The opinion
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 59
Docket: Pen-16-96
Argued: March 3, 2017
Decided: April 4, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
DUSTIN BROWN
GORMAN, J.
[¶1] On January 2, 2013, Dustin Brown was indicted for manslaughter
(Class A), 17-A M.R.S. 203(1)(A) (2016), to which he pleaded not guilty. The
trial court (Penobscot County, Anderson, J.) held a three-day jury-waived trial
in November of 2015. Brown appeals from the judgment of conviction for
manslaughter entered after that trial. He challenges the sufficiency of the
evidence supporting his conviction. We affirm the judgment.
I. BACKGROUND
[¶2] The following facts, all of which are supported by the record, were
found by the court after trial. On November 25, 2012, Brown was in his
bedroom at his residence in Bangor along with his three-month-old son and
the infant’s mother. Sometime before 4:00 p.m. that day, during the infant’s
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afternoon feeding, the mother gave their son to Brown to care for and left the
room to use the bathroom. During the time that Brown was alone in the
bedroom with the infant, both the infant’s mother and his grandmother, who
was in another room in the home, heard the infant “fussing” or crying slightly.
Within minutes, Brown came out of the bedroom carrying the infant, who was
limp, and told the grandmother there was “something wrong” with the infant.
Brown called 9-1-1, and he and the grandmother attempted to resuscitate the
infant while they waited for help to arrive. When paramedics arrived at
4:05 p.m., the infant had no pulse and was not breathing. The infant was
taken to the hospital, where he was declared dead at 5:30 p.m.
[¶3] Initially, Brown told everyone he spoke with that he had been
feeding the infant when the infant suddenly “went limp.” Later, Brown told
both the infant’s mother and his new girlfriend that the infant’s head had
bumped into his chin and he had instinctively pushed or jerked the infant
away from him.
[¶4] By judgment dated January 29, 2016, the court convicted Brown of
manslaughter, finding:1
1 The court also expressly rejected the defense theory that the infant had aspirated on formula,
and found that there was no evidence to incriminate the mother or grandmother, the only other
adults in the home at the time the injury was inflicted.
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[Brown] caused this traumatic brain injury to his son, most likely
by pushing him away very, very aggressively in a way that fits the
definition of criminal negligence in that it would involve a gross
deviation from the standard of conduct that a reasonable and
prudent person would observe in the same situation. . . . [T]he
gross deviation finding [is] based on primarily the expert
testimony concerning the degree of force, the amount of force that
would be needed in order to cause this result. This isn’t the type
of treatment that a child gets on a daily basis, because this doesn’t
happen on a daily basis. This was somewhat unique and it was
too forceful and too traumatic to the child and caused the child’s
death.
[¶5] On February 26, 2016, the court sentenced Brown to twelve years
in prison with all but four and a half years suspended and four years of
probation. Brown appealed.2
II. DISCUSSION
[¶6] Brown argues that the court erred in convicting him of
manslaughter because there was insufficient evidence to prove beyond a
reasonable doubt how he injured the infant and, therefore, insufficient
evidence to establish that his actions were voluntary and met the statutory
definition of criminal negligence.3 In support of his argument, he points to the
2 Brown also filed an application to allow an appeal of his sentence, but his application was
denied by the Sentence Review Panel. See State v. Brown, No. SRP-16-097 (Me. Sent. Rev. Panel May
13, 2016).
3 Brown characterizes his appeal as a challenge to the legal or constitutional sufficiency of the
judgment rather than the sufficiency of the evidence supporting the judgment. Because the court—
which was not required to make any special findings except on request, M.R.U. Crim. P. 23(c)—
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court’s statements that “the State has not proved exactly how this happened”
and that Brown injured the infant “in some fashion.”
[¶7] Where an appellant challenges the sufficiency of the evidence
supporting a criminal conviction, “we view the evidence in the light most
favorable to the State and review any applicable statute de novo to determine
whether the fact-finder could have found beyond a reasonable doubt every
element of the offense charged.” State v. Murphy, 2016 ME 5, ¶ 5, 130 A.3d
401. We further recognize that the “fact-finder is permitted to draw all
reasonable inferences from the evidence, and decide the weight to be given to
the evidence and the credibility to be afforded to the witnesses.” State v.
McBreairty, 2016 ME 61, ¶ 14, 137 A.3d 1012 (quotation marks omitted).
[¶8] To convict a defendant of manslaughter, the State must prove
beyond a reasonable doubt that the defendant acted recklessly or with
criminal negligence and caused the death of another person.4 17-A M.R.S.
made all the conclusions of law required for a conviction pursuant to 17-A M.R.S. § 203(1)(A)
(2016), we address Brown’s challenge as one to the sufficiency of the evidence.
4 To the extent that Brown argues that his actions were involuntary, we note that the defense of
involuntary conduct applies to the actus reus rather than the mens rea of a crime. See 1 LaFave,
Substantive Criminal Law § 6.1(c) at 425-29 (2d ed. 2003); 17-A M.R.S. § 103-B (2016); State v.
Morrison, 2016 ME 47, ¶ 9, 135 A.3d 343 (“Involuntary conduct is the result of an uncontrolled
physical impetus, rather than a state of mind.”). We also note that Brown asserts the involuntary
conduct defense for the first time on appeal. At trial, he raised only one defense, which the court
rejected: that the cause of death was aspiration rather than abusive head trauma. We review issues
raised for the first time on appeal for obvious error, State v. Merchant, 2003 ME 44, ¶ 15, 819 A.2d
1005, and find no such error here. Although evidence admitted by the State at trial could raise an
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§ 203(1)(A); see also 17-A M.R.S. § 34 (2016). A defendant acts with criminal
negligence with respect to a result of the defendant’s conduct—here, the
death of an infant—“when [he] fails to be aware of a risk that [his] conduct
will cause such a result.” 17-A M.R.S. § 35(4)(A) (2016). The defendant’s
failure to be aware of the risk “must involve a gross deviation from the
standard of conduct that a reasonable and prudent person would observe in
the same situation.” 17-A M.R.S. § 35(4)(C).
[¶9] Contrary to Brown’s contention, a criminal conviction is not
unsupported by record evidence or violative of due process rights merely
because the State did not present direct evidence as to the defendant’s exact
actions in committing the crime, nor is manslaughter uniquely situated among
crimes in this respect. In convicting a defendant of manslaughter, the
fact-finder may properly find beyond a reasonable doubt that a defendant
acted recklessly or with criminal negligence based solely on circumstantial
evidence. State v. Cheney, 2012 ME 119, ¶ 42, 55 A.3d 473 (“Circumstantial
involuntariness defense, the court—in specifically finding that Brown had acted with culpable
negligence—determined that the State had disapproved the existence of the defense beyond a
reasonable doubt through its expert medical testimony. See 17-A M.R.S. § 101(1) (2016) (stating
that, where a defense “is in issue as a result of evidence admitted at the trial that is sufficient to
raise a reasonable doubt on the issue, . . . the State must disprove its existence beyond a reasonable
doubt”).
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evidence alone is sufficient to support a conviction as long as the evidence as a
whole supports each element of the crime.”).
[¶10] For instance, in State v. Allen, although there was no direct
evidence as to how the defendant inflicted the fatal injury, we concluded that a
conviction for manslaughter was supported by sufficient record evidence
“[g]iven the ample medical testimony about the timing, presentation, and
cause of [the toddler’s] injuries.” 2006 ME 20, ¶¶ 25-27, 892 A.2d 447
(explaining that the State presented evidence that the toddler was alone with
the defendant at the time of the injury, the cause of death was consistent with
inflicted trauma to the head rather than an accidental fall as the defendant
claimed, and the evidence was not consistent with an alternative cause of
death posited by the defendant); see also State v. Chapman, 496 A.2d 297,
304-05 (Me. 1985) (upholding a manslaughter conviction based on evidence
that the child died of an inflicted brain injury, the defendant was alone with
the child at the time the injury had taken place, and the defendant’s
explanation for the injury was both improbable and inconsistent with the
medical evidence, even where there was no direct evidence as to exactly how
the defendant inflicted the injury); State v. Tomer, 304 A.2d 80, 83-85
(Me. 1973) (upholding a manslaughter conviction based on evidence that the
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child died of inflicted injuries where the child was unharmed before the
defendant took her into the bathroom but visibly injured after she exited the
bathroom, and the fatal injury could have occurred in the timeframe in which
she was in the defendant’s care, even where there was no evidence as to
exactly how the defendant inflicted the injuries).
[¶11] During this trial, among the witnesses presented by the State
were the former Chief Medical Examiner for the State of Maine and the Deputy
Chief Medical Examiner for the State of Vermont. Each had conducted her
own independent examination and evaluation, and each testified as to the
results of her investigation. The post-mortem examination by both forensic
pathologists revealed that—although he exhibited no external trauma—the
infant had subdural, subarachnoid, optic nerve sheath, and retinal
hemorrhages. The pathologists opined that the hemorrhages were caused by
acute injuries to the infant’s head and that he had died within two hours after
being injured. Neither post-mortem examination revealed any disease or
condition that could provide an explanation for the infant’s injuries or death.
Based on their examinations, their experience, and their expertise, each
pathologist determined independently that the cause of death was inflicted
traumatic brain injury—the result of a rotational or acceleration-deceleration
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type force applied to the infant’s head or, perhaps, the impact of the infant’s
head on a soft surface—which deprived the infant’s brain of blood flow and
led to cardiac arrest. Both pathologists testified that the force required to
cause this injury was greater than that associated with the natural wobbling of
an infant’s head or a simple bump against a person’s chin.
[¶12] Brown’s expert in pathology disagreed with the opinions
presented by the State’s experts. He opined that the infant died as a result of
choking or aspirating on formula.
[¶13] Thus, as in Allen, the fact-finder in the instant case had before it
evidence that the cause of death was a traumatic injury to the infant’s brain;
the injury was inflicted rather than accidental; the injury took place in the
timeframe in which Brown was alone with the infant; the infant was well
when left alone with Brown but lifeless when Brown emerged with him from
the bedroom; and the infant had been “fussing.” Moreover, the infant’s
mother had testified that Brown, in the past, had been frustrated when the
infant fussed and often handed him to another person.
[¶14] Additionally, given that Brown’s evolving explanations as to the
events leading to the infant’s death were inconsistent with the medical
evidence and that there was nothing to suggest any alternative suspect, the
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evidence established Brown as “the agent of the fatal injury.” Chapman,
496 A.2d at 305.
[¶15] Notwithstanding that Brown reported that he acted reflexively
and the court found that “this incident occurred somewhat like [Brown] said,”
the court also expressly found that Brown had acted in a way that meets the
definition of culpable negligence—a conclusion supported by competent
record evidence. A rational fact-finder could reasonably infer from the record
that, when he was alone with him, Brown handled the infant with such force
that the infant sustained subdural, subarachnoid, optic nerve sheath, and
retinal hemorrhages, and that Brown’s failure to be aware of the risk that his
handling of the infant in that manner could produce death was “a gross
deviation from the standard of conduct that a reasonable and prudent person
would observe in the same situation.” 17-A M.R.S. § 35(4)(C); cf. Allen,
2006 ME 20, ¶¶ 25-27, 892 A.2d 447.
[¶16] Although Brown contends that the State was required to present
evidence of how a reasonable and prudent person would have acted in
handling a small infant because “the standard of conduct is not obvious,” the
court did not err in resorting to its own common sense in assessing the
evidence before it and reaching its conclusion as to culpable negligence. See
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State v. Lowe, 2015 ME 124, ¶ 33, 124 A.3d 156 (“The culpable state of mind
required by the statutory definition of manslaughter therefore calls for jurors
to resort to their own experiences and common sense in order to identify
normative expectations about how ‘reasonable and prudent’ people should act
in a particular situation.”). As we have previously noted, “[a] reasonable and
prudent person would not forcefully shake a baby because that person would
recognize that babies are fragile. Shaking a baby with the degree of force
sufficient to cause shaken baby syndrome, therefore, can constitute a gross
deviation from a reasonable person’s standard of conduct.” In re Ashley M.,
2000 ME 120, ¶ 10, 754 A.2d 341; see also State v. White, 460 A.2d 1017, 1020
(Me. 1983) (noting that “extremely vigorous shaking of a baby can, alone,
constitute depraved indifference” and rejecting the defendant’s argument
“that many persons are not aware that vigorous shaking may be harmful to a
baby [and therefore] the ordinary person could hardly have been expected to
know that the risk was substantial” (alteration omitted) (quotation marks
omitted)).
[¶17] Finally, we note that, to the extent that there was any confusion
about the trial court’s findings, Brown failed to request further findings of fact
pursuant to M.R.U. Crim. P. 23(c). We therefore infer that the trial court found
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all the facts necessary to support its judgment given that those inferred
findings are supported by evidence in the record. See State v. Dodd, 503 A.2d
1302, 1307 (Me. 1986).
[¶18] For the reasons stated above, we affirm the judgment.
The entry is:
Judgment affirmed.
Jamesa J. Drake, Esq. (orally), Drake Law, LLC, Auburn for appellant Dustin
Brown
Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee State of Maine
Penobscot County Unified Criminal Docket docket number CR-2013-17
FOR CLERK’S REFERENCE ONLY