MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 49 Docket: Ken

- 16

- 89 Argued: November	10,	2016 Decided: March 16 ,	2017 Panel: SAUFLEY,	C.J. ,	and	ALEXANDER , MEAD, GORMAN,	JABAR , HJELM, and HUMPHREY, JJ.

STATE	OF	MAINE

v. WALTER H. RENFRO

SAUFLEY,	C. J. [¶1] Walter H. Renfro appeals	from a	judgment	of	conviction	entered	by the trial court (Kennebec	 County, Benson,	J. ) after	a	jury	 found	 him	guilty	 of operating under	 the	 influence (Class	 B), 29

- A	 M.R.S.	 § 2411(1

- A)(D)(2) (2016 )

. 1 Renfro	argues	that	the trial court	abused	its	discretion	in	excluding, pursuant	to	M.R.	Evid.	403,	the finding	of	an	administrative hearing examiner that Renfro’s	Intoxilyzer	test	resul ts were unreliable	due	to	improper	pre

- test observation	 by	 police. 2 We	 conclude	 that	 the	 court	 did	 not	 abuse	 its discretion	and	affirm	the	judgment.

1 Title	 29

- A	 M.R.S.	 §	 2411(1

- A)(D)(2)	 (2016)	 includes	 a	 revision , made	 after	 the	 time	 of	 the crime , that	corrected	a	statutory	cross

- reference. See R.R.	2015,	ch.	2,	§	18.

2 Renfro	 also argues	 that	 the	 court	 abused	 its	 discretion	 in	 denying	 his	 motion	 for	 mistrial through which	he	challenged prosecutorial closing	arguments as	impermissibly	shifting	th e	burden of	 proof	 to	 him

. W e	 discern	 no	 abuse	 of	 discretion	 or	 prejudice	 to	 Renfro ,	 especially given	 the2
I.		BACKGROUND [¶ 2 ] “ When	 the	 evidence	is	 viewed	in	 the	light	most	 favorable	 to	 the State,	 the	 jury	 was	 entitled	 to	 find	 the	 following	 facts	 beyond	 a	 reasonable doubt.” State	v.	Kendall ,	2016	ME	147,	¶	2, 148 A.3d 1230. On	November	1, 2013, at	about	10:45	p.m., an	officer	of the	Waterville	Police	Department	and	a police	trainee	stopped	a	vehicle	driven	by	Walter	Renfro	in	a	residential	area of	Waterville	after	the	tires	of	the	vehicle	squealed	upon	acceleration	up	a	hill. The	vehicle	almost	struck	the	curb while making	a	rig ht turn	before	pulling	to the	side	of	the	road. [¶ 3 ] When	observed	after	the	stop,	Renfro exhibited	multiple	indicia	of intoxication,	which	 the	officer	 further	confirmed	 through	 field	sobriety	 tests. The	 officer	 and	 trainee	 took	 Renfro	 into	 custody	 an d drove him	 to	 the Waterville	 Police	Department,	where	 the	 officer	 administered	 an	 Intoxilyzer

test. The	Intoxilyzer returned a	result	of	0.17	grams	of	alcohol	per	210	liters of	breath. [¶ 4 ] Renfro was	ultimately charged	by indictment with	both operati ng under	 the	influence ,	 29

- A	M.R.S.	 § 2411(1

- A)(D)(2), and	 operating	 beyond	 a

court’s complete	and	accurate jury	instructions. See State	v.	Frisbee ,	2016	ME	83,	¶	12,	140	A.3d 1230 ; State	v.	McBreairty ,	2016	ME	61,	¶	25,	137	A. 3d	1012 ; State	v.	Lowe ,	2015	ME	124,	¶	20,	124 A.3d	156

.3 license	 condition	 or	 restriction	 (Class	 E), 29

- A	 M.R.S.	 § 1251(1)(B)	 (201 6 )

. Although he moved	 to	 suppress	 evidence	 obtained	 as	 a	 result	 of	 the	 traffic stop	and	moved	in	limine to	exclude	the	Intoxilyzer	results	as	unreliable,	the court	( Mullen,	J. )	denied	the	motio ns	after	an	evidentiary	hearing

. [¶ 5 ] The	State	moved	in	limi ne	to	exclude as	irrelevant any	evidence	of an	administrative hearing held	by	a	hearing	examiner	 for	 th e	Department	of the	 Secretary	 of	 State,	 including the	 examiner’s decision to	 rescind Renfro’s license	 suspension	 due	 to	 the	 arresting	 officer’s	 failure	 to	 observe	 Renfro properly	 during	 the	 fifteen	 minutes	 before	 he	 administered	 the	 Intoxilyzer

test. See 29

- A	M.R.S.	§	2485(1)	(201 6 )

. Renfro	moved	in	limine	to	admit	the hearing	results. Those	motions	were	not	decided	before trial

. [¶ 6 ] The	 court ( Benson,	J. ) held	 a	jury	 trial in	December	 2015 on	 the OUI	 charge after Renfro	 waived	 his	 right	 to	 a	 jury	 trial	 on	 the	 count	 for operating	 beyond	 a	 license	 condition	 or	 restriction. T he	 State	 offered testimony	 from the	officer	who	arrested	Renfro	and showed	the	jury	a	video recording of Renfro’s Intoxilyzer	test ing

. [¶ 7 ] In	 addition	 to	 other	 efforts	 to challenge the	 officer’s	 credibility, Renfro sought	 to	 cross

- examine	 the	 officer	 about the hearing examiner’s decision rescinding Renfro’s license	 suspension

. The	 court	 did	 not	 allow4 Renfro	 to	 present	 evidence	 of	 the	 outcome of	 the administrative hearing because it	found	that ,	although the	evidence was	relevant, the	probative	value of	the	hearing examiner’s decision	was	substantially	outweighed	by	the	risk	of unfair	prejudice. See M.R.	Evid.	403. The	trial	court	explicitly	noted	that	the jury	would	be	tempted	to	substitute	the	judgment	of	the	hearing examiner for the	jury’s	own	independent	judgment. Renfro	was	allowed	 to	cross

- examine the	 officer	 about	 how	 he	 had	 been	 “criticized”	 for	 his	 observat ion

- period practices	in	another	proceeding ,	and	Renfro was	allowed	to	play	a	video	of	the same	 officer,	 three	 or	 four	 days	 after	 he	 had	 been	 “criticized,”	 more	 closely observing	another	test	subject	before	she	blew	into	the	Intoxilyzer. [¶ 8 ] The	jury	 f ound	Renfro	guilty of	OUI,	and	 t he	court found	him	not guilty	 of	 operating	 beyond	 a	 license	 condition	 or	 restriction.	 	 After	 a sentencing	 hearing, and	 based	 on	 Renfro’s	 stipulation	 to	 his	 previous
conviction of “a	 Class	 B	 or	 Class	 C	 crime	 und er	 this	 sectio n,”	 29

- A	 M.R.S. § 241 1(1

- A)(D)(2), the	court	sentenced	Renfro	to	five	years	in	prison,	with	all but	 18	 months	 suspended,	 and	 three	 years	 of	 probation. See id. § 2411(5)(D

- 2)

. The	 court	 ordered	 him	 to	 pay	 fines,	 surcharges,	 and

assessments totaling $2,585. See	 id. Renfro	 timely	 appealed. See 15 M.R.S. § 2115	(201 6 ) ; M.R.	App.	P.	2

.5
II.		DISCUSSION [¶ 9 ] The	Maine	Rules	of	Evidence	generally authorize the	admission	of relevant	evidence

. See M.R.	Evid.	402

. 3 The court determined	that the hearing examiner’s decision	concerning the	propriety	of	the breath	testing	procedures was	relevant

. Although	that	determination	could	be	subject	to	challenge,	t he State	does	not	dispute	that ruling

. A ccordingly, we	do	not	address relevance further

. See M.R.	Evid.	401,	402. 4 Instead ,	the	question before	us is	whether the	 court	 abused	 its	 discretion	 in	 excluding	 that	 evidence	 because	 “ its probative	 value [ was ] substantially	 outweighed	 by	 a	 danger	 of

.	 .	 . unfair prejudice.”	 	 M.R.	 Evid.	 403.	 	 “Prejudice, in	 this	 context,	 means	 an	 undue tendency	 to	 move	 the	 fact	 finders	 to	 decide	 the	 issue	 on	 an	 improper	 basis

. . . .” State	v.	Dean ,	589	A.2d	929,	934	(Me.	1991) (quotation	marks	omitted). [¶1 0 ]		“ The	trial	court	has	broad	discretion	in	determining	whether the probative	value	of	evidence	is	outweighed	by	the	risk	of	unfair	prejudice

.	.	.	. ”
State	v.	Roman ,	622	A.2d	96,	100	 (Me.	1993) (quotation	marks	omitted) ; s ee M.R.	 Evid.	 403.	 	 T he	 court did	 not	 abuse that discretion	 in balancing any probative	 value	 of	Renfro’s	 proffered	evidence	against	 the significant risk of

3 “ Evidence	is	relevant	if: (a) It	has	any	tendency	to	make	a	 fact	more	or	less	probable	than	it would	be	without	the	evidence;	and (b) The	fact	is	of	consequence	in	determining	the	action. ” M.R. Evid.	401

.
4 Nor	do	we	address	the	potential	hearsay	implications	of	the	proposed	evidence.6 unfair	 prejudice

. T he court	 recognized	 the	 real potential	 for	 the	 jury	 to substitute	 th e decision	 of	 the	 hearing examiner

— reached in a	 different

context , based	 on	 a	 different standard	 of	 proof , and	 applying	 a	 relaxed evidentiary	 standard

— for	its	 own	 weighing	 of	 the	 evidence	 admitted	in	 the criminal	 trial	 to	 determine	 whether	 the	 State	 proved	 the	 elements	 of	 OUI beyond	 a	 reasonable	 doubt

. Compare 5 M.R.S.	 §	 9057(2)	 (2016) , and 29

- A M.R.S.	 §§ 111 , 2484 (3)	 (201 6 )	 ( collectively providing	 that	 the	 standard	 of proof	 for	 a	 license	 suspension	 hearing	 is	 proof	 by	 a	 preponderance	 of	 the evidence	 and	 that	 the	 hearing	 is	 not	 governed	 by	 the	 Maine	 Rules	 of Evidence) , with 17

- A M.R.S.	 §	 32 ( 2016) (providing	 that	 the	 elements	 of	 a crime	 must	 be	 proved	 beyond	 a	 reasonable	 doubt) , and M.R.	 Evid.	 101(a) (providing	that	the	Maine	Rules	of	Evidence	apply	in	court	proceedings)

. [¶1 1 ] Furthermore ,	 the	 “extent	 and	 scope	 of	 impeachment	 testimony lies	within	 the	limits	of	judicial	discretion.” State	v.	Bennett ,	658	A.2d	1058, 1062	 (Me.	 1995) (quotation	 marks	 omitted)

. T he	 court	 allowed Renfro	 to

mount a	thorough	challenge	to	the	officer’s administr ation	of the breath test, including by generously admitting a	video	of	th at officer’s later practices after the	 officer	was	 “criticized”	 for	 the	way	he	had	 observed	 test	 subjects

. Thus, although	the	court allowed	the	jury	to hear	evidence that	the	officer	had	been7

“ criticized ” and	changed	his	practices, it excluded	evidence	of	the	decision that generated	 that	 criticism to	 avert the	 risk	 that	 the	 jury	 would	 substitute	 the hearing	examiner’s	decision	for	its	own. For	the	same	reasons	that	i t	did	not abuse	its	discretion	in	applying	Rule	403,	the	court	did	not	abuse	its	discretion in	limiting	the	scope	of	Renfro’s	impeachment	evidence. [¶1 2 ] Finally ,	 b y	 statute,	 criminal	and	administrative	 proceedings	are insulated	 from	 each	 other:	 “The	 determination	 of	 facts	 by	 the	 Secretary	 of State	is	independent	 of	 the	 determination	 of	 the	 same	 or	 similar	 facts	in	 an adjudication	of	civil	or	criminal	charges	arising out	of	 the	same	occurrence.”
29

- A	 M.R.S.	 §	 2485 (4) (201 6 )

. T he	 court	 might therefore have	 abused	 its discretion if	it had admitt ed evidence of	the	hearing examiner’s decision with such	a	strong	potential	to	suggest to	the	jury that	it should substitute another decision

- maker’s	 factual	 findings	 for	its	own. Cf. United	States	v.	MacDonald , 688	 F.2d	 224,	 2 29

- 30	 (4th	 Cir.	 1982) , cert.	 denied ,	 459	 U.S.	 1103	 (1983) (affirming	 the	 exclusion	 of	 a	military	investigation	 report as	 a	 public	 record because	 the	 cred ibility determinations c ould	 undermine	 the	 exclusive province	 of	 the	jury	 to	 find	 the	 facts); State	 v.	Huston ,	 825	N.W.2d	 531,	 539 (Iowa	 2013) (vacating	 a	 judgment	 of	 conviction	 when	 the	 jury	 was	 given evidence	 of	 substantiation	 of	 child	 abuse	 by	 the	 Depar tment	 of	 Human8 Services). The	 court	 properly	 determined	 that	 the probative	 value	 was substantially	 outweighed	 by	 the	 danger	 of	 unfair	 prejudice. See M.R.	 Evid.
403. 5 The	entry	is: Judgment	affirmed.

Scott	F.	Hess,	Esq.,	( orally) ,	The	Law	Office of	Scott	F.	Hess,	LLC,	Augusta ,	 for appellant	Walter	Renfro Maeghan	 Maloney,	 District	 Attorney,	 Francis	 J.	 Gri ffin,	 Jr.,	 Asst.	 Dist.	 Atty. ( orally) , and	Ali	 F.	 Farid,	Stud.	Atty.,	Office	 of	 the District	Attorney,	Augusta , for	appellee	State	of	Maine

Kennebec	County	Superior	Court	docket	number	CR

- 2013

- 1039 F OR C LERK R EFERENCE O NLY

5 Renfro also contends	 that	 the	 evidence	 was	 admissible	 as	 evidence	 of	 subsequent	 remedial measures. See M.R.	 Evid.	 407.	 	 Rule	 403,	 however,	 authorizes	 the	 exclu sion	 of	 evidence	 that	 is otherwise	admissible, see State	v.	Dean ,	589	A.2d	929,	934	(Me.	1991) ,	and	therefore	our	review	of the	Rule	403	ruling	is	dispositive	here

.