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State v. Kibbe

Supreme Court of Maine

December 12, 2017

STATE OF MAINE
v.
CORYD. KIBBE

          Argued: November 14, 2017

          Kevin P. Sullivan, Esq. (orally), Sullivan Law, P.C., Augusta, for appellant Cory D. Kibbe

          Maeghan Maloney, District Attorney, and Michael H. Madigan, Asst. Dist. Atty. (orally), Prosecutorial District No. Four, Augusta, for appellee State of Maine

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

          PER CURIAM

         [¶l] In 2004, Cory D. Kibbe pleaded guilty to gross sexual assault (Class A), 17-AM.R.S. §253(1)(B) (2016), and unlawful sexual contact (Class C), 17-AM.R.S. §255-A(1)(E) (2016). The Superior Court (Kennebec County, Clifford, J.) sentenced Kibbe to twenty years in prison with all but four years suspended and eight years of probation for the gross sexual assault, and to four years in prison, to run concurrently, for the unlawful sexual contact.

         [¶2] Kibbe served his sentence and, thirteen years later, in 2017, after a testimonial hearing, the court [Nale, J.) ordered Kibbe to spend four years in prison after granting the State's motion to revoke Kibbe's probation on the grounds that Kibbe failed to report to his probation officer as required on two occasions and "walk[ed] in front of the Waterville public school." We now consider the sufficiency of the evidence supporting the court's revocation of Kibbe's probation.[1]

         [¶3] As applies to this matter, probation may be revoked when "the alleged violation does not constitute a crime and the court finds by a preponderance of the evidence that the person [who is on probation] has inexcusably failed to comply with a requirement imposed as a condition of probation." 17-A M.R.S. § 1206(6) (2016). It is the State's burden to establish these elements. State v. James, 2002 ME 86, ¶ 9, 797 A.2d 732. Kibbe challenges only the determination that he was still on probation at the time of his alleged probation violations.

         [¶4] Notwithstanding the deferential standard by which we review the sufficiency of the evidence supporting such a factual finding-clear error-we conclude in this matter that the State failed to meet its burden. See State v. Palmer, 2016 ME 120, ¶ 11, 145 A.3d 561. Our conclusion is perhaps best demonstrated by a summary of what occurred during the hearing.

         [¶5] The State presented one witness at the hearing-Kibbe's probation officer. On direct examination by the State, the probation officer testified that Kibbe was seen in front of a Waterville public school on August 30, 2016, at a time when school was not in session, in violation of a probation condition that he not be within five hundred feet of a school, and that Kibbe had failed to report to her as required on September 22, 2016; September 26, 2016; and October 6, 2016, for which he was arrested on October 6, 2016. The State's attorney did not ask the probation officer during direct examination if Kibbe was still on probation on these dates, and the probation officer did not testify on that issue.

         [¶6] On cross-examination, Kibbe's attorney questioned the probation officer regarding whether Kibbe was on probation at the time of the alleged violations:

Q So I have a date of December 16th of 2007 of Mr. Kibbe's release that was provided to me by the Department of Corrections. But is it correct that you're not sure when he was originally released?
A I don't have that date off the top of my head.
Q So you -- as you sit here today, you believe that Mr. Kibbe is still on ...

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