	 of	 section	 357,	 see	 16	 M.R.S.	 §	 357;	 and,	 (C)	 establish	 that	 the	

Maine	Rules	of	Evidence	do	not	otherwise	require	the	exclusion	of	the	medical	

record,	see,	e.g.,	M.R.	Evid.	403,	502,	503.		

          [¶15]	 	 Following	 that	 process,	 once	 the	 court	 has	 determined	 that	 the	

record	is	relevant,	in	whole	or	in	part,	the	proponent	of	the	record	must	address	



     7	 	 When	 the	 hospital	 records	 are	 in	 the	 form	 of	 copies	 of	 photographic	 or	 microphotographic	

format,	section	357	also	provides	methods	for	their	admission.		16	M.R.S.	§	357	(2018).		
                                                                                                              9	

the	criteria	of	section	357:	the	document	must	be	a	record	that	(1)	is	kept	by	a	

hospital	 or	 medical	 facility	 as	 defined	 in	 section	 357,	 (2)	 relates	 to	 the	

treatment	and	medical	history	of	an	individual,8	and	(3)	has	been	certified	by	

the	person	in	custody	of	the	document.		See	16	M.R.S.	§	357.9			

A.		      Rule	401	

          [¶16]		Here,	the	court	impliedly	made	the	determination	that	the	contents	

of	 the	 applicable	 portion	 of	 the	 report	 were	 relevant	 when	 presented	 in	

rebuttal.	 	 See	 M.R.	 Evid.	 401.	 	 Relevant	 evidence	 is	 any	 evidence	 having	 any	

tendency	 to	 make	 the	 existence	 of	 any	 fact	 that	 is	 of	 consequence	 to	 the	

determination	of	the	action	 more	probable	or	less	probable	than	it	would	be	

without	the	evidence.		Id.		The	contents	of	the	SAFE	report	were	relevant	to	the	

material	issue	in	the	case:	whether	a	sexual	assault	had,	in	fact,	occurred.		The	

court	did	not	err	in	determining	that	the	report	was	relevant.	

B.		      Section	357	

          [¶17]		The	State	offered	the	SAFE	report	as	certified	by	the	custodian	of	

records	for	Maine	General	Medical	Center.		The	State	also	called	the	nurse	who	


   8		Hospital	records	related	to	treatment	and	medical	history,	which	carry	with	them	the	indicia	of	

reliability,	must	not	be	confused	with	the	opinion-based	reports	of	experts	called	upon	to	opine	on	
medical	conditions	and	causation.		
   9	 	 Moreover,	 the	 proffered	 record	 may	 not	 be	 related	 to	a	determination	 of	liability.	 	16	 M.R.S.	

§	357.	
10	

conducted	 the	 SAFE	 procedure	 to	 testify.	 	 She	 testified	 that	 Maine	 General	

Hospital,	 where	 she	 conducted	 the	 SAFE	 procedure	 on	 the	 victim,	 keeps	 the	

completed	SAFE	documents	and	that	the	information	she	gathered	during	the	

SAFE	procedure	and	documented	in	the	SAFE	report	was	“absolutely”	pertinent	

to	her	treatment	of	the	patient.		The	admitted,	redacted	portions	of	the	report	

did	not	identify	Jones	as	the	assailant	or	otherwise	refer	to	Jones.		Instead,	and	

within	 the	 purview	 of	 section	 357,	 the	 report	 detailed	 only	 that	 information	

pertaining	to	the	victim’s	treatment	and	medical	history.		The	court	did	not	err	

in	determining	that	the	State	had	satisfied	the	requirements	set	forth	in	section	

357.			

C.		      Rule	403	

          [¶18]	 	 Jones	 next	 raises	 a	 Rule	 403	 challenge	 to	 the	 admission	 of	 the	

report.	 	 Rule	 403	 affords	 a	 court	 the	 discretion	 to	 exclude	 relevant	 and	

otherwise	 admissible	 evidence	 if	 its	 probative	 value	 is	 substantially	

outweighed	by	a	danger	of	“unfair	prejudice,	confusing	the	issues,	misleading	

the	 jury,	 undue	 delay,	 wasting	 time,	 or	 needlessly	 presenting	 cumulative	

evidence.”	 	 M.R.	 Evid.	 403.	 	 Therefore,	 even	 though	 relevant	 and	 otherwise	

admissible,	evidence	may	be	excluded	as	a	result	of	the	application	of	Rule	403.		

Cf.	State	v.	Caron,	2011	ME	9,	¶	15,	10	A.3d	739.		Whether	to	do	so	is	left	to	the	
                                                                                      11	

sound	discretion	of	the	court.		See	State	v.	Kimball,	2016	ME	75,	¶	16,	139	A.3d	

914	 (holding	 that	 “pursuant	 to	 M.R.	 Evid.	 403,	 the	 trial	 court	 has	 broad	

discretion	 to	 weigh	 the	 relevance	 of	 evidence	 against	 the	 danger	 of	 unfair	

prejudice	to	the	defendant”	(quotation	marks	omitted));	State	v.	Crocker,	435	

A.2d	 58,	 73-74	 (Me.	 1981)	 (affording	 the	 court	 broad	 discretion	 pursuant	 to	

Rule	403	to	admit	medical	testimony	in	evidence).			

      [¶19]		The	court	admitted	the	portion	of	the	SAFE	report	that	it	deemed	

relevant	 to	 rebut	 Jones’s	 testimony,	 specifically	 admitting	 the	 record	 that	

contemporaneously	 documented	 the	 nurse’s	 observations	 of	 the	 victim’s	

physical	 condition,	 including	 a	 statement	 from	 the	 victim	 that	 described	

mechanically	how	her	neck	was	bruised.		The	court,	also,	carefully	excluded	the	

portion	 of	 the	 SAFE	 report	 where	 the	 nurse	 had	 transcribed—apparently	

verbatim—the	victim’s	extensive	account	of	the	incident,	in	which	the	victim	

described	what	was	said,	how	she	felt,	Jones’s	intoxication,	and	several	other	

details	of	the	incident.			

      [¶20]	 	 Jones	 argues	 that,	 even	 if	 relevant,	 the	 admitted	 portion	 of	 the	

report	was	unduly	prejudicial	as	compared	to	its	probative	value	because	it	was	

(1)	cumulative	and	(2)	inflammatory	or	likely	to	mislead	the	jury,	and	therefore	
12	

should	have	been	excluded	from	evidence	pursuant	to	Rule	403.		We	discuss	

Jones’s	arguments	each	in	turn.		

       1.	    Cumulative	Nature	of	the	Report	

       [¶21]	 	 We	 review	 a	 court’s	 decision	 to	 admit	 rebuttal	 evidence	 for	 an	

abuse	 of	 discretion,	 “taking	 into	 account	 the	 fact	 that	 [the	 trial	 judge]	 alone	

ha[d]	the	opportunity	to	assess	the	evidence	with	the	benefit	of	having	heard	

the	testimony	sought	to	be	rebutted.”		Payson	v.	Bombardier,	Ltd.,	435	A.2d	411,	

413	 (Me.	 1981).	 	 Proper	 rebuttal	 evidence	 is	 evidence	 that	 “repels	 or	

counteracts	 the	 effect	 of	 evidence	 which	 has	 preceded	 it.”	 	 Field	 &	 Murray,	

Maine	Evidence	§	611.8	at	335	(6th	ed.	 2007)	(citing	Emery	v.	Fisher,	128	Me.	

124,	125,	145	A.	747,	747	(1929));	see	also	Jusseaume	v.	Ducatt,	2011	ME	43,	

¶	15	 n.6,	 15	 A.3d	 714	 (outlining	 proper	 rebuttal	 evidence	 as	 evidence	 that	

“contravenes,	 antagonizes,	 confutes,	 or	 controls	 the	 inference	 sought	 to	 be	

drawn	by	new	facts	introduced	by	the	adverse	party	at	the	next	previous	stage”	

(quotation	marks	omitted)).	

       [¶22]	 	 Here,	 during	 the	 State’s	 case-in-chief,	 the	 nurse	 testified	 to	 the	

victim’s	injuries	and	to	the	nurse’s	notes	of	the	patient’s	condition.		Jones	chose	

to	testify,	and	he	contradicted	the	nurse’s	testimony.		The	State	then	moved	to	

admit	 the	 SAFE	 report	 to	 corroborate	 the	 nurse’s	 and	 the	 victim’s	 testimony	
                                                                                                   13	

and	to	rebut	Jones’s	testimony.10		See	Emery,	128	Me.	at	125,	145	A.	at	747.		The	

State’s	introduction	of	the	report	was	proper	rebuttal	evidence,	and	it	was	not	

unduly	 cumulative.	 	 The	 court	 did	 not	 abuse	 its	 discretion	 in	 admitting	 the	

report	 when	 the	 State	 sought	 to	 counteract	 Jones’s	 testimony.	 	 See	 State	 v.	

Rancourt,	435	A.2d	1095,	1103	(Me.	1981)	(holding	that	the	evidence	was	not	

unduly	prejudicial	where	it	was	“at	most	cumulative”).	

       2.	     Inflammatory	or	Misleading	Nature	of	the	Report			

       [¶23]		Jones’s	remaining	argument	challenges	the	admitted	portion	of	the	

record	 as	 unduly	 prejudicial	 because	 the	 language—particularly	 the	 heading	

portion	identifying	the	document	as	a	“Sexual	Assault”	report—was	inherently	

inflammatory	and	the	report	was	likely	to	mislead	the	jury.		That	argument	was	

not	preserved	for	appellate	review.		At	trial,	Jones	objected	to	the	admission	of	

the	SAFE	report	because	it	was	unauthenticated,	was	created	for	the	purpose	

of	law	enforcement,	and	was	cumulative	of	testimony.		Jones	did	not	challenge,	

as	he	does	now,	the	admission	of	the	report	on	the	basis	that	the	report	was	

“unduly	prejudicial	because	the	language	in	it	was	inherently	inflammatory	.	.	.	




   10		During	the	State’s	case-in-chief,	the	State	stated	that	it	planned	on	introducing	the	report	in	

evidence.		The	court	responded	that	if	the	State	moved	for	admission,	it	would	defer	ruling	until	it	
could	review	the	statutory	exception	to	hearsay,	16	M.R.S.	§	357.		The	State	did	not	move	to	admit	
the	report	until	rebuttal.			
14	

[and]	 likely	 to	 mislead	 the	 jury.”11	 	 See	 M.R.	 Evid.	403.	 	 “It	 is	 a	 well	 settled	

universal	 rule	 of	 appellate	 procedure	 that	 a	 case	 will	 not	 be	 reviewed	 by	 an	

appellate	court	on	a	theory	different	from	that	on	which	it	was	tried	in	the	court	

below.”		Teel	v.	Colson,	396	 A.2d	529,	534	(Me.	1979);	see	also	KeyBank	Nat'l	

Ass’n	v.	Estate	of	Quint,	2017	ME	237,	¶	22,	176	A.3d	717.			

       [¶24]		Thus,	to	the	extent	that	we	review	this	unpreserved	issue,	we	do	

so	only	for	obvious	error.		State	v.	Burdick,	2001	ME	143,	¶	29,	782	A.2d	319;	

M.R.U.	Crim.	P.	52(b).		The	jury	was	fully	aware	that	Jones	was	charged	with	a	

sexual	 assault.	 	 Jones	 himself	 admitted	 to	 certain	 sexual	 activities	 with	 the	

victim.		The	heading	on	the	document,	the	report’s	description	of	the	victim’s	

injuries,	 and	 the	 illustrations	 of	 generic	 body	 parts	 that	 were	 touched	 or	

assaulted	were	in	no	way	so	inflammatory	as	to	create	an	unfair	prejudice.		The	

court	did	not	err	in	concluding	that	the	probative	value	of	the	report	was	not	

outweighed	by	the	danger	of	unfair	prejudice	such	that	the	court	was	required	

to	exclude	it	despite	the	lack	of	any	objection.		See	State	v.	Pratt,	2015	ME	167,	

¶¶	23,	26,	130	A.3d	381;	M.R.	Evid.	403.		The	court	did	not	commit	error,	let	




   11		Both	Jones	and	the	State	provide	citations	to	the	transcript	that	do	not	support	the	position	that	

Jones	objected	to	the	admission	of	the	report	based	on	the	danger	of	unfair	prejudice.			
                                                                                       15	

alone	obvious	error,	nor	did	it	abuse	its	discretion	in	admitting	the	portion	of	

the	SAFE	report	challenged	by	Jones.		

         The	entry	is:	

                            Judgment	affirmed.	

	     	      	      	       	     	
	
Stephen	 C.	 Smith,	 Esq.	 (orally),	 and	 T.	 Evan	 Fisher,	 Esq.,	 Lipman	 &	 Katz,	 PA,	
Augusta,	for	appellant	Arthur	J.	Jones	
	
Maeghan	 Maloney,	 District	 Attorney,	 Frayla	 Tarpinian,	 Asst.	 Dist.	 Atty.,	 and	
Christy	 Stilphen,	 Stud.	 Atty.	 (orally),	 Prosecutorial	 District	 IV,	 Augusta,	 for	
appellee	State	of	Maine	
	
	
Kennebec	County	Unified	Criminal	Docket	docket	number	CR-2016-3156	
FOR	CLERK	REFERENCE	ONLY	
