State of Maine v. Frank C. Sholes, 227 A.3d 1129

Sholes and the victim had a long-term romantic relationship; they separated in March 2017 but remained in contact. On July 28, 2017 Sholes entered the victim’s home, and the victim testified he forced her to engage in sexual acts despite her repeated protests.
On October 3, 2017 Sholes was indicted on four counts: gross sexual assault, aggravated criminal trespass, unlawful sexual contact, and domestic violence assault; he pleaded not guilty.
At the February 27–28, 2019 jury trial the jury acquitted on gross sexual assault and trespass, convicted on unlawful sexual contact and domestic violence assault, and Sholes was sentenced to 2.5 years with all but six months suspended.
Sholes moved for a new trial asserting prosecutorial misconduct (use of the word “rape” and statements about the victim’s cell phone evidence) and that the court abused its discretion by refusing to allow the victim-witness advocate (VWA) to testify to impeach the victim; the trial court denied the motion.
Evidence relevant to the disputes included: the victim’s testimony; two items of digital evidence from her phone (an audio hospital interview admitted and a video not admitted); no forensic report of phone extraction was in the record; the State offered an offer of proof that the VWA would not recall the previously undisclosed details the victim later testified to.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Sholes)	Held
Prosecutor’s use of the word “rape” in closing/rebuttal	The references were inadvertent/slips, not intentionally inflammatory, and did not differ materially from charged conduct	Use of the word was inflammatory, intended to incite the jury, and prejudicial	Not misconduct; court found use inadvertent or corrected; no reversible error
Prosecutor’s comments implying police didn’t extract texts from victim’s phone	Reasonable inference from victim’s testimony that she gave the phone and absence of a forensic report; comment was invited rebuttal and harmless	Prosecutor misstated or vouched for facts he knew were untrue and prejudiced the jury	Comment permissible as an inference and invited response; any error harmless; no remedy requested by defense
Denial of request to call VWA and to compel disclosure of VWA notes	VWA would not corroborate prior omissions; testimony would be cumulative; notes are privileged and disclosure not required absent necessity	VWA testimony and notes were needed to impeach victim’s credibility and memory; court should compel disclosure	Court did not abuse discretion: cross-examination had already exposed memory lapses, VWA testimony would be cumulative, and privilege need not be pierced

State v. Daluz, 143 A.3d 800 (ME 2016) (standard for reviewing denial of new-trial motion and harmless-error principles)
State v. Dolloff, 58 A.3d 1032 (ME 2012) (prosecutorial-misconduct analysis, harmless vs. obvious error, and cumulative-error review)
State v. Clark, 954 A.2d 1066 (ME 2008) (framework for determining whether prosecutorial misconduct occurred)
State v. Gould, 43 A.3d 952 (ME 2012) (permitting reasonable inference about missing phone evidence where record supports it)
State v. Robinson, 134 A.3d 828 (ME 2016) (standard of review for denial of new-trial motion)
State v. Clarke, 738 A.2d 1233 (ME 1999) (presumption that juries follow curative instructions to disregard attorneys’ remarks)
United States v. Mejia-Lozano, 829 F.2d 268 (1st Cir. 1987) (permitting broader leeway in rebuttal argument to respond to defense attacks)