State of Maine v. David P. Hunt Jr.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 26
Docket: And-22-105
Argued: February 7, 2023
Decided: April 18, 2023

Panel: MEAD, JABAR, HORTON,* and CONNORS, JJ., and CLIFFORD, A.R.J.

STATE OF MAINE

v.

DAVID P. HUNT JR.

MEAD, J.

[¶1] David P. Hunt Jr. appeals from a judgment of conviction of two

counts of gross sexual assault (Class A), 17-A M.R.S. § 253(1)(C) (2023), and

two counts of unlawful sexual contact (Class B), 17-A M.R.S. § 255-A(1)(E-1)

(2023), entered by the trial court (Androscoggin County, Stewart, J.) following

a jury trial. Hunt contends that the court should have granted his request to

continue the trial to allow him more time to obtain the victim’s out-of-state

counseling records and should not have required participants in the trial to

wear masks. He also contends that statements made during the State’s opening

statement and closing and rebuttal arguments constituted prosecutorial error

*Although not available at oral argument, Justice Horton participated in the development of this
opinion. See M.R. App. P. 12(a)(2) (“A qualified Justice may participate in a decision even though not
present at oral argument.”).
2

and that the court made several evidentiary errors during the trial. We discern

no error and affirm the judgment.

I. BACKGROUND

[¶2] Viewing the evidence admitted at trial in the light most favorable to

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

Beeler, 2022 ME 47, ¶ 2, 281 A.3d 637.

[¶3] The victim’s mother married Hunt in 2007, the year the victim

turned seven. At that time the family lived in Massachusetts, but shortly

thereafter moved to Georgia. In Georgia, when the victim was seven, after

telling the victim’s mother to leave the house with the victim’s younger

stepsister, Hunt sexually assaulted the victim. When he was done, Hunt told the

victim not to tell anyone or he would hurt her mother; she obeyed. The victim

was scared of Hunt because he had a gun that he had shown her and let her

hold. After the first incident, Hunt sexually assaulted the victim repeatedly; she

did not know how often. After the family returned to Massachusetts, when the

victim was age seven or eight, Hunt continued to sexually assault her

repeatedly.

[¶4] When the victim was age eight or nine and in the fourth grade, the

family moved to Auburn, Maine. They lived in Maine for over a year, from 2009
 3

to 2010. When they lived in Auburn, Hunt continued to sexually assault the

victim, sometimes more than four times in a week, while her mother worked or

shopped. The victim did not tell anyone of the sexual assaults, which numbered

close to 200 in total during the time she lived in Maine.

[¶5] After living in Auburn, the family moved back to Massachusetts.

Hunt’s sexual assaults on the victim continued until the Christmas season of

2011, when she was age eleven. At some point Hunt and the victim’s mother

separated and he moved out. After that, at a sleepover with some close friends,

the victim disclosed what Hunt had done to her. One of her friends told her

mother what the victim had disclosed; the friend’s mother then told the victim’s

mother.

[¶6] The victim’s mother took her to the Yarmouth (Massachusetts)

Police Department and the victim, still age eleven, was interviewed in

February 2012. Massachusetts authorities then contacted the Auburn Police

Department. Hunt was interviewed by an Auburn detective and denied ever

touching the victim inappropriately.

[¶7] As a result of a clerical error, nothing happened with the case from

2012 until 2017, when the Auburn Police Department performed a records

check on Hunt, discovered the error, and notified Massachusetts police. After
4

the error was discovered, a Yarmouth (Massachusetts) Police detective

contacted the victim and her mother; they came to the police department where

the detective explained what had happened. In talking to the victim, then age

sixteen, it was “immediately obvious” to the detective that the victim “had a

much better understanding of what had occurred to her at the hands of

Mr. Hunt.” The detective reinterviewed the victim in June 2017, after which the

case was assigned to an Auburn Police detective concerning the assaults that

had occurred in Maine.

[¶8] In April 2018, Hunt was indicted on two counts of gross sexual

assault (Class A), 17-A M.R.S. § 253(1)(C); one count of unlawful sexual contact

(Class A), 17-A M.R.S. § 255-A(1)(F-1) (2023); and one count of unlawful sexual

contact (Class B), 17-A M.R.S. § 255-A(1)(E-1), all alleged to have occurred in

2009 in Auburn. After the victim testified at trial, the Class A charge of unlawful

sexual contact was reduced to a Class B offense. 17-A M.R.S. § 255-A(1)(E-1).

The case went to trial February 22-24, 2022, and the jury returned a verdict of

guilty on each count.

[¶9] At the sentencing hearing on April 5, 2022, the court entered

judgment and sentenced Hunt to thirty years’ imprisonment on the gross sexual

assault convictions and ten years on the unlawful sexual contact convictions, all
 5

concurrent, along with lifetime supervised release. Hunt timely appealed and

filed an application for leave to appeal from the sentence. The Sentence Review

Panel denied Hunt leave to appeal from the sentence.

II. DISCUSSION

A. Motion to Continue

1. Pretrial Procedure

[¶10] Beginning in September 2018, Hunt, represented by a member of

his trial counsel’s law firm, successfully moved several times to continue the

case on the ground that it was necessary for him to review the victim’s

Massachusetts therapy and child protective services records that had been

provided to a Massachusetts criminal court for its camera review. In

June 2019, Hunt moved in limine, pursuant to M.R.U. Crim. P. 17(c), (d), for

permission to subpoena the Massachusetts records; the court (Martin, J.)

granted the motion and entered an order invoking the procedure set out in

M.R.U. Crim. P. 17(d), (e).

[¶11] Eight months later, Hunt again moved to continue the trial on the

ground that he still had not been able to review the records. He represented

that his Massachusetts criminal case was close to being set for a jury trial, after

which he thought the records would be available. The court (Stanfill, J.) granted
6

the motion in an order dated February 5, 2020, noting “final—to get records.”

The arrival of the pandemic then further delayed the case for an extended

period.

2. Trial Procedure

[¶12] On February 21, 2022, two years after the last continuance and the

day before the trial was to begin, Hunt’s trial counsel filed a “Motion to Enforce

Subpoenas,” requesting “that the [c]ourt order compliance with the subpoena

and enlist the assistance of Massachusetts courts, if necessary.” The motion

stated that subpoenas seeking the victim’s records had been served on the

appropriate Massachusetts agencies on August 6 and 9, 2019, but no records

had been produced.

[¶13] Prior to jury selection, the court (Stewart, J.) conferred with the

parties to “make our record regarding the motion[].” Hunt’s trial counsel told

the court that prior to filing the motion he “was not aware that [Hunt’s prior

counsel] had filed and obtained subpoenas,” but recently another of Hunt’s

former attorneys, also a former member of trial counsel’s law firm, “told me he

had a conversation with the Massachusetts attorney who said he had obtained

or seen the records but that the Massachusetts court prohibited him from

sharing them with . . . our firm.” Trial counsel said that he “file[d] [the] motion
 7

[to enforce subpoenas] to protect the record.” That said, he told the court, “I’m

fully prepared to go forward, Your Honor.”

[¶14] The State confirmed that it did not have any therapy records

concerning the victim and was not going to introduce any evidence concerning

her therapy. The State further represented that the lead detective in

Massachusetts had told the prosecutor that “essentially . . . there [were] no

records. There was . . . [no] real substance in the notes.”

[¶15] Noting the state of the record and the State’s objection to a late

continuance, the court declined to continue the case

given . . . that this is an issue that was teed up as long ago as it was,
[and] the [c]ourt did what it needed to do. Sounds like there might
have been a number of impediments, [and] without laying fault on
anyone at this stage of the game, [given] the age of the case [and]
the time that’s passed. The motion to continue is denied.

3. Analysis

[¶16] Hunt contends that the denial of a continuance to further pursue

enforcement of the Massachusetts subpoenas violated his right to due process1

and was an abuse of the court’s discretion. “We review a court’s denial of a

motion to continue for an abuse of discretion examining whether the denial had

1 In making this argument, as with his Confrontation Clause claim discussed infra, Hunt relies on
the federal constitution, not the relevant sections of the Maine Constitution. See U.S. Const. amends.
VI, XIV, § 1; Me. Const. art. I, §§ 6, 6-A.
8

any adverse prejudicial effect on the movant’s substantial rights and viewing

each case largely upon its own facts and circumstances.” State v. Gaston,

2021 ME 25, ¶ 28, 250 A.3d 137 (quotation marks omitted). “When due process

is implicated, we review such procedural rulings to determine whether the

process struck a balance between competing concerns that was fundamentally

fair.” Adoption by Jessica M., 2020 ME 118, ¶ 8, 239 A.3d 633 (quotation marks

omitted). “Although the trial court’s discretion must be exercised judiciously

and with an eye toward fundamental fairness, even the arbitrary denial of a

continuance cannot sink to the level of a due process violation unless it results

in actual prejudice.” State v. Dube, 2014 ME 43, ¶ 13, 87 A.3d 1219 (quotation

marks omitted).

[¶17] Within this legal framework, we begin by “look[ing] first at the

reasons contemporaneously presented in support of the request for the

continuance because the party seeking a continuance has the burden of

establishing a substantial reason why granting the continuance would further

justice.” KeyBank Nat’l Ass’n v. Est. of Quint, 2017 ME 237, ¶ 20, 176 A.3d 717

(quotation marks omitted). We conclude that here, given the age of the case;

the number of continuances that had been granted over a span of several years

without any affirmative action by Hunt to enforce in Massachusetts courts the
 9

subpoenas that the Maine court had authorized; the timing of Hunt’s most

recent request for a continuance on the day before the trial; the question raised

by the Massachusetts lead detective as to whether the records would have any

strategic value; and trial counsel’s representation that he was “fully prepared

to go forward,” the court did not abuse its discretion in denying a continuance.

See Gaston, 2021 ME 25, ¶ 28, 250 A.3d 137.

B. Masking Requirement

[¶18] Hunt invokes the Sixth Amendment in contending that his right to

confrontation was violated by the court’s requirement that he and the victim

wear masks during the trial. He asserts that the jury was “denied the

opportunity to see [the victim’s] face during the questioning and [Hunt’s face]

to ‘humanize’ him,” and that jurors had difficulty hearing the victim’s testimony.

The Sixth Amendment to the United States Constitution provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. Const. amend. VI. “We review the application

of the Confrontation Clause de novo,” State v. Lovell, 2022 ME 49, ¶ 13,

281 A.3d 651 (quotation marks omitted), although “[w]e look to federal

jurisprudence in interpreting the United States’ and Maine’s confrontation

clauses,” State v. Johnson, 2014 ME 83, ¶ 8 n.2, 95 A.3d 621.
10

[¶19] At the start of jury selection, the court directed that Hunt and the

attorneys would briefly lower their masks when they were introduced to the

jury pool. When the initial group of jurors was randomly selected from the pool,

each prospective juror then lowered his or her mask.

[¶20] After the jury was empaneled but before it was sworn, the

prosecutor asked if the attorneys could remove their masks when giving their

opening statements. The court answered, “I continue to ask the [Superior Court

Chief Justice], and I continue to be told no word yet so we are still masking.”

Hunt then “put an objection on the record . . . as far as the nature of this case

and what I perceive to be unfair not being able to unmask, especially for

witnesses . . . . I continue to have concerns about witnesses’ credibility being

determined and people hearing correctly . . . .”2 Although the court “share[d] in

everyone’s position,” it did not change its ruling.

[¶21] At the beginning of the second day of the trial, the court advised

the parties that “some of the jurors have spoken to the jury marshal [and said]

that they’re not hearing everything or there were a few times yesterday they

didn’t hear everything, so . . . be sure to stay close to your mics, and I will tell

Contrary to the State’s argument, Hunt’s objection was sufficient to preserve this issue for
2

appeal.
 11

them to speak freely if they’re having difficulty.” The court agreed with Hunt’s

suggestion to have jurors raise their hands if they could not hear; Hunt did not

ask for any other action or move for a mistrial on that ground. The court then

instructed the jury that “anytime you can’t hear, just let us know, raise your

hand or something . . . It’s important you are able to see and hear everything

that’s going on.”

[¶22] Shortly after the victim began her testimony, a juror indicated to

the court that the juror could not hear the witness. The court asked the victim

to speak up and offered the juror—and all of the jurors—a hearing assistance

device, which the juror and one other juror accepted. The juror who initially

had a problem indicated that the hearing issue was resolved. At sidebar, Hunt

renewed his objection:

[T]his is the exact reason why I’m concerned about having trials
with masks. I just wanted to reiterate on the record given my
objection yesterday.

The court indicated that the mask requirement remained in effect. The trial

then resumed without further expressions of hearing difficulty by jurors.

[¶23] Although we have not addressed the issue, Hunt correctly notes

that numerous other courts have held that requiring masks in light of the

pandemic does not violate the Confrontation Clause; he cites no decision
12

holding the contrary. Representative of the prevailing view is Lopez v. Gamboa,

where the United States District Court for the Central District of California, in a

well-reasoned opinion citing numerous other federal decisions, recently

upheld a masking requirement on facts very similar to those presented here.

No. CV 22-4281-JEM, 2022 U.S. Dist. LEXIS 226427 (C.D. Cal. Dec. 15, 2022). The

Lopez Court explained:

Petitioner contends that the trial court denied him the right
to confront witnesses, the right to effective cross-examination, and
the right to a reliable jury determination of the charges when it
required him and the testifying witnesses to wear masks that
prevented the jury and counsel from observing facial expressions
below the eyes. . . .

At the time of Petitioner’s trial . . . [the courts] were operating
under safety protocols adopted in response to the Covid-19
pandemic. The applicable administrative order mandated, among
other things, that all persons entering any courthouse wear a face
mask covering the mouth and nose.[3]

. . . Nevertheless, the trial court allowed Petitioner, trial
counsel, and the prosecutor to briefly remove their masks when
introduced to the jury . . . .

....

. . . “[T]he Confrontation Clause guarantees the defendant a
face-to-face meeting with witnesses appearing before the trier of

See PPMO-SJC-1(A)-(B) State of Maine Judicial Branch Post-Pandemic Management Order at 2
3

(revised Aug. 16, 2021) (requiring that “[e]very litigant, lawyer, juror . . . or other member of the
public who enters a Maine courthouse . . . wear a . . . mask . . . that covers the person’s nose and mouth,”
and that “[a]ll persons . . . adhere to face covering requirements while in courtrooms unless and until
the presiding judicial officer specifically permits any individuals to remove their face coverings”);
 13

fact.” Coy v. Iowa, 487 U.S. 1012, 1016 (1988). But the
Confrontation Clause does not guarantee criminal defendants “the
absolute right to a face-to-face meeting with witnesses against
them at trial.” Maryland v. Craig, 497 U.S. 836, 844 (1990)
(emphasis in original). Face-to-face confrontation at trial is
preferred, but it is not an indispensable element of the Sixth
Amendment right to confront one’s accusers. Id. at 849-50.
Exceptions to “a physical, face-to-face confrontation at trial” are
constitutionally permissible when “necessary to further an
important public policy,” as long as “the reliability of the testimony
is otherwise assured.” Id. at 850.

....

Applying Craig, numerous federal district courts around the
country have concluded that no Confrontation Clause violation
occurs when witnesses are required to wear masks covering their
mouth and nose to minimize the risk of transmission of the
Covid-19 virus. . . .[4]

....

. . . The Supreme Court has never held that a criminal
defendant’s Sixth Amendment right to confront witnesses is
violated when witness[es] are partially masked while testifying.
On the contrary, the Supreme Court has held that exceptions to a
defendant’s right to confront witnesses face to face are
constitutionally permissible when “necessary to further an

PPMO-SJC-1 State of Maine Judicial Branch Post-Pandemic Management Order at 2 (revised
Mar. 11, 2022) (rescinding PPMO-SJC-1(A)-(B) effective March 14, 2022). Hunt’s trial took place on
February 22-24, 2022, when the masking requirement was still in place.
4 Collecting cases, the court cited United States v. Maynard, No. 2:21-cr-00065, 2021 U.S. Dist.
LEXIS 211943, at *2-6 (S.D. W. Va. Nov. 3, 2021); United States v. Holder, No. 18-cr-00381-CMA-GPG-
01, 2021 U.S. Dist. LEXIS 184017, at *23-24 (D. Colo. Sept. 27, 2021); United States v. Clemons,
No. RDB-19-0438, 2020 U.S. Dist. LEXIS 206221, at *5-8 (D. Md. Nov. 4, 2020); United States v. James,
No. CR-19-08019-001-PCT-DLR, 2020 U.S. Dist. LEXIS 190783, at *4-6 (D. Ariz. Oct. 15, 2020); and
United States v. Crittenden, No. 4:20-CR-7 (CDL), 2020 U.S. Dist. LEXIS 151950, at *13-22
(M.D. Ga. Aug. 21, 2020).
14

important public policy,” as long as “the reliability of the testimony
is otherwise assured.” Craig, 497 U.S. at 850.

. . . Petitioner does not dispute that minimizing the risks of
transmission of Covid-19 in the courtroom is an important public
policy. . . . Craig requires only that the reliability of [a witness’s]
testimony must be assured under the alternative means of
confrontation.

The Supreme Court has explained that “[t]he combined effect
of [the] elements of confrontation—physical presence, oath,
cross-examination, and observation of demeanor by the trier of
fact—serves the purposes of the Confrontation Clause by ensuring
that evidence admitted against an accused is reliable” and subject
to “rigorous adversarial testing.” Id. at 846. There was no
impairment of the first three elements of confrontation at
Petitioner’s trial. The witnesses were physically present in front of
the jury and Petitioner; they were under oath; and they were
subject to cross-examination. Only the fourth element, observation
of the witnesses’ demeanor, was slightly impaired because a mask
covering the lower part of a witness’s face prevented the jurors
from seeing the facial expression as conveyed by the mouth and
nose. The Confrontation Clause does not require that the jury be
able to see a witness’s entire face or body. The jurors were still able
to see the witnesses’ eyes, observe their body language, and hear
their tone of voice. Because the covering of the nose and mouth
does not significantly hinder observation of demeanor, allowing
witnesses to testify while wearing masks does not materially
diminish the reliability of the witnesses’ testimony.

Petitioner also argues that his right to confrontation was
violated because his own mask prevented the jurors and the
testifying witnesses from seeing his expression in response to the
witnesses’ testimony. The Supreme Court has never held that a
defendant’s Sixth Amendment right to confront the witnesses
against him encompasses a right to convey to the jury his reaction
to their testimony through his facial expressions. The witnesses
testified in Petitioner’s physical presence and were able to see his
 15

full person, which would impress upon them the gravity of the
proceedings at which they testified. In any event, as discussed
above, the mask covering Petitioner’s nose and mouth did not
significantly hinder observation of his demeanor.

Id. at *8-12, *14-17 (alteration, citations, footnote, and quotation marks

omitted).

[¶24] What was true in Lopez is true in this case as well. During Hunt’s

trial, “[t]he witnesses were physically present in front of the jury and [Hunt];

they were under oath; and they were subject to cross-examination.” Id. at *15

(footnote omitted). Although the witnesses wore masks covering their nose

and mouth, “[t]he jurors were still able to see the witnesses’ eyes, observe their

body language, and hear their tone of voice.” Id.; see United States v. Crittenden,

No. 4:20-CR-7 (CDL), 2020 U.S. Dist. LEXIS 151950, at *20 (M.D. Ga.

Aug. 21, 2020) (“[B]eing able to see a witness’s nose and mouth is not essential

to testing the reliability of the testimony. Demeanor consists of more than

those two body parts. Demeanor includes the language of the entire body.

Here, the jurors will be able to observe most facets of the witnesses’ demeanor.

They can observe the witnesses from head to toe. They will be able to see how

the witnesses move when they answer a question; how the witnesses hesitate;
16

how fast the witnesses speak. They will be able to see the witnesses blink or

roll their eyes, make furtive glances, and tilt their heads.”).

[¶25] We find persuasive and adopt the reasoning of Lopez and other

courts and discern no constitutional error in the trial court’s ruling requiring

that participants in Hunt’s trial be masked, given that the court “was faced with

a global pandemic and restrictions on courtroom access . . . applicable to all

Maine state courts.” Gaston, 2021 ME 25, ¶ 31, 250 A.3d 137.

C. Prosecutorial Error

[¶26] Hunt contends that at various points in its opening statement and

closing and rebuttal arguments, the State committed prosecutorial error by

improperly urging the jury to find him guilty, by suggesting that he had a

burden to demonstrate a motive for the victim to lie, and by vouching for the

victim’s credibility.

[¶27] We begin our analysis by

review[ing] instances of alleged prosecutorial misconduct to first
determine whether the misconduct occurred. If misconduct . . .
occurred, then we review the State’s comments as a whole,
examining the incidents of misconduct both alone and taken
together. . . .

Prosecutors must limit their arguments to the facts in
evidence. . . . Shifting the burden of proof to the defendant or
suggesting that the defendant must present evidence in a criminal
 17

trial is improper closing argument. Similarly, a prosecutor's
inflammatory or emotionally charged remarks are improper.

In re Weapons Restriction of J., 2022 ME 34, ¶¶ 35-36, 276 A.3d 510 (alterations

and quotation marks omitted). Likewise, “prosecutors cannot vouch for their

witnesses,” State v. Westgate, 2020 ME 74, ¶ 22, 234 A.3d 230, by “injecting

personal opinion regarding the credibility of a witness or . . . by using the

authority or prestige of the prosecutor’s office” to bolster a witness’s

credibility, State v. Robbins, 2019 ME 138, ¶ 10, 215 A.3d 788 (alterations and

quotation marks omitted).

1. Opening Statement

[¶28] Hunt did not object to the State’s opening statement at trial;

accordingly we review “for obvious error affecting substantial rights.”

In re Weapons Restriction of J., 2022 ME 34, ¶ 35, 276 A.3d 510 (quotation

marks omitted).

[¶29] During the State’s opening, the prosecutor told jurors that they had

the ability to listen to somebody and to judge credibility, to take in
information and to decide what it is and who it is that you believe.
Throughout the course of this trial you’re going to meet [the
victim], and when we are finished with the evidence in this case,
I will be asking that you believe her.

[¶30] At the conclusion of the opening statement, Hunt requested a

sidebar and expressed “a concern” that the prosecutor’s comment “suggested
18

that we have some burden.” The court said, “I heard the entire opening [and] I

didn’t think that there was a shifting of the burden,” but nonetheless, at Hunt’s

request, the court instructed the jury that “the burden of proof in this case is

entirely with the State” and that Hunt “does not have to prove anything in this

matter.” Hunt said he was satisfied with the instruction and proceeded to give

an opening statement. A jury is presumed to follow the court’s instructions.

State v. Carrillo, 2021 ME 18, ¶ 25, 248 A.3d 193.

[¶31] Here, the court’s decision not to declare a mistrial sua sponte

following the State’s opening, during which the prosecutor said only that the

evidence would allow the jury to believe the victim, was not error, much less

obvious error.

2. Closing Argument

[¶32] Hunt asserts that at several points during the State’s closing

argument, the prosecutor improperly “urged the jury . . . to find [him] guilty, as

opposed to simply suggesting the evidence prove[d] his guilt beyond a

reasonable doubt” and “strongly suggested to the jury that [he] had not proven

a motive for [the victim] to make this up or put herself through this.” He did

not object during or at the conclusion of the State’s closing, and so once again

our review is for obvious error. In re Weapons Restriction of J., 2022 ME 34,
 19

¶ 35, 276 A.3d 510; see Robbins, 2019 ME 138, ¶ 11, 215 A.3d 788 (“An error

affects a criminal defendant’s substantial rights if the error was sufficiently

prejudicial to have affected the outcome of the proceeding. . . . When a

prosecutor’s statement is not sufficient to draw an objection, particularly when

viewed in the overall context of the trial, that statement will rarely be found to

have created a reasonable probability that it affected the outcome of the

proceeding.” (alteration, citation, and quotation marks omitted)).

[¶33] The record reveals no obvious error because the prosecutor’s

argument remained focused on the evidence and the jury’s role in determining

the facts from that evidence:

• “Soon . . . you will begin your job . . . as judges of the facts.”

• “[The victim’s] testimony standing alone, if you believe her,
is all of the evidence that you would need to find beyond a
reasonable doubt that the defendant is guilty. . . . Now, I’d like
to talk to you about why it is that you should believe her.”

• “[T]he testimony that you heard in this trial supports each
and every element of these charges . . . .”

• “Find him guilty because the evidence supports that he is
guilty of every one of these charges beyond a reasonable
doubt.”

[¶34] Excerpts of the closing argument cited in Hunt’s brief were

preceded and followed by citations to the evidence and how that evidence
20

supported the State’s view of the case. See In re Weapons Restriction of J.,

2022 ME 34, ¶ 38, 276 A.3d 510 (“We also reject the argument that [the

prosecutor’s] remarks were emotionally charged. The statements made by the

prosecutor were firmly based in evidence.”).

3. Rebuttal Argument

[¶35] Hunt did not object during or immediately following the State’s

rebuttal argument. After the court gave the jury its final instructions but before

the jury retired to begin deliberating, Hunt moved for a mistrial “based on the

rebuttal,” asserting that the State had improperly urged the jury to find him

guilty and suggested that he had “some burden.” Alternatively, Hunt asked the

court to repeat its instruction that he had no burden of proof. The court denied

a mistrial, but reinstructed the jury “one last time that in this case the defense

does not have any burden. The burden of proof is entirely with the State, and it

is the State’s burden to [prove] guilt beyond a reasonable doubt.” When given

the opportunity to object or comment on the reinstruction, Hunt said that he

had nothing further to add.

[¶36] Hunt now argues that the court erred in denying his delayed

motion for a mistrial and instead giving an additional instruction on the State’s

burden of proof. In presenting the State’s rebuttal argument, the prosecutor
 21

was, as the court noted, “very passionate,” but we have noted that “[a]

prosecutor may present an analysis of the evidence in summation with vigor

and zeal . . . . We have repeatedly upheld the prosecutor’s ability to argue

vigorously for any position, conclusion, or inference supported by the

evidence.” State v. Scott, 2019 ME 105, ¶ 26, 211 A.3d 205 (alterations and

quotation marks omitted). Furthermore, “a prosecutor is free to comment on

the consistency of a witness’s testimony—just as the defense is free to comment

on the inconsistency of a witness’s testimony.” Westgate, 2020 ME 74, ¶ 22,

234 A.3d 230.

[¶37] The record supports the court’s determination that the prosecutor

had not “crossed any of the lines,” because the State’s argument remained

focused on findings and inferences that the jury could make based on what the

prosecutor characterized as the “overwhelming evidence” and the jury’s

collective “common sense,” not on the prosecutor’s personal opinion of any

witness’s credibility. The prosecutor ended the State’s rebuttal argument by

again referring to the critical evidence in the case and the jury’s role in

assessing it: “If you believe [the victim], if you believe that young woman and

believe what she told you . . . then the State has met its burden. You have all of

the evidence that you need to find him guilty.” Only then did the prosecutor
22

close by urging the jury to “[f]ind him guilty.” At that point, the jury had already

been instructed that closing arguments are not evidence and that it could

believe all, some, or none of what any particular witness said, in addition to

receiving repeated instructions concerning the State’s burden of proof.

[¶38] Because we conclude that no prosecutorial error occurred, and

because Hunt’s concerns were amply addressed through the court’s

instructions to the jury, the court did not abuse its “substantial discretion” in

denying Hunt’s motion for a mistrial. Carrillo, 2021 ME 18, ¶ 19, 248 A.3d 193.

D. Evidentiary Rulings

[¶39] Hunt asserts that the court made several evidentiary errors

requiring that we vacate the judgment, contending that the court abused its

discretion in denying his delayed motion for a mistrial after a detective who

interviewed the victim testified that a trauma victim’s memory is often

fragmented, and in allowing the victim’s former school nurse to testify that the

victim’s somatic symptoms “made sense” to her once she learned of the victim’s

disclosure of Hunt’s sexual abuse. Hunt further contends that the court clearly

erred or abused its discretion in admitting evidence of his sexual assaults on

the victim occurring outside of Maine, and in limiting his ability to use his
 23

communications with the victim’s mother occurring after the assaults ended.

We address these arguments in turn.

1. Detective’s Testimony

[¶40] The Massachusetts detective who interviewed the victim in 2017

testified that he was assigned to a special victim’s unit tasked with investigating

crimes against children, that he had received specialized training in that area,

and that he had been involved in some 200 such investigations and interviewed

“[m]any, many” victims of sexual assault.

[¶41] On direct examination, when asked whether it was “common,

based on your experience, for a victim’s memory of traumatic events to be

fragmented,” the detective answered, “Almost all the time, absolutely, yes.”

Hunt did not object. When the State then asked about a victim’s bodily response

to trauma, the court sustained Hunt’s objection that the question called for

expert testimony and directed the State to rephrase. The prosecutor then

essentially repeated the last allowed question, namely “whether in your

experience it’s common for a victim’s memory of traumatic events to be

fragmented”; the detective answered, “Very often, yes.” Again Hunt did not

object.
24

[¶42] Later, the prosecutor asked whether the detective could “explain,

without getting into the science of it, what [it] can look like in terms of traumatic

events causing fragmented memory.” When Hunt expressed concern that the

answer might be objectionable, the court directed the State to ask another

question and sustained Hunt’s eventual objection. The State ended its direct

examination and Hunt proceeded to cross-examine the detective; he did not

move for a mistrial.

[¶43] The following day, Hunt moved for a mistrial:

I don’t exactly remember the nature of the testimony. The record
will reflect. There was maybe one or two objections to some of [the
detective’s] testimony regarding memory and memory recall and
other things that I objected to as expert opinion. At the time I did
not ask for a mistrial, but I would make that motion now. I know
the court did sustain the objections at the time.

The court, noting that it had indeed sustained Hunt’s objections when “it

sounded like . . . we were getting into expert testimony type material,” denied

the motion, ruling that “there’s not a basis for mistrial.”

[¶44] Hunt now contends that he was entitled to a mistrial because the

court erroneously admitted expert testimony and because “the questioning by

the prosecutor regarding [the detective’s] opinions directly after the [c]ourt

sustained [his] objection . . . constitutes prosecutorial bad faith.”
 25

[¶45] “We review the denial of a motion for a mistrial for an abuse of

discretion and will overrule the denial of a mistrial only in the event of

exceptionally prejudicial circumstances or prosecutorial bad faith. A motion

for a mistrial should be denied except in the rare circumstance that the trial is

unable to continue with a fair result and only a new trial will satisfy the

interests of justice.” State v. Williams, 2020 ME 128, ¶ 34, 241 A.3d 835 (citation

and quotation marks omitted); see Carrillo, 2021 ME 18, ¶ 19, 248 A.3d 193

(“Our review of a trial court’s denial of a motion for a mistrial is highly

deferential. . . . We review the court’s denial of a motion for mistrial only for an

abuse of the court’s substantial discretion.” (citations omitted)).

[¶46] We conclude that the court’s denial of Hunt’s motion for a mistrial

based on the detective’s testimony was not an abuse of its discretion because

the record reveals neither exceptionally prejudicial circumstances nor

prosecutorial bad faith. The detective did not testify as an expert; rather, he

said that in his experience—gained from many child sexual assault

investigations and interviews—a victim’s memory of traumatic events was

“[v]ery often” fragmented. Put another way, the detective did not offer an

opinion—expert or otherwise—as to why memory of a trauma is often

fragmented; he testified only that he had observed that to be the case. His
26

answer was “[r]ationally based on [his] perception” of child victims with whom

he had personal experience and was therefore admissible as lay testimony.

M.R. Evid. 701(a); see State v. Thorne, 490 A.2d 646, 648 (Me. 1985) (“Under

Rule 701 . . . the determination of whether the opinion evidence is rationally

based upon the perception of the lay witness and is helpful to the determination

of the fact at issue is within the discretion of the trial justice.” (alteration and

quotation marks omitted)).

2. School Nurse’s Testimony

[¶47] The victim’s former Massachusetts school nurse testified that the

victim had come to her with “somatic pain or somatic symptoms,” which the

nurse described as complaints that are “basically real to the person but not

necessarily substantiated by a medical diagnosis.” Later, in March 2012, the

school principal informed her that the victim had made a disclosure of sexual

abuse and Child Protective Services had been contacted. The nurse testified

that once she learned of the victim’s disclosure, her complaints “made sense

now.” Hunt did not object or move for a mistrial.

[¶48] Before the nurse testified, Hunt argued that, although he did not

“have a problem talking about the somatic [complaints],” the State should have

designated the nurse as an expert before she could testify that the complaints
 27

“made sense” following the victim’s disclosure. The court ruled that the

“question of did [the victim’s history of complaints] then make sense that there

was this time in between the complaints and this disclosure” would be allowed.

[¶49] Hunt argues that the court’s ruling was an abuse of its discretion.

See State v. Thomas, 2022 ME 27, ¶ 23, 274 A.3d 356 (“We review a trial court’s

ruling on admissibility of evidence for abuse of discretion. A court abuses its

discretion in ruling on evidentiary issues if the ruling arises from a failure to

apply principles of law applicable to the situation, resulting in prejudice.”

(alteration, citation, and quotation marks omitted)). His argument fails

because the nurse did not offer expert testimony; rather, she testified that as a

factual matter, consistent with a report disclosed to the defense, the victim had

complained of “a lot of abdominal pain, headaches, [and had displayed]

emotional instability,” and that those symptoms simply “made sense” to her

after she learned of the victim’s disclosure.

3. Out-of-State Conduct

[¶50] Hunt contends that the court erred in admitting evidence of his

sexual assaults on the victim that occurred in other states. “We review

evidentiary rulings for clear error and an abuse of discretion.” State v. Hinkel,

2017 ME 76, ¶ 7, 159 A.3d 854.
28

[¶51] The victim testified to many sexual assaults that Hunt committed

against her in Georgia and Massachusetts. We have held that although Maine

Rule of Evidence 404(b) provides that “[e]vidence of a crime, wrong, or other

act is not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character,”

In cases involving sexual offenses, evidence of prior similar
uncharged conduct has been admitted to show the relationship
between the parties that in turn sheds light on the defendant’s
motive (i.e., attraction to the victim), intent (i.e., absence of
mistake), and opportunity (i.e., domination of the victim) to
commit the crime with which he was charged. The probative value
of the evidence must not be substantially outweighed by any
prejudicial effect pursuant to [M.R. Evid.] 403.

State v. Krieger, 2002 ME 139, ¶ 8, 803 A.2d 1026 (citation and quotation marks

omitted) (discussing a prior version of Rule 404(b)).

[¶52] Hunt contends that the court’s limiting instructions concerning

this issue were insufficient to overcome “the significant and unfairly prejudicial

effect of this evidence on the jury.” See M.R. Evid. 403 (“The court may exclude

relevant evidence if its probative value is substantially outweighed by a danger

of . . . unfair prejudice . . . .”). In chambers before jury selection, Hunt made

reference to “my [previous] objection [that] we’re allowing . . . all the other acts

that were occurring.” At sidebar before Hunt’s opening statement, the court

noted that a limiting instruction concerning acts occurring in other states
 29

would be available to him at the appropriate time and outlined its content; Hunt

said that “[a] limiting instruction would be great, and what you just proposed

would be satisfactory.” During the State’s direct examination of the victim, the

court gave a limiting instruction consistent with M.R. Evid. 404(b); Hunt agreed

with the instruction as given. In its charge to the jury, the court again gave a

thorough instruction limiting the jury’s use of evidence of conduct occurring in

other states, to which Hunt had no objection.

[¶53] Thirty-seven years ago, we noted that we have

long recognized that evidence of prior or subsequent acts similar
to the charged offense is admissible for any permissible purpose
other than to prove the character of the defendant to show that he
acted in conformity therewith. For more than a century our case
law has declared that evidence of a defendant’s prior or subsequent
sexual relations with a victim is admissible to show the relationship
between the parties or the intent of the defendant.

That long and unbroken line of precedents is still valid today
under the Maine Rules of Evidence . . . .

State v. DeLong, 505 A.2d 803, 805 (Me. 1986) (citations and quotation marks

omitted).

[¶54] Given our jurisprudence, the trial court’s repeated limiting

instructions, and Hunt’s acknowledgment that the instructions were correct,

the record reveals no error in the court’s admission for a permissible purpose

of the evidence of Hunt’s out-of-state conduct.
30

4. Communication with the Victim’s Mother

[¶55] In chambers before jury selection, the State asked for a ruling

in limine to exclude communications between Hunt and the victim’s mother

that Hunt asserted would establish that the victim’s mother was “very angry”

with him in 2012—after he moved out and before the victim’s initial

disclosure—and so would establish a motive for the victim to lie. The court

ruled that Hunt would have to establish that the victim knew her mother was

angry with him before the communications could be used for that purpose.

[¶56] When Hunt suggested that evidence of “positive interactions”

between him and the mother was inconsistent with how the mother would act

if she believed he had sexually assaulted her daughter, the State argued that the

door would then be opened to evidence of domestic violence in the relationship

“and the power and control that would then affect that relationship moving

forward.” The court deferred a final ruling and Hunt told the court that “the last

thing I want to do is open the door.” The victim later testified that she was not

aware of any interaction between her mother and Hunt between 2012 and

2017.

[¶57] Hunt acknowledges that he “eventually succumbed to not

admitting the photos and texts [exchanged with the victim’s mother], because
 31

the [c]ourt implied it would open the door to claims of domestic violence by

[Hunt] against [the victim’s mother],” a question the court had deferred ruling

upon. We have said that “the fact that the trial court has acted on a motion in

limine does not relieve counsel of making objections at the appropriate points

in the trial in order to make a record and preserve points of error for appeal. . . .

[Application of] this principle . . . triggers the more deferential standard of

review associated with unpreserved claims of error . . . .” State v. Sykes,

2019 ME 43, ¶ 13, 204 A.3d 1282 (alterations, citation, and quotation marks

omitted).

[¶58] During the trial, the court rejected the State’s assertion that the

door had been opened to evidence of domestic violence by Hunt’s questioning

of the victim on cross-examination. Because the court’s final ruling on the

related question of whether that door would have been opened had Hunt

attempted during the trial to admit evidence of his communications with the

victim’s mother is unknown, the court’s in limine ruling, left unchallenged once

the trial began, does not constitute clear error or an abuse of discretion. See

Hinkel, 2017 ME 76, ¶ 7, 159 A.3d 854.

The entry is:

Judgment affirmed.
32

Verne E. Paradie, Jr., Esq. (orally), Lewiston, for appellant David P. Hunt Jr.

Katherine E. Bozeman, Asst. Dist. Atty. (orally), and Katherine M. Hudson-
MacRae, Asst. Dist. Atty., Androscoggin County District Attorney’s Office,
Lewiston, for appellee State of Maine

Androscoggin County Unified Criminal Docket docket number CR-2018-09
FOR CLERK REFERENCE ONLY