MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2026 ME 97
Docket: And-25-463
Argued: June 2, 2026
Decided: September 15, 2026
Panel: STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, DOUGLAS, LIPEZ, and TAUB, JJ.
STATE OF MAINE
v.
JAMES R. FOOTMAN JR.
TAUB, J.
[¶1] James R. Footman Jr. appeals from a judgment of conviction of
robbery (Class A), 17-A M.R.S § 651 (1)(E) (2026), and of violation of condition
of release (Class E), 15 M.R.S. § 1092(1)(A) (2026), entered by the trial court
(Androscoggin County, Archer, J.) after a jury trial. Footman also appeals from
his sentence.
[¶2] The convictions pertain to a robbery on November 11, 2024.
Footman contends that the court clearly erred or abused its discretion by
admitting evidence relating to a similar robbery on November 14, for which
Footman was not on trial. Because evidence of the November 14 robbery was
not probative of the identity of the person who committed the robbery on
November 11, the court erred in admitting it. Because we determine that the 2
error was not harmless, we vacate the judgment of conviction and do not reach
the sentence appeal.
I. BACKGROUND
A. Factual Background
[¶3] “Viewing the evidence in the light most favorable to the State, the
jury rationally could have found the following facts beyond a reasonable
doubt.” State v. Ellis, 2025 ME 56, ¶ 3, 339 A.3d 794.
[¶4] On November 11, 2024, an individual wearing a medical mask and
black Nike shoes with white trim walked into a Big Apple store on Main Street
in Lewiston. The man approached two clerks at the register and demanded that
they give him money. The man held a box cutter with a black and red handle.
One of the clerks initially gave him twenty dollars. The man demanded more
money and the clerk handed him another thirty dollars. The man then left the
store.
[¶5] On November 16, a law enforcement officer interacted with
Footman and observed that he was wearing black and white Nike shoes similar
to those worn by the person who had robbed the Big Apple. The officer took
photographs of Footman’s shoes. The officer retrieved from Footman’s pocket
a box cutter with a black and red handle and took a photograph of it. On
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November 18, another law enforcement officer interacted with Footman,
observed that he was wearing shoes that looked like those worn in the Big
Apple robbery, and took photographs of them.
B. Procedural History
[¶6] On January 8, 2025, the State charged Footman with the November
11 robbery (Class A), 17-A M.R.S. § 651(1)(E), and violation of condition of
release (Class E), 15 M.R.S. § 1092(1)(A). Footman pleaded not guilty.
[¶7] Before trial, the State indicated that, to prove Footman’s identity as
the perpetrator of the Big Apple robbery on November 11, 2024, it intended to
introduce evidence that on November 14, an individual attempted to rob a
7-Eleven store on Main Street in Lewiston, near the Big Apple. The evidence
consisted of a surveillance video recording showing that a man with his face
covered by a hood and wearing black Nike shoes with white trim entered the
7-Eleven, held a box cutter with a black and red handle, and demanded money
from a clerk before fleeing.
[¶8] Footman moved in limine to exclude the evidence relating to the
November 14 robbery of the 7-Eleven, arguing that the evidence was
inadmissible under Maine Rules of Evidence 404(b) and 403. The court ruled
that the State could introduce the evidence to prove the identity of the
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perpetrator of the Big Apple robbery, determining that the evidence was
probative and not unfairly prejudicial to Footman.
[¶9] The court held a jury trial on the robbery charge in July 2025. In
addition to video evidence of the Big Apple robbery, the jury saw two
surveillance-camera videos depicting the 7-Eleven robbery, along with still
photographs taken from those videos. In its closing argument, the State
asserted that Footman wore the “same black and white Nike shoes” on “four
separate occasions”: the Big Apple robbery, the 7-Eleven robbery, and his two
encounters with law enforcement officers. The State further asserted that
Footman carried the “same black and red box cutter” on “three separate
occasions”: the Big Apple robbery, the 7-Eleven robbery, and his first encounter
with a law enforcement officer.
[¶10] The jury returned a guilty verdict on the robbery charge. Footman
waived his right to a jury trial on the charge of violation of condition of release,
and the court found him guilty.
[¶11] At the sentencing hearing, although Footman had neither testified
at trial nor allocuted, the court considered his alleged lack of remorse to be an
aggravating factor, stating, “[N]othing that the Court heard today or read in
preparation for today, reflects that the defendant feels any remorse for his
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actions or has accepted any sort of responsibility.” The court sentenced
Footman to twelve years in prison for robbery and six months in prison for
violation of condition of release, to be served concurrently, and it entered a
judgment of conviction.
[¶12] Footman timely appealed from the judgment. See M.R.
App. P. 2B(b)(1). He also timely filed an application for leave to appeal his
sentence, which the Sentence Review Panel granted. See M.R. App. P. 20(a), (b).
One of the grounds for Footman’s sentence appeal is that the trial court
improperly considered his alleged lack of remorse as an aggravating factor.
II. DISCUSSION
[¶13] Footman contends that the court erred by admitting the evidence
of the uncharged 7-Eleven robbery that the State offered as evidence that it was
Footman who committed the Big Apple robbery. He argues that Rules 404(b)
and 403 of the Maine Rules of Evidence required the exclusion of the evidence.
“[W]e review the trial court’s decision to admit the evidence pursuant to Rule
404(b) for clear error and its determination pursuant to Rule 403 for an abuse
of discretion.” State v. DeMass, 2000 ME 4, ¶ 11, 743 A.2d 233.
[¶14] Under Rule 404(b), “[e]vidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that on a
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particular occasion the person acted in accordance with the character.” Such
evidence is admissible, though, “if offered to prove identity, intent, knowledge,
motive, opportunity, plan, preparation, or absence of mistake.” State v.
Anderson, 2016 ME 183, ¶ 13, 152 A.3d 623. In other words, the evidence must
be “probative of a material issue other than character.” Huddleston v. United
States, 485 U.S. 681, 686 (1988); see State v. Joubert, 603 A.2d 861, 866
(Me. 1992); State v. DeLong, 505 A.2d 803, 805-06 (Me. 1986) (explaining that
evidence of a prior bad act is admissible for a purpose other than establishing
character if it is “probative of some element of the crime for which the
defendant is being tried” (quotation marks omitted)).
[¶15] Here, the State offered the evidence of the 7-Eleven robbery to
prove that it was Footman who committed the Big Apple robbery. When
evidence of an uncharged crime is offered to prove the identity of the
perpetrator of the charged crime, the two crimes must have sufficiently
distinctive factual similarities to support the reasonable inference that they
were committed by the same person, see State v. Connors, 679 A.2d 1072, 1074
(Me. 1996) (explaining that the uncharged crime must have a “signature-like
similarity” to the charged crime); Joubert, 603 A.2d at 866 (explaining that the
charged and uncharged crimes must be “sufficiently idiosyncratic” (quotation
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marks omitted)). There must also be evidence that the uncharged crime did in
fact occur and that the defendant committed it. Cf. Huddleston, 485 U.S. at 689
(explaining that, under Federal Rule of Evidence 404(b), similar-act evidence is
probative only if there is sufficient evidence “that the act occurred and that the
defendant was the actor”). Otherwise, the evidence merely proves that the
same person committed both crimes rather than that the defendant committed
either crime.
[¶16] Both prongs of the test were present in Joubert, where the
defendant was charged with murdering an eleven-year-old boy. 603 A.2d at
862-63. The defendant had pleaded guilty to murdering two boys in Nebraska,
and there were various similarities between one of those murders and the
charged murder, including that both victims were found with human bite marks
on their legs along with crisscross slash wounds made in an effort to disguise
the bite marks. Id. at 865-66. We held that that the trial court properly
admitted evidence of the Nebraska murder, which was offered to show that the
defendant committed the charged murder: “The unusual bite marks with
concomitant slashes, together with the similar physical characteristics and
manner of death of both victims, ‘are sufficiently idiosyncratic’ to support the
reasonableness of the trial court’s inference that they were killed by the same 8
person.” Id. at 866 (quoting United States v. Pisari, 636 F.2d 855, 859 (1st Cir.
1981)). That the defendant had pleaded guilty to the murder in Nebraska
sufficed as proof that he was the perpetrator of that murder. See id. at 865-66.
[¶17] Here, the parties dispute whether the Big Apple and 7-Eleven
robberies had sufficiently distinctive similarities to support an inference that
they were committed by the same person. But even if we were to assume that
the two crimes had “signature-like similarities” or were “sufficiently
idiosyncratic,” the evidence of the 7-Eleven robbery offered by the State was
not probative of Footman’s identity as the perpetrator of the Big Apple robbery.
Unlike the defendant in Joubert, who had pleaded guilty to the uncharged crime,
id. at 865, Footman had not, at the time of trial, pleaded guilty to the 7-Eleven
robbery. The only evidence that the State offered to show that Footman was
the person who committed the 7-Eleven robbery came from the police officers’
encounters with Footman on November 16 and 18, where they observed him
with shoes and a box cutter similar to those of the suspect of both robberies.
But this is the exact same evidence that the State offered as proof that Footman
was the individual who committed the Big Apple robbery.
[¶18] For evidence of a second, uncharged crime to be probative of the
defendant’s identity as the perpetrator of the charged crime, the State must
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offer separate or additional evidence to demonstrate that the person who
committed the uncharged crime was the defendant. Otherwise, evidence of the
uncharged crime does not tend to make it more or less probable that the
defendant committed the charged crime. See M.R. Evid. 401 (evidence is
relevant only if it has a tendency to make a fact of consequence more or less
probable than it would be without the evidence). In other words, if the evidence
proving the perpetrator’s identity is the same for both crimes, evidence of the
uncharged crime does nothing to assist the fact finder in determining whether
the defendant committed the charged crime. Any such evidence is therefore
inadmissible because “[e]vidence revealing other crimes” must “have a relevant
or a material bearing on some essential aspect of the offense being tried.” State
v. Heald, 393 A.2d 537, 542 (Me. 1978) (quotation marks omitted); M.R. Evid.
401. Because the State did not offer separate or additional evidence of
Footman’s identity as the person who committed the 7-Eleven robbery,
evidence of the 7-Eleven robbery had no probative value with respect to
identity of the person who committed the Big Apple robbery. The trial court
thus erred by admitting this evidence. See State v. Jordan, 1997 ME 101, ¶ 7,
694 A.2d 929 (holding that the court erred in admitting evidence of the
defendant’s prior bad acts directed against his wife because the evidence had 10
no probative value with respect to an alleged later crime against a police
officer).
[¶19] This error was not harmless. A preserved nonconstitutional error
is treated as harmless only “if it is highly probable that the error did not affect
the judgment.” State v. Mangos, 2008 ME 150, ¶ 15, 957 A.2d 89; see M.R.U.
Crim. P. 52(a). We recognize that there was evidence other than that of the
7-Eleven robbery upon which the jury could have relied to determine that
Footman committed the Big Apple robbery. But evidence of an uncharged
crime creates a risk that “a jury will convict for crimes other than those
charged—or that, uncertain of guilt, it will convict anyway because a bad
person deserves punishment.” Old Chief v. United States, 519 U.S. 172, 181
(1997) (quotation marks omitted). Further, the State argued to the jury that
evidence that the perpetrator of the 7-Eleven robbery had white and black
shoes and a black and red box cutter suggested that it was Footman who robbed
the Big Apple. We cannot say that it is highly probable that admission of
evidence of the 7-Eleven robbery did not affect the judgment. We therefore
hold that the court’s error in admitting the evidence was not harmless, and we
vacate the judgment of conviction.1
Because we vacate the judgment of conviction, we do not reach Footman’s challenge to his
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sentence. Given the nature of Footman’s challenge, however, we feel compelled to repeat that
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The entry is:
Judgment vacated. Remanded for further
proceedings in accordance with this opinion.
Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant James R. Footman, Jr.
Neil E. McLean Jr., District Attorney, and Alexandra W. Winter, Asst. Dist. Atty. (orally), Prosecutorial District III, Lewiston, for appellee State of Maine
Androscoggin County Unified Criminal Docket docket number CR-2025-51
FOR CLERK REFERENCE ONLY
defendants have the constitutional right to remain silent and to decline to testify at trial or allocute at sentencing. Ellis, 2025 ME 56, ¶ 25, 339 A.3d 794. Because a defendant cannot be punished for exercising that right, a sentence “may not be increased . . . because [the defendant] chose to forgo expressing remorse or taking responsibility at trial or sentencing.” Ellis, 2025 ME 56, ¶ 26, 339 A.3d 794. Rather, “any consideration of a defendant’s failure to [show remorse or] take responsibility as an aggravating factor must be based on affirmative evidence in the record to support that finding.” Id. ¶¶ 24, 26.