State of Maine v. Nicholas Sexton — 2017 ME 65

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2017 ME 65
Docket: 	Pen-15-389
Argued: 	October 26, 2016
Decided: 	April 6, 2017
Panel: 	SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
NICHOLAS SEXTON
HUMPHREY, J.
[¶1] 	Nicholas Sexton appeals from a judgment of conviction of one
count of murder, 17-A M.R.S. § 201(1)(A) (2016), and one count of arson
(Class A), 17-A M.R.S. § 802(1)(A) (2016), following a jury trial. 	A jury also
found Randall Daluz, Sexton’s co-defendant, guilty of three counts of murder
and one count of arson.1
[¶2] 	Sexton 	contends 	that 	the 	trial 	court 	(Penobscot 	County,
Anderson, J.) erred when it instructed the jury on the defense of duress only
for the arson charge and not for the murder charges; erred when it denied his
motion for relief from prejudicial joinder with Daluz; abused its discretion and
violated his right to due process when it allowed a witness to testify about
1 After the conviction, Daluz moved for a new trial, the court denied the motion, Daluz appealed,
and we affirmed. See State v. Daluz, 2016 ME 102, 143 A.3d 800.

2
guns she observed in a motel room during a meeting with Sexton and Daluz;
erred when it denied his motion to suppress cell phone records used to locate
Sexton; and erred when it allowed testimony that insinuated Sexton “harmed
people over drug debts.”
[¶3] We disagree and affirm the judgment.
I. BACKGROUND
[¶4] 	Viewing the evidence in the light most favorable to the verdict, a
fact-finder could have rationally found the following facts.2 	See State v. Reed,
2013 ME 5, ¶ 9, 58 A.3d 1130.
[¶5] 	On August 11, 2012, Sexton renewed a rental agreement for a
white 2001 Pontiac Grand Prix. 	At around 3:30 a.m. on August 13, 2012, that
same vehicle was discovered burning in a Bangor industrial park. 	Inside the
vehicle were the bodies of three murdered individuals, later identified as
Daniel Borders, Nicolle Lugdon, and Lucas Tuscano, who were last seen on the
night of August 12, 2012, leaving an apartment on Bolling Drive in Bangor
with Sexton.
[¶6] 	On August 14, 2012, the day after the Pontiac was discovered,
police requested and obtained, pursuant to the Stored Communications Act
2 Because we detailed the facts developed at the joint trial of Sexton and Daluz at length in our
decision in Daluz, 2016 ME 102, 143 A.3d 800, we repeat here only the background necessary to
address the issues raised in this appeal.

3
(SCA), 18 U.S.C.S. § 2702(c)(4) (LEXIS through Pub. L. No. 115-9),3 cell phone
location information in order to determine Sexton’s whereabouts. 	That same
day, police investigators used the location information obtained from a cell
phone belonging to Sexton’s girlfriend to locate Sexton at a hotel in Danvers,
Massachusetts, where Sexton and his girlfriend stayed after they left Bangor
together on August 13, 2012. 	Sexton declined to be interviewed by police
investigators at that time.
[¶7] 	On September 26, 2012, Sexton was charged by indictment with
three counts of murder, 17-A M.R.S. § 201(1)(A), and one count of arson
(Class A), 17-A M.R.S. § 802(1)(A). Sexton pleaded not guilty to all counts.
[¶8] 	On September 27, 2012, the State filed a notice of joinder
indicating that Sexton and Daluz would be tried together. 	U.C.D.R.P.–Bangor
8(b); M.R. Crim. P. 8(b) (Tower 2014).4 	Sexton moved for relief from joinder
in July 2013 because Daluz gave statements to the police that implicated
3 	The Stored Communications Act (SCA), 18 U.S.C.S. § 2702(c)(4) (LEXIS through Pub. L.
No. 115-9) permits wireless providers to disclose location data “to a governmental entity, if the
provider, in good faith, believes that an emergency involving danger of death or serious physical
injury to any person requires disclosure without delay of information relating to the emergency.”
Law enforcement officers made the SCA request, but did not obtain a warrant or seek judicial
approval. Neither is required for requests pursuant to section 2702(c)(4).
The SCA request occurred prior to the Legislature’s enactment, in 2013, of 16 M.R.S. § 648
(2016), which prohibits a government entity from obtaining “location information of an electronic
device” without a warrant.
4 Those proceedings occurred before the adoption and implementation of the Maine Rules of
Unified Criminal Procedure (effective Jan. 1, 2015) in Penobscot County. M.R.U. Crim. P. 1(e)(1).

4
Sexton. 	The court (Anderson, J.) initially granted the motion because a joint
trial would present a “Bruton problem,” see Bruton v. United States, 391 U.S.
123 (1968), but indicated that it was “still considering whether to have two
simultaneous trials with two juries.” 	See M.R. Evid. 105; see also State v.
Boucher, 1998 ME 209, ¶ 12, 718 A.2d 1092. 	Sexton then moved again for
relief from prejudicial joinder, arguing against simultaneous trials. 	After the
State 	moved 	to 	reconsider 	the 	court’s 	decision 	to 	sever 	the 	trials 	and
represented that Daluz’s statements would not be introduced at trial, the
court denied Sexton’s motion for relief from prejudicial joinder, concluding
that 	there 	was 	no 	longer 	a 	Bruton 	problem, 	and 	that 	Sexton 	did 	not
demonstrate that joinder was sufficiently prejudicial to warrant severance.
The court denied Sexton’s motion to reconsider.
[¶9] 	Sexton 	filed 	a 	motion 	to 	suppress 	the 	cell 	phone 	location
information 	that 	led 	police 	to 	locate 	and 	attempt 	to 	interview 	him 	on
August 14, 2012. 	On April 1, 2014, the court denied the motion to suppress,
concluding that the SCA request did not constitute a “search” implicating
constitutional protections; that probable cause existed and there were exigent
circumstances; that officers acted in good faith in making the SCA request; and

5
that 	police located 	Sexton 	using 	Sexton’s girlfriend’s 	cell 	phone location
information and Sexton had no expectation of privacy in her records.
[¶10] 	The joint trial commenced on May 1, 2014. 	Katelyn Lugdon,
sister of victim Nicolle Lugdon, testified that she and Borders met with Sexton
and Daluz in a motel room on the night of August 11, 2012. 	During the
meeting, Katelyn saw two firearms on the bed, one silver with a rounded
barrel and the other darker and smaller with two holes. She observed Sexton
place the silver gun under his shirt, while Daluz played with the other gun.
Katelyn testified that during a prior interview with police, she described the
guns and then was shown photographs of a derringer and a Jimenez .380
caliber handgun that had been recovered from the Penobscot River. 	She
testified about the interview and photos, but was not shown the guns or
photos of the guns at trial.5
[¶11] Sexton attempted to ask Katelyn questions that would potentially
lead 	to 	the 	admission 	of 	Daluz’s 	statements 	to 	a 	fellow 	inmate 	at 	the
Penobscot County Jail that Daluz shot Nicolle Lugdon to gain Sexton’s trust.
The court ruled that the question was improper and stated that an objection
would be sustained, prompting Sexton to move to sever the cases in order to
5 Both State’s Exhibit 73, the photo of the derringer, and Exhibit 74, the photo of a Jimenez .380
caliber handgun, were marked but not admitted. The jury was shown the guns at trial.

6
use the statement to establish who possessed the guns. 	The court denied the
motion to sever. 	A second attempt was made to introduce Daluz’s statement
to the inmate during Sexton’s testimony; the court reiterated that an objection
to such a question would be sustained.
[¶12] 	The State rested on May 16, 2014. 	Sexton took the stand on
May 19 and called no other witnesses.
[¶13] Sexton testified that after leaving the Bolling Drive apartment on
the night of August 12, 2012, he, Daluz, Borders, Tuscano, and Lugdon rode in
the white Pontiac Grand Prix to smoke marijuana. 	Sexton drove and Borders
sat in the front passenger seat. 	The others sat in the rear with Daluz on the
passenger side, 	Lugdon 	in the 	middle, and Tuscano 	on the 	driver side.
Borders made a comment, prompting Daluz to “smack[] him in the head” with
the Jimenez .380 caliber handgun several times. 	“Then all of a sudden the
gun” fired, shooting Borders in the head and “everybody just start[ed]
panicking.” Tuscano “was flipping out on Daluz” and then Daluz shot Tuscano.
While Lugdon was screaming, yelling, and crying, Daluz collected their cell
phones and instructed Sexton to keep driving.
[¶14] 	Sexton testified that because the car was running out of gas and
Daluz wanted to avoid gas stations, they drove to a friend’s house in Dedham

7
and took a gas can of fuel. Daluz instructed Sexton to put some in the car and
save some to burn the car. 	They drove to a remote area in Hermon, where
Daluz forced Lugdon to eat pills. Daluz then shot Lugdon. Sexton testified that
Daluz then told him not to say anything, or else Daluz would shoot him and his
family.6 	When Sexton dropped Daluz off at the hotel, Daluz ordered him at
gunpoint to burn the car and threatened to shoot him and burn him in the car
if he did not. 	Sexton agreed, drove to the industrial park, and set the car on
fire.
[¶15] 	Daluz called three witnesses and elected not to testify. 	The
parties made closing arguments on May 20, 2014. 	The court submitted the
case to the jury and deliberations began on May 21.
[¶16] 	During deliberations, the jury asked for clarification of the
instructions several times, particularly focusing on the defense of duress. The
first duress-related question asked: “Are we being asked to consider that Nick
Sexton was under duress during the murders? 	We have been asked to
consider duress for arson.” Sexton did not ask the court to instruct the jury to
consider duress for the murder charges, electing instead to remain consistent
with his closing argument and his original request to instruct the jury on
6 	The sequence of Daluz shooting Lugdon and Daluz threatening Sexton and his family was
described differently in our decision in Daluz, 2016 ME 102, ¶ 25, 143 A.3d 800. 	Although the
events were germane to our decision in Daluz, the sequence of the events was not.

8
duress only as to the arson charge. 	The court answered: “No, [duress] does
not play a part in—it is not being posed as a defense in that situation.” 	The
second juror note asked: “[D]id you say we cannot use duress as a defense for
murder[?] Question two, if yes, why is this missing in the instructions[?] And
three, can duress be used to find a defendant not guilty of murder if the
defense has not requested it [?]” The court answered that duress could not be
considered as a defense to murder.
[¶17] 	On May 28, 2014, the jury reported that it was deadlocked and
unable to reach a unanimous verdict on the counts charging Sexton with the
murders of Borders and Tuscano. 	With the parties’ agreement, the court
declared a mistrial as to those counts. The jury returned a verdict of guilty on
the count charging Sexton with Lugdon’s murder and the arson count.
[¶18] 	On July 28, 2015, the court sentenced Sexton to seventy years of
imprisonment for the single murder conviction and twenty years for the arson
conviction, 	to 	be 	served 	consecutively 	to 	the 	sentence 	for 	the 	murder
conviction. Sexton filed a timely notice of appeal and also filed an application
for leave to appeal his sentence, which was denied. 	See State v. Sexton, No.
SRP-15-390 (Me. Sent. Rev. Panel Sept. 29, 2015); 15 M.R.S. § 2151 (2016);
M.R. App. P. 20. This appeal followed.

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II. DISCUSSION
A. 	The Duress Jury Instruction
[¶19] 	Sexton first argues that the court erred in failing to instruct the
jury to consider duress as a defense to the murder counts.7 We interpret the
applicable statutes de novo. 	See State v. Gantnier, 2012 ME 123, ¶ 9, 55 A.3d
404.
It is a defense that, when a person engages in conduct that would
otherwise constitute a crime, the person is compelled to do so by
threat of imminent death or serious bodily injury to that person
or another person or because that person was compelled to do so
by force.
17-A M.R.S. § 103-A(1) (2016).8 A duress instruction is warranted only if the
evidence generates the defense. State v. Gagnier, 2015 ME 115, ¶ 13, 123 A.3d
207. To determine whether the defense is generated, we review the record in
the light most favorable to the defendant “to determine if it would have
7 	Sexton also argues that the court’s instruction on the definition of “imminent” constituted
error. 	We disagree and do not discuss this further. 	See State v. Larrivee, 479 A.2d 347, 350-51
(Me. 1984).
8 Although Sexton was charged with intentional and knowing murder, 17-A M.R.S. § 201 (2016),
and duress is not an available defense “[t]o a person who intentionally or knowingly committed the
homicide for which the person is being tried,” 17-A M.R.S. § 103-A(3)(A) (2016), the court
instructed the jury on accomplice liability. See 17-A M.R.S. § 57 (2016). Because we conclude that
the evidence was insufficient to generate the defense, and therefore the court did not err in refusing
to give the instruction, we need not reach the question of whether duress is an available defense to
accomplice liability murder.

10
allowed the jury to find facts to make duress a ‘reasonable hypothesis.’” 	Id.
(quoting State v. Doyon, 1999 ME 185, ¶ 7, 745 A.2d 365).
[¶20] 	According to Sexton’s testimony, Daluz threatened him after
Borders, Tuscano, and Lugdon had already been shot. 	Even viewed in the
light most favorable to Sexton, without a threat of imminent harm 	that
preceded the murders, there was no evidence from which the jury could form
a “reasonable hypothesis” that Sexton was under duress when the murders
occurred. 	Gagnier, 2015 ME 115, ¶ 13, 123 A.3d 207 (quotation marks
omitted); see also State v. Tomah, 1999 ME 109, ¶ 20, 736 A.2d 1047 (absence
of 	evidence 	defendant 	was 	compelled 	to 	commit 	criminal 	act 	failed 	to
generate duress defense).
[¶21] 	We conclude that the evidence was insufficient to generate the
defense of duress as to the murder charges and that the court therefore did
not err in refusing to give the instruction.9
B. 	Motion for Relief from Prejudicial Joinder
[¶22] Sexton argues that the court erred in denying his motion for relief
from prejudicial joinder. 	See 	U.C.D.R.P.–Bangor 8(d); 	M.R. Crim. P. 8(d)
(Tower 2014) (authorizing the court to “grant a severance of defendants or
9 	Because we conclude the evidence was insufficient to generate the instruction, we do not
address the parties’ other arguments, including that Sexton waived the instruction by affirmatively
requesting that the court not give it.

11
provide whatever other relief justice requires, including ordering multiple
simultaneous trials” if the defendant appears prejudiced by joinder with a
co-defendant). 	The denial of a motion to sever joinder of two defendants is
reviewed for an abuse of discretion. 	State v. Chesnel, 1999 ME 120, ¶ 13,
734 A.2d 1131.
[¶23] 	Sexton argues that joinder with Daluz prejudiced him in three
ways: first, he was unable to introduce Daluz’s out-of-court statements in
which Daluz purportedly confessed to Lugdon’s murder; second, Sexton’s trial
strategy 	was 	compromised, 	particularly 	in 	electing 	whether 	to 	present
alternative suspects because he did not know if Daluz would testify; and lastly,
he and Daluz had mutually antagonistic defenses such that they risked
accusing each other of the offenses, acting as a second prosecutor, and
increasing the prospects of a conviction of one or both of them.
[¶24] While incarcerated in the county jail, Daluz allegedly told a fellow
inmate that he shot Lugdon to gain Sexton’s trust. Sexton’s contention that his
inability to introduce Daluz’s confession prejudiced him lacks merit because
the statements were, at least as presented, inadmissible: both witnesses
through whom Sexton attempted to introduce the statements lacked personal
knowledge. 	See M.R. Evid. 602, 801, 802. 	The individual who could have

12
testified from personal knowledge—the cellmate—was never called. Because
Sexton makes no argument as to why the statements would have been
admissible in a separate trial, there was no prejudice.
[¶25] 	Sexton’s remaining arguments that joinder hampered his trial
strategy 	and 	he 	was 	prejudiced 	by 	mutually 	antagonistic 	defenses 	are
unavailing. 	“[I]t is well settled that defendants are not entitled to severance
merely because they may have a better chance of acquittal in separate trials.”
Zafiro v. United States, 506 U.S. 534, 540 (1993) (noting that the joined
defendants failed to allege any specific instances of prejudice and concluding
that such a general challenge was insufficient to warrant separate trials). 	We
have repeatedly 	rejected 	contentions 	that mutually antagonistic defenses
necessarily require separate trials. See, e.g., State v. George, 2012 ME 64, ¶ 25,
52 A.3d 903 (“Mutually antagonistic defenses are not prejudicial 	per se.”
(quotation marks omitted)); 	State v. Lakin, 2006 ME 64, ¶¶ 12-13, 899 A.2d
777 (affirming the denial of a motion to sever where co-defendants accused
one another and the court gave a proper jury instruction); Chesnel, 1999 ME
120, ¶ 12, 734 A.2d 1131 (concluding that the trial court properly instructed
the jury to independently weigh evidence and did not abuse its discretion in
denying a motion to sever where the co-defendants implicated each other).

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[¶26] 	Sexton essentially argues that joinder was prejudicial per se
because 	of 	his 	and 	Daluz’s 	incompatible 	and 	irreconcilable 	defenses—a
contention that, without more, is not persuasive. 	See, e.g., George, 2012 ME
64, ¶ 25, 52 A.3d 903. 	The trial court carefully instructed the jury to
independently weigh the evidence against each defendant, Zafiro, 506 U.S. at
541, and did not abuse its discretion in denying the motion for relief from
prejudicial joinder.
C. 	Witness Testimony About Guns
[¶27] 	Sexton argues that Katelyn Lugdon’s testimony about the guns
amounted to an identification and that the police interview was improperly
suggestive. 	He argues that admitting the evidence contravened due process
and was an abuse of discretion pursuant to Maine Rules of Evidence 401 and
403.
[¶28] Assuming the testimony did constitute an identification,10 we join
the 	overwhelming 	majority 	of 	courts 	that 	have 	concluded 	due 	process
identification procedures do not apply to inanimate objects. 	See, e.g., Inge v.
10 Sexton does not point to Katelyn Lugdon’s “identification” of the guns recovered along the
Penobscot as the guns she saw during the meeting at the motel on August 11 because she did not
make such an identification at trial. Rather, Sexton appears to argue Katelyn’s description, which
arguably describes similar guns, “amounts to an identification of the guns” and that description was
tainted by the police questioning because she never mentioned guns in her earlier interviews. As
we discuss below, this was a proper subject for impeachment on cross examination and did not
render the descriptions inadmissible.

14
Procunier, 758 F.2d 1010, 1015 (4th Cir. 1985); State v. Roscoe, 700 P.2d 1312,
1324 (Ariz. 1984); Dee v. State, 545 S.E.2d 902, 903 (Ga. 2001) (“By the great
weight 	of 	authority, 	the 	right 	to 	pretrial identification 	procedures 	is
inapplicable 	to items of physical evidence.” (quotation marks omitted));
Brooks v. State, 560 N.E.2d 49, 57 (Ind. 1990) (“The viewing of items of
physical evidence is not subject to the same due process considerations which
attend a corporeal lineup.”); People v. Miller, 535 N.W.2d 518, 523 (Mich. Ct.
App. 1995) (“The risks inherent in a misidentification of inanimate objects
produced in the thousands are not the same as the risks of misidentification of
unique human beings.”); Hughes v. State, 735 So. 2d 238, 260-61 (Miss. 1999)
(truck identification); State v. Cyr, 453 A.2d 1315, 1317 (N.H. 1982) (declining
to require lineup for identification of a car); State v. Delgado, 902 A.2d 888,
898-99 (N.J. 2006) (refusing to extend due process protection to minivan
identification). 	A minority of jurisdictions, including Massachusetts, have,
however, entertained due process challenges to such identifications. 	See
Commonwealth v. Simmons, 417 N.E.2d 1193, 1196 (Mass. 1981) (“[I]n an
extreme case, the degree of suggestiveness of an identification procedure
concerning an inanimate object might rise to the level of a denial of due

15
process.”); see also Commonwealth v. Bresilla, 23 N.E.3d 75, 82 (Mass. 2015)
(concluding jacket identification procedure did not contravene due process).
[¶29] 	Even if we were to apply due process principles to identification
of 	inanimate 	objects, 	Sexton’s 	argument 	would 	still 	fail 	because 	the
identification here was not unduly suggestive. 	Katelyn described the guns
before she was shown the photographs by police and her later description was
not inconsistent. 	Sexton points to no inconsistency between the description
that she provided in the interview and the description at trial, but appears to
argue that because police showed her only two photographs during the
interview, this procedure violated due process. 	We discern no due process
violation. 	See Bresilla, 23 N.E.3d at 83 (holding that police were not required
to create lineup of jackets; using a single photograph of a jacket did not violate
due process).
[¶30] Sexton next argues that the court should have excluded Katelyn’s
testimony pursuant to Maine Rules of Evidence 401 and 403, citing Katelyn’s
lack of familiarity with guns, vague description, the passage of time, and her
relationship to the parties. 	We review the admissibility of the testimony and
the trial court’s weighing of probative value against prejudicial effect for an
abuse of discretion. See State v. Crocker, 435 A.2d 58, 73 (Me. 1981).

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[¶31] 	Katelyn’s description of the guns was clearly relevant as a fact
probative of whether Sexton possessed a gun and had an opportunity to
commit the murders. 	See M.R. Evid. 401. 	The question is whether the
“probative value is substantially outweighed by a danger of . . . unfair
prejudice.” M.R. Evid. 403. Although weapon evidence can have a prejudicial
effect, this does not necessarily rise to unfair prejudice, particularly when the
evidence is highly probative. See State v. Forbes, 445 A.2d 8, 12-13 (Me. 1982)
(characterizing “unfair prejudice” as having a “tendency to move the tribunal
to decide on an improper basis, commonly, though not always, an emotional
one” (quotation marks omitted)). There was a two-year gap between the time
when Katelyn saw the guns at the motel and the time police interviewed her,
but this was not so remote as to render the description inadmissible. See State
v. Warren, 312 A.2d 535, 544 (Me. 1973) (characterizing remoteness as an
element that “bears primarily on weight and not on basic admissibility”).
Sexton’s other objections to Katelyn’s knowledge and reliability go to the
weight of her testimony rather than admissibility and were a proper subject
for cross-examination. 	In fact, the defense explored the subject numerous
times.

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[¶32] 	The court did not abuse its discretion in permitting Katelyn
Lugdon to testify about the guns.
D. 	Motion to Suppress Cell Phone Records
[¶33] 	Sexton next argues that the court erred in denying his motion to
suppress cell phone records that he claims were obtained by the investigators
and used to establish his location on August 14, 2012. 	On appeal, we review
factual findings for clear error and legal conclusions de novo and “[w]e will
uphold the court’s denial of a motion to suppress if any reasonable view of the
evidence supports the trial court’s decision.” State v. Babb, 2014 ME 129, ¶ 9,
104 A.3d 878 (quotation marks omitted).
[¶34] 	The motion was limited to suppressing the cell phone location
information that enabled police to locate and attempt to interview Sexton on
August 	14, 	2012. 	Assuming, 	without 	deciding, 	that 	the 	SCA 	request
constituted a “search” for constitutional purposes, Sexton does not challenge
the factual finding that law enforcement relied solely on Sexton’s girlfriend’s
records, not Sexton’s records, to locate him and that he had no expectation of
privacy in her records. 	The court therefore correctly concluded that Sexton
lacked standing. 	See State v. Lovett, 2015 ME 7, ¶ 8, 109 A.3d 1135 (holding

18
that a defendant must establish a reasonable expectation of privacy to have
standing to assert a Fourth Amendment violation).
[¶35] The trial court did not err in denying the motion to suppress.
E. 	Prior Bad Acts Testimony
[¶36] 	Finally, Sexton argues that the court erred in allowing testimony
that insinuated he “harm[ed] people over drug debts”—an inadmissible prior
bad act. 	See M.R. Evid. 404(b). 	Sexton failed to object at trial and therefore
the issue is reviewed for obvious error. See State v. Pabon, 2011 ME 100, ¶ 18,
28 A.3d 1147. “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).
“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. (quotation marks omitted).
[¶37] 	On cross-examination, Sexton asked a witness who associated
with Sexton and Daluz and sold drugs, “In your line of work back then [drug
trafficking], what were the occupational hazards?” 	The witness responded
“getting arrested.” The State on redirect revisited the subject of “occupational
hazards”:

19
Q: 	What are some of the occupational hazards that you have
observed with some of the people you know to sell drugs?
A: I mean, some people if you don’t pay them or whatever, they’ll
get rough with you, but didn’t really—that never was the case
really.
Q: 	Well, you have had friends that that’s happened to, haven’t
you?
A: Yeah.
Q: And you are aware that some of those people are connected to
Mr. Sexton?
A: Yeah I was told about the events, yeah.
During a bench conference, the court observed:
Concerning the liabilities of dealing in drugs question . . . then
there was a question about Mr. Sexton. I’m not sure I understood
everything, but it almost appeared that there was a comment that
Mr. Sexton had harmed somebody in the past.
[¶38] 	Taken in isolation, the questioning could generate an inference
that Sexton had been “rough” with customers, which could be inadmissible as
a prior bad act to suggest Sexton acted in conformity and committed the
charged offenses. 	Yet when highlighted by the court at sidebar, the State,
Sexton, and Daluz all agreed that they did not interpret the questioning to
suggest that Sexton had in fact hurt someone in the past over drug debts. The
court raised the issue, but Sexton declined to request that the court give a
curative instruction or strike the testimony. 	Cf. Dolloff, 2012 ME 130, ¶ 36,
58 A.3d 1032 (stating that a defendant establishes error where the matter
went “unaddressed by the court”).

20
[¶39] 	Even if construed as evidence of a prior bad act, the testimony
was probative of motive and therefore admissible for that purpose: the State’s
line of questioning explored Sexton’s behavior on the night of August 12 and
his 	relationship 	with 	Borders. 	See 	State 	v. 	Heald, 	393 	A.2d 	537, 	542
(Me. 1978) (holding prior bad act admissible to prove motive). 	Viewing the
questioning within the context of the testimony and the trial as a whole, there
was no obvious error. See Dolloff, 2012 ME 130, ¶ 44, 58 A.3d 1032.
The entry is:
Judgment affirmed.
Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant
Nicholas Sexton
Janet T. Mills, Attorney General, and Leanne Robbin, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee State of Maine
Penobscot County Unified Criminal Docket docket number CR-2012-3777
FOR CLERK REFERENCE ONLY