The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NOS. AP-99-01 & 02
STEA-kev— 4)2b]/2600
STATE OF MAINE,
Appellee
Vv. DECISION AND ORDER
JOSHUA BLACK,
Appellant
In this matter the appellant, Joshua Black, appeals from the judgments
entered in the Seventh District Court, Division of Southern Kennebec (Vafiades, J.)
which reflect his convictions for the offenses of Cruelty to Animals, 17 M.R.S.A.
§ 1031 (Supp. 1997) amended by P.L. 1997, ch. 690, §§ 69, 70; P.L. 1999, ch. 254, §§ 19-21;
P.L. 1999, ch. 481, § 1, and Discharging a Firearm Near a Dwelling, 12 M.RS.A.
§ 7406(13) (1994). In these appeals, the appellant argues as to each charge that there
was insufficient evidence adduced below to sustain a conviction on either
complaint. This argument succeeds as to both complaints.
In reviewing a challenge to the sufficiency of the evidence, an appellate court
applying Maine law is to review “the evidence in the light most favorable to the
State to determine whether a factfinder ‘rationally could find beyond a reasonable
doubt every element of the offense charged.’” State v. Marden, 673 A.2d 1304, 1311
(Me. 1996) (quoting State v. Taylor, 661 A.2d 665, 668 (Me. 1995)).
After a careful review of the trial transcript, the evidence in this case, as
restated in the light most favorable to the State, could be found by a rational
factfinder as follows:
According to witness Wendy Johnson, on the morning of December 9, 1997,
she went to her rabbit hutches where she kept two rabbits, and fed and watered
them. She then shut and latched the doors to the hutches which are designed with
spring latches and eye hooks so that an animal cannot open them. She then left for
work. At about 3:30-3:35 p.m., she returned home and, while standing in her
driveway, she heard a gunshot. She looked up and saw the appellant, Joshua Black,
standing at the edge of his property, looking at the ground by his feet. She called to
him, “Hey, you’re shooting that gun kind of close to the houses aren’t ya?” T.T. at p.
11. She placed the appellant at “two hundred and fifty feet, maybe;” T.T. p. 11 “two
hundred and fifty feet, maybe, three hundred,” T.T. at p. 29, from her as she stood in
her driveway.!
1 The appellee’s brief makes a number of references to testimony from Ms. Johnson that when
she observed the appellant on this occasion that he was holding a firearm. Appellee’s Brief at pp. 2,
10, 12, 13, 14. The court has read the pages cited for this factual proposition, indeed, the entire
transcript, and can find no testimony that describes the appellant as having a firearm in his possession
when sighted by Ms. Johnson. The appellee also states in its brief that Ms. Johnson “looked in the
direction of the gunshot” and saw the appellant. Appellee’s Brief at p. 2. The court cannot find this
testimony either. Last, the appellee states in its brief that the appellant left his position near the
soiled spot in the snow and went into the woods. Appellee’s Brief at p. 12. The court can also find no
testimony to support this assertion.
She then went into her house for a few minutes, but went back outside on to
her deck and heard three more gunshots coming from the woods, about 300 yards
from where she had last seen the appellant.”
She returned to her house, but exited again about 20 minutes later to change
the rabbit’s water and give them “night treats.” Upon arriving at the hutch, she
found the rabbits gone, but the doors latched and shut. She looked for the rabbits to
no avail and gave up the search because she had the flu. She then called the police.
Two days later, on December 11, Ms. Johnson followed a path that took her
from her hutches to the spot where she had seen the appellant two days earlier. At
that spot she saw a soiled area in the snow like the type of stain she had seen her
rabbit, Maggie, make in the snow in the past when she rests her belly there. This
rabbit apparently would lie in her own droppings and urine in her hutch which
stained the fur of her belly, so that when she rested in the snow, it would leave a
tell-tale mark. Ms. Johnson then saw a trail of urine and blood spots down through
a clearing and found Maggie up against a tree with a bullet hole in her back. Again
the police were called.
Two days later, on December 13, Ms. Johnson’s friend, Pam Isham, found the
second rabbit, Scooter, also dead in the vicinity of a deer stand where Ms. Johnson
had heard the second shots four days earlier. This rabbit appeared to Ms. Johnson to
have two bullet holes in him.
2 Ms. Johnson did not testify that she saw the appellant in the vicinity of where these shots
came from.
Maine State Trooper Joseph Mills investigated the case and observed on
December 11 footprints leading off in several directions from the soiled spot in the
snow, near to where the appellant had been seen on December 9. One path led to
the property of Wendy Johnson across a neighbor’s lot, the Demos’, which is
between the Johnson lot and the appellant's home. Footprints also led into the
wooded area and back towards the Blacks’ property where the appellant lived.
When the trooper returned on December 13, he found four spent .22 caliber
shell casings in close proximity to where Scooter’s body was found. The casings
were partially covered by leaves.
A .22 caliber Marlin rifle owned by the appellant and ordinarily used by him
was seized and identified as “matching” three of the four .22 caliber shell casings
found near Scooter’s body. The Marlin is an “automatic” rifle which ejects shell
casings as it is being fired.
The two dead rabbits were found on the property of the appellant’s family.
This property runs to the rear of Ms. Johnson’s and several other neighbors but also
contains a house lot which borders the same road as the other neighbors’ lots.
Upon autopsy, Maggie was found to have died as the result of a single
gunshot wound, Scooter by virtue of a gunshot wound to the head. The latter rabbit
had also been mutilated pre-mortem with a hole in the abdomen, both eyes
punctured, and one ear lacerated.
Victoria Demos, whose house lot separates the Blacks’ from Wendy Johnson’s
lot, heard gunshots sporadically throughout December 9. The same day in the late
morning or early afternoon, she saw a man across the street from her house and her
neighbors’ walking toward the Blacks’ house, carrying a gun and wearing a brown
“Carhartt” jacket. She could not identify the man, did not see him fire his gun, and
did not hear gunfire while she observed him.
On December 14, Trooper Mills observed the appellant wearing a brown
“Carhartt” jacket.
Disregarding the arguments the defendant made at trial that Ms. Johnson
confused his identity, could not have seen him where she claims, and that he did
not have access to his rifle that day, the State’s case to establish guilt may be distilled
to the following:
A man with a jacket of the same style and color as one which the defendant
wore days later was seen with a gun in the same neighborhood as where the crimes
occurred on the day they likely were committed. Later that day, the defendant is
seen standing next to a spot where the rabbit Maggie had rested in the snow at some
point in time, probably that same day. There are footprint paths going from the
rabbit hutches to this spot, another path from there into the woods, and another
from the appellant’s home, across a neighbor’s; to Ms. Johnson’s. Three of four shell
casings found in close proximity to where the second rabbit was found with one
gunshot wound came from the defendant’s gun. Gunshots were heard on the day
the rabbits disappeared in the vicinity of where the second rabbit was found and
soon after the defendant was seen near a spot where the first rabbit had rested in the
snow.
The problem with deriving guilt from these facts is that they fall far short of
evidence, taken in the light most favorable to the State, which could rationally
inculpate the appellant as to either charge. It was never established, directly or
circumstantially, that he either possessed or discharged a firearm that day.? Taken
together with the absence of evidence that he could be placed within 100 yards of a
residence on the date in question defeats any possibility of a conviction for
Discharging a Firearm Near a Dwelling. The only evidence that the State can rely
on to sustain that charge is that Ms. Johnson looked up when she heard a gunshot
and saw the appellant and accused him of firing a gun too near the houses. She
never testified that he either had a gun or that the sound of the gunshot came from
where he was standing. Moreover, the best she could do was to estimate the
distance the appellant was standing from where she was standing in her own
driveway. Even if there had been testimony that the defendant had a gun on this
occasion and might have just discharged it, causing Ms. Johnson to look up at him,
no one measured the distance from any dwelling to the stained spot in the snow
where the appellant had been standing. Instead, we have the witness's
approximation, which she acknowledges she is “not real good at,” as “two hundred
and fifty feet, maybe, three hundred,” T.T. at p. 29, from the defendant's location to
where she stood in her driveway, as opposed to a dwelling. Coupled with the
absence of any testimony that the appellant possessed or discharged a firearm during
3 The closest the State comes to succeeding with this issue is the evidence of the man with a
jacket similar to the defendant's, holding a firearm of indeterminate description while walking in the
neighborhood at an earlier hour in the day than when the defendant was seen by Ms. Johnson.
6
this incident makes conviction for this crime unsustainable. The plain
requirements of the statute prohibiting the discharge of a firearm near a dwelling
are proof that the accused discharged a firearm, that he did so within 100 yards of a
residential dwelling, and that he did not have the permission of the owner of the
dwelling in question to so act. 12 M.R.S.A. § 7406(13). The State’s evidence, at its
best, proved none of these things. Accordingly, the appellant’s quest to have this
conviction set aside must succeed.
The conviction for Cruelty to Animals fares no better. At best, the State’s
evidence was that on the day the rabbits were released and were probably shot, a
man wearing a brown jacket, of the same color and brand as one the defendant wore
several days later, was seen in the same neighborhood where the crimes were
committed, carrying a gun of some type. No evidence was adduced as to whether or
not such jackets were unusual or are common attire, nor that the rabbits were shot
near in time to when this man was seen. The appellant was seen later that day,
standing on his own property and looking downwards at a spot where one of the
rabbits had rested on its belly. He is not described on this occasion as wearing a
brown Carhartt jacket, possessing a firearm or discharging one.’ This first rabbit,
Maggie, is found near a tree at an undetermined distance from the soiled spot in the
snow. No footprints are described as going from the spot where the appellant stood
to where Maggie was found. Although she had been shot, no shell casings were
found near her or the soiled spot and no evidence connects the appellant’s firearm
4 Indeed, Ms. Johnson describes the appellant as wearing a blue jacket.
7
to this crime. A bit later gunshots are heard coming from the woods. Four days
later the second rabbit is also found in the woods with three shell casings nearby that
came from a rifle owned by the appellant. No evidence is adduced as to how long
those shell casings had been there or whether or not this second rabbit was injured
with a bullet of the same caliber as these casings. Moreover, the appellant is never
seen in these woods during the time period in question, nor is there any evidence
that he had a gun there or discharged it. There is also no evidence that he possessed
or used a tool that might have caused the disfiguring injuries to this rabbit near in
time to its disappearance or discovery.
There was evidence of a path near where the appellant was seen standing on
the afternoon of December 9, and that this path led from the hutch, went across a
neighbor’s lot, and also went into the woods. There was no testimony as to when
this path, or paths were made, that the defendant was seen walking on any of them,
or that the path to the woods led to Scooter’s body and the three shell casings.°
In the end, however, the State’s case rests on the appellant being sighted near
a spot where one of the missing rabbits must have rested in the snow at some point
in time on the day it disappeared, and three of his shell casings being found in the
woods near where the second rabbit was found shot. So, while the evidence is
strong that these animals were cruelly treated, the evidence that the appellant
° Inferentially, the path from the Blacks’ lot to where the appellant was seen standing may
have been used by him. There is no evidence as to his having used that route on December 9, however,
and none that he was seen walking on the others. Indeed, Ms. Johnson never describes the appellant as
moving or walking at all -- just standing near and looking down at the spot where Maggie had rested in
the snow.
inflicted this treatment is scant and is as consistent with innocence as it is with guilt.
His presence at a spot where one of the victimized rabbits may have earlier been
present proves no more than that. Reasons as consistent with innocence as with
guilt might place him there. After all, he was on his own property and might
simply have been observing an unusual mark in the snow. He is never otherwise
associated with the rabbit that left that mark and was apparently observed there at a
different point in time than the rabbit was, as Ms. Johnson did not testify that she
saw her rabbit when she saw the defendant looking down at his feet.
His shell casings in the -woods may have been ejected there at any time and
also have no association with the second rabbit except that it was shot, albeit by a
firearm of undetermined caliber. No other evidence connects the appellant with
this crime with the possible exception that this rabbit was found in the woods
owned by the appellant’s family. No evidence however was provided that the
appellant was in those woods at any point in time related to the disappearance and
killing of this rabbit nor that the foot path leading from the spot the appellant was
seen on December 9 led to the place where the shell casings and Scooter were found.
In sum, while the court is mindful of the deferential standard to be afforded
to the trial court, and that circumstantial evidence can be relied upon to sustain a
conviction, State v. Benner, 654 A.2d 435, 437 (Me. 1995), the evidence in this case
supports other rational alternative explanations for the appellant’s potential
connection to these crimes so that those explanations could not be reasonably
rejected. State v. Haines, 621 A.2d 858, 860 (Me. 1993). That being so, this conviction
must also be set aside.
Accordingly, the entries will be:
Judgments VACATED; REMANDED to the District Court for
entry of judgments of acquittal.
So ordered.
aA
Dated: April @@__, 2000 ben LE,
n R. Atwood
J
gin Superior Court
._ Date Filed 02/22/99
KENNEBEC
County
Docket No. _ AR99-02
Action APPEAL FROM SO KENN DISTRICT COURT
State of Maine VS. JOSHUA BLACK
Offense
DISCHARGING A FIREARM NEAR A DWELLING PLACE
Attorney
PI-PRERRENO-—ESQ PETER BICKERMAN ESQ
TITLE 12 SECTION 7406-13 CLASS E “PO BOX 747 45 MEMORIAL CIRCLE
AUGUSTA ME 04330 AUGUSTA ME 04332
Date of
Entry
02/22/99 Case received from Southern Kennebec District Court upon appeal.
8/16/99 Transcript of Trial on 1/8/99 from District Court filed by Electronic
Recording.
8/19/99 Briefing schedule mailed to counsel. Appellants brief due September 20, 1999
8/24/99 Transcript ORDER filed by the State. Attested copy of ORDER mailed to
Electronic Recording Division.
9/15/99 Appearance of Peter Bickerman, Esq. entered for the defendant.
9/15/99 Unopposed Motion of Defendant-appellant for Enlargement of Time to File a
Brief. No Obj by State.
9/16/99 ORDER Granting Enlargement of Time filed. s/Studstrup, J.
It is hereby ORDERED that the Motion of the Defendant-Appellant is GRANTED.
The deadline for the filing of the Brief of the Defendant-~Appellant is hereby
enlarged to October 20, 1999.
Copies to attys.
10/15/99 Unopposed Motion of Defendant-Appellant for Further Enlargement of Time
To File Brief filed.
11/3/99 ORDER GRANTING ENLARGEMENT OF TIME filed. s/Studstrup, J.
IT is hereby ORDERED that the Motion of the Defendant-Appellant is GRANTED.
The deadline for the filing of the Brief of the Defendant-Appellant is hereby
enlarged to November 12, 1999. Last enlargement for Appellant.
Copies to attys.
11/12/99 Brief of defendant-appellant filed.
12/10/99 Unopposed Motion of the State for Further Enlargement of time to file brief.
1/11/2000, Appellee's Brief filed. s/Grant, ADA.
01/25/00 | Reply Brief of Defendant-Appellant filed. s/Bickerman Esq.
3/28/00 Hearing had on Oral Arguments with Justice Atwood, presiding, Kim McCulloch,
Court Reporter, Peter Bickerman, Esq., for Petitioner, and Brad Grant, ADA.
Case under advisement.
AR99-01
, Date Filed 02/22/99 Docket No.
County
Action APPEAL FROM SO KENN DISTRICT COURT
VS. JOSHUA BLACK
State of Maine
Offense Attorney oo» --
PJL-PERRINO ESO PETER BICKERMAN ESQ
CRUELTY TO ANIMALS 2 PO BOX 747 45 MEMORIAL CIRCLE
TITLE 17-A SECTION 1031 CLASS D AUGUSTA ME 04330 AUGUSTA ME 04332
Date of
Entry
9/15/99
9/15/99
9/16/99
10/15/99
11/3/99
11/12/99
12/10/99
12/10/99
1/11/2000
01/25/00
3/28/00
02/22/99 |Case received from Southern Kennebec District Court upon appeal.
Defendants exhibit's 1-16 recieved with appeal case.
Transcript of Trial on 1/8/99 from District Court filed by Electronic
Recording.
Briefing schedule mailed to counsel.
Transcript ORDER filed by the State.
Electronic Recording Division.
Appearance of Peter B. Bickerman, Esq. entered for the defendant.
Unopposed Motion of Defendant-Appellant for Enlargement of Time to File
a Brief. No Obj. by State.
ORDER Granting Enlargement of Time filed. s/Studstrup, J.
It is hereby ORDERED that the Motion of the Defendant-~Appellant is GRANTED.
The deadline for the filing of the brief of the Defendant-Appellant is
hereby enlarged to October 20, 1999.
Copies to attys.
Unopposed Motion of Defendant-Appellant for Further Enlargment of Time to
File Brief.
ORDER GRANTING ENLARGEMENT OF TIME filed. s/Studstrup, J.
IT is hereby ORDERED that the Motion of the Defendant-Appellant is GRANTED.
The deadline for the filing of the Brief of the Defendant-Appellant is hereby
enlarged to November 12, 1999. Last enlargement for Appellant.
Copies to attys.
Brief of defendant-appellant filed.
UNOPPOSED motion of State for futher enlargement of time to file brief.
Appellant's brief due 9/20/99.
Attested copy of ORDER mailed to
Motion granted. s/Donald H. Marden, JSC.
Appellee's Brief filed. s/Grant, ADA.
Reply of Defendant-Appellant filed. s/Bickerman, Esq.
Hearing had on Oral Arguments with Justice Atwood, presiding, Kim McCulloch,
‘Court Reporter, Peter Bickerman, Esq., for Petitioner and Brad Grant, ADA.
Case under advisement.