MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	231

Docket: Ken-17-110

Argued: November	14,	2017

Decided: December	12,	2017

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

STATE	OF	MAINE

v.

CORY	D.	KIBBE

PER	CURIAM

[¶1]	 	 In	 2004,	 Cory	 D.	 Kibbe	 pleaded	 guilty to	 gross	 sexual	 assault	

(Class A),	 17-A M.R.S.	 § 253(1)(B)	 (2016),	 and unlawful	 sexual	 contact	

(Class C),	 17-A M.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	
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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

 1		We	granted	Kibbe	a	certificate	of	probable	cause	on	his	petition	seeking	discretionary	review	

of	 the	 court’s	 decision.	 	 See 17-A M.R.S.	 § 1207(1)	 (2016);	 M.R.	 App.	 P.	 19(a)(ii)	 (Tower	 2016);	

M.R. App.	P.	19(a)(2)(B).	
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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	probation	though,	correct?

A Yes.

Q And	he’s	-- was	subject	to	eight	years	of	probation?

A That’s	possible.
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Q You’re	not	sure	how	many	years	of	probation?

A I	don’t.		I	only	have	a	hunch.

Q It’s	eight	years.		I	think	we	can	probably	agree	that	it’s	eight	

years.		Can	we	agree	that	it’s	eight	years	of	probation?

A Yes.

When	 asked	 when	 Kibbe	 was	 released	 from	 prison	 after	 serving	 the	

unsuspended	 portion	 of	 his	 sentence,	 the	 probation	 officer testified,	 “I	 -- I	

don’t	have	it	 off	 the	 top	 of	my	head.	 	No,	 I	didn’t	 bring	 that	with	me.”	 After	

Kibbe’s	 attorney	 suggested	 that	 Kibbe	 was released	 from	 prison on	

December 16,	 2007,	 the	 probation	 officer agreed	 that	 his	 probation	

commenced	 on	 December	 17,	 2007,	 and	 that,	 barring	 other	 factors,	 Kibbe’s	

eight-year	probation	term	therefore	would	have	expired	in	December	of	2015,	

several	months	before	the	dates	of	the	alleged	probation	violations:

A .	.	.	.		His	probation	did	start	December	17th,	2007.

THE	COURT: Probation	would	begin	when?

THE	WITNESS: December	17th,	2007.

THE	COURT: December	17th?

THE	WITNESS: December	17th,	2007.

THE	COURT: Thank	you.		And	 that	would	run	 for	eight	

years?
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THE	WITNESS: Yes.

[¶7]		Although	the	probation	officer testified	on	cross-examination that	

Kibbe	was	subject	 to	prior	partial	probation	revocations	of	440 days and	six	

months,	 she	also	 testified	 that	 she	was not	 sure	how	long	Kibbe’s probation	

was	tolled	while	he	served	time	on	those prior revocations,	or	whether	and	to	

what	extent	he	received	good	time	credits	that	would	reduce	the	tolled	period.		

See 17-A M.R.S.	 §§ 1206(7-A), 1253(8)(A),	 (D) (2016).	 The	probation	 officer

agreed	 that	 good	 time	 credits	 would	 affect	 the	 probation	 tolling	 dates,	 but	

when	Kibbe’s	attorney	inquired,	“The	problem	is,	you’re	not	sure	when	it	was	

tolled	for	those,	correct?”	the	probation	officer answered,	“I	don’t	have	that	on	

me, no.”	 When	asked,	 “So	at	 this	 point,	 you	 don’t	actually	 have	any	 records	

with	 you	 for	 the	 Court	 to	 show	 that	 Mr.	 Kibbe	 was	 on	 probation	 on	

October 6th?”	the	probation	officer	responded,	“No,	I	don’t	have	that	with	me.		

I’m	sure	I	can	make	a	phone	call	and get	all	the	tolling	dates.”	

[¶8]	 	 On	 redirect examination,	 the	 probation	 officer testified	 that	

Kibbe’s	 prior	 probation	 revocations	 would	 have	 extended	 his	 probationary	

period	by	nineteen	months	from	the	initial	end	of	his	probation	in	December	

of	 2015,	 and	 that	 she	 did	 not	 receive	 a	 notification	 from	 the	Department	 of	

Corrections	flagging	system	informing	her	that	Kibbe’s	probation	had	ended.	
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[¶9]		On	recross-examination,	Kibbe’s	attorney	inquired	further	into	the	

effect	of	the	prior	probation	revocations:

Q This	whole	tolling,	I	mean,	you	were	led	through	a	bunch	of	

questions	 here	 on	 tolling	 but	 the	 bottom	 line	 is,	 you	

mentioned	 440	 days.	 	 You	 don’t	 know	 that	 Mr.	 Kibbe	 was	

actually	-- his	probation	was	tolled	for	440	days,	correct?

A No.		I	can	probably	get	some	dates,	if	you’d	like.		

Q But	 for	 all	 you	 know	 here	 today,	 he could	 have	 been	

sentenced	 to	 440	 days,	 got	 a	 significant	 amount	 of	 good	

time	and	been	released	long	before	that	440	days,	correct?

A I	don’t	know	what	the	good	time	would	have	been	on	it.

The	State	rested without	offering	any	additional	evidence.

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[¶10]		In	short,	the	record	makes	clear	that	the	State’s	single	witness—

Kibbe’s	probation	officer—was	unable	 to	 testify	with	any degree	of	certainty	

that	 Kibbe	 was	 still	 on	 probation	 on	 October	 6,	 2016.	 	 She	 had	 neither	

knowledge	 of	 nor	 information	 about	 the	 actual	 dates	 of	 Kibbe’s	 probation.

3		

 2		While	it	was	considering	what	disposition to	impose	for	the	probation	violation,	the	court	took	

a	recess,	after	which	the	State’s	attorney	indicated,	“We’ve	also	confirmed	with	the	Department	of	

Corrections	 that	 [Kibbe]	 would,	 barring	 any	 further	 time	 in,	 remain	 on	 probation	 through	

September	of	next	year.”	 To	the	extent	that	such	vague	information	could	have	aided	the	court in	

its	 findings,	 the	 court	 had	 already	 found	 that	 Kibbe	 violated	 his	 probation	 by	 the	 time	 the	 State	

purported	 to	 obtain	 confirmation	 from	 the	 Department	 of	 Corrections,	 and	 in	 any	 event,	 the	

statements	of	an	attorney	are	not	evidence,	see State	v.	Begin,	2015	ME	86,	¶	28,	120 A.3d	97.

3		Moreover,	we	cannot	be	certain	 that	 the	court	correctly	assigned	 the	burden	of	proof	 to	 the	

State	 throughout	 the	 hearing.	 	 See State	 v.	James,	 2002	 ME	 86,	 ¶	 9,	 797	 A.2d	 732.	 	 After Kibbe’s	

attorney	asked	the	probation	officer on	cross-examination,	“Do	you	have	any	evidence	that	[Kibbe]	

was	on	probation	at	that	time?”	the	court	inquired	of	Kibbe’s	attorney,	“Do	you	have	any	evidence	

that he	was	not	 on	probation?”	 Later,	after	Kibbe’s	attorney	 challenged	 during	 closing	argument	
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See 17-A M.R.S.	 § 1253(8)(A),	 (D). It	 was	 the	 State’s	 burden	 to	 prove,	 by	 a	

preponderance	of	the	evidence,	that	Kibbe	was	on	probation	at	the	time	of	his	

alleged	 probation	 violations;	 the	 State	 failed	 to	 meet	 that	 burden.

4	 	 See

17-A M.R.S.	§	1206(6);	James,	2002 ME	86,	¶ 9,	797	A.2d	732.		Accordingly,	we	

vacate	the	judgment	revoking	Kibbe’s probation.5		

The	entry	is:

Judgment vacated.	 	 Remanded	 for	 entry	 of	 an	

order	 denying	 the	 State’s	probation	 revocation	

motion.

 the	State’s	proof	that	Kibbe	was	on	probation	at	the	relevant	time,	the	court	stated,	“How	do	I	know	

he	wasn’t?		See,	that’s	the	-- I	think	we’re	taking	-- looking at	this	the	wrong	way,	in	my	eyes.		I’m	

here	and	 I’m	-- someone	needs	 to	convince	me	 that	he	is	-- was	not	on	probation.”	 When	Kibbe’s	

attorney	 asked,	 “Well,	 Your	 Honor,	 are	 you	 suggesting	 that	 the	 defendant	 has	 the	 burden	 of	

proof	--,”	the	court	stated, “I’m	not	suggesting	that.		I’m	not	suggesting	that	one	bit.		I’m	saying,	it’s	

[the	State’s]	burden.		And	what	I’ve	heard	from	the	district	attorney’s	office,	I’m	convinced	that	he	

was	on	probation.”		

4	 	To	 prevent	 such	failures in	 calculating	 probationary	 periods	in	 future	matters—particularly	

those	in	which	there	is	a	serious	question	as	to	whether	the	probationer	is	still	on	probation—the	

State	and	the	State’s	witness	must	be	prepared	to	establish	that	probation	is,	in	 fact,	still	in	effect.		

The	 better practice	 is	 for	 the	 State	 to file	 documentation	 with	 its	 motion	 to	 revoke	 probation	

detailing	the	relevant	dates.

5		We	decline	 the	parties’ alternative	request	 to	remand	 the	matter	 for	a	new	hearing.		Having	

failed	to	meet	its	burden,	there	is	no	basis	upon	which to	allow	the	State	a	second	attempt	to	prove	

those	facts.
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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

Kennebec	County	Superior	Court	docket	number	CR-2004-357	

FOR	CLERK	REFERENCE	ONLY