MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 59 Docket: Pen

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- 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 j udgment	 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 ’s2 afternoon	feeding,	the	mother gave	the ir 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. T he 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.3 [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	forc e,	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	 traumat ic	 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	 t he	 statutory definition	of	criminal	negligence. 3 In	support	of	his	argument,	he points	to	the

2 Brown	 also filed	 an	 a pplication	 to	 allow	 an appeal of his	 sentence,	 but	 his application was denied	by	the	Sentence	Review	Panel. See State	v.	Brown , No. SRP

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- 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)

—4 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 challenge s 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. S e e 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 .		A t 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	a dmitted by	the	State at	trial could raise an5 § 203(1)(A) ; see	also 17

- A	M.R.S.	§ 34 (2016) .		A	def endant	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

un supported	 by record evidence or	 violative	 of	 due	 process rights merely because the	State did not	pr esent direct	evidence	as	 to the	defendant ’s exact
actions in committing	the	crime , nor	is	manslaughter	uniquely situated	among
crimes i n	 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 cour t

— 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	exis tenc e	beyond	a	reasonable doubt ”).6 evidence	alone	is	sufficient	to	support	a	conviction	as	long	as	the	evidence	as	a whole	supports	each	element	of	the	crime.”)

. [¶1 0 ] 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	 he ad	 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	the7 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

exact ly	how	the	defendant	inflicted	the	injuries). [¶1 1 ] 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	 Ex aminer	 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

— t he infant had	 s ubdural,	 subarachnoid,	 optic	 nerve	 sheath,	 and	 retinal hemorrhages. The	pathologists	opined	that	the	hemorrhages	were	caused	by

acut e	injuries	to	the	infant’s	head and	that	he	had	died	withi n	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

tr aumatic	brain	injury

— the	result	of	a	rotational	or	acceleration

- deceleration8 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. [¶1 2 ] Brown’s	 expert	 in	 pathology	 disagreed	 with	 the	 opinio ns presented	by	the	State’s	experts. He	opined	that	the infant died	as	a	result	of choking	or	aspirating	on	formula. [¶1 3 ] 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 hand ed him	to	another	person

. [¶1 4 ] Additionally,	given	 that	Brown’s evolving	explanations	as	 to	 the events	 leading to	 the infant ’s	 death	 were inconsi stent	 with	 the	 medical evidence and	 that	 there	 was	 nothing	 to	 suggest	 any	 alternative	 suspect,	 the9 evidence	 established	 Brown	 as	 “the	 agent	 of	 the	 fatal	 injury.” Chapman , 49 6 A.2d	at	305

. [¶1 5 ]	 	 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 defi nition	 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	pruden t	person would	 observe	 in	 the	 same	 situation.” 17

- A	 M.R.S.	 §	 35(4)(C) ; c f. Allen , 2006 ME	20 ,	¶¶	25

- 27,	892 A.2d	447

. [¶1 6 ] Although	Brown contends that	the	State	was	required	to	present evidence	 of	 how	 a	 reasonable	 and	 prudent person	 would	 have	 acted	 in handl ing	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. See10 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	abo ut	how	‘reasonable	and	prudent’	people	should	act in	a	particular	situation

. ”). As	w e	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 dev iation	 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,	10 20 (Me.	 1983) ( noting that	 “ extremely	 vigorous	 shaking	 of	 a	 baby	 can,	 alone, constitute	 depraved	 indifference ”	 and	 rejectin g	 the	 defendant’s	 argument

“ that	many	persons	are	not	aware	that	vigorous	sha king	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)). [¶1 7 ] Finally,	we note	that , to	the	extent	that	there	was	any	confusion about the	trial	court’s	findings, Brown failed	to reque st	further findings	of	fact
pu rsuant	to	M.R.U.	Crim.	P.	23(c). We	therefore infer	that	the	trial	court	found11 all	 the	 facts	 necessary	 to	 suppo rt	 its	 judgment given	 that those	 inferred findings	are	support ed by	evidence	in	the	record. See State	v.	Dodd ,	503	A.2d 1302, 1307	(Me.	1986)

. [¶1 8 ] 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 F OR C LERK ’ S R EFERENCE O NLY