Argued: February 8, 2017
Hunt, Esq. (orally), Kennebunk, for appellant Nathan P.
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
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
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.
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
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.
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.
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.
Although Tarbox did not testify, he presented testimony from
his grandmother about her interactions with the victim around
the time of the alleged crimes.
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 ...