Background
Jeffery A. Witham Jr. was convicted of multiple offenses arising from a June 2020 incident involving his romantic partner and her six-year-old child. The evidence showed that Witham repeatedly assaulted and strangled the victim, threatened her with a baseball bat, and restricted the movements of both victims. A jury convicted him of offenses including kidnapping, domestic violence aggravated assault, criminal restraint, criminal threatening, unlawful firearm possession, and endangering the welfare of a child. In a separate case, Witham conditionally pleaded guilty to witness tampering.
The trial court imposed concurrent sentences totaling twenty-four years, with all but twenty-two years suspended, followed by six years of probation. On appeal, Witham challenged the denial of a hearing concerning funds seized in an unrelated drug case, the absence of specific-unanimity jury instructions, the denial of a post-judgment mental-condition examination, and the court’s consideration of firearms, his age, and his failure to accept responsibility at sentencing.
The Court’s Holding
The Maine Supreme Judicial Court affirmed the convictions. It held that the seized-funds dispute arose in an unrelated, still-pending drug-trafficking and forfeiture case and was not within the Court’s jurisdiction in these appeals. It also concluded that no specific-unanimity instruction was required for the challenged counts because the evidence either established a single continuous episode, identified only one qualifying nonfirearm dangerous weapon—the baseball bat—or involved alternative proof that did not constitute separate elements of the offense.
The Court nevertheless held that the trial court committed obvious double-jeopardy error by failing to merge Count 6, criminal restraint with a dangerous weapon, into Count 1, kidnapping with a dangerous weapon, because criminal restraint was a lesser-included offense. It also directed merger of Count 11, domestic violence assault, into Count 5, domestic violence aggravated assault, consistent with the trial court’s earlier merger ruling. The Court upheld the denial of the mental-condition examination and found no sentencing error in considering Witham’s prohibited firearm possession, his age in conjunction with his criminal history, or affirmative evidence that he had not accepted responsibility.
Key Takeaways
- A specific-unanimity instruction is unnecessary when the evidence supports one continuous criminal episode or when jurors need not agree on the particular item of evidence satisfying an element.
- Separate sentences for a greater offense and a lesser-included offense violate double-jeopardy principles, even when the issue was not raised by the parties.
- A sentencing court may consider reliable trial evidence, offender-specific circumstances, and affirmative evidence bearing on acceptance of responsibility, but may not punish a defendant merely for exercising the right to trial.
Why It Matters
The decision clarifies Maine law governing specific-unanimity instructions in cases involving multiple acts, weapons, or alleged means of committing an offense. The relevant question is whether the State alleged distinct incidents that could independently support conviction, not simply whether the record contains multiple acts or pieces of evidence.
The opinion also underscores the courts’ obligation to correct unpreserved merger errors that produce multiple punishments for the same offense. Witham’s convictions remain intact, but the trial court must merge the specified counts, resentence him, and correct the conviction date in the witness-tampering docket.