Argued: March 4, 2019
S. Rioux, Esq. (orally), Rioux, Donahue, Chmelecki &
Peltier, Portland, for appellant Peter L. Robbins.
Kathryn L. Slattery, District Attorney, and Thaddeus W. West,
Asst. Dist. Atty. (orally), Prosecutorial District #1,
Alfred, for appellee State of Maine.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Peter L. Robbins appeals from a judgment of conviction for
unlawful sexual touching (Class D), 17-A M.R.S. § 260(1)
(C) (2018), and assault (Class D), 17-A M.R.S. §
207(1)(A) (2018), entered by the trial court (York County,
Driscoll, J.) following a jury trial. Robbins
contends that the court erred in several of its evidentiary
rulings, including allowing the State to cross-examine him
concerning prior probation violations, declining to allow him
to refresh a witness's recollection with a document that
the witness had not authored, and barring him from eliciting
testimony from a witness concerning the victim's
reputation for truthfulness. We agree with Robbins that the
court erred in allowing the State to introduce improper
character evidence through its inquiry into multiple
violations of his unrelated federal probation, and we
conclude that the prejudice he suffered as a result of that
error, when combined with the effect of prosecutorial
misconduct committed during the State's cross-examination
of him, deprived Robbins of a fair trial. Accordingly, we
vacate the judgment.
Viewing the evidence in the light most favorable to the
State, the jury rationally could have found beyond a
reasonable doubt that on December 12, 2008, Robbins, then age
thirty-two, touched the then-twelve-year-old victim's
genitals over her clothing and made her touch his genitals
over his clothing while the victim was spending the night
with Robbins's niece. See State v. Perkins, 2019
ME 6, ¶ 3, 199 A.3d 1174. The next morning the
victim's parents took her to the police station to make a
Robbins was summonsed for assault (Class D), 17-A M.R.S.
§ 207(1)(A), and ordered to make a court appearance on
February 5, 2009. That appearance was continued when Robbins
wrote to the court to advise it that he was in the custody of
federal probation authorities, probation having been imposed
as a result of his 2004 federal conviction for bank robbery.
Robbins was eventually arraigned on the assault charge and
pleaded not guilty; the matter was then transferred to the
Superior Court for a jury trial.
In July 2009, Robbins was indicted on the original assault
charge and an additional charge of unlawful sexual touching
(Class D), 17-A M.R.S. § 260(1)(C). After counsel
entered an appearance, Robbins failed to appear for
arraignment on the indictment on September 18, 2009, and the
court [Brennan, J.) issued a warrant for his arrest.
The warrant remained outstanding until Robbins returned from
Italy, where he had lived for seven years beginning in
September 2009. In April 2017, Robbins, then living in
Colorado, filed a motion to vacate the warrant, which the
court [O'Neil, J.) denied. After arraignment on
the 2009 indictment was continued several times, Robbins
appeared for arraignment in February 2018, pleaded not
guilty, and was released on an unsecured bond [Fritzsche,
At a trial held on June 25-26, 2018, the jury returned
verdicts of guilty on both counts; the court then entered a
judgment and commitment imposing a sentence often months'
imprisonment for unlawful sexual touching and a concurrent
thirty-day jail term and a $300 fine for assault. Robbins
appealed, and the sentence was stayed pending our decision.
Although the issue was not preserved at trial or raised on
appeal, we examine the State's cross-examination of
Robbins to determine whether prosecutorial misconduct
occurred, and, if so, whether it contributed to Robbins being
deprived of a fair trial. See M.R.U. Crim. P. 52(b);
State v. Dolloff, 2012 ME 130, ¶ 76, 58 A.3d
1032 ("Our ultimate task in reviewing for . . . obvious
error is to determine whether [the defendant] received a fair
During Robbins's cross-examination concerning the federal
probation violations, the following exchange occurred:
PROSECUTOR: The rules [against drinking while on probation]
ROBBINS: I tend to think that because alcohol is legal, it
was kind of like bending the rules.
Q: But the rules told you, you couldn't drink.
A: But I don't understand what this has to do with
Q: It has to do with whether or not anybody should believe a
word you're saying in this courtroom today.
A: No-well, that's completely different. It's a
different-it was a different case; it was a different time in
Q: A different time in your life?
A: Yes. I was very depressed from losing-
Q: This is November of 2008, you were sexually assaulting
this girl December 2008.
Q: No, no there is no-
Q: -allegedly here.
A: It is allegedly.
Q: There is testimony on the record to that effect,
A: I'm sorry, when's my lawyer going to speak up,
please? What's going on here. This is crazy.
PROSECUTOR: I don't have anything further.
COURT: Thank you. PROSECUTOR: I'm done with him.
Defense counsel did not object, and the court took no action
in response to that exchange. Accordingly, our review is for
obvious error. State v. Hassan, 2013 ME 98, ¶
32, 82 A.3d 86; Dolloff 2012 ME 130, ¶ 35, 58A,
3d1032; see M.R.U. Crim. P. 52(b); M.R. Evid.
103(d). Applying that standard of review, we will not vacate
Robbins's conviction unless "there is (1) an error,
(2) that is plain, and (3) that affects substantial rights.
Even if these three conditions are met, we will set aside
[the] jury's verdict only if we conclude that (4) the
error seriously affects the fairness and integrity or public
reputation of judicial proceedings." Dolloff,
2012 ME 130, ¶ 35, 58 A.3d 1032 (citations and quotation
marks omitted). We will not set a jury verdict aside
"lightly," and so an error leading to that result
must work a "serious and manifest injustice."
Id. ¶ 39.
We conclude that a plain error occurred here. The only
evidence from which the jury could find that Robbins
committed the crimes charged came from the testimony of the
victim-her credibility was the heart of the State's case.
The prosecutor's questions to Robbins-presented in the
form of assertions-explicitly conveyed his personal opinion
to the jury that the victim had told the truth, and that the
jury did not need to decide that question for itself:
"[Y]ou were sexually assaulting this girl [in] December
2008[T]here is no ... allegedly here.... There is testimony
on the record to that effect See State v. Williams,
2012 ME 63, ¶ 46, 52 A.3d 911 ("At trial, an
attorney is prohibited from commenting on his or her personal
opinion as to the credibility of a witness.").
In Dolloff, we said that "[i]njecting personal
opinion regarding the ... credibility of.. . [a]
witness," or "vouching" for a witness by
"[u]sing the authority or prestige of the
prosecutor's office," "will almost always be
placed into the category of misconduct." 2012 ME 130,
¶ 42, 58 A.3d 1032 (quotation marks omitted); see
id. ¶ 36 ("An error is plain if the error is
so clear... that the trial judge and prosecutor were derelict
in countenancing it, even absent the defendant's timely
assistance in detecting it." (alteration, citation, and
quotation marks omitted)).
The third element of the obvious error test requires us to
determine if there is "a reasonable probability that the
error affected [Robbins's] substantial rights. An error
affects a criminal defendant's substantial rights if the
error was sufficiently prejudicial to have affected the
outcome of the proceeding." Id. ¶ 37
(alteration, citation, and quotation marks omitted); see
State v. Pillsbury, 2017 ME 92, ¶ 18, 161 A.3d 690.
We do so being mindful that "[w]hen a prosecutor's
statement is not sufficient to draw an objection,
particularly when viewed in the overall context of the trial,
that statement will rarely be found to have created a
reasonable probability that it affected the outcome of the
proceeding." Dolloff, 2012 ME 130, ¶ 38,
Here, the jury could have reasonably understood the
prosecutor to say that the ultimate issue had been settled
and the jury's core function performed when he stated to
Robbins as fact that "you were sexually assaulting this
girl [in] December 2008[T]here is no... allegedly here."
That statement on its face is, of course, patently wrong-it
is elemental that the State's accusation that Robbins had
sexually assaulted the victim was an allegation
unless and until the jury assessed the victim's
credibility and decided for itself that the State had proved
the truth of its charge beyond a reasonable doubt. See
United States v. Sarault, 975 F.2d 17, 21 n.5 (1st Cir.
1992) ("One of the most fundamental tenets of our system
of justice is the presumption of innocence.");
Alexander, Maine Jury Instruction Manual § 6-7
at 6-14 (2018-2019 ed.).
In obscuring the presumption of innocence by framing
Robbins's guilt as a fact rather than as an open question
for the jury to decide, thereby shifting the burden of proof
to Robbins on the ultimate issue-in effect requiring Robbins
to prove that the prosecutor's assertion was false-the
prosecutor committed, and the court failed to correct, an
error that had a "reasonable probability" of being
"sufficiently prejudicial to have affected the outcome
of the proceeding." Dolloff, 2012 ME 130,
¶ 37, 58 A.3d 1032 (quotation marks omitted); see
id. ¶ 42 (stating that "[s]hifting the burden
of proof on an issue to the defendant" "will almost
always be ... 'misconduct'").
Because the first three elements of the obvious error test
are satisfied, we must decide finally whether the error
"seriously affect[ed] the fairness and integrity or
public reputation" of the trial. Id. ¶ 35
(quotation marks omitted). In this unusual situation,
Robbins, confronted by a prosecutor stating as fact that he
had committed the crime for which he was on trial, implored
his lawyer to become involved. His lawyer did not, nor did
the court. From this, the jury may have concluded that no one
participating in the trial apart from Robbins himself
disagreed that the truth of the victim's testimony- and
thus Robbins's guilt-had been established. That
possibility was not purely theoretical, given that during its
deliberations the jury sent out a note asking the court to
"reinstruct the jury that 100 percent positive is not
the requirement to convict." It is possible that the
jury decided that because the prosecutor, "cloaked with
the authority of the State," State v. Pratt,
2015 ME 167, ¶ 15, 130 A.3d 381, told them that Robbins
was guilty, and no one other than Robbins objected to or
corrected that statement, then the jury should reach the same
That potential impression was reinforced during the
State's closing argument, when the prosecutor said
"let's talk about what we know" and recited the
victim's testimony, ending the recitation with, "Now
that's the story. That's the evidence. That's the
testimony." In concluding his argument, the prosecutor
did what we have cautioned prosecutors not to do, urging the
jury that "[the victim] can't do any more than what
she's done. You're the only ones that can do
something. Find him guilty." See Dolloff, 2012
ME 130, ¶ 68, 58 A.3d 1032 ("In exhorting the jury
to convict, which is not, standing alone, misconduct,
references to doing justice by conviction should be
Although our review for obvious error is exacting when a jury
has rendered a verdict, see State v. Hall, 2017 ME
210, ¶ 27, 172 A.3d 467, we conclude on this record that
prosecutorial misconduct plainly occurred, the misconduct
affected Robbins's substantial rights, and the error