State of Maine v. Kyle A. Chase

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 32
Docket: Som-22-87
Argued: December 6, 2022
Decided: May 25, 2023
Revised: June 13, 2023

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.

STATE OF MAINE

v.

KYLE A. CHASE

JABAR, J.

[¶1] Kyle A. Chase appeals from (1) a judgment of conviction of

aggravated assault, 17-A M.R.S. § 208(1)(C) (2023), robbery, 17-A M.R.S.

§ 651(1)(B)(2) (2023), domestic violence assault, 17-A M.R.S. § 207-A(1)(A)

(2022),1 domestic violence criminal threatening, 17-A M.R.S. § 209-A(1)(A)

(2023), and theft by unauthorized taking or transfer, 17-A M.R.S. § 353(1)(A)

(2023), entered by the trial court (Somerset County, Mullen, C.J.) after a jury

trial and (2) the court’s imposition of a sentence of five years in prison with all

but twenty-four months suspended followed by three years of probation on the

1 Title 17-A M.R.S. § 207-A(1)(A) (2022) was amended, effective January 1, 2023, to provide a
cross-reference to the newly codified 19-A M.R.S. § 4102(6) (2023). P.L. 2021, ch. 647, § B-17. We
cite the statute in effect at the time of the crime.
2

aggravated assault charge, with concurrent sentences on the other charges. We

affirm the conviction but remand to the trial court for resentencing consistent

with this opinion.

I. BACKGROUND

[¶2] The trial court held a jury trial on March 17 and 18, 2022. The

following facts, viewed in the light most favorable to the jury’s verdict, are

supported by the trial record. See State v. Thomas, 2022 ME 27, ¶ 2, 274 A.3d

356.

[¶3] On the morning of October 10, 2021, Chase and the victim2 awoke

together in Embden, Maine, where Chase was living with his great-aunt. Chase

got upset when he discovered a picture on the victim’s phone that he found

offensive. He started yelling and became aggressive toward the victim. He put

his hand on the victim’s throat, pushed her against the counter, and kept

squeezing with a lot of pressure until it became hard for the victim to breathe.

Chase continued to apply pressure to the victim’s throat for a couple of minutes

while continuing to yell at her. The victim described the sensation of the room

2 The parties stipulated that Chase and the victim are “family or household members as . . . those
terms are defined in” 19-A M.R.S. § 4002(4) (2022). Title 19-A M.R.S. § 4002(4) was repealed and
replaced with new section 4102(6) by P.L. 2021, ch. 647, §§ A-2, A-3 (effective Jan. 1, 2023) (codified
at 19-A M.R.S. § 4102(6) (2023)), though the recodification does not affect the present case.
3

spinning, but she never passed out. Chase eventually released the victim but

continued to yell at her.

[¶4] Chase then told the victim to get in her car. The victim got in the

driver’s seat, and Chase got in the front passenger seat, and they continued to

argue while sitting in the car. After about fifteen minutes, Chase said he felt bad

for yelling at the victim and told her to get out of the car so that they could hug.

The victim refused, and Chase became more upset. Chase told the victim that if

she did not get out of the car, he would drag her out. The victim again refused,

and Chase got out of the car, went around to the driver’s side where the victim

was sitting, opened the door, grabbed the victim, and pulled her out of the car

by her shoulders, dragging her on the ground. When Chase released the victim

and she got back to her feet, Chase hugged her, but she did not hug him back.

[¶5] Chase then told the victim to drive to a boat landing near the house

so they could continue to talk. The victim drove to the boat landing and parked.

The victim was crying and told Chase that she needed to leave and that she was

running late for meeting up with her roommates. Chase said that he had texted

her roommates and taken care of it. Chase and the victim continued to argue in

the car for another ten to fifteen minutes. Chase continued to yell, and the

victim continued to cry. Chase kept telling the victim to stop crying, and he
4

eventually grabbed the back of her neck and slammed her face against the

steering wheel. Chase immediately removed his hand from the victim’s neck

and apologized, saying he did not know why he was acting like that.

[¶6] Chase then told the victim that he wanted them to go for a walk in

the woods. When the victim refused, Chase threatened to drag her out of the

car again. He got out of the car and went around to the driver’s side where the

victim was sitting, but the victim locked her door so Chase could not drag her

out. Chase went back around to the passenger side, and eventually the victim

agreed to get out of the car. When the victim got out of the car, Chase pushed

her by the shoulders against the car.

[¶7] These events lasted about an hour and a half and were interrupted

only briefly when Chase’s great-aunt called him into the house for a couple of

minutes. Chase testified at trial and denied ever touching the victim’s neck,

dragging her out of the car, or slamming her head against the steering wheel,

but he did admit to grabbing her by the shoulders and demanding that she look

him in the eyes while talking to him.

[¶8] In February 2022, Chase was indicted on the following five counts:

(1) aggravated assault (Class B), 17-A M.R.S. § 208(1)(C); (2) robbery (Class B),

17-A M.R.S. § 651(1)(B)(2); (3) domestic violence assault (Class D), 17-A M.R.S.
5

§ 207-A(1)(A); (4) domestic violence criminal threatening (Class D),

17-A M.R.S. § 209-A(1)(A); and (5) theft by unauthorized taking or transfer

(Class E), 17-A M.R.S. § 353(1)(A). Chase pleaded not guilty to all five counts,

and a jury trial was held.

[¶9] At the conclusion of the jury trial, the jury returned a verdict of

guilty on all five counts. At the sentencing hearing, the court conducted a Hewey

analysis, setting the basic sentence at four years. After considering aggravating

and mitigating factors, the court set the maximum sentence at five years. The

court imposed a final sentence of five years in prison with all but twenty-four

months suspended, followed by three years of probation.

[¶10] Chase timely appealed from the judgment and filed an application

for leave to appeal from his sentence, which the Sentence Review Panel granted.

See 15 M.R.S. §§ 2115, 2151, 2152 (2023); M.R. App. P. 2B(b), 20; State v. Chase,

No. SRP-22-88 (Me. Sent. Rev. Panel May 25, 2022). The State raised two issues

pursuant to 15 M.R.S. § 2115-A(3) (2023).

II. DISCUSSION

[¶11] On appeal, we address three issues raised by Chase: (A) whether

the court erred by not giving a specific unanimity instruction to the jury,

(B) whether the court erred by not merging duplicative counts, and
6

(C) whether the court erred by referring to Chase’s “insist[ence] on a trial”

when imposing the sentence.3

A. Specific Unanimity Instruction

[¶12] Chase contends that the court erred in failing to give a specific

unanimity instruction because there was evidence of multiple incidents

potentially sufficient to establish each of the five counts of which he was

convicted, and without a specific unanimity instruction, there might not have

been unanimous agreement among the jurors that a single incident of each

charged offense occurred. The State argues that Chase failed to object to the

instructions given or to request a specific unanimity instruction; that the

instruction is not warranted when a single crime can be committed by multiple

means; that the instruction is not required on the facts constituting proof of

each element of each offense; that the jury instructions did, in fact, require the

jury to consider each count separately; and that the jurors were therefore

properly instructed on their obligation to reach a unanimous verdict on each

count.

3Because we are affirming the conviction and remanding the matter to the trial court for
resentencing, but not for a new trial, we do not address the State’s trial-related arguments regarding
the court’s jury selection process and the court’s refusal to allow the State to present evidence of
prior consistent statements.
7

[¶13] The record contains neither a request for a specific unanimity

instruction nor an objection to the court’s jury instructions. Because the issue

is unpreserved, our review is for obvious error. See State v. Asante, 2020 ME

90, ¶ 10, 236 A.3d 464. Obvious error occurs “when jury instructions, viewed

as a whole, are affected by ‘highly prejudicial error tending to produce manifest

injustice.’” State v. Baker, 2015 ME 39, ¶ 11, 114 A.3d 214 (quoting State v.

Ashley, 666 A.2d 103, 106-07 (Me. 1995)). For obvious error to exist there must

be (1) an error, “(2) that is plain, (3) that affects substantial rights,

and . . . (4) that . . . seriously affects the integrity, fairness, or public reputation

of judicial proceedings.” State v. Lajoie, 2017 ME 8, ¶ 13, 154 A.3d 132. To

determine whether there is an error in jury instructions, “we evaluate the

instructions in their entirety and will consider the total effect created by all the

instructions and the potential for juror misunderstanding, and whether the

instructions informed the jury correctly and fairly in all necessary respects of

the governing law.” Id. ¶ 14 (quotation marks omitted).

[¶14] “Courts regularly encounter indictments that may aggregate, in

one count of the indictment, several identical crimes committed against one or

more victims.” State v. Fortune, 2011 ME 125, ¶ 26, 34 A.3d 1115. “When a

defendant believes that he or she is prejudiced by the consolidation of several
8

identical crimes into a single count of an indictment, the defendant may move

for relief from prejudicial joinder . . . .” Id. ¶ 27; see also M.R.U. Crim. P. 8(d).

[¶15] In the present case, there is no indication that before or during trial

Chase moved to separate into multiple charges any of the five counts for which

he argues there was evidence of multiple factual incidents potentially sufficient

to establish a conviction. Nor did Chase make any effort to have the jury return

a separate determination as to which factual incident supported each count on

the verdict form. In effect, what the jury was asked to do was to return a general

verdict for each of the charged offenses. In Fortune, we acknowledged the

“continuing validity of general verdicts.” 2011 ME 125, ¶¶ 28-29, 34 A.3d 1115;

see also Griffin v. United States, 502 U.S. 46 (1991); Black v. United States, 561

U.S. 465 (2010); State v. Burke, 38 Me. 574, 575-76 (1854).

[¶16] Chase “could have proposed, but did not, that the jury be instructed

that, to support a conviction, the jury was required to be unanimous that the

elements of [each of the charged crimes] were proven as to at least one” of the

alleged factual incidents. Fortune, 2011 ME 125, ¶ 30, 34 A.3d 1115; see also

Alexander, Maine Jury Instruction Manual § 6-65 at 6-145 (2023 ed.). Such a

specific unanimity instruction would “explain[] to jurors that they are required

to unanimously agree that a single incident of the alleged crime occurred that
9

supports a finding of guilt on a given count.” State v. Rosario, 2022 ME 46, ¶ 34,

280 A.3d 199 (quotation marks omitted). “[I]f the State alleges multiple

instances of the charged offense, any one of which is independently sufficient

for a guilty verdict as to that charge, specific unanimity instructions are

proper.” State v. Osborn, 2023 ME 19, ¶ 34, 290 A.3d 558; see also Fortune, 2011

ME 125, ¶ 31, 34 A.3d 1115 (“When separate, similarly situated victims or

similar incidents such as thefts or drug transactions are the evidence

supporting a single charge, the jury must unanimously find that one specific

incident occurred . . . in order to convict.”); Alexander, Maine Jury Instruction

Manual § 6-65 at 6-145 (2023 ed.).

[¶17] Here, a specific unanimity instruction was not required. The jury

was properly instructed on the requirement for general unanimity on the

verdict. Chase was charged with one count of aggravated assault (Count 1)

based on the alleged strangulation of the victim.4 He denied the allegation, and

it was up to the jury to determine whether the State proved beyond a

4 Under Maine law, a person is guilty of aggravated assault if that person “intentionally, knowingly

or recklessly causes . . . [b]odily injury to another under circumstances manifesting extreme
indifference to the value of human life.” 17-A M.R.S. § 208(1)(C) (2023). “Such circumstances
include, but are not limited to, the number, location or nature of the injuries, the manner or method
inflicted, the observable physical condition of the victim or the use of strangulation.” Id. For the
purposes of the aggravated assault statute, strangulation “means impeding the breathing or
circulation of the blood of another person by intentionally, knowingly or recklessly applying pressure
on the person’s throat or neck.” Id.
10

reasonable doubt that Chase strangled the victim. There was only one alleged

instance of conduct for the jury to consider for a conviction of aggravated

assault. Accordingly, it is clear from reviewing the evidence and arguments of

counsel that the evidence did not generate the need for a specific unanimity

instruction.

[¶18] The same analysis is true with regard to the single domestic

violence assault charge (Count 3).5 As Chase points out, the evidence included

multiple instances of what the jury could have taken to constitute domestic

violence assault by Chase. They include, but are not limited to, the

strangulation incident that must have been the basis for Chase’s aggravated

assault conviction. However, Chase was convicted of only one count of

domestic violence assault, meaning that the jury had to agree unanimously on

only one of the incidents that could qualify as domestic violence assault. For

that reason, and because it was stipulated that Chase and the victim are family

or household members, the same incident that was the basis for the jury’s

5 Under Maine law, a person is guilty of domestic violence assault if “[t]he person intentionally,
knowingly or recklessly causes bodily injury or offensive physical contact to another person,”
17-A M.R.S. § 207(1)(A) (2023); see id. § 207-A(1)(A), “and the victim is a family or household
member,” id. § 207-A(1)(A).
11

unanimous verdict on Chase’s aggravated assault conviction could have been

the basis for a unanimous verdict on the domestic violence assault charge.6

[¶19] In sum, the court did not err by failing to give a specific unanimity

instruction in addition to the given general unanimity instruction; therefore,

our obvious error analysis necessarily ends at the first step. We conclude that

remand for a new trial is not required.

B. Merger

[¶20] Chase contends that Counts 1 and 3 are duplicative and Counts 2

and 5 are duplicative, and that the court erred in failing to merge these counts,

resulting in a double-jeopardy violation. The State concedes that Chase is

correct on these points and that the court’s failure to merge the duplicative

counts was an error. Even though “[n]either party raised this issue in the trial

court,” failure to merge duplicative counts “must be seen as obvious error.”

State v. Armstrong, 2019 ME 117, ¶¶ 24-25, 212 A.3d 856; see also State v.

Robinson, 1999 ME 86, ¶ 14, 730 A.2d 684 (“[T]he right to be free from double

jeopardy . . . is a fundamental right of all citizens, and the law on the issue is

clear and well established.”); M.R.U. Crim. P. 52(b).

The jury’s reliance on the same incident as the basis for both convictions does not present a
6

double jeopardy violation because domestic violence assault is not a lesser included offense of
aggravated assault, as explained below. See infra ¶¶ 24-25.
12

[¶21] “The double jeopardy clauses of the Maine and federal

constitutions prohibit, among other things, ‘multiple punishments for the same

offense.’” State v. Armstrong, 2020 ME 97, ¶ 7, 237 A.3d 185 (quoting State v.

Martinelli, 2017 ME 217, ¶ 5, 175 A.3d 636).

[W]hen a trial results in multiple verdicts for the same offense, the
appropriate procedure to prevent a double jeopardy violation is to
merge, not dismiss, the duplicative counts. If a double jeopardy
violation is discovered on appeal, we will vacate the convictions
and remand for merger of the duplicative counts. The result of this
procedure will be multiple findings of guilt but only one conviction
and one sentence.

Armstrong, 2020 ME 97, ¶ 11, 237 A.3d 185. “Merger is the correct remedy

because it prevents the constitutional injury while preserving multiple

verdicts.” Id. ¶ 12.

[¶22] Relevant to Chase’s argument, in assessing whether Counts 1 and

3 are duplicative, and Counts 2 and 5 are duplicative, and whether the

duplication violates the Double Jeopardy Clause, we have said that,

[b]ecause a person, by one act or transaction, may violate
multiple criminal laws, courts apply the Blockburger test to
determine whether the crimes enumerated by those multiple
statutes are the same offense for purposes of double jeopardy
protections. The test asks whether each statutory provision
requires proof of a fact that the other does not. If each statutory
provision requires a unique proof of fact, the Blockburger test is
satisfied and there is no double jeopardy violation by subsequent
prosecutions or multiple punishments.
13

Ayotte v. State, 2015 ME 158, ¶ 14, 129 A.3d 285 (citations and quotation marks

omitted); see also Blockburger v. United States, 284 U.S. 299, 304 (1932); Newell

v. State, 371 A.2d 118, 119 (Me. 1977).

[¶23] Here, the State agrees with Chase that theft by unauthorized taking

or transfer (Count 5) is a lesser-included offense of robbery (Count 2), and that

domestic violence assault (Count 3) is a lesser-included offense of aggravated

assault (Count 1), and that the court therefore erred in not merging the lesser

included offenses. We agree that theft by unauthorized taking or transfer is a

lesser-included offense of robbery. See State v. Belanger, 552 A.2d 27, 28

(Me. 1988) (holding that a robbery charge was not separate and distinct from

a charge of theft). Applying the Blockburger test, each statutory provision does

not require proof of a fact that the other does not, and the Blockburger test is

not satisfied. Compare 17-A M.R.S. § 353(1)(A), with 17-A M.R.S.

§ 651(1)(B)(2); see also Blockburger, 284 U.S. at 304; Ayotte, 2015 ME 158,

¶ 14, 129 A.3d 285. Counts 2 and 5 should therefore be merged.

[¶24] However, we do not agree that domestic violence assault is a lesser

included offense of aggravated assault—it is not. The parties’ reliance on

State v. Carmichael, 405 A.2d 732 (Me. 1979), is misplaced. In Carmichael, we

held that simple assault, when involving bodily injury, was a necessary
14

constituent of, and a lesser-included offense contained in, aggravated assault.

See id. at 736-37. In the present case, there is no charge of simple assault;

instead, Chase was charged with, and convicted of, aggravated assault and

domestic violence assault. Applying the Blockburger test to Counts 1 and 3

requires a comparison of the aggravated assault statute with the domestic

violence assault statute. Compare 17-A M.R.S. § 208(1)(C), with 17-A M.R.S.

§ 207-A(1)(A).

[¶25] “A person is guilty of aggravated assault if that person

intentionally, knowingly or recklessly causes . . . [b]odily injury to another

under circumstances manifesting extreme indifference to the value of human

life.” Id. § 208(1)(C). “Such circumstances include, but are not limited to, the

number, location or nature of the injuries, the manner or method inflicted, the

observable physical condition of the victim or the use of strangulation.” Id. In

contrast, a person is guilty of domestic violence assault if “[t]he person

intentionally, knowingly or recklessly causes bodily injury or offensive physical

contact to another person,” id. § 207(1)(A) (2023); see id. § 207-A(1)(A), “and

the victim is a family or household member,” id. § 207-A(1)(A). The

requirement that the victim must be a family or household member is an

additional element of domestic violence assault that is not an element of
15

aggravated assault; and the requirement that a person causes bodily injury to

another under circumstances manifesting extreme indifference to the value of

human life is an additional element of aggravated assault that is not an element

of domestic violence assault. Compare id. § 207-A(1)(A), with id. § 208(1)(C);

but see id. § 208-D(1)(D) (2023) (domestic violence aggravated assault).

Accordingly, the Blockburger test is satisfied, and the court did not err in failing

to merge Count 3 with Count 1.

[¶26] In sum, we find that the court did err by failing to merge the

duplicative counts of theft by unauthorized taking or transfer (Count 5) and

robbery (Count 2), and that this error must be viewed as obvious error. See

Armstrong, 2019 ME 117, ¶ 25, 212 A.3d 856. We therefore remand to the trial

court “for resentencing on a single conviction reflecting the merged counts.”

Armstrong, 2020 ME 97, ¶¶ 12, 15, 237 A.3d 185 (“Merger [rather than

dismissal] is the correct remedy because it prevents the constitutional [double

jeopardy] injury while preserving multiple verdicts.”). However,

notwithstanding the State’s agreement with Chase that the count of domestic

violence assault (Count 3) should be merged with the count of aggravated

assault (Count 1), we conclude that the court did not err by failing to merge
16

these counts because they are not duplicative, and we therefore affirm the

judgment of the trial court as to those individual charges.

C. Sentencing

[¶27] Chase also contends that the trial court improperly and unlawfully

increased his sentence because he “insisted on a trial,” and that the court’s

reliance on Chase’s decision to seek a trial as an aggravating factor was

unconstitutional.

[¶28] “Generally, a defendant is not entitled to a direct review of a

sentence and must seek review through the sentence review process.” State v.

Moore, 2023 ME 18, ¶ 23, 290 A.3d 533 (quotation marks omitted); see also

15 M.R.S. §§ 2151-2157 (2023); M.R. App. P. 20. Chase did apply to the

Sentence Review Panel seeking to appeal from his sentence, and the Panel

granted his application, Chase, No. SRP-22-88 (Me. Sent. Rev. Panel

May 25, 2022), however, approval from the Panel was unnecessary in this

context because “when a defendant claims that the sentence is illegal and when

the illegality appears on the face of the record, we will review the sentence on

direct appeal,” State v. Winslow, 2007 ME 124, ¶ 27, 930 A.2d 1080; see State v.

Discher, 597 A.2d 1336, 1343 (Me. 1991). “A defendant’s claim that his

sentence has been increased because he has exercised his right to a trial goes
17

to the legality of the sentence.” Moore, 2023 ME 18, ¶ 23, 290 A.3d 533. “[W]e

review the sentencing court’s determination of the basic sentence de novo for

misapplication of legal principles and its determination of the maximum

sentence for abuse of discretion.” State v. Plummer, 2020 ME 143, ¶ 10, 243

A.3d 1184 (quotation marks omitted).

[¶29] We have long held as “black-letter law that an accused cannot be

punished by a more severe sentence because he unsuccessfully exercised his

constitutional right to a trial.” State v. Farnham, 479 A.2d 887, 891 (Me. 1984).

We recently affirmed this right in State v. Moore, adding that “[a]lthough a court

may deny leniency to a defendant who is convicted after a trial, in so doing, it

may not consider the defendant’s exercise of his right to trial.” 2023 ME 18,

¶ 24, 290 A.3d 533. In articulating this distinction, we have stated that “[t]here

is a difference between increasing a defendant’s sentence because the

defendant chooses to exercise the right to trial . . . and considering a defendant’s

conduct at trial and information learned at trial, along with other factors, in

determining the genuineness of a defendant’s claim ‘of personal reform and

contrition.’” State v. Grindle, 2008 ME 38, ¶ 19, 942 A.2d 673 (quoting Farnham,

479 A.2d at 889). And while our jurisprudence has not always been precise, in
18

Moore we clarified that “simply exercising the right to trial can never be cited

as an aggravating factor.” Moore, 2023 ME 18, ¶ 25, 290 A.3d 533.

[¶30] “When a sentencing court references a defendant’s demand for a

trial, we evaluate the reference in the context of the entire sentencing process.”

Id. ¶ 26; see also State v. Hayden, 2014 ME 31, ¶ 24, 86 A.3d 1221. “‘[I]t is

sufficient to render a sentence invalid if it reasonably appears from the record

that the [sentencing] court relied in whole or in part upon [the defendant’s

election to stand trial].’” Moore, 2023 ME 18, ¶ 26, 290 A.3d 533 (final

alteration in original) (quoting Commonwealth v. Bethea, 379 A.2d 102, 107

(Pa. 1977)). “We need not conclude that the sentencing court in fact relied

upon an improper consideration.” Id. “‘Any doubt as to whether the defendant

was punished for exercising his right to trial must be resolved in favor of the

defendant.’” Id. (quoting Farnham, 479 A.2d at 894-95 (Glassman, J., concurring

in part and dissenting in part)).

[¶31] Here, in considering aggravating factors, the court stated:

Frankly, in this case, any remorse shown by you, Mr. Chase, is after
the fact, insofar as you flatly denied making any contact with the
complainant’s throat in this case, took that position on the witness
stand, much less choking her, and taking responsibility is, frankly,
missing in light of the fact that you insisted on a trial for the offenses
charged. I’m not punishing anyone for insisting on a trial, but I do
think it’s difficult to argue that someone is taking responsibility if
they insist on a trial.
19

(Emphasis added.) Chase relies on this statement by the court to argue that he

was unconstitutionally penalized for exercising his right to a trial. However, we

must evaluate the reference in the context of the entire sentencing process, and

the court further explained its position, stating:

There’s never—never, I repeat—a reason to lay hands on a woman.
Certainly never a reason to assault someone that you profess to
have feelings for. Your texts made it clear that you understood that
but obviously too late. Of all the texts that I heard and read and
saw, perhaps the one, quote, “I know I was in the wrong,” end of
quote, is the most insightful, along with, quote, “I will never touch
you like that again.” However, going to trial and basically denying
anything serious happened, to me, is just not taking responsibility
or showing true remorse for what happened, and what could have
happened is just horrific to contemplate.

I do think you choked that young lady, and I do think you choked
her twice. Luckily that didn’t happen. I think you realized, albeit
too late, but you did realize that what you did was wrong, and I
think that was indicative of all the multiple texts and calls that you
kept making. You knew that you had made a serious mistake, but
that didn’t come through with—in your trial testimony, frankly. I
think I have to take that into consideration.

[¶32] Thus, after the court referred to Chase’s insistence on a trial, the

court further explained that it believed Chase’s testimony was untruthful and

showed an unwillingness to accept responsibility for his actions. Although we

have held that it is permissible for a court to consider what it believes to be

untruthful testimony as an aggravating factor, see Grindle, 2008 ME 38, ¶ 26,
20

942 A.2d 673, we made clear in Moore that if it reasonably appears from the

record that the court relied in whole or in part on the defendant’s decision to

stand trial, that is sufficient to render the sentence invalid, see Moore, 2023 ME

18, ¶¶ 22-27, 290 A.3d 533. In the present case, the court’s statements are, at

the very least, ambiguous regarding the effect of Chase’s decision to stand trial.

Because any doubt as to whether the defendant was punished for exercising his

right to trial must be resolved in favor of the defendant, we conclude that this

case falls squarely into that group of cases we contemplated in Moore. We

therefore remand for resentencing consistent with this opinion.

The entry is:

Sentence vacated. Remanded for resentencing
consistent with this opinion. Judgment affirmed
in all other respects.

Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant Kyle A.
Chase

Maeghan Maloney, District Attorney, and Paul Cavanaugh, Asst. Dist. Atty.
(orally), Office of the District Attorney, Skowhegan, for appellee State of Maine

Somerset County Unified Criminal Docket docket number CR-2021-1020
FOR CLERK REFERENCE ONLY