MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2020	ME 141 Docket: Aro

- 20

- 102 Submitted

On	Briefs: September	29,	2020 Decided: December	22,	2020 Panel: MEAD,	GORMAN,	JABAR,	HUMPHREY,	HORTON,	and	CONNORS,	JJ.

STATE	OF	MAINE

v. MEGGAN	M.	PRATT
HUMPHREY,	J. [¶1]		Meggan	M.	Pratt	appeals	from	a	judgment	of	conviction	of	domestic violence	 assault	 (Class	D), 17

- A	M.R.S.	 §	 207

- A(1)(A)	 (2020) ,	 entered by the trial	court (Aroostook	County, Nelson , J. ) after	a	jury	trial.		Pratt	contends	that (1)	the	court	erred	by	allowing	testimony	from	the	victim

— her fifteen

- year - old daughter

— concerning	Pratt’s	parenting	practices	and	(2) the	State	committed prosecutorial	misconduct	by	commenting	on	inadmissible	evide nce	during	its

cross - examination	 of	 Pratt. Because	 Pratt	 had ,	 in	 her	 opening	 statement, indicated	 her	 pursuit	 of	 the	 parental	 discipline	 justification,	 17

- A	 M.R.S. § 106(1)	(2020),	the	court	did	not	err	in	admitting	evidence	regarding	Pratt’s parenting,	 and	 although	 the	 State	 committed	 prosecutorial	 misconduct	 in eliciting and	commenting	on evidence	 that	other	children	had	been	removed2 from Pratt’s home,	we	cannot	conc lude	that	the	error	in	admitting	that	evidence amounted	to	obvious	error.		We	therefore	affirm	the	judgment.
I.		BACKGROUND [¶ 2 ]		Viewing	 the	evidence	in	 the	light	most	 favorable	 to	 the	State,	 the jury	rationally	could	have	found	the	following	facts	beyon d	a	reasonable	doubt.
See State	v.	Ouellette ,	2019	ME	75,	¶	1,	208	A.3d	399

. [¶ 3 ]		Over	Memorial	Day	weekend	in	2019,	Pratt	and	the	victim had an argument	because	Pratt	wanted	to	cut	the	victim’s	hair	and	the	victim	would not	allow	it.		Pratt	picked	up	a pair	of	scissors	and	moved	 toward	 the	victim with	them	in	her	hand.		The	victim	attempted	to	grab	the	scissors	from	Pratt , and	the	two	struggled briefly until	the	victim	eventually	let	go.		Pratt	then	left to	run	an	errand. [¶ 4 ]		Pratt	returned	approxim ately	ten	minutes	later and told	the	victim that	she	would	be	punished	for	disobeying	her	mother

. The victim	said	to	Pratt,

“ Y ou	aren’t	even	a	mother	to	us.”		Pratt	grabbed	the	victim	by	her	arms,	held her	 firmly,	and said that	she	 fed	and	clothed	her	and “[t]hat’s	all	a	mother	is supposed	 to	 do.”	 	 Pratt	 then	 smacked	 the	 victim ’s face	 with	 her	 right	 hand, leaving	a	bruise	above	the	victim’s	left	eye	that	persisted	for	several	days.		The victim	hit	Pratt	in	return , an d t he	two	“struggled	for	a	bit”	until	Pr att	pinned	the3 victim	to	the	ground .		Pratt did	not allow	the	victim	to get	up	until	the	victim calmed	down. [¶ 5 ]		On	June	12,	2019, the	Aroostook	County District	Attorney	charged Pratt	with	domestic	violence	assault

. See 17

- A	M.R.S.	§	207

- A(1)(A).		A jury	trial was	 held	 on	 November	 15,	 2019 ,	 and	 in h er opening	 statement, Pratt introduced the	issue	of	“family	dynamics”	and	the	idea	that	parents	are	legally justified	in	using	reasonable	and	moderate	forms	of	punishment	against	their children. 1 At	the	tr ial,	only	Pratt	and	the	victim	testified. [¶ 6 ] During its direct	examination	of	the	victim,	the	State	asked where she was	living ,	and	the	victim	responded	that	she	was	currently	living	with	her foster	parents.		The	State	then	asked	where the	victim’s siblings	lived , and	Pratt objected	 on	 relevance	 grounds.	 	 The	 State	 argued	 that	 this	 information	 was relevant	 to the issue	of “the	 family	dynamics” raise d by Pratt in her opening,

1 The	relevant	portions	of Pratt’s opening	statement	are	as	follows: We	would	agree,	starting	right	off,	that	there	was	an	assault,	there	was	physical contact	between	a	mother	and	a	child,	and	we	will	admit,	as	alleged	in	the	complaint, it	was	a	chil d	in	 the	 family	household. Th [ere] are	no	questions	on	this	as	it	goes forward. But	then	it	becomes	a	question	of	what	was	happening	in	the	family.		What	were the	family	dynamics?	.	.	. It’s	true	that	a	parent	may	use	punishment	in	all	its	different forms	so	long	as	they do	not	exceed	the	bounds	of	reason	and	moderation

.	.	.	. [A]	p arent	has	had	the	right	or	the	responsibility	under	the	common	law	to use moderate	and	reasonable	physical	force	without	criminal	liability.4 but	the	court	sustained	Pratt’s	objection,	noting	that	the	question	could i ndicate “to	the	jury	that	children	may have been	removed[].” [¶ 7 ] As the	State’s	direct	examination continued, the	victim testified that she	had	told	Pratt,	“ Y ou	aren’t	even	a	mother	to	us,” and the prosecutor asked her why	she	had	made that	statement.		The	victim	responded	that	“all	[Pratt] really	did	was	stay	in	her	room	the	majority	of	the	time”	and	“didn’t	really	treat us	 like	 we	 were	 her	 kids.”	 	 Pratt	 objected,	 arguing	 that	 the	 question	 lacked specificity, 2 but	her	objection	was	ove rruled. [¶ 8 ] The prosecutor	then asked	the	victim	more	questions	about	Pratt’s parenting	practices,	and	the	victim testified that	“[Pratt]	didn’t	really	treat	us like	we	were	[her]	kids”	and	“wouldn’t	really	spend	time	with	us,”	that	Pratt	did not	cook for	the	children	and	“got	us	store

- bought	meals	that	were	generally microwaved	or	easy	to	cook	.	.	.	[s]o	we	just	made	our	own	meals,”	and	that	Pratt did	not	do	the	victim’s	laundry	and	did	laundry only for	the	younger	children. Pratt	objected	 to	 this	lin e	of	questioning	on	relevancy	grounds , and	 the	State responded	 that	 its	 questioning	 was	 “getting	 into	 why	 [the	 victim]	 felt	 her mother	wasn’t	her	mother.”		The	court	again	overruled	Pratt’s	objection,	stating

2 Pratt	stated	that	the	grounds	for	the	objection	were	that	there	was	“[n]o	indication	as	to	when it	took	place,	the	circumstances	under	which	it	took	place.		It	was	just	generalized	statements	to	the past.		No	specificity.”5 that	it	would	“allow	a	little	bit	of	latitude	o n	it.” 3 The	State	continued	 to	ask more	questions	related	to	Pratt’s	parenting	and	engagement	with	her	children , eliciting	testimony	about	an	alleged	assault	on	another	child ,	as	well	as	Pratt’s failure	 to	 play	 with	 or eat	 with	 her children

. Pratt	 did	 not	 object	 to	 this additional	testimony. [¶ 9 ] In	 her	 direct	 testimony,	 Pratt	 explained	 that	 she	 slapped	 her daughter	to	avoid	being	assaulted	by	her.		She	also	explained	that	she	had	been raising	 children	 for	 twenty

- four	 years	 and	 understood how	 to	 raise	 and discipline	 children. During	 cross

- examination	 of	 Pratt,	 despite	 the	 court’s earlier	 ruling sustaining	Pratt’s	 objection	 to questions	 related	 to	 the	 victim’s siblings	being	removed	from	the	home,	the	State	posed	three	questions	about wheth er	another	child	had	been “taken	out	of	the	house.” And,	in	closing,	the State	again	referred	to	the	fact	that	the	victim	no	longer	lived	with	Pratt. 4

3 It	 appears	 that	 the	 court at	 that	 time	 considered	 Pratt	 to	 be pursuing	 a	 parental	discipline justification.		17

- A	M.R.S.	§ 106(1) (2020) ; see infra	¶ 10

. Before ruling on	the	objection, the	court said ,	“[P] art	of	the	evidence	in	this	incidence	is	going	to	give	the	jury	some	indication	as	to	why	the child	behaved	a	particular [] way.		Isn ’ t	that	more	in	line	with	what	your	client	is	seeking	to	present? ” T he	court then stated,	“And	so I’ll	allow	a	little	bit	o f	latitude	on	it. ” The	court	explained its	reason for	allowing	the	State	some	latitude:	“I	can tell	that	the	jury can understand	what	was	going	through the	child’s	mind	and	especially	her	(indiscernible)	issue	of	(indiscernible)	justification.”

4 In	th e	circumstances	of	this	case,	this	likely	constituted	a	fair	comment	on	the	evidence	because Pratt had testified	during	her	direct	examination that	the	victim	no	longer	lived	with	her but	a rgued during	her	closing	that	life	had	gone	on	normally	in	the	days following	the	incident .		Therefore, we do	not	address this	particular comment further.6 [¶1 0 ] Despite	 having introduced	 both	 the	 parental	 discipline justification, see 17

- A	 M.R.S.	 §	 106(1) , and	 the self

- defense justification , see 17

- A	M.R.S. §	108(1) (2020) ,	in	her	opening	statement,	and	despite	the	record’s appearance	that the	court	and	the	State	were	under the impression that	Pratt was	pursuing	both justifications, Pratt expressly	waived	t h e	parental	discipline justification	after	the	close	of	evidence

. As	a	result, the court’s	jury	instructions addressed only self

- defense.		The	jury found	Pratt	guilty of	domestic	violence assault.	 	 On	 February	 24,	 2020,	 Pratt	 was	 sentenced	 to	 sixty	 days	 in	 jail,	 all suspended,	and	one	year	of	probation.		Pratt	timely	appealed	from	the	court’s judgment. See 15	M.R.S.	§	2115	(2020); M.R.	App.	P. 2B(b)(1)

. II.		DISCUSS ION
A. Testimony	Concerning	Pratt’s	Parenting	Practices [¶1 1 ]		Pratt	objected	to	the	victim’s	testimony	about	Pratt	not	“treat[ing] [her	 children]	like	 [they]	were	 [Pratt’s]	 kids , ”	 and about Pratt	 not	 doing	 the children’s	laundry , on	the	grounds	that the information	lacked	specificity	and was	irrelevant	to	the	assault	charge.		When	a	proper	objection	has	been	made and	the	issue	preserved,	we	review	a	trial	court’s	determination	of	relevance for	clear	error	and	its	ultimate	ruling	on	admissibility	for	an	a buse	of	discretion. State	v.	Haji

- Hassan ,	2018	ME	42,	¶ 13,	182	A.3d	145 .		The	clear	error	standard7 “is	similar	 to	a	sufficiency	 of	 the	evidence	standard	in	 that	it	asks	if	 the	 trial court’s	 ruling	 on	 evidentiary	 foundation	is	 supported	 by	 or	 not	inconsis tent with	the	facts	that	appear	in	the	record.” State	v.	Dilley ,	2008	ME	5,	¶	25,	938 A.2d	804	(quotation	marks	omitted)

. [¶1 2 ]		Pursuant	to	M.R.	Evid.	401,	“ [e] vidence	is	relevant	if	.	.	.	[i]t	has	any tendency	 to	make	a	 fact	more	 or	less	 probable	 than it	would	be	without	 the evidence”	and	“[t]he	 fact	is	of	consequence	in	determining	 the	action.”		Here, the	 State	 had	 the	 burden	 of	 proving	 beyond	 a	 reasonable	 doubt	 that	 Pratt “intentionally,	 knowingly	 or	 recklessly	 cause[d]	 bodily	 injury	 or	 offensive phy sical	contact	to	[the	victim],”	17

- A	M.R.S.	§	207(1)(A) (2020) ,	and	that	“the victim	 [was]	 a	 family	 or	household	member	 as	defined	in	Title	 19

- A,	 section 4002,	 subsection	 4 , ” 17

- A	 M.R.S. §	 207

- A(1)(A).	 	 Additionally,	 because	 the defendant	introduced evidence sufficient	to	generate	the	issue	of	self

- defense, see	id. § 108(1); State	v.	Begin ,	652	A.2d	102,	106	(Me.	1995),	the	State	also	had the	 burden	 of	 disproving	 th at defense beyond	 a	 reasonable	 doubt, see 17

- A M.R.S.	§	101(1)	(2020). [¶1 3 ] We	are	unable	to	conclude	that the	court	clearly	erred	by	admitting the	 challenged	 testimony given	 that	 the parental	 discipline justification was raised	 by	 Pratt	 in	 her	 opening	 statement	 and remained at	 issue when that8 testimony was	admitted. 5 The	statute	establishing	that	justification	provides, in	relevant	part,	“A	parent	.	.	.	responsible	for	the	long	term	general	care	and welfare	of	a	child	is	justified	in	using	a	reasonable	degree	of	force	against	that child	when	and	to	the	extent	that	th e	person	reasonably	believes	it	necessary to	prevent	or	punish	the	child’s	misconduct.” 17

- A	M.R.S. §	106(1). The	record suggests	that	the	court made	its	ruling with	the	understanding	that both parties would	be offering	evidence	of the	“family	dynamics” to	address	whether Pratt reasonably	believed	her	use	of	 force	was	necessary	 to	prevent	or	punish	her daughter’s	misconduct. S ee id.;	see	also supra n.3. Because	 the	nature	of	 the parent
- child	 relationship could	 have	 been relevant	 to	 the	 reasonableness	 of Pratt’s	 belief	 that	 her	 use	 of	 force	 was	 necessary	 to	 prevent	 or	 punish the victim’s misconduct , or	to	explain	why	the	victim	behaved	in	a	certain	manner, the	court did	not	clearly	err	in	admitting	this	testimony	over	Pra tt’s	Rule	401 objection. 6

5 However,	we	note that	if	the	parental	discipline	justification	had	not	been	at	issue,	the	evidence about	Pratt’s	parenting	practices	would	not	make	it	any	more	or	le ss	probable	that	Pratt	struck	the victim	 or	 acted	 in	 self

- defense, see M.R.	 Evid.	 40 1 ,	 and would	 be	 inadmissible evidence	 of	 bad character, see State	v.	Eaton ,	309	A.2d	334,	337	(Me.	1973) (“Evidence	.	.	.	is	inadmissible	if	its	sole relevancy	is	to	establ ish	bad	character	.	.	.	on	the	part	of	the	accused.”).

6 Nor	can	we	conclude	that	the	court	committed	obvious	error	in	admitting	the	evidence	despite the	potential	application	of	M.R.	Evid.	403	because , at	the	time	of	the	court’s	ruling, it	was	not	plain to	 the	court	 that	Pratt	was	going	 to	waive	the	parental	discipline	justification. See State	v.	Dolloff , 2012	ME	130,	¶	36,	58	A.3d	1032 ; State	v.	Pabon ,	2011	ME	100,	¶¶	18

- 19,	28	A.3d	1147

.9 B. Prosecutorial	Misconduct [¶1 4 ]	 	 We	 review	 a	 claim	 of	 prosecutorial	 misconduct	 that	 was	 not objected	to	at	trial	for	obvious	error. State	v.	Bilodeau ,	2020	ME	92,	¶ 15, 237 A.3d 1 5 6 ; State	v.	Fahnley ,	2015	ME	82,	¶	35,	119	A.3d 727 .		“ To	demonstrate obvious	error,	 the	defendant	must	show	 that	 there	is	(1)	an	error,	(2)	 that	is plain,	and	(3)	that	affects	substantial	rights.” State	v. Dolloff ,	2012	ME	130,	¶ 35, 58	 A.3d	 1032	 (quotation	 marks	 omitted). “[A]n	 error	 affects	 a	 criminal defendant’s	substantial	rights	if	 the	error	was	sufficiently	prejudicial	 to	have affected	the	outcome	of	the	proceeding.” Id. at	¶	37 (quotation	marks	omitted). “Even	if	these	three	conditions	are	met,	we	will	set	aside	a	jury’s	verdict	only	if we	conclude	 that	 (4)	 the	 error	 seriously	affects	 the	 fairness	 and	integrity	 or public	reputation	of	judicial	proceedings.” Id. at	¶	35 (quoting State	v. Pabon , 2011	ME	100 ,	¶	29,	28	A.3d	1147). [¶1 5 ] P rosecutors	are	expected	 to	observe	“a	level	of	ethical	precision that	avoids	overreaching	and	prevents	the	fact

- finder	from	convicting	a	person on	the	basis	of	something	other	than	evidence	presented	during	trial

. ” Dolloff , 2012	ME	130,	¶	40,	58	A.3d	1032 ; see	also State	v.	Robinson ,	2016	ME	24,	¶	23, 134	A.3d	828

. “ A s	part	of	its	obligation	to	ensure	a	fair	trial	for	the	defendant, the	prosecution	must	avoid	eliciting	inadmissible	testimony.		The	failure	of	the10 prosecutor to	 observe	 this	 duty	is	improper	prosecutorial	conduct

. ” State	v. Hinds ,	485	A.2d	231,	235	(Me.	1984). In	particular,	we	note that	“[c] haracter	is never	an	issue	in	a	criminal	prosecution	unless	and	until	the	defendant	brings it	into	the	trial	and	makes it	an	issue	by	introducing	evidence	of	good	character and	 reputation.	 	 The	 rule	 is	 universal	 that	 the	 prosecution	 may	 not	 initially attack	 the	 defendant’s	 character.” State	 v. Wyman, 270	 A.2d 460, 463 (Me. 1970). [¶1 6 ]		The	State’s	line	of	questioning ,	i n	violation	of	 the	court’s	earlier ruling, about	one	of	Pratt’s other children	“being	taken	out	of	the	house” was plain	error	under	existing	law because	it	was	designed	to	elicit	testimony	that was	irrelevant , and	any probative	value in	that	testimony was outweighed	by the	danger	of	unfair	prejudice

. See M.R.	Evid.	402,	403 ; Dolloff ,	2012	ME	130, ¶ 3 6 ,	 58	 A.3d	 1032

. However, although	 we	 admonish	 the	 prosecutor	 for eliciting	this	inadmissible	testimony, considering	the other evidence that	was admitted	duri ng	trial, we	cannot	conclude	that	the	court’s	error in	failing	to sua sponte step	 in	 and	 cut	 off	 the	 prosecutor’s	 questioning “ was	 sufficiently prejudicial	to	have	affected	the	outcome	of	the	proceeding .” Dolloff ,	2012	ME 130, ¶ 37 ,	58	A.3d	1032.11 [¶1 7 ] In State	 v.	 Gaudette ,	 431	 A.2d	 31	 (Me.	 1981),	 we vacated a judgment	 of conviction of	 assault because the	 defendant’s trial	 had	 been unfairly	 tainted	 by	 inadmissible hearsay	 statements	 about	 the	 defendant’s unrelated conduct toward	a	person	other	than	the	victim

. Id. at 34

- 35 .		In	that case,	the	State	improperly	elicited testimony	about hearsay statements	made by	a	judge	in an	earlier	assault	case when	 the judge	 found	 the	defendant	not guilty

. Id. at	34. The	witness ,	who	h ad	been	 the	alleged	victim	in	 the	earlier

case, testified	that	the	judge	had	found	the	defendant	not	guilty	of	assault but had	 “stated	 that	 the	 charge	 of	 assault	 did	 not	 fit	what	 [the	 defendant] [had] done	and	should	have	been	a	lesser	charge”	and	had	“sai d	in	the	courtroom	[the defendant]	had	pushed	 [ the	witness ],	but	 the	charge	 of	assault	had	been	 too severe	 for	what	he	had	 done,	it	 should	 have	been	a	lesser	charge.” Id. at	33 (quotation	marks	omitted). [¶1 8 ]		Applying	the	obvious	error	standard,	we	vacated	the	judgment	of
conviction. Id. at	34

- 35.		We	reasoned	that “ [t]he probability	that	the	jury	was improperly	 influenced	 by	 these	 hearsay	 statements	 [wa]s	 overwhelming because	the	out

- of

- court	declarant	was a	judge,	whose	credibility	the	jury	was unlikely	to	question.” Id. at	34.12 [¶1 9 ] Here, in	 contrast, although	 the State	 elicited inadmissible testimony	from	Pratt,	the	jury	was	already	aware	that	the	victim	no	longer	lived with	Pratt , and	the	State’s	reference	to	the other child’s	removal	was	brief	and part	 of	 a	 broader	 discussion	 about	 Pratt’s	 discipline	 style	 and	 methods	 of parenting that	 Pratt	 herself had	 placed	 i n	 issue

. T hus, although	 there	 was prosecutorial	 misconduct	 resulting	i n	 the	 admission	 of	 evidence	 that	 should have	been	excluded,	we	cannot	conclude	on	this	record	that	the error	was	so prejudicial	that	it	affected	the	outcome	of	the	proceeding ,	especially	given	the properly	admitted	evidence	offered	to	establish	each	elemen t	of	the	crime	and disprove	the	self

- defense	justification

. Cf.	State	v.	Collin ,	441	A.2d	693, 696

- 97 (Me.	 1982)	 (noting	 that	 although	 the	 prosecutor’s	 attempt	 to	 introduce inadmissible	hearsay	was	improper,	the	conduct	was	not	so	prejudicial	as	to	set aside	 the	 conviction	 for	 drunk	 driving	 because	 the	 jury	 was	 presented	 with additional	evidence	of	the	defendant’s	intoxication). The	entry	is: Judgment affirmed

.13 Tina	 Heather	 Nadeau,	 Esq.,	 The	 Law	 Office	 of	 Tina	 Heather	 Nadeau,	 PLLC, Portland,	for	appellant	Meggan M. Pratt Todd	 R.	 Collins,	 District	 Attorney,	 and	 Matthew	 A.	 Hunter,	 Asst.	 Dist.	 Atty., Prosecutorial	District	8,	Houlton,	for	appellee	State	o f	Maine

Aroostook	County	Unified Criminal	Docket	docket	number	CR

- 2019

- 30353 F OR C LERK R EFERENCE O NLY