on Briefs September 28, 2015
William F. Pagnano, Esq., Rockland, for appellant Kenneth A.
McLean Jr., Asst. Dist. Atty., Belfast, for appellee State of
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and
[¶1] Kenneth A. Fay appeals from a judgment
of conviction of operating under the influence (Class D),
29-A M.R.S. § 2411(1-A)(C)(1) (2012), entered by
the trial court (Waldo County, R. Murray, J. ) after
a jury trial. On appeal, Fay contends that (1) the evidence
was insufficient to support the jury's guilty verdict;
(2) the court abused its discretion in refusing to grant a
mistrial; and (3) the court committed prejudicial error by
using a jury verdict form. We affirm the judgment.
[¶2] When viewed in the light most favorable
to the State, the jury could have rationally found the
following facts. State v. Lowden, 2014 ME 29, ¶
3, 87 A.3d 694. On July 6, 2012, at around 7:00 p.m., the
Belfast Police Department received a complaint describing the
erratic operation of a small, red sedan with Pennsylvania
license plates. Shortly thereafter, a police officer saw a
car matching that description pull into a restaurant parking
lot. The officer observed that the driver, Kenneth Fay, was
slouched over and moving slowly as he operated the car. After
Fay parked the car, he struggled to get out, stumbled, and
put his hands on the car for balance.
[¶3] The officer approached Fay and noticed
that his breath smelled of alcohol and that his speech was
slurred and, at times, incomprehensible. Fay admitted that he
had been drinking earlier that day and agreed to perform
field sobriety tests. He was unable to perform successfully
three field sobriety tests: (1) horizontal gaze nystagmus
(HGN); (2) heel-to-toe walk; and (3) one-legged stand. The
officer concluded that Fay was impaired, arrested him, and
transported him to the county jail, where he refused
intoxilyzer and blood tests.
[¶4] The State presented at trial a video
recording of Fay's actions during the field sobriety
tests. On cross-examination, Fay testified that his eccentric
demeanor in the video resulted from never having been "
put through that situation" before. In response to that
statement, the State's attorney asked Fay, " You
never had an interaction with an officer regarding OUI?"
Before Fay could answer, defense counsel objected and moved
for a mistrial at sidebar on the ground that the question was
substantially prejudicial. The court sustained the objection,
but denied the motion for a mistrial. Defense counsel
declined a curative instruction.
[¶5] The jury, using a verdict form that
both Fay and the State consented to, found Fay guilty of
operating under the influence pursuant to 29-A M.R.S. §
2411, and made an additional finding that Fay had failed to
submit to an intoxilyzer test. Fay was sentenced to thirteen
days in jail, fined $940, and had his license suspended for