State of Maine v. Gregory Nisbet

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