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State v. Tarbox

Supreme Court of Maine

April 18, 2017

STATE OF MAINE
v.
NATHAN P. TARBOX

          Argued: February 8, 2017

          Jack Hunt, Esq. (orally), Kennebunk, for appellant Nathan P. Tarbox

          Kathryn Loftus Slattery, District Attorney, Anne Marie Pazar, Asst. Dist. Atty., and Thomas R. Miscio, Asst. Dist. Atty. (orally), Prosecutorial District 1, Alfred, for appellee State of Maine

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

          ALEXANDER, J.

         [¶1] Nathan P. Tarbox appeals from a judgment of conviction entered by the trial court (York County, Douglas, J.) after a jury found him guilty of domestic violence assault (Class C), 17-A M.R.S. §§ 207-A(1)(A), 1252(4-A) (2016), and obstructing the report of a crime or injury (Class D), 17-A M.R.S. §758(1)(A) (2016). Tarbox contends that the trial court erred by not sua sponte declaring a mistrial when the prosecutor commented on Tarboxs right not to testify during the States rebuttal closing argument. In addition, Tarbox argues that the court erred by denying his motions for a mistrial after the jury heard prejudicial statements during the victims testimony. We affirm the judgment.

         I. CASE HISTORY

         [¶2] On June 2, 2014, Nathan P. Tarbox was indicted for crimes he allegedly committed against the mother of his child. The indictment charged Tarbox with domestic violence assault (Class C), 17-AM.R.S. §§ 207-A(1)(A), 1252(4-A), domestic violence assault (Class D), 17-A M.R.S. § 207-A(1)(A), and obstructing the report of a crime or injury (Class D), 17-A M.R.S. § 758(1)(A). Prior to trial, the State dismissed the Class D charge of domestic violence assault.

         [¶3] The court held a jury trial on November 23, 2015. Evidence presented at trial showed that only Tarbox and the victim were in the room where the incident occurred. Tarbox did not testify. The States evidence consisted of photographs of the victims injuries and testimony of the victim and Tarboxs roommate, who testified that he heard Tarbox and the victim argue but did not witness the assault. During the States direct examination of the victim, when asked why she did not immediately go home or call the police after the assault, she testified: "Because he runs from the police." Tarbox objected and moved for a mistrial, arguing that the victims response was highly prejudicial because it indicated that Tarbox is a "known character" and a "criminal." The court denied the motion for a mistrial but sustained the objection and instructed the jury to disregard the statement.

         [¶4] Tarbox began his cross-examination of the victim by questioning her about her child custody arrangement with Tarbox and whether there was a parental rights order in place on the date the crimes were alleged to have been committed. Tarbox further asked whether she filed a parental rights and responsibilities action in the District Court after she filed the police report. The victim testified that there was no court order defining the parties parental rights on the date of the incident or when she filed the police report.

         [¶5] During the States redirect examination, the prosecutor asked the victim when she subsequently filed the parental rights action. In a lengthy and nonresponsive answer, the victim indicated that she filed the parental rights action after speaking with an advocate at a domestic violence program and obtaining a protection from abuse order. Tarbox objected on the basis that the testimony was unfairly prejudicial and renewed his motion for a mistrial. The court took the motion for a mistrial under advisement, and, at Tarboxs request, delayed giving the jury a curative instruction. After the close of evidence, the court denied the motion and reviewed a proposed curative instruction with Tarbox, which Tarbox approved. The curative instruction was later given during the charge to the jury.

         [¶6] Although Tarbox did not testify, he presented testimony from his grandmother about her interactions with the victim around the time of the alleged crimes.

         [¶7] After the close of evidence, the prosecution and defense presented brief closing arguments to the jury, neither of which drew any objections. We discuss the parties closing arguments in more detail below. The jury convicted Tarbox of both counts, and the court sentenced him to three years incarceration with all but nine months ...


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