Maine’s high court says the state failed to prove a sex offender was on probation at the time he was accused of violating it by walking in front of a school in Waterville and not reporting to his probation officer as ordered.

The ruling in the appeal involving Cory D. Kibbe, 33, of Waterville, was released Tuesday by the Maine Supreme Judicial Court.

The court ruled, “It was the state’s burden to prove by a preponderance of the evidence, that Kibbe was on probation at the time of his alleged probation violations; the state failed to meet that burden.”

It’s not expected to affect any other cases in Maine, but the high court’s ruling does raise questions about how probation is calculated and kept track of. About 2,700 people are listed on Maine’s sex offender registry, according to the state.

The case also prompted the high court to offer guidance for similar scenarios “to prevent such failures in calculating probationary periods in future matters — particularly those in which there is a serious question as to whether the probationer is still on probation.”

“The state and the state’s witness must be prepared to establish that probation is, in fact, still in effect,” the court’s ruling states. “The better practice is for the state to file documentation with its motion to revoke probation detailing the relevant dates.”

In the decision, the court quoted sections of testimony from Kibbe’s probation officer and noted, “In short, the records makes clear that the state’s single witness — Kibbe’s probation officer — was unable to testify with any degree of certainty that Kibbe was still on probation on Oct. 6, 2016. “She had neither knowledge of nor information about the actual dates of Kibbe’s probation.”

Kibbe pleaded guilty in October 2004 in Kennebec County Superior Court to one count each of gross sexual assault and unlawful sexual contact and was sentenced to an initial four years in prison, with the remainder of the 20-year sentence suspended while he spent eight years on probation.

Kibbe was arrested in October 2016 in Waterville on a charge of violating conditions of his probation that prohibited him, among other things, from being on Summer Street, from loitering on Edgmont Street and from being within 500 feet of Waterville public schools. He also was barred from contact with girls under age 18.

After the arrest, Kibbe remained behind bars until a February 2017 hearing in which Judge Tom Nale ordered Kibbe to serve a four-year partial revocation and indicated the probation would continue afterward.

The prosecutor, Assistant District Attorney Michael Madigan, had asked the judge to impose the 14 years remaining from Kibbe’s original sentence. “Fourteen seems harsh,” Madigan said. “The original sentence was 20 years, but I think it’s appropriate when we reach this point.” Madigan referred to several previous probation violations.

As an alternative, Madigan suggested Kibbe should serve four years of the sentence that had been suspended previously.

Nale declined to impose the longer sentence.

“I can’t justify sentencing this fellow to 14 years. I can’t,” Nale said at the hearing. He also rejected the defense’s proposal for a five-month partial revocation — essentially the time Kibbe had been held in jail awaiting the hearing.

Kibbe, through his attorney Kevin Sullivan, appealed Nale’s ruling; and the Law Court heard oral arguments in the case in November 2017. On Tuesday, shortly after the decision was announced, Sullivan said his client needs to be released. Kibbe is serving the probation revocation sentence at the Maine Correctional Center in Windham, but Sullivan had not spoken with him yet.

“My primary thing is to get us back into the trial court to get a judgment of denial,” Sullivan said.

Along with vacating Nale’s decision, the Law Court ordered it returned to the trial court “for entry of an order denying the state’s probation revocation motion.”

Sullivan said, “(Kibbe) may not even be on probation any more. That’s a math problem I’ve got to figure out.”

Sullivan noted that eight years is a long probation period. “One to three years is more typical,” he said. He also said that Law Court’s ruling applies only to this case, but noted the guidance the Law Court offered about filing written evidence of dates of probation with any motions to revoke probation.

Kibbe remains a lifetime registrant under the state’s Sex Offender Registration & Notification Act because of his convictions.

Deputy District Attorney Paul Cavanaugh, responding to several emailed questions Tuesday, said the state understood “the court’s ruling that we failed to carry our burden.”

“We believed we had proven our position as did the judge at the hearing; however, the Law Court is the ultimate arbiter and has ruled otherwise,” he said.

“Mr. Kibbe will soon be released and remains on probation. Hopefully, he will comply with the conditions of his probation and we won’t be back before the court on a motion to revoke again,” Cavanaugh said Tuesday. “However, if we are, we shall be prepared to prove he is on probation. The District Attorney’s office will continue to work with the Department of Corrections and its probation officers to protect the public and rehabilitate offenders. Today’s decision does not limit or prevent that good work from continuing — it is a ruling on the specific evidence in one specific case.”

Betty Adams — 621-5631

[email protected]

Twitter: @betadams

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