Jennifer L. Deah v. Tristan Cuthbert

2018 ME 34

• Court: Supreme Judicial Court of Maine
• Decided: March 15, 2018
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2018 ME 34 Docket: Cum-17-375 Argued: February 15, 2018 Decided: March 15, 2018

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

JENNIFER L. DEAH

v.

TRISTAN CUTHBERT

PER CURIAM

[¶1] Tristan Cuthbert appeals from an order for protection from abuse

entered in the District Court (Portland, Oram, J.) following a hearing on a

complaint filed by Jennifer L. Deah. See 19-A M.R.S. §§ 4002(1),1 4007(1)

(2017). Cuthbert contends that the court erred and disregarded substantial

evidence in its ultimate finding that he abused Deah. Cuthbert also challenges

the court’s application of the best evidence rule, M.R. Evid. 1002, when it

required him to allow Deah to review either printed copies or the electronic

versions of emails and texts prior to his cross-examination of her. Because the

1 Section 4002(1) was amended effective July 15, 2017. See P.L. 2017, ch. 288, §§ A-17 to A-19.

These amendments do not affect the present case. 2

court did not err in its findings or abuse its discretion in its evidentiary rulings,

we affirm the judgment.

I. CASE HISTORY

[¶2] Deah filed a petition for a protection from abuse order against her

boyfriend, Cuthbert, in July 2017. The court held a final hearing on the

complaint on August 11, 2017. Both parties were represented by counsel.

During the hearing, Deah testified about several incidents of Cuthbert’s

aggression towards her—two of which involved Cuthbert kicking her, pushing

her, and hitting her.

[¶3] Deah also testified that a third incident occurred on July 5, 2017.

While staying at a home that Cuthbert used in western Maine, Deah and

Cuthbert had a disagreement. Cuthbert began “slamming things around,” and

the situation escalated. Cuthbert kicked Deah and threw a bookcase at her. He

then took a bottle of charcoal lighter fluid, sprayed it over Deah, grabbed a

lighter, and threatened to kill her.

[¶4] Deah left the house and went to her car. Cuthbert followed. Deah

began backing her car out of the driveway when Cuthbert reached through her

open driver’s side window with the lighter and started clicking it, attempting to

produce a flame. Deah tried to defend herself through the window, during 3

which time Cuthbert caused significant damage to her vehicle. Deah testified

that she was terrified that Cuthbert was going to light her on fire and kill her.

[¶5] During cross-examination of Deah, Cuthbert sought to have Deah

look at “a whole stack” of printouts of text messages and emails that he claimed

were sent by Deah. Citing the best evidence rule, M.R. Evid. 1002, counsel for

Deah argued that he and Deah had a right to view the originals to determine

whether the printouts were accurate.

[¶6] The court ruled that Cuthbert must either (1) show Deah the

original texts and emails from Cuthbert’s phone itself or (2) provide the

printouts of the texts and emails to Deah, prior to his cross-examination of her,

so that she could review them and determine whether there were any disputes

about their authenticity. The court then took a brief recess so that Cuthbert

could show Deah the original texts and emails or the printouts.

[¶7] After allowing Deah to review the printouts of the text messages and

emails, Cuthbert questioned her about certain messages. During questioning,

Cuthbert read some of the texts aloud, and Deah testified as to whether she sent

the messages. After reading the messages and having Deah acknowledge that

she sent the messages, Cuthbert sought to enter the documents in evidence.

Because Cuthbert had not had Deah authenticate all of the messages in one 4

exhibit, the court sustained Deah’s objection to admitting that exhibit. The

court noted that some of the messages were already in evidence, having been

read by Cuthbert and acknowledged by Deah.

[¶8] At the conclusion of the hearing, the court found that Cuthbert had

abused Deah and issued a two-year protection order. Cuthbert timely

appealed. M.R. App. P. 2 (Tower 2016). 2

2 Cuthbert filed his appeal on August 31, 2017, one day before the restyled Maine Rules of

Appellate Procedure took effect. See M.R. App. P. 1 (restyled). Cuthbert filed an appendix to support his appeal, pursuant to M.R. App. P. 8 (Tower 2016). Rule 8 of the Maine Rules of Appellate Procedure, governing the appendix to the briefs, was significantly revised in the restyled Maine Rules of Appellate Procedure. Of particular importance, restyled Rule 8(g) provides a list of items that must not be included in an appendix. The appendix filed to support this appeal includes items that would be prohibited if Rule 8(g) of the restyled Rules applied. Including items prohibited by Rule 8(g) in an appendix to which the restyled Rules apply could result in rejection of the appendix or dismissal of the entire appeal. See M.R. App P. 8(h) (restyled). The restyled Rule 8 provides:

(g) Exclusions from the Appendix. The appendix shall not include:

(1) any documents or images that are not a part of the trial court file or the record on appeal, other than a supplement of legal authorities authorized in subdivision (n) hereof;

(2) any documents that are, or include, pictures, videos, or other images (A) of persons under 18 years of age, (B) of adults subject to a guardianship or mental health commitment proceeding, or (C) that depict nudity or sexual or sexualized acts;

(3) except for an appendix prepared by the State in a child protective case, any documents made confidential by statute or court order that are not required to be included in the appendix by subdivisions (d) or (e) hereof; or

(4) any portion of the transcript from the trial court other than on the record statements or discussions required to be included in the appendix by subdivisions (d) or (e) hereof.

(h) Failure to Comply with Rules. An appendix that (1) fails to include mandatory documents; (2) does not present documents in the required order: first documents required by subdivision (d), then documents required by subdivision (e), then documents, if any, included pursuant to subdivision (f); (3) includes duplicate 5

II. LEGAL ANALYSIS

[¶9] Cuthbert argues that the court erred in (1) requiring him to show

Deah the copies of the text messages and emails before he questioned her about

them and excluding from evidence the written communications, and (2) finding

that he had abused Deah. Cuthbert specifically argues that the evidence before

the court, including Deah’s electronic communications, demonstrated Deah’s

lack of credibility, preventing the court from finding abuse.

A. Evidentiary Rulings

[¶10] Deah was the only witness to testify at the hearing. Although

identified as a “best evidence” objection, Deah’s purported objection appears to

have actually been a request that she be permitted to review the printouts of

statements being attributed to her for accuracy and authenticity.

[¶11] To create an appropriate record on appeal, every document used

during a trial must be identified. When, as here, counsel hopes to have a

document admitted in evidence, counsel should mark the document as an

exhibit, identify it at the hearing as an exhibit marked “for identification,” and

copies of documents; (4) includes documents or images excluded by subdivision (g); or (5) otherwise is not prepared in compliance with these Rules may be rejected, with the party that prepared the appendix being required to prepare and file a replacement appendix that complies with these Rules or being subject to another appropriate sanction, including dismissal of the appeal. 6

then have it authenticated.3 See M.R. Evid. 901(a). Cuthbert obviously intended

to have the documents authenticated by Deah; therefore, Deah had to be able

to review the documents to determine whether she had sent each of the

messages.

[¶12] To avoid having Deah take the time to review and then

acknowledge or challenge each of the messages in the “stack” of documents

through repetitive and time-consuming questions during a hearing that should

be expedited, the court appropriately required that all of the exhibits be shown

to Deah at one time. See 19-A M.R.S. § 4001(2) (2017); M.R. Evid. 611(a),

901(a).

[¶13] Because Cuthbert had identified the documents as containing

statements attributed to Deah, and because Deah’s attorney asked to have the

statements disclosed, M.R. Evid. 613 mandated that Cuthbert show Deah’s

attorney the printouts. M.R. Evid. 613 (“When examining a witness about the

witness’s prior statement, a party need not show it or disclose its contents to

the witness. But the party must, on request, show it or disclose its contents to

an adverse party’s attorney.”). Thus, although Rule 1002 provided no basis for

3 To ensure a complete record of the hearing for any appeal, any exhibit marked for identification

and mentioned at a hearing, whether offered or admitted into evidence, should be provided to the clerk for inclusion in the record. 7

the review of the documents, Rules 611(a), 613, and 901(a) support the court’s

actions in requiring Cuthbert to disclose the printouts to both Deah and her

attorney before cross-examination.4

B. Sufficiency of the Evidence

[¶14] “We review a trial court’s finding of abuse for clear error and will

affirm a trial court’s findings if they are supported by competent evidence in

the record, even if the evidence might support alternative findings of fact.”

Walton v. Ireland, 2014 ME 130, ¶ 22, 104 A.3d 883. We will defer to the trial

court’s determination of witness credibility and to its resolution of conflicts in

testimony. Gordon v. Cheskin, 2013 ME 113, ¶ 12, 82 A.3d 1221.

[¶15] For the court to find abuse, the moving party must prove by a

preponderance of the evidence that the parties were “family or household

members or dating partners.” 19-A M.R.S. § 4002(1); see 19-A M.R.S.

§ 4002(3-A), (4) (2017); Jacobs v. Jacobs, 2007 ME 14, ¶ 7, 915 A.2d 409.

4 Cuthbert also appears to argue that the court erred by excluding an exhibit that contained text

messages and emails. At oral argument, Cuthbert clarified that he was not ascribing error as to those text messages and emails that Deah acknowledged having sent and that were read into the record. Beyond that, it appears that there were other text messages and emails that Cuthbert did not offer in evidence or ask Deah about and therefore were not admitted in evidence in any form. Cuthbert did not make an offer of proof or otherwise create a record regarding the contents of those remaining communications; accordingly, he has not preserved that challenge for consideration on appeal. See M.R. Evid. 103(a); Field & Murray, Maine Evidence § 103.4 at 16 (6th ed. 2007) (“If the proof offered is a writing . . . , the writing . . . should be marked and included as a part of the record in the case so that the appellate court can appreciate the actuality of the proffer.”). 8

Additionally, the court must find that abuse occurred between the parties. See

19-A M.R.S. § 4002(1) (defining abuse to include “[a]ttempting to cause or

causing bodily injury or offensive physical contact”).

[¶16] There is no dispute that Cuthbert and Deah were household

members or dating partners. On the contested issue of abuse, Deah testified

that Cuthbert hit her, kicked her, sprayed her with lighter fluid, threatened to

light her on fire, and attacked her vehicle causing significant damage. The

court’s finding of abuse as defined in 19-A M.R.S. § 4002(1) is fully supported

by the record.

The entry is:

Judgment affirmed.

John H. Branson, Esq. (orally), Branson Law Office, P.A., Portland, for appellant Tristan Cuthbert

Benjamin P Campo, Jr., Esq. (orally), Douglas McDaniel & Campo LLC, PA, Westbrook, for appellee Jennifer L. Deah

Portland District Court docket number PA-2017-535 FOR CLERK REFERENCE ONLY