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State v. Fay

Supreme Judicial Court of Maine

December 8, 2015

STATE OF MAINE
v.
KENNETH A. FAY

         Submitted on Briefs September 28, 2015

          William F. Pagnano, Esq., Rockland, for appellant Kenneth A. Fay.

         Neil E. McLean Jr., Asst. Dist. Atty., Belfast, for appellee State of Maine.

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

          OPINION

Page 365

          MEAD, J.

          [¶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),[1] 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.

         I. BACKGROUND

          [¶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.

Page 366

          [¶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 ninety days.

         II. ...


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