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State v. Bracy Ashby
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Decision:1999 ME 188
on Briefs:November 17, 1999
Decided:	December 17, 1999




	[¶1]  Defendant Bracy Ashby appeals from a judgment entered in the
Superior Court (Washington County, Mead, J.) on a jury verdict finding him
guilty of fishing near floating equipment (Class D), 12 M.R.S.A. § 6957 (Supp.
1999).  Defendant argues that because the equipment was not properly
marked in accordance with the statute, there was insufficient evidence to
support his conviction, and that the court erred in its jury instructions.  We
agree and vacate the judgment.
	[¶2]  The relevant facts may be summarized as follows:  On November
24, 1997, a site manager for Maine Aqua Foods and a Maine Marine Patrol
Officer observed defendant's fishing vessel "Gentle Sea" dragging for sea
urchins near Johnson's Cove in Eastport within 200 feet of Maine Aqua
Foods' salmon aquaculture site, which site was marked by a buoy system.  An
investigation ensued and defendant was charged with fishing near floating
equipment in violation of 12 M.R.S.A. § 6957.  After a jury trial, a judgment
was entered in the Superior Court finding defendant guilty.  Defendant
	[¶3]  Defendant argues that there was insufficient evidence to satisfy
all of the elements of fishing near floating equipment and that the court
erred in its jury instruction concerning the elements of the offense. On a
sufficiency of the evidence challenge, we review the evidence in the light
most favorable to the State to determine whether the factfinder rationally
could have found beyond a reasonable doubt every element of the offense
charged.  See State v. Marden, 673 A.2d 1304, 1311 (Me. 1996).  "We
review jury instructions 'as a whole to ensure that they informed the jury
correctly and fairly in all necessary respects of the governing law.'" State v.
Day, 1999 ME 29, ¶ 8, 724 A.2d 1245, 1247 (citation omitted.) "A jury
instruction that 'creates the possibility of jury confusion and a verdict based
on impermissible criteria' is erroneous." Id. (citation omitted.) If it is highly
probable that the instruction did not affect the verdict, however, the error is
harmless. See id. (citation omitted.) 
	[¶4]  The statute provides in relevant part as follows:
1.  Prohibition. A person may not operate a vessel using drags,
otter trawls, pair trawls, beam trawls, scottish seines or
midwater trawls to fish for or take finfish, shellfish, sea urchins
or any other marine organisms within 300 feet of any suspended
culture floating cages, tray tracks or other floating equipment
authorized in a lease issued by the commissioner under section
6072, if the equipment is marked in accordance with subsection

1-A.  Markings.  The owner of a suspended culture floating cage,
tray rack or other floating equipment shall mark the area in
which a vessel is prohibited under subsection 1 with at least 4
anchors, each marked by a yellow buoy at least 2 feet in
12 M.R.S.A. § 6957 (Supp. 1999) (emphasis added). The court gave the
following jury instruction:
What the law is saying is it is unlawful to intentionally or
knowingly operate a dragger within 300 feet of a suspended
aquaculture cage if two things are present. First, that the
suspended cage has been authorized in the lease by the
commissioner of marine resources, and the owner of such
suspended cage has marked this 300-foot prohibited area, this
prohibited zone, by at least four anchors, each of which is
marked by a yellow buoy of at least 2 feet in diameter.  The
measurements need not be exact, to the exact inch, if the owner
has substantially complied with the dimensions required.  As you
can see here, the key to this is there is no violation if these
aquaculture cages are not marked by the owner according to law,
and that the aquaculture cages are authorized by a lease issued by
the commissioner of resources.  If those two things are present,
then it would be unlawful for an operator to operate or drag
within 300 feet of a suspended cage.

	All right.  Let's come full circle.  My comments are not
binding law.  That's to help you understand it.  Rather, this is the
law. [The court read verbatim 12 M.R.S.A. § 6957(1) & (1-A).]
(emphasis added.)
	[¶5]  The State acknowledges that it did not prove that the owner
marked the floating cage with buoys at least 2 feet in diameter. In fact, the
buoys varied between 16 inches and 20 inches. The State further concedes
that, if we look only at the plain meaning of the statute, it did not meet its
burden of showing that defendant violated the statute and thus the
conviction should be vacated.  The State, however, asks us to look beyond
the plain meaning arguing that the overriding controlling rule of statutory
construction is to ascertain the legislative intent. 
	[¶6]  "It is a well recognized principle of statutory construction that
penal statutes are to be construed strictly and that a criminal offense cannot
be created by inference or implication, nor can the effect of a penal statute
be extended beyond the plain meaning of the language used." Davis v. State,
306 A.2d 127, 129 (Me. 1973) (citations omitted).  Here, the statute could
not be  clearer.  A person is only guilty of the offense if the suspended
culture floating cage is properly marked.  Subsection 1-A unmistakably
requires the cage to be marked with yellow buoys at least two feet in
diameter.  The language is not susceptible to more than one meaning and
thus, although we acknowledge the importance of the aquaculture industry,
we are bound by the plain and unambiguous language of the statute. 
Therefore, we conclude that there was insufficient evidence to establish the
offense and the court erred in instructing the jury that substantial
compliance was sufficient.
	The entry is:
Judgment vacated.  Remanded for the
entry of a judgment in favor of defendant.

Attorneys for State: Michael E. Povich, District Attorney Paul F. Cavanaugh II, Asst. Dist. Atty. 88 South Street Calais, ME 04619 For defendant: Donald F. Brown, Esq. withdrew after filing appellant's brief. Defendant Ashby did not appear thereafter.