State of Maine v. Terri Moulton

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2026 ME 6
Docket: Pis-24-424
Argued: September 11, 2025
Decided: January 29, 2026

Panel: STANFILL, C.J., and MEAD, LAWRENCE, DOUGLAS, and LIPEZ, JJ.

STATE OF MAINE

v.

TERRI L. MOULTON

LAWRENCE, J.

[¶1] Terri L. Moulton appeals from a judgment of conviction of one count

of theft by unauthorized taking or transfer and one count of forgery, entered by

the trial court (Piscataquis County, Roberts, J.) after a jury trial. Moulton argues

that the prosecutor made several prejudicial statements to the jury, depriving

her of a fair trial; the trial judge abused his discretion in denying Moulton’s

motion to recuse; the State violated the rules of discovery; and the court abused

its discretion in denying her motion to exclude all financial evidence. We

conclude that where the prosecutor’s statements were error, the errors were

harmless; the State did not violate the rules of discovery; the court did not

abuse its discretion in denying the motion to recuse; and the court did not abuse
2

its discretion in denying the motion to exclude financial evidence as a discovery

sanction. We therefore affirm the judgment of conviction.

I. BACKGROUND

[¶2] Viewing the evidence in the light most favorable to the verdict, the

jury could have found the following facts beyond a reasonable doubt. See State

v. Hansen, 2020 ME 43, ¶ 2, 228 A.3d 1082.

[¶3] Between 2019 and 2022, Moulton, who worked as a bookkeeper for

Dewitt Machine and Fabrication, embezzled $500,000 from her employer and

forged the signature of Anson Dewitt, a co-owner of Dewitt Machine, on checks

that Moulton wrote to herself.

[¶4] On March 3, 2022, a law enforcement officer met Moulton at her

home and interviewed her about the alleged theft and forgery. Moulton

confessed to the theft, and her confession was captured in a video recording on

the officer’s body camera. Specifically, Moulton stated that she “just spent [the

money]” on “stuff”; that she was “sure that” the amount she had taken from

Dewitt Machine was “significant”; that she wrote checks to herself using the

Dewitt Machine business account, which she said was evidenced by all checks

written out to her that were not payroll checks; and that “it just got away from

[her], [she] didn’t plan on it, [she] didn’t scheme it.”
3

[¶5] Moulton was charged by complaint in April 2022 with theft by

unauthorized taking or transfer (Class B), 17-A M.R.S. § 353(1)(B)(1) (2025),

and forgery (Class B), 17-A M.R.S. § 703(1)(A-1)(1) (2025). She was indicted

on these same two charges in June 2022. Moulton pleaded not guilty to both

charges.

[¶6] On December 19, 2022, Moulton filed a motion to compel discovery,

seeking the password and login information for the electronic QuickBooks

financial-records software that Dewitt Machine used for its bookkeeping. On

January 30, 2023, Moulton withdrew the motion to compel discovery.

[¶7] In November 2023, Moulton filed a motion to suppress her

confession that was recorded with the investigating officer’s body camera,

alleging that the confession was involuntary. The court (Roberts, J.) held a

suppression hearing on February 5, 2024, and issued an order denying the

motion on February 14, 2024.

[¶8] The court held a jury trial from July 22 to 25, 2024. Moulton moved

for the trial judge to recuse himself because he had worked as a Deputy District

Attorney for several years in the same office as the District Attorney

representing the State in this matter. Moulton also moved to exclude financial

evidence because the State did not provide defense counsel with the
4

QuickBooks password that defense counsel had asked the State to produce in

December 2022. The court denied both motions.

[¶9] The court heard testimony from the following witnesses: a

co-owner of Dewitt Machine, the manager of the bank that handled the Dewitt

Machine business bank account, the person who recommended to the Dewitt

family that they hire Moulton, the founder of Dewitt Machine, Anson Dewitt’s

spouse, a former co-owner of Dewitt Machine, a friend of Moulton’s, an

employee of the Piscataquis County District Attorney’s Office who reviewed the

financial records in this case and calculated the amounts that Moulton had

taken from the Dewitt Machine business accounts, and the law enforcement

officer who investigated the case and interviewed Moulton at her home in the

recorded video.

[¶10] The court admitted the following exhibits: the video recording of

Moulton’s confession to the law enforcement officer, Dewitt Machine’s bank

records, a copy of the QuickBooks data, and a register of checks.

[¶11] During the trial, Moulton objected to various statements that the

prosecutor made, and the court overruled the objections. Moulton also made

multiple motions for a mistrial and a motion for judgment of acquittal, all of

which the court denied. The evidence presented included Moulton’s multiple
5

confessions to having taken money from Dewitt Machine for her personal use,

including the video recording of her confession to a law enforcement officer,

and her statement to the business’s co-owner that she took the money because

she “just needed stuff . . . and she would pay it all back”

[¶12] The jury found Moulton guilty on both charges. The court held a

sentencing hearing in September 2024, and Moulton was sentenced to nine

years for each of the counts, to be served concurrently, with all but four years

suspended, and three years of probation.

[¶13] Moulton timely appealed from the conviction. See M.R.

App. P. 2B(b)(1).

II. DISCUSSION

A. Prosecutorial Error1

[¶14] Moulton argues that the prosecutor for the State made several

comments during opening statements, closing argument, and rebuttal

argument that prejudiced Moulton to such an extent that the jury’s

determination of guilt was affected by the prosecutor’s choice of words.

1 Moulton refers to the prosecutor’s statements as both “misconduct” and “error” in her brief. We

use the term “error” here because we focus our review on the impact of the prosecutor’s behavior on
Moulton’s due process rights and not on the subjective intent of the prosecutor. See State v. Osborn,
2023 ME 19, ¶ 21 n.9, 290 A.3d 558; State v. White, 2022 ME 54, ¶ 19 n.9, 285 A.3d 262.
6

Moulton objected to some of the statements made during closing and rebuttal

arguments; therefore, they are reviewed for harmless error. See State v. Dolloff,

2012 ME 130, ¶¶ 31-32, 58 A.3d 1032. Moulton did not object to the statements

made during the State’s opening statement and a statement made during

closing argument; therefore, those statements are reviewed for obvious error.

See id. ¶¶ 31, 35.

1. Statements Objected to at Trial

[¶15] When a prosecutor’s statement is objected to at trial, we review

the statement for harmless error by “determin[ing] whether there was actual

[error] and, if so, whether the trial court’s response remedied any prejudice

resulting from the [error].” State v. Tripp, 2024 ME 12, ¶ 27, 314 A.3d 101

(quotation marks omitted). Under harmless-error review, the State carries the

burden of persuasion on appeal. Dolloff, 2012 ME 130, ¶ 34, 58 A.3d 1032.

“When prosecutorial [error] that was objected to has not been addressed or

only insufficiently addressed by the court, the State must persuade us that it is

highly probable that the jury’s determination of guilt was unaffected by the

prosecutor’s comments.” Id. (quotation marks omitted). When determining

the effect of the error, we look to “the totality of the circumstances, including

the severity of the [error], the prosecutor’s purpose in making the statement,”
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and “the weight of the evidence supporting the verdict.” Id. ¶ 33 (quotation

marks omitted).

[¶16] We must view the allegations of prosecutorial error in the overall

context of the trial. “This includes taking into account the statements,

comments, and strategy of the defense, especially when the prosecutor’s

statements are made in response to the theory, argument, or provocation of the

defendant or defense counsel. The mere existence of a misstatement by a

prosecutor at trial, or the occasional verbal misstep, will not necessarily

constitute [error] when viewed in the context of the proceedings.” Id. ¶ 44

(citations omitted).

[¶17] Moulton objected to the prosecutor’s comment made during

closing statements that “addressed [Moulton]’s choice to exercise her

constitutional right to have a trial.” The prosecutor stated:

Now, you might—this is something that you might want to be
thinking about, well, [District Attorney], why are we—the
defendant in this case confessed, so why are we having a trial? We
need to understand that we need to respect the process.
Everybody is entitled to have a trial. . . . [W]e are having a trial, the
defendant is entitled to a trial, we are not disparaging that, despite
the evidence that shows on different occasions that she admitted
what happened, and we will talk about that.

Defense counsel objected to the statement and moved for a mistrial. The court

denied the motion and asked the prosecutor not to make any insinuation that
8

Moulton does not have a right to a trial. The State argues that the prosecutor

conveyed that Moulton has a right to a trial and did not call this right into

question. The State argues in the alternative that the statement was harmless

error because the comment was isolated, the court instructed the jury that

closing arguments are not evidence, there is a presumption of innocence, and

the evidence of Moulton’s recorded video confession to the law enforcement

officer overcame any prejudice that would have affected the outcome of the

case.

[¶18] Of course, Moulton has the right to a fair trial under both the United

States and Maine Constitutions. U.S. Const. amends. VI, XIV, § 1; Me. Const.

art. 1, § 6; State v. Poulin, 2016 ME 110, ¶ 25, 144 A.3d 574. The State may not

question this right in front of the jury. See State v. Lockhart, 2003 ME 108, ¶ 48,

830 A.2d 433 (“[T]he prosecutor has a responsibility to help ensure a fair trial,

and although permitted to strike hard blows, may not strike foul ones.”

(quotation marks omitted)). While the prosecutor here acknowledged

Moulton’s constitutional right, the acknowledgment was couched in such

qualifying language that it implied that the trial was a formality. Moreover, the

prosecutor’s comment on Moulton’s right to a trial was not germane to the

analysis of any evidence or the proper inferences and conclusions to be drawn
9

from the evidence. See Dolloff, 2012 ME 130, ¶¶ 41, 55, 58 A.3d 1032.

Therefore, Moulton is correct that this was prosecutorial error.

[¶19] However, in the context of the entire record, this error was

harmless because the quantity and quality of the evidence presented to the jury

against Moulton was so extensive and of such a high degree that the error could

not have affected the outcome. State v. Lyons, 1998 ME 225, ¶ 13, 718 A.2d

1102 (holding that the error of ambiguously referring to the defendant’s failure

to testify was harmless due to the substantial evidence of the defendant’s guilt).

Here, the substantial evidence presented included Moulton’s multiple

confessions to taking money from Dewitt Machine for personal use, the most

striking of which was the video recording of her confession made to the

investigating law enforcement officer, whom she knew.

[¶20] Importantly, the court gave an appropriate curative instruction to

the jury following the closing arguments of the parties:

Let me remind you that the attorney’s opening statements and
closing arguments are not evidence. Those are simply the
statements and arguments of the attorneys for the State and the
defendant, in which they suggest to you what they think are the
proper methods for analyzing the evidence and what they believe
are the proper inferences and conclusions to be drawn from that
evidence. The statements and arguments themselves are not
evidence from which you can find the facts. During your
deliberations, if your memory of the evidence differs from what the
10

attorneys say in the statements and arguments, it is your memory
that controls.

We assume that the jury followed these instructions unless there is evidence to

the contrary. State v. Bennett, 658 A.2d 1058, 1063 (Me. 1995).

[¶21] Moulton next objected to a comment made during closing

argument in which the prosecutor mentioned potential punishment to the jury:

Your job is to decide what the facts show and then take the facts as
you find them and apply it to the verdict that he gives you—excuse
me, apply it to the law, then come to a verdict. So [the court] gives
you the law, you take the facts and you make a decision. Now, one
of the things you are not here to do is decide what punishment
there is, if any[.] [P]unishment is up to this learned presiding
justice.

Defense counsel objected to this statement on the basis that any discussion of

punishment by the State in its closing argument is inappropriate, but the court

overruled the objection. Moulton argues that this statement injected the

prosecutor’s personal opinion of her guilt into the process. The State argues

that the statements regarding punishment did not constitute error because

they did not express the prosecutor’s personal opinion and because “the

prosecutor correctly stated the law and committed no error in stating that the

jury decides only the question of guilt and does not address punishment.”

[¶22] We disagree with Moulton’s argument that this statement

represents the prosecutor’s personal opinion of her guilt. Just before the
11

prosecutor’s mention of punishment, the prosecutor stated that it was up to the

jury to decide the facts and make a decision as to Moulton’s guilt. The statement

regarding punishment was a correct statement of the law—the jury does not

decide how a defendant may be punished. State v. Okie, 2010 ME 6, ¶ 11, 987

A.2d 495; State v. Park, 193 A.2d 1, 5 (Me. 1963) (“Punishment, or whatever

may transpire after the verdict, is not the concern of the jury.”). However,

instructing the jury on this legal point is not the prosecutor’s role, and it is

instead the court’s duty to instruct the jury as to the law. See Okie, 2010 ME 6,

¶ 11, 987 A.2d 495. The State must limit its argument to the facts in evidence.

State v. Hinds, 485 A.2d 231, 237 (Me. 1984). To the extent that this is error,

and we acknowledge that this is a close call, we hold that it is harmless for the

reasons discussed above, supra ¶¶ 19-20.2

[¶23] Finally, Moulton objected to the prosecutor’s comments during

rebuttal in which the prosecutor stated:

[Dewitt Machine] trusted her. . . . [J]ust imagine that folks, knowing
that you are being relied on and being trusted and sit right there
and not say anything. That’s sad. That’s really sad. That’s a
betrayal.

2 The court also instructed the jury that “[y]ou should not be concerned about the consequences
of any verdict you may reach,” further correcting any error by the State.
12

Moulton again moved for a mistrial, which the court denied, stating that

“[a]rguments of counsel are simply that, arguments. [The prosecutor] did not,

in the Court’s view, in [any] way say anything that would comment upon

Ms. Moulton’s decision not to testify or to shift the burden of proof, which

would be the sort of argument that would give you a position for a mistrial . . . .”

Moulton argues that the prosecutor’s statement did not address the evidence

but instead attempted to appeal to the jury’s sympathies and social norms. The

State asserts that the theme of trust and betrayal was supported by the

evidence and was not error.

[¶24] A prosecutor cannot “invite the jury to make its decision based on

something other than the evidence,” nor can a prosecutor appeal to social

norms that go beyond the evidence presented to the jury. State v. Osborn, 2023

ME 19, ¶ 23, 290 A.3d 558 (quotation marks omitted). Moreover, a prosecutor’s

comments cannot pander to the jury’s sympathy, bias, or prejudice, Dolloff,

2012 ME 130, ¶ 42, 58 A.3d 1032; nor should a prosecutor appeal to a jury’s

sense of morality in arguing the evidence presented. See State v. Ammerman,

586 A.2d 1244, 1246 (Me. 1991).

[¶25] Here, the theme of trust and betrayal went beyond the evidence

presented. Neither theft by unauthorized taking or transfer nor forgery require
13

the State to prove that a victim placed trust in a defendant. See 17-A M.R.S.

§ 353(1)(A)-(B)(1); 17-A M.R.S. § 703(1)(A)-(A-1)(1); cf. 17-A M.R.S. § 903

(2025) (“A person is guilty of misuse of entrusted property if that person deals

with property that has been entrusted to that person as a fiduciary . . . in a

manner that that person knows is a violation of that person's duty . . . .”).

Instead, asking the jury to imagine themselves in Moulton’s shoes as someone

who lied to the people who trusted her is a direct appeal to the jury’s sense of

morality and sympathy. See Ammerman, 586 A.2d at 1246. This statement was

prosecutorial error.

[¶26] Nevertheless, the error was harmless given the overwhelming

evidence of guilt presented to the jury—a direct confession to law enforcement,

among other confessions—and the corrective instruction given by the court.

See Lyons, 1998 ME 225, ¶ 13, 718 A.2d 1102; supra ¶¶ 19-20.

2. Statements Not Objected to at Trial

[¶27] “[W]hen a defendant has not objected to statements made by the

prosecutor at trial, and subsequently asserts on appeal that those statements

constituted prosecutorial [error] that deprived her of a fair trial, we review for

obvious error.” Dolloff, 2012 ME 130, ¶ 35, 58 A.3d 1032. The obvious-error

standard requires the defendant to show that there is “(1) an error, (2) that is
14

plain, and (3) that affects substantial rights.” State v. Nightingale, 2023 ME 71,

¶ 29, 304 A.3d 264 (quotation marks omitted). “If these three conditions are

met, we will set aside the 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).

[¶28] A defendant who fails to object to a statement at trial must on

appeal demonstrate that there was prosecutorial error that went unaddressed

by the court. See Dolloff, 2012 ME 130, ¶ 36, 58 A.3d 1032. The error is plain if

“the error is so clear under current law[] that the trial judge and prosecutor

were derelict in countenancing it . . . .” Id. (citation and quotation marks

omitted). A defendant’s substantial rights are affected if “the error was

sufficiently prejudicial to have affected the outcome of the proceeding.”

Nightingale, 2023 ME 71, ¶ 30, 304 A.3d 264 (quotation marks omitted).

[¶29] Moulton asserts for the first time on appeal that the prosecutor

made two more statements on the theme of trust and betrayal that commented

on concepts of morality and were sufficiently prejudicial as to have affected the

outcome of the trial. The prosecutor made the following comments during the

opening statement:

[Dewitt Machine] trusted her. They trusted her. As the case
develops, folks, you are going to realize that starting in 2019,
15

[Moulton] betrayed that trust, betrayed that trust, that’s what this
case is about, trust, and betrayal.

....

This is a serious case. It is called betraying the trust that that family
put in [Moulton].

[¶30] The comment above was directly linked to another statement

made during the State’s closing argument:

[T]he scale of this theft is huge. You know something, folks, it is
outweighed, outweighed only by one thing, and that’s by the
magnitude of [Moulton]’s betrayal of the trust that [Dewitt] and his
family put in her. That’s what this case is about, folks.

These statements satisfy the first and second elements of the obvious-error test

because the prosecutor’s consistent return to the theme of trust and betrayal is

an appeal to the jury’s morality and sympathy, and the error is plain as

established in our case law. See, e.g., Dolloff, 2012 ME 130, ¶¶ 36, 53, 58 A.3d

1032; supra ¶¶ 24-25. However, Moulton’s substantial rights were not affected

because these prejudicial comments do not outweigh the evidence of her guilt

and therefore did not affect the outcome of the trial or deprive Moulton of a fair

trial. Dolloff, 2012 ME 130, ¶¶ 37, 69, 58 A.3d 1032; supra ¶¶ 19-20.

3. Cumulative Effect of Prosecutorial Errors

[¶31] Finally, we review Moulton’s alleged instances of prosecutorial

errors “cumulatively and in context to determine whether [Moulton] received
16

an unfair trial that deprived her of due process.” Dolloff, 2012 ME 130, ¶ 74, 58

A.3d 1032. “Multiple ‘incidents of prosecutorial [error], none of which

individually would require reversal, taken together may have a cumulative

effect’ of violating a defendant's right to a fair trial.” Id. (quoting United States v.

Mooney, 315 F.3d 54, 61 (1st Cir.2002)).

[¶32] First and foremost, the substantial evidence of Moulton’s guilt

weighs against the cumulative prejudice of the prosecutorial error in this case.

The video-recorded confession and significant testimonial and financial

documentary evidence were more than sufficient to support a guilty finding.

Moreover, the court properly instructed the jury to not view opening

statements and closing arguments as evidence, Moulton had “the assertive

assistance of counsel,” and Moulton was able to confront witnesses and present

witnesses on her own behalf. Id. ¶ 75. We therefore conclude that any

prosecutorial error, individually or cumulatively, did not affect the jury’s

verdict and Moulton received a fair trial.

[¶33] We must note, however, that the prosecutorial error in this case is

not insignificant, and in a different case with different facts could lead to

reversal. We remind prosecutors of their special responsibility to help ensure
17

a fair trial and avoid striking any foul blows. See Lockhart, 2003 ME 108, ¶ 48,

830 A.2d 433.

B. Motion to Recuse

[¶34] Moulton argues that the court abused its discretion in denying her

motion to recuse because the trial judge previously worked in the District

Attorney’s Office as an Assistant District Attorney and as the Deputy District

Attorney with the prosecutor here, the District Attorney. Moulton contends

that the trial judge should have assessed whether he was “wholly free,

disinterested, impartial and independent,” citing State v. Marden, 673 A.2d

1304, 1308 (Me. 1996) (quotation marks omitted), and instead the trial judge

abused his discretion by only considering whether he could “handle the case

fairly and without bias.”

[¶35] The State argues that the court properly denied the motion for

recusal because the trial judge had not worked for the District Attorney’s Office

for nearly nine years. The trial judge worked in an office separate from the

District Attorney for much of his tenure, had not had a personal relationship

with the District Attorney since leaving the office, and was not the fact finder in

this case. The State adds that if the court did err in denying the motion for

recusal, the error was harmless.
18

[¶36] “We have long held that recusal ‘is a matter within the broad

discretion of the trial court.’ Accordingly, a decision by a trial judge not to

recuse is reviewed for an abuse of discretion.” State v. Atwood, 2010 ME 12,

¶ 20, 988 A.2d 981 (quoting Johnson v. Amica Mut. Ins. Co., 1999 ME 106, ¶ 11,

733 A.2d 977).

[¶37] Citing the Maine Code of Judicial Conduct, we have held that “a

judge must recuse herself on motion made by any party if her ‘impartiality

might reasonably be questioned’ or if she has a ‘personal bias or prejudice

concerning a party or personal knowledge of disputed evidentiary facts

concerning the proceeding.’ The ‘mere belief’ that a judge might not be

completely impartial is insufficient to warrant recusal.” Atwood, 2010 ME 12,

¶ 21, 988 A.2d 981 (citations omitted); M. Code Jud. Conduct R. 2.11.

[¶38] Here, the trial judge explained his denial of the motion for recusal

as follows:

[W]hile I worked with [the District Attorney] for years, we did not
necessarily work most of that time in the same office. We have not
really had a personal relationship since I left that office almost nine
years ago. I do speak with him on a professional level, but very little
that, and I can assure you, particularly in the matter such as this
where I am not the fact finder, the jury will be the fact finder, I am
confident I can handle this matter as I have other matters which
[the District Attorney] prosecuted fairly and without bias.
19

The trial judge in this case made a well-reasoned decision not to recuse given

the nearly nine years since the trial judge worked with the District Attorney,

and the lack of a current personal relationship with the District Attorney and

seemingly not ever having had a particularly close personal or professional

relationship with him.

[¶39] Moulton’s argument that the court did not apply the appropriate

legal analysis is without merit. When deciding whether to recuse, a judge must

look to the guidelines established in the Maine Code of Judicial Conduct, as

stated above. See Atwood, 2010 ME 12, ¶ 21, 988 A.2d 981. A determination by

a judge that he is “wholly free, disinterested, impartial and independent” as

described in Marden, which was cited by Moulton, falls within the standard

established in the Maine Code of Judicial Conduct, see Marden, 673 A.2d at 1308;

M. Code Jud. Conduct R. 2.11, as does the trial judge’s consideration as to

whether he can preside over the matter “fairly and without bias.” It has been

over nine years since the trial judge worked in the District Attorney’s Office,

and the trial judge stated that he had no relationship since then with the

prosecutor—other than in their current professional roles as judge and

prosecutor. We are not persuaded that the trial judge abused his discretion,

nor are we persuaded that the public would doubt his impartiality.
20

[¶40] Because trial courts have broad discretion to decide whether to

recuse themselves from a matter and because “mere belief that a judge might

not be completely impartial is insufficient to warrant recusal,” we conclude that

the court did not abuse its discretion in denying the motion to recuse.

See Atwood, 2010 ME 12, ¶ 21, 988 A.2d 981 (quotation marks omitted).

C. Disclosure of Financial Records

[¶41] Moulton argues that the State’s failure to disclose the password to

access QuickBooks—the bookkeeping software that Dewitt Machine used—

and the trial court’s rulings regarding that alleged discovery violation denied

Moulton her right to a fair trial. Moulton “concede[s] [that she] was provided

with copies of voluminous financial records” but contends that she needed

access to the electronic version of these financial records to be able to

investigate whether the financial records were altered before they were

produced to her. As a result, Moulton argues that she did not have access to

information that she needed to prepare for trial, as required by M.R.U. Crim. P.

18(b).

[¶42] The State argues that it did not violate its discovery obligations

because it did not have the QuickBooks password and it is not required to

provide information that it does not have. The State contends further that
21

Moulton’s motion for discovery sanctions was untimely and unpreserved and

that Moulton had other options, such as a subpoena, to obtain the QuickBooks

electronic records.

[¶43] “We afford the trial court substantial deference in overseeing the

parties' discovery[] and review its decisions on alleged discovery violations

only for an abuse of discretion. Only when the defendant can establish that the

effect is so significant as to deprive [her] of a fair trial will we vacate on that

basis.”3 State v. Silva, 2012 ME 120, ¶ 8, 56 A.3d 1230 (citation omitted).

[¶44] We agree with the court that the State is not required to produce

information outside of its “possession or control.” See State v. Hassan, 2018 ME

22, ¶ 18, 179 A.3d 898; M.R.U. Crim. P. 16(a)(1), (c)(2)(C). The QuickBooks

password was not provided to the State and therefore not within its possession

or control. The State attempted to obtain the password for Moulton by asking

the Dewitts for it, but the Dewitts declined to provide it.

[¶45] To the extent that the State committed a violation of the rules of

discovery by failing to respond to Moulton’s motion to compel discovery within

seven days as required by M.R.U. Crim. P. 16(d)(2), the violation was negated

3 The State contends that the issue is not preserved because Moulton withdrew her motion to
compel discovery. However, the issue was argued and developed during the first and second days of
trial.
22

by Moulton withdrawing her motion six weeks after initially filing it. As the

court indicated, a year and a half passed before Moulton brought the discovery

issue to the court’s attention during the first day of trial. During that time,

Moulton did not file a second motion to compel discovery or take other actions

beyond Moulton’s representations that counsel communicated the need for the

password to the State directly. Eventually, the State informed Moulton that it

did not have the password. Given that Moulton revived this issue only on the

first day of trial after the jury had been selected, the court did not abuse its

discretion in ruling that raising the issue at that point was untimely.

[¶46] Although Moulton’s lack of access to the QuickBooks password

may have prevented her access to the electronic data, she had access to hard

copies of the company’s financial records. Further, she had confessed to taking

funds from the Dewitts, including by writing checks on the company account to

herself beyond those that were her paychecks. Considering these factors,

Moulton has failed to demonstrate that the effect of not having the QuickBooks

password and the court’s denying her motion at trial was so significant as to

deprive her of a fair trial. Therefore, the trial court did not abuse its discretion.
23

III. CONCLUSION

[¶47] To be clear, the prosecutor’s statements at issue here skirted, and

in several instances crossed, the line into error. Ultimately, however, for the

reasons set out above, we have concluded that the errors, singly and

cumulatively, did not affect Moulton’s substantial rights and were rendered

harmless by the overwhelming weight of the evidence of her guilt presented to

the jury, and in particular by Moulton’s own video-recorded confession to the

crime. We also conclude that the trial judge did not abuse his discretion in

denying the motion to recuse or in ruling that in the circumstances presented

the State was not required to produce passwords to the QuickBooks software.

The entry is:

Judgment affirmed.

Neil J. Prendergast, Esq. (orally), Fort Kent, for appellant Terri L. Moulton

R. Christopher Almy, District Attorney, and Mark A. Rucci, Asst. Dist. Atty.
(orally), Prosecutorial District V, Bangor, for appellee State of Maine

Piscataquis County Unified Criminal Docket docket number CR-2022-170
FOR CLERK REFERENCE ONLY