Argued: November 14, 2017
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
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and
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.
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.
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.
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
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.
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 ...