State v. Labbe

314 A.3d 162

2024 ME 15

STATE of Maine

v.Jacob R. LABBE Sr.

Docket: And-22-317

Supreme Judicial Court of Maine.

Argued: May 9, 2023

Re-argued: December 5, 2023

Decided: January 31, 2024

Verne E. Paradie, Jr., Esq. (orally), Lewiston, for appellant Jacob R. Labbe Sr.

Neil E. McLean Jr., District Attorney, and Katherine M. Hudson-MacRae, Asst. Dist. Atty. (orally), Prosecutorial District III, Lewiston, for appellee State of Maine

Aaron M. Frey, Attorney General, and Laura A. Yustak, Asst. Atty. Gen., Office of the Attorney General, Augusta, for amicus curiae Office of the Attorney General

Melissa L. Martin, Esq., Maine Coalition Against Sexual Assault, Augusta, for amicus curiae Maine Coalition Against Sexual Assault

Andrea Mancuso, Esq., Maine Coalition to End Domestic Violence, Augusta, for amicus curiae Maine Coalition to End Domestic Violence

Lawrence C. Winger, amicus curiae pro se

Maeghan Maloney, Esq., and Jacob Demosthenes, Esq., Maine Prosecutors Association, Augusta, for amicus curiae Maine Prosecutors Association

Matthew R. Segal, Esq., American Civil Liberties Union Foundation, Boston, Massachusetts, and Carol Garvan, Esq., and Zachary Heiden, Esq., American Civil Liberties Union of Maine Foundation, Portland, for amici curiae American Civil Liberties Union and American Civil Liberties Union of Maine

Panel: MEAD, JABAR, HORTON, CONNORS, and DOUGLAS, JJ.

DOUGLAS, J.

[¶1] Jacob R. Labbe Sr. appeals from a judgment of conviction entered by the trial court (Androscoggin County, Stewart, J.) of one count of domestic violence stalking (Class C), 17-A M.R.S. § 210-C(1)(B)(3) (2018),¹ and two counts of violation of a protective order (Class D), 19-A M.R.S. § 4011(1) (2018).² See 15 M.R.S. § 2115 (2023). He contends that (1) the stalking statute, 17-A M.R.S. § 210-A (2018),³ is unconstitutionally vague; (2) the evidence was insufficient for a jury to convict him of domestic violence stalking; (3) the court abused its discretion by denying his request to dismiss the charges as de minimis; and (4) the court erred with respect to several evidentiary rulings.

[¶2] After oral argument was held in this case on May 9, 2023, the U.S. Supreme Court issued its decision in Counterman v. Colorado, 600 U.S. 66, 143 S.Ct. 2106, 216 L.Ed.2d 775 (2023), vacating a conviction under Colorado’s stalking statute (which, like Maine’s, employs an objective, reasonable person standard concerning the effect of an actor’s communication on a victim) and holding that the First Amendment of the United States Constitution required in that case proof of a subjective mens rea on the part of the defendant—at a minimum, recklessness—with respect to the effect that his communications—there, Facebook Messages—had upon the victim. In light of the Counterman decision, we ordered supplemental briefing and scheduled the case for re-argument. We asked the parties to address the following questions:

(1) What effect, if any, does the U.S. Supreme Court’s holding in Counterman have on Labbe’s case and especially on the State’s burden of proof, if any, with respect to the defendant’s subjective awareness that his conduct could cause one of the effects enumerated in 17-A M.R.S. § 210-A?

(2) In light of principles of issue preservation and retroactivity as set forth in Griffith v. Kentucky, 479 U.S. 314 [107 S.Ct. 708, 93 L.Ed.2d 649] (1987) and similar cases, can and should the Law Court address in this appeal the issues raised by Counterman?

[¶3] The parties submitted supplemental briefs addressing these questions, and five amici curiae submitted briefs on our invitation.⁴ Re-argument was held on December 5, 2023. For the reasons set out below, we affirm the conviction.

I. BACKGROUND

[¶4] "Viewing the evidence admitted at trial in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt." See State v. Athayde, 2022 ME 41, ¶ 2, 277 A.3d 387.

[¶5] As of the date of trial in July 2022, Labbe and the victim had been together for nine years, had been married for five years, and had one child together. After having been "away"⁵ for several years, Labbe returned to the Lewiston area in early November 2019. Labbe had previously been subject to—and violated numerous times—a court order prohibiting contact with the victim. During his years-long absence, there was no such court order in effect, and he and the victim communicated amicably about their child.

[¶6] When Labbe returned to the area, the victim agreed to allow Labbe to have a weekend visit with the child at Labbe’s mother’s house, beginning on Friday, November 15. Several times over the weekend, the victim tried contacting the child and Labbe but did not get a response.⁶

When Labbe did not allow the victim’s mother to pick up the child that Sunday evening, the victim called the police for assistance. When the child was returned to the victim late that evening, the child was "very lethargic, withdrawn, not like communicating, laying on the couch, acting like he was extremely sick." The victim later learned that Labbe had taken the child’s ADHD medication rather than administering it to the child as prescribed and had failed to return the rest of the medication, and as a result the child went a couple of days without it. Upset by what had transpired, the victim informed Labbe that she would not allow him to see the child.

[¶7] In the aftermath of the weekend, I abbe began texting and calling the victim, at first about retrieving some of his possessions and having additional contact with their child but also about other matters.⁷ Some of Labbe’s calls and messages came from his sister’s phone or his mother’s phone. On November 18, the victim texted Labbe and told him to stop contacting her. The victim also blocked Labbe on Facebook.

[¶8] The victim returned Labbe’s possessions to his sister’s house on November 19. The victim also applied for and received a temporary protection from abuse order the same day. It took a week, however, for law enforcement to find and serve Labbe with the order. In the interim, the victim continued to receive calls and text messages "all the time" from Labbe; "[she] got private calls, no name calls, calls from his new number . . calls from his sister’s number." Even though calls and texts came from different phone numbers, the victim was able to identify Labbe as the source of the contact due to his wording choice, style of speaking, and other clues.

[¶9] On November 23, for example, the victim received a call in which the caller just breathed into the phone but did not speak. Moments later, she received a call from Labbe, in which he told the victim he loved her and asked about retrieving his personal belongings at the victim’s house.⁸ The victim again told Labbe to stop calling her and to leave her alone but immediately afterward received several calls from a private number that she did not pick up.

[¶10] On November 27, 2019, Labbe was served with the temporary protection order, which prohibited him from having any contact, directly or indirectly, with the victim. When finally served, Labbe acknowledged to the officer that he understood the terms of the protection order and that the order was effective immediately.⁹ Several days later, the victim reported to police that she had received numerous text messages, phone calls, and voicemail messages from Labbe on December 2 and December 3.¹⁰

[¶11] When the victim met with police, she seemed "at her wit’s end" and frustrated; she reported feeling "[u]nsafe" and "scared for [her] family," particularly because Labbe continued to contact her even after being served with the protection order. She had to change her phone number multiple times between November 15 and December 3. The victim was pregnant at the time of the events and reported experiencing distress, anxiety, and pregnancy complications because of her interactions with Labbe. She felt that Labbe "didn’t abide by any of" the court orders and that she "couldn’t leave the house because, you know what I mean, anything could happen."

[¶12] Labbe was indicted in March 2020 on one count of domestic violence stalking (Class C), 17-A M.R.S. § 210-C(1)(B)(3), and two counts of violation of a protection order (Class D), 19-A M.R.S. § 4011(1). He was convicted on all counts after a jury trial in July 2022 and sentenced to two and a half years on Count 1¹¹ and to one year for both Counts 2 and 3, with the sentence imposed in Counts 2 and 3 to run concurrently with the sentence imposed in Count 1. Labbe timely appealed his conviction. See 15 M.R.S. § 2115; M.R. App. P. 2B(b)(2).

II. DISCUSSION

[¶13] We first address the four issues that Labbe raises in his appeal and then consider the two supplemental questions we posed with respect to the application and effect of Counterman.

A. Vagueness

[1, 2] [¶14] Labbe challenges his conviction on Count 1, domestic violence stalking, see 17-A M.R.S. § 210-C(1)(B)(3), on the ground that the underlying stalking statute is unconstitutionally vague.¹² When a statute is challenged as unconstitutionally vague, we review the statute de novo. State v. Reckards, 2015 ME 31, ¶ 4, 113 A.3d 589. Because statutes are presumed constitutional, the party asserting a vagueness challenge bears the burden of demonstrating that "the statute has no valid application or logical construction." State v. Nisbet, 2018 ME 113, ¶ 17, 191 A.3d 359 (quotation marks omitted).

[3, 4] [¶15] "[A] criminal statute is unconstitutionally vague when it fails to provide sufficient definiteness that an ordinary person can understand what conduct is forbidden and encourages arbitrary and discriminatory enforcement. The statutory language does not require objective quantification, mathematical certainty, and absolute precision, and we will uphold the statute if any reasonable construction will support it." State v. Aboda, 2010 ME 125, ¶ 14, 8 A.3d 719 (citations and quotation marks omitted). We analyze whether a statute is...