MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 164 Docket: Fra

- 19

- 140 ;	S RP

- 19

- 143 Argued : November	6,	2019 Decided: December	10,	2019 Panel: SAUFLEY,	C.J.,	and ALEXANDER , MEAD, GORMAN ,	JABAR , HJELM, and HUMPHREY, JJ.

STATE	OF	MAINE

v. JAMES	E.	SWEENEY

GORMAN ,	J. [¶1] James	E.	Sweeney	appeals	from	a	judgment	of	conviction of	murder,
17

- A	M.R.S.	§	201 (2018), entered	by	the	court	(Franklin	County, Stokes, J. )	after a	jury

- waived	trial.		Sweeney	argues	that	the	court erred	in	admitting	certain testimony given	by	the	mother of	the	woman 1 he	killed ;	h e also	challenges his
sentence

. After	careful	review,	w e	affirm.
I.		BACKGROUND
A. Factual	and	Procedural	Hist ory [¶ 2 ] The	court	made	the	following	findings	of	fact,	which	are	supported by	competent	record	evidence	from	the	trial. See State	v.	Fournier ,	2019	ME	28,

1 Throughout	this	opinion,	we	identify	her	as	“W.D.”2 ¶ 2,	 203	 A.3d	 801

. In the	 summer	 of	 2017, Sweeney and W.D. had	 been romantically	involved	with	one	another	for	over a decade

. Witnesses	who	knew the	couple described	the	relationship as generally “good,”	but	in	the	spring	of 2017,	 Sweeney	 became	 increasingly	 jealous	 and	 suspicious	 that	 W.D.	 was involved	with	other	men.		E ven	though	W.D.	and	everyone	who	knew	the	couple assured	 Sweeney	 that	 his	 suspicions	 were	 unfounded,	 Sweeney	 was “unmoved.” [¶ 3 ] In	 March	 of	 2017,	 W.D.	 woke	 in	 the	 middle	 of	 the	 night	 to	 find Sweeney	standing	in	her	bedroom	with	a	gun	in his hands. Acc ording	 to	 the trial court, the significance of	that	event	was	its	demonstration	that	“[Sweeney] had	 reached [such] a	level	 of	 desperation	 and	 panic	in	 his	 relationship	with [ W.D. ]	that	he	was	experiencing	suicidal	and	possibly	homicidal	ideation.” [¶ 4 ] Three	months	later,	in	June	of	2017,	W.D.	told	Sweeney	that	their relationship	was	over	but	that	he	could	remain	living	in	her	house,	at	least	for a	while. Early	in	the	morning	o f July	11,	20 1 7, while W.D. was	asleep, Sweeney entered her bedroom	and viole ntly struck her face	and	head with	a	wooden	bat. W.D.	died	as	a	result	of	that	blunt	force	trauma

. [¶ 5 ] On	 August	 23,	 2017,	 Sweeney was	 indicted	 on	 one	 count	 of intentional	or	knowing	murder , 17

- A	M.R.S.	§	201(1)(A). He	entered	pleas	of3 not	 guilty	 and	 not	 criminally	 responsible	 by	 reason	 of	 insanity, see M.R.U.
Crim. P.	11(a)(1) ,	and	waived	his	right	to	a	jury	trial, see M.R.U.	Crim. P. 23(a). [¶ 6 ] At	trial, which	was	held	over	the	course	of six days	in	January	and February	 of	 2019, th e	 State	 called	W.D. ’s	 mother to	 testify about	 the	 March 2017	incident.		The	mother	stated that	early in	the morning on	that	day , W.D. had	 arrived	 at her house	 “nervous	 and	 scared	 and	 crying , ” telling her that Sweeney	had	“woken [W.D.] up with	a	gun	pointin g in	her	face.”		The	mother also	testified	that,	although	she	did	not	know exactly	what time	the	incident	had occurred,	“whenever	it	happened,	[ W.D. ]	came	immediately	when	she	got	the
gun [away	 from	 Sweeney] and	 brought	 it	 to	 my	 house.”	 	 Over	 Sweeney’s objection,	the	court	admitted	the	mother’s	testimony	pursuant	to	the	present sense	impression	exception	to	the	rule	against	hearsay

. See M.R.	Evid.	803(1)

. The	court also	ruled that ,	contrary	to	the	State’s	p osition, the statement	was	not admi s sible pursuant	to	the	excited	utterance	exception,	M.R.	Evid.	803(2)

. [¶ 7 ] On	February	1,	2019,	the	court	found	Sweeney	guilty	of	the	murder and continued	the	matter	for	sentencing.
B

. Sentencing [¶ 8 ] At	the	sentencing	hearing	two	months	later,	the	court set	the	basic sentence	at	thirty

- five	years , citing the	murder’s	“brutal,	violent,	unprovoked”4 nature	 and	 the	 “classic	 signs	 of	 [domestic	 violence]”	 surrounding	 the	 crime, including	 Sweeney’s	 “irrationa l”	 and	 “obsessive ” jealousy. S ee 17

- A
M.R.S. § 1252

- C(1) ( 2016 ). 2 [¶ 9 ] The court then	assessed “all	other	relevant	sentencing	factors,	both aggravating and mitigating ,” in	 order to	 determine	 the final sentence.	 	 17

- A M.R.S.	§	1252

- C (2)	(201 6 ). As mitigating	factors,	t he	court	identified	Sweeney ’s
age , 3 his relatively limited	criminal	 record, reliable employment	history , and difficult	childhood , and Sweeney’s acknowledgment that	he	had	killed W.D .		In addition , the	 court	 considered	 as	 a	mitigating factor	 that	 Sweeney had	 been “experiencing	some	 type	of	mental	health	crisis”	in	 the	months	leading	up	 to the	murder. [¶1 0 ] As	aggravating	factors,	the court	found	that	the	crime’s effect on W.D. ’s	 mother	 and	 daughter	would	 be	 “excruciating”; that	 Sween ey’s	 acts	 of domestic violence in	 the	 months	 before the	 murder had	 been	 attempts to intimidate,	control,	and	threaten W.D. ;	and	that	Sweeney	did	not	call	9

- 1

- 1 after

2 Title	17

- A	M.R.S.	§	1252

- C	(2016)	has	recently	been	amended	and	reallocated,	though	not	in	any way	 relevant	 to	 this	 appeal,	 as	 part	 of	 the	 recodification	 and	 revision	 to	 Title	 17

- A’s	 sentencing provisions. See P.L.	 2019,	 ch.	 113,	 §§ A

- 1	 to

- 2,	 B

- 9	 (emer gency,	 effective	 May	 16,	 2019) (to	 be codified	at	17

- A	M.R.S.	§ 1602).		All	citations	to	the	sentencing	provisions	in	this	opinion	are	to	the statutes	in	effect	at	the tim e	of	the	offense

. See State	v.	Parsons ,	626 A.2d	348,	351 (Me.	1993).

3 Sweeney	was fifty

- six	when	he	killed	W.D.	and	fifty

- nine	at	the	time	of	the	sentencing.5 attacking W.D. After	balancing	the	mitigating	and	aggravating factors,	t he	court set	the final	sentence at thirty

- eight	years	in prison

. [¶1 1 ] Sweeney timely appealed	 the	 judgment. See 15	 M.R.S.	 §	 2115 (2018);	M.R.	App.	P.	2B(b)(1). Upon	his	application ,	the	Sentence	Review	Panel granted Sweeney	leave	 to	 appeal	 his	 sentence pursuant	 to 1 5	M.R.S.	 §	 2151 (2018)	and	M.R.	App.	P.	20

. State	v.	Sweeney ,	No.	SRP

- 19

- 143	(Me.	Sent.	Rev. Panel	June	27,	2019). Sweeney’s	direct	appeal	from	the	judgment	of	conviction and	his	sentence	appeal	are	both before us now . See M.R.	App.	P.	20(h).
II. DISCUSSION
A

. The	Mother’s	Testimony [¶1 2 ] Sweeney	 contends	 that	 the	 court	 erred	 in	 admitting W.D. ’s mother’s	testimony	about statements W.D. made	to her soon	after the	incident in	which	Sweeney	went	into W.D. ’s	bedroom	with	a	gun. [¶1 3 ] We	review	a “ court’s	decision	to	admit	or	exclude	alleged	hearsay evidence	.	.	.	for	an	abuse	of	discretion , ” State	v.	Guyette ,	2012	ME	9,	¶	11,	36 A.3d	916 ,	and	if	a	court’s	ruling	is	proper,	we	may	affirm	it	“on	grounds	other than	 those	 stated	 by	 the	 trial	 court ,” State	 v.	 Watson ,	 2016	 ME	 176,	 ¶	 10, 152 A.3d	 152

. We	 review	 factual	 findings	 underlying a decision to	 admit	 or exclude	evidence for	clear	error. State	v.	Robinson ,	2001	ME	83,	¶ 10,	773	A.2d6 445 ; see M.R.	 Evid.	 104(a). Furthermore,	 w hen	 a	 party	 does	 not move	 for additional	findings	of	fact	pursuant	to	M.R.U.	Crim.	P.	23(c),	we	“infer	that	the trial court found all	of	the	fact s necessary	to	support	its	judgment,	to	the	extent that those	 assumed	 facts	 are	 supported	 by	 competent	 record	 evidence.”
Fournier , 2019	ME	28,	¶	2,	203	A.3d	801

. [¶1 4 ] “[S]ubstantial	 contemporaneity	 is	 the	 essence”	 of M.R.	 Evid. 803(1) , State	v.	Ryne	G. ,	509	A.2d	1164,	1168	(Me.	1986) ,	and	w e	agree	with	the parties	that	the court erred in admitting	the	mother’s	testimony pursuant	t o the present	sense impression	exception to	the rule	against	hearsay

. As	we	noted, however , the	court	specifically	ruled	that	the	statement	was	not	admissible	as an	excited	utterance.		Although	the	court’s	ruling	contained	no	express	factual findings relevant	 to	 the	 excited	 utterance	 exception, s ee M.R.	 Evid. 104(a), 803(2) ; State	v.	Watts ,	2007	ME	153,	¶	5,	938	A.2d	21 ,	t he	State	did	not	move for	additional	findings	of	fact , s ee M.R.U.	Crim.	P.	23(c) ; State	v.	Legassie ,	2017 ME	202,	¶ 46 ,	171	A.3d	589

. Given this	record , the	court’s	conclusion that the mother’s	testimony was	not	admissible as	an	excited	utterance was not	clearly

erroneous . See	Fournier , 2019	ME	28, ¶	2 ,	203	A.3d	801 ; Watts ,	2007	ME	153, ¶	5,	938	A.2d	21

. Because	the	mother’s	testimony was	neither	a present	sense impression	 nor	 an	 excited	 utterance,	 and	 was	 therefore	 not	 admissible7 pursuant	 to	 those	 exceptions to	 the	 rule	 against	 hearsay ,	 the	 court	 erred	 in admitting	it

. [¶1 5 ] Although	 the	 court	 erred	 i n	 admitting	 the	 mother’s	 hearsay testimony , the error here was	harmless

. See M.R.U.	Crim.	P.	52(a). An	error	is harmless	when “it	is	highly	probable	that	the	error	did	not	affect	the	factfinder’s judgment.” State	v.	White ,	2002	ME	122,	¶	16,	804	A.2d 1146 ( quotation	marks omitted )

. In	addressing	Sweeney’s	objections	 to	 the	mother’s	 testimony,	 t he
court stated	that	the	testimony	was “instructive	on	the	relationship”	between Sweeney	 and W.D

. ,	 and	 the	 court	 also	 made	 clear	 that	 it	 was	 not	 using	 the
testi mony	as	propensity	evidence. On	th e issue of	the	relationship ,	however, the	 court	 had	 a	 great	 deal	 of additional	 and	 pertinent evidence,	 including a letter	Sweeney	wrote	to W.D. after	the gun incident ,	Sweeney’s own description of	that	incident	to	two	forensic	examiners,	and the	testimony	of	other	witnesses who	 discussed interactions	 they	 saw	 between	 Sweeney	 and W.D. and things they	heard Sweeney say about W.D

. Given this	abundant	evidence,	it	is	“highly probable,” i d. ,	 that any	 error in	 the	 court’s	 consideration	 of	 the	 mother’s testimony did	not	affect	the	court’s finding that	Sweeney “had	reached a	level8 of desperation	and	panic in	his	relationship	with	[ W.D. ]” in	the	months	before the	murder. 4
B

. Sentencing [¶1 6 ] Sweeney ’s challenge to his	sentence is	based	on	the	assertion that the	 court “double

- counted”	 the	 factor	 of	 domestic	 violence	 in	 reaching	 its sentence.		There	is	simply	no	support in	the	record for	that	assertion

. [¶1 7 ] P ursuant	 to	 17

- A	 M.R.S.	 §	 1252

- C (2016) ,	 which	 codified our decision	in State	v.	Hewey ,	622	A.2d	1151 ,	1154

- 55 (Me.	1993) ,	a	court imposing a	sentence	for	murder follows a	two
- step	process

. 5 First,	the	court	“determines the	 basic	 term	 of	 imprisonment	 based	 on	 an	 objective	 consideration of	 the particular	nature	and	seriousness	of	the	crime.” State	v.	Koehler ,	2012	ME	93, ¶	 33,	 46	 A.3d	 1134

. Second,	 the	 court	 “determines	 the	 final	 period	 of incarceration	based	on	the	relevant	aggravating	and	mitigating	factors.” Id. We review	 “a	 court’ s	 determination	 of	 the	 basic	 sentence	 de	 novo	 for

4 We	are	also	unpersuaded	by	Sweeney’s	unpreserved	argument	that	the	court’s	decision	to	admit, as	 substantive	 evidence,	 statements	Sweeney	made	 to	 the	 State’s	 expert	witness	w hile	admitting essentially	 identical	 statements	 Sweeney	 made	 to	 his	 own	 expert	 witness	 only	 as	 the	 basis	 for Sweeney’s	expert’s	opinion	violated	Sweeney’s	constitutional	right	to	“a	meaningful	opportunity	to present	a	complete	defense.” Holmes	v.	South	Ca rolina ,	547	U.S.	319,	324	(2006) (quotation	marks omitted); see	also State	v.	Mitchell ,	2010	ME	73,	¶¶	31

- 33,	4	A.3d	478

.
5 Title	17

- A	M.R.S.	§	1252

- C	includes	a	third	step

— the	determination	of	any	period	of	suspension and	 probation

— that	 is	 inapplicable to	 a	 sentence	 imposed	 for	 the	 crime	 of	 murder. See 17

- A M.R.S. § 1201(1)(A) (2016).9 misapplication	 of	 legal	 principles	 and	 its	 determination	 of	 the	 maximum sentence	 for	 abuse	 of	 discretion.” State	 v.	 Waterman ,	 2010	 ME	 45,	 ¶	 42, 995 A.2d 2 43

. [¶1 8 ] Contrary	 to	 Sweeney’s	 suggestions,	 t he court did	 not inappropriately consider the element of	domestic violence	at	both	step	one	and step	two. In	fact,	the	sentencing analysis was	a	model	of fidelity	to	the	law. I n explaining	 the	 first	 step	 required	in	contemplating	 a	 sentence	 for	Sweeney’s

cr ime, the	court properly and	correctly considered	 the objective element s of domestic	 violence	 in	 the	 crime itself

. Sweeney	 killed	 the	 woman	 who	 had shared	his	life	for	over	ten	years.		He	killed	her by	striking	her	face	and	head with	a	wooden	bat while	she	slept	in	a	place	where	she	should	have	been	safe

— her	own	home. The	court	committed	no	error	in	noting	these	objective	factors in	setting	 the	basic	sentence. See State	v.	Nichols ,	2013	ME	71,	¶	29,	72	A.3d 503

. [¶1 9 ] At	 step	 two,	 t he court e xamined the	 history	 of the relationship between	Sweeney	and W.D. ,	including Sweeney’s	attempts	“to	intimidate,	to	try to	 control,	 to	 try	 to	 threaten	 [ W.D. ],	 implicitly	 or	 explicitly.” The	 court addressed	 this	 history	 as	 an	 aggravating	 factor, noting	 that	 “the	 most dangerous	time	in	a	relationship	is	when it	is	ending,	it	was	clearly	ending	and10 [Sweeney]	could	not	deal	with	it.” Considering	Sweeney’s	history	of	domestic violence against	W.D. as	an	aggravating	factor	was	not err or . See State	v. Lord , 2019	ME	82, ¶ 3 5 ,	208	A.3d	781 ; State	v.	Reese ,	2010	ME	30,	¶ 31,	991	A.2d	806

. [¶ 20 ] Finally ,	the	court	did	not err in its weighing of the	aggravating	and mitigating	 factors at	 step	 two

. The court’s	 accounting	 of the crime’s “excruciating”	 impact	 on W.D. ’s	 family was firmly within	 the	 bounds	 of	 its discretion

. See Lord , 2019	ME	82,	¶	36,	208	A.3d	781 ; State	v. Freeman ,	2014 ME	35,	¶	20,	87	A.3d	719

. The	entry	is: Judgment	affirmed.

Jeremy	 Pratt,	 Esq. (orally), and	 Ellen	 Simmons,	 Esq.,	 Camden,	 for	 appellant James	E.	Sweeney Aaron	M.	Frey,	Attorney	General,	and	Leanne	Robbin,	Asst.	Atty.	Gen. (orally) , Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Franklin	County	Unified	Criminal	Docket docket	number	CR

- 2017

- 642 F OR C LERK R EFERENCE O NLY