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State v. Joshua Black

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 211
Docket:	Ken-00-271
on Briefs:	November 21, 2000
Decided:	December 12, 2000




	[¶1]  The State of Maine appeals from the judgment of the Superior
Court (Kennebec County, Atwood, J.) vacating the judgment of the District
Court (Augusta, Vafiades, J.) which found Joshua Black guilty of the crime of
cruelty to animals.{1}  The State contends that the Superior Court erred in
concluding that there was insufficient evidence for the District Court to find
Joshua Black guilty beyond a reasonable doubt.  We vacate the judgment of
the Superior Court.
	[¶2]  Viewing the evidence in a light most favorable to the State, the
District Court could reasonably have found the following facts.  Joshua Black
lives on Summer Haven Road in Manchester, Maine, with his parents, John
and Jean Black, and his brother, Jason Black.  Wendy Johnson is a neighbor
who also lives on Summer Haven Road.  In 1997, Johnson owned two
rabbits, Maggie and Scooter.  Johnson kept the rabbits in hutches that were
located some distance behind her house, near a stand of pine trees.  The
Black property extends behind the Johnson property and an adjacent
property owned by the Demos family.  
	[¶3]  In the late morning of December 9, 1997, Victoria Demos saw a
man wearing a brown Carhart jacket and a hat, carrying a gun, and walking
towards the Blacks' property.{2}  Demos did not see anyone else in the
neighborhood that day.  She did, however, hear gunshots sporadically
throughout the day.  She also observed that her dog would look to the right,
towards the Blacks' property, when there was a gunshot.  
	[¶4]  At about 3:30 p.m. that afternoon, Johnson returned home from
work, and while she was walking down her driveway, she heard a gunshot. 
She looked up and saw a person she identified as Joshua Black, standing on
the Blacks' property about 250 to 300 feet away, leaning over and looking at
something on the ground by his feet.  He had close-cut black hair, and was
wearing navy blue clothing{3} and a knit hat.  She called to him, "Hey, you're
shooting that gun kind of close to the houses, aren't ya?"  Without receiving
a response, Johnson went into her home. 
	[¶5]  After three to five minutes inside her home, Johnson returned
outside onto her deck.  While on the deck, she heard three gunshots that
seemed to originate from the Blacks' property where a tree stand was
located.  After hearing the three additional shots, Johnson stayed in the
house for about twenty minutes.  She then walked to the rabbit hutches to
give them their "night treats," and found that both rabbits were missing. 
The doors to the hutches were shut and latched. 
	[¶6]  After she looked around and found no sign of the rabbits,
Johnson went back to her home and called the Black residence, and Joshua
Black answered the phone.  Black told Johnson that he had been home
throughout the day.  Johnson asked Black if he had seen anybody walking
around her yard, and he answered in the negative.  Johnson remarked to
Black that her rabbits were gone, but she did not question him further. 
Johnson then reported to the Kennebec County Sheriff's Department that
her rabbits were missing.
	[¶7]  Johnson was too ill to search for the rabbits on the following day
but two days later resumed the search.  She discovered footprints between
the rabbit hutches and where she had seen Black standing two days earlier. 
Johnson also noticed a soiled spot in the exact location where Black had
been standing.  Maggie would have left such a mark in the snow because the
bottom of her stomach was soiled from inside of the hutch.  Eventually, after
following a trail of blood and urine that originated from the spot where
Johnson saw Black standing on December 9, she found Maggie up against a
tree on the Blacks' property with a bullet hole in the rabbit's back. 
	[¶8]  When Trooper Mills examined the site on December 11, he
found footprints leading off in several directions from the spot in the snow
left by Maggie.  According to Mills, the footprints led over the Demos
property towards the Johnson property and the Black property.  Two days
later, the body of Scooter was found on the Blacks' property near the tree
stand.  Scooter had been shot, and both of his eyes had been punctured and
were missing.  Johnson believed that Scooter was found in just about the
same spot from where she had heard gunshots on the afternoon of
December 9.  Autopsies of the two rabbits revealed that they had died from
gunshot wounds.
	[¶9]  On December 14, Mills observed Black sitting in a vehicle parked
at J&S Oil Company in Manchester, Maine.  According to Mills, Black was
wearing a brown "Carhart-style jacket" and had short hair.  The home of the
Black residence was searched, pursuant to a search warrant, and several
twenty-two caliber weapons, as well as twenty-two caliber ammunition, were
seized and turned over to the Maine State Police crime lab for forensic and
ballistic examination.  Black's rifle positively matched three out of the four
shell casings found near Scooter's body. 
	[¶10]  When Mills interviewed Black, Black admitted that he had been
home throughout the majority of the day on December 9, but denied any
involvement with the rabbits.  Black said that he often used the twenty-two
caliber rifle for hunting and target practice.{4}  He also said that the gun was
not accessible to him on December 9 because it was locked in a gun vault,
and he did not have the key.
	[¶11]  On May 20, 1998, Black was arraigned in the Augusta District
Court on charges of cruelty to animals, 17 M.R.S.A. § 1031(1)(A) (1997),{5}
and discharging a firearm near a dwelling.  After consolidation of the
charges, the case proceeded to trial in Augusta District Court on January 8,
1999.  Black was convicted on both counts.  By Notice of Appeal dated
January 22, 1999, Black appealed the judgments of conviction to the
Superior Court.  The Superior Court held that there was insufficient
evidence to sustain a conviction on both charges.  Accordingly, the Superior
Court vacated the judgments of conviction and remanded to the District
Court for entry of judgments of acquittal.
	[¶12]  Pursuant to 15 M.R.S.A. § 2115-A (1980 & Supp. 2000) and
M.R. Crim. P. 37B, the District Attorney sought and received the approval of
the Attorney General to appeal the judgment of the Superior Court insofar as
it vacated Black's conviction for cruelty to animals.{6}  The State filed a timely
notice of appeal from the judgment of the Superior Court with respect to
the charge of cruelty to animals.
	[¶13]  When the Superior Court acts as an intermediate appellate
court, we review the decision of the trial court directly.  State v. Wilder,
2000 ME 32, ¶ 19, 748 A.2d 444, 449.  Accordingly, we attach no
presumptive validity to the Superior Court's judgment.  State v. Michael Z.,
427 A.2d 476, 477 (Me. 1981).  The "'reasonable doubt which will prevent
conviction'" must be the trial court's doubt "'and not that of an appellate
court.'"  State v. Ardolino, 1997 ME 141, ¶ 20, 697 A.2d 73, 80 (quoting
State v. Bonney, 351 A.2d 107, 110 (Me. 1976)).  
	[¶14]  In examining the sufficiency of the evidence, we view the
evidence in the light most favorable to the State to determine whether the
trier of fact rationally could have found beyond a reasonable doubt every
element of the offense charged.  State v. Emerson, 675 A.2d 978, 979 (Me.
1996).  We will overturn the District Court's judgment only if "no trier of
fact rationally could have found the essential elements of the charged offense
beyond a reasonable doubt."  State v. Tai, 629 A.2d 594, 595 (Me. 1993)
(citing State v. Reynolds, 604 A.2d 911, 913 (Me. 1992)).  "It is not
necessary for the finder of fact to be able to 'eliminate any possible
alternative explanation of the evidence; the question is whether such
alternative is sufficiently credible in light of the entire record that it
necessarily raises a reasonable doubt.'"  State v. Poulin, 1997 ME 160, ¶ 15,
697 A.2d 1276, 1280 (quoting State v. Bowman, 611 A.2d 560, 562 (Me.
	[¶15]  Pursuant to 17 M.R.S.A. § 1031(1)(A), the State was required to
prove beyond a reasonable doubt (1) that Black acted with a culpable state of
mind,{7} (2) that Black killed or attempted to kill Maggie and Scooter, and (3)
that he did so without the consent of Johnson and without legal privilege. 
17 M.R.S.A. § 1031(1)(A).{8}  
	[¶16]  There is no dispute that the State presented ample evidence
that the rabbits had been killed and that, from the manner of their deaths,
the court could infer that the killer acted with the requisite mens rea.  Nor
is there any question that Johnson did not give her consent to the killings,
and that Joshua Black was not privileged to kill the rabbits.  The only issue
challenged on appeal is whether there was sufficient evidence presented to
prove that Black was, in fact, the person who killed the rabbits.  Thus, we
examine the entire record to determine whether the State presented
sufficient evidence for the court to have concluded beyond a reasonable
doubt that Black killed the rabbits.
	[¶17]  In denying that there is sufficient evidence to sustain the
District Court's conviction, Black urges us, in effect, to redetermine the
facts and conclude that the State's evidence was less credible than the
evidence presented by the defense.  In essence, Black is requesting that we
assume the role of factfinder, reassess the credibility of the witnesses, and
resolve conflicting testimony.  Contrary to Black's assertions, however, the
trial court was entitled to conclude that the Black family's version of the
events was not credible in light of the evidence before it.{9}  See State v.
Deering, 1998 ME 23, ¶ 15, 706 A.2d 582, 586 ("The trier of fact is free to
weigh the credibility of witnesses, and may disregard a witness's testimony
entirely if it finds that witness to be incredible.") (citation omitted).  It is
the District Court's duty to reconcile conflicting testimony, determine its
relative weight, and decide which part of the testimony was credible and
worthy of belief.  Ardolino, 1997 ME 141, ¶ 20, 697 A.2d at 80; see also
State v. Glover, 594 A.2d 1086, 1088 (Me. 1991) (noting that the weight of
the evidence and determination of witness credibility are the trier of fact's
exclusive province).  "[A]n appellate court reviewing the sufficiency of the
evidence must resolve all credibility determinations in favor of the verdict." 
United States v. Andujar, 49 F.3d 16, 21 (1st Cir. 1995).  
	[¶18]  Thus, we assume that the District Court declined to credit the
testimony of Black's statements{10} and his family's testimony and believed
the testimony presented by the State's witnesses.  Viewed in this light, the
evidence is sufficient to support the District Court's conclusion that Black is
guilty beyond a reasonable doubt.  That evidence included the following:  (1)
Demos saw a man wearing a brown Carhart jacket and a hat, carrying a gun
and entering the Blacks' property in the late morning of December 9, 1997;
(2) Trooper Mills saw Black wearing a brown Carhart jacket several days
after the incident; (3) Black's admissions to Mills and Johnson regarding his
whereabouts on that day placed him in the vicinity of the rabbits; (4) Black
told Johnson that he did not see anyone around the neighborhood on that
day, and Demos testified that she did not see anyone else that day besides
the man who was wearing a brown coat and carrying a gun; (5) Demos's dog
would look towards the Blacks' property when gunshots were fired; (6)
Johnson saw Black standing on his property and looking down at something
immediately after she heard a gunshot at about 3:30 p.m. on December 9;
(7) Johnson observed human footprints that led from the rabbit hutches to
the place on the Blacks' property where she had seen Joshua Black
standing; (8) a soiled spot where Maggie had rested was found in the exact
location where Johnson saw Black standing; (9) there was a trail of blood
and urine originating from that exact spot and leading to where Maggie was
found dead; (10) Scooter was found in the area where Johnson had heard
three gunshots; (11) both rabbits were found dead on the Blacks' property;
(12) both rabbits were killed by gunshot wounds; and (13) the shell casings
found near Scooter's body matched Black's gun.
	[¶19]  In addition to the direct evidence presented, the trial court was
entitled "to consider circumstantial evidence and to draw all reasonable
inferences from the circumstantial evidence."  Emerson, 675 A.2d at 979
(citations omitted).  A conviction grounded on circumstantial evidence is not
for that reason less conclusive.  Ardolino, 1997 ME 141, ¶ 20, 697 A.2d at
80.  Thus, the District Court "properly could have found that the
circumstances, viewed in relation to each other and together with the
rational inferences that could be drawn from them, satisfied the State's
burden of proof that every element of the charged offense had been proven
beyond a reasonable doubt."  Id. ¶ 21, 697 A.2d at 80.  
	[¶20]  There was sufficient evidence for the District Court to find
beyond a reasonable doubt that it was Joshua Black who killed Maggie and
Scooter.  See Deering, 1998 ME 23, ¶ 13, 706 A.2d at 585. 
	The entry is:
Judgment of the Superior Court vacated. 
Remanded to the District Court for entry of
judgment of conviction on the charge of
cruelty to animals.

Attorneys for State: David W. Crook, District Attorney Brad C. Grant, Asst. Dist Atty. Paul Rucha, Asst. Dist Atty. 95 State Street Augusta, ME 04112 Attorney for defendant: Peter B. Bickerman, Esq. Verrill & Dana, LLP 45 Memorial Circle Augusta, ME 04332-5307
FOOTNOTES******************************** {1} . Black was sentenced to thirty days jail, with all but three days suspended, with one year probation and a mandatory psychological evaluation. The court ordered Black to pay restitution to Johnson in the amount of $344, and he was prohibited from using or possessing firearms for one year. The court also ordered that Black have no contact with Wendy Johnson or Pam Isham. The execution of the sentence was stayed pending an appeal. {2} . Demos was not sure whether it was Black, did not see him fire his gun, and did not hear gunfire while she observed him. {3} . Black and his family denied that he owned a blue coat. In defendant's Exhibit 4, however, Black is wearing a navy blue jacket under his orange hunting coat. Furthermore, Jason Black owns a navy blue jacket. Viewed in the light most favorable to the State, a trier of fact could rationally conclude that Black either owned a navy blue coat or that he was wearing his brother's navy blue coat on December 9, 1997. {4} . Joshua Black frequently engaged in target practice in the back portion of the Black property, near the tree stand. {5} . Black was convicted under 17 M.R.S.A. § 1031(1)(A) (1997) (codified as amended at 17 M.R.S.A. § 1031(1)(A) (Supp. 2000)). 17 M.R.S.A. § 1031(1)(A) (1997) provides: 1. Cruelty to animals. Except as provided in subsection 1-A, a person, including an owner or the owner's agent, is guilty of cruelty to animals if that person: A. Kills or attempts to kill any animal belonging to another person without the consent of the owner or without legal privilege[.] 17 M.R.S.A. § 1031(1)(A). {6} . The Attorney General expressly did not authorize an appeal from that portion of the Superior Court's judgment which vacated Black's conviction for discharge of a firearm near a dwelling. {7} . Although 17 M.R.S.A. § 1031(1)(A), as it existed in 1997, did not expressly provide for the requisite state of mind, a "culpable" state of mind was nevertheless required pursuant to 17-A M.R.S.A. § 34(5) (1997). See 17-A M.R.S.A. § 6 (1997). "A person acts culpably when he acts with the intention, knowledge, recklessness or criminal negligence as is required." 17-A M.R.S.A. § 35 (1997). {8} . Black did not assert any affirmative defenses. See 17 M.R.S.A. § 1031(2) (1997). {9} . The District Court judge could have found the testimony of the Black family to be incredible based on her firsthand observations of the family's demeanor and effect, and was under no obligation to accept their following testimony: (1) Black was not home in the morning and early afternoon of December 9, 1997; (2) Black did not have access to his rifle on that day; (3) Black had long hair, not short hair, on December 9, 1997; and (4) Black did not own a blue coat nor did he ever wear his brother's blue coat. See State v. Deering, 1998 ME 23, ¶ 15, 706 A.2d 582, 586. {10} . Joshua Black did not testify at the trial. References to his statements are to the interview conducted by Trooper Mills and his conversation with Johnson.