MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 ME 92 Docket: Ken

- 19

- 357 Argued : June	9 ,	2020 Decided: June	25,	2020 Panel: MEAD, GORMAN,	JABAR,	HUMPHREY,	HORTON, and	CONNORS,	JJ.

STATE	OF	MAINE

v. ANDREW	P.	BILODEAU
JABAR ,	J. [¶1] Andrew	 P.	 Bilodeau	 appeals	 from	 a	 judgment	 of	 conviction	 of manslaughter (Class	A),	17

- A	M.R.S.	§	203(1)	(2020), entered	by	the	trial	court (Kennebec	County, Murphy,	J .)	following	a	jury	trial.		Bilodeau	contends	that	the court	erred	in	denying	his	motions	 for	a	judgment	of	acquittal	and	 for	a	new trial. We	affirm	the	judgment.
I.		BACKGROUND [¶ 2 ] Viewing	 the	evidence	in	 the	light	most	 favorable	 to	 the	State,	 the jur y	could	have	found	the	following	facts	beyond	a	reasonable	doubt. See State v.	Nobles ,	2018	ME	26,	¶	2,	179	A.3d	910

. On	November	18,	2017,	Bilodeau	was fifty

- five	years	old	and	licensed	to	drive	in	the	State	of	Maine. Bilodeau	suffer s from	disabilities	 that	affect	his	 eyesight,	impairing	his	depth

- perception. He2 also suffer s from	cerebral	palsy,	which	impair s his	reaction	time,	especially	in his	lower	extremities. When	he	drove, Bilodeau used two	feet	to	operate	the pedals ,	 placing h is	 left	 foot on	 the	 brake	 pedal	 and wedging his	 right	 foot between	 the	 transmission	 tunnel	 and	 the	 gas	 pedal. He	 primarily	 relied	 on steering

— rather	 than	braking	 or	 accelerating

— to	 navigate around obstacles on	the	road. [¶ 3 ] On	the	evening	of	November	18,	2017,	at	approximately 6:00	p.m., Bilodeau	 drove	 his	 car	 up	 Northern	 Avenue	 in Augusta. Northern	 Avenue intersects	with	Kendall	Street	at	the	crest	of	a	hill,	and	Kendall	Street	is	crossed by	a	pedestrian	crosswalk	where	it meets	Northern	Avenue. As	Bilodeau	drove toward	 the	 intersection,	 the	 victim	 was	 crossing	 Kendall	 Street	 in	 the crosswalk

. It	 was	 dark	 out side

. The	 victim’s	 wife	 was	 walking	 several	 feet behind	her	husband

. [¶ 4 ] Bilodeau’s	car	struck	the	victim,	who	h it	the	windshield	of	the	car and	was propelled	up	and	over	 the	roof,	landing	in	 the	street	behind	 the	car. Bilodeau	continued	on	for	a	short	distance,	then	pulled	to	the	side	of	the	road. When	 Bilodeau	 struck	 the	 victim, Bilodeau’s car	 was	 almost	 entirel y	 in	 the oncoming	 lane	 of	 traffic	 and	 was	 traveling	 below	 the	 posted	 speed	 limit	 of3 twenty
- five	miles	per	hour. The	victim	was	in	the	crosswalk	when	he	was	hit. EMTs	transported	the	victim	to	the	hospital,	where	he	was	pronounced	dead

. [¶ 5 ] In	 the	 min utes	 following	 the	 incident,	 Bilodeau	 gave	 three statements	to	police.		In	each	conversation,	he	told	much	the	same	story : he	saw something	or	someone	in	the	crosswalk,	but	did	not	trust	his	legs	to	brake in time.		 Instead,	he	 turned	 the	wheel	and	continued	 forward,	believing	 that	he had	time and	room	to	maneuver around	the obstacle. [¶ 6 ] Bilodeau	 was	 indicted	 by	 a	 grand	 jury	 on	 March	 23,	 2018,	 and charged	with	one	count	of	manslaughter (Class	A), 17

- A	M .R.S.	§	203(1)(A) .		He pleaded	not	guilty. The	court	held	a	two

- day jury trial	on	December	12	and	13,
2018

. At	the	close	of	the	State’s	case

- in

- chief,	Bilodeau	moved	for	a	judgment of	acquittal,	M.R.U.	Crim.	P.	29 (a) ,	which	the	court	denied. On	December 13,	the jury	 found	Bilodeau	guilty. Bilodeau	subsequently renewed	his motion	 for a judgment	of	acquittal ,	M.R.U.	Crim.	P.	29( b ), and filed a	motion	for a new	trial , M.R.U.	Crim.	P.	33

. The	trial	court	held	a	consolidated	hearing	on	the	motions and	later entered	 an	 order	 denying	 both	motions

. The	 trial	 court	 entered	 a judgment	 of	 conviction	 and	 sentenced	 Bilodeau	 to	 ten	 years’	 imprisonment with	all	but	 one	 year	 suspended,	and	 four	 years’	probation. Bilodeau	 timely appealed	the	judgment	of	conviction. S ee M.R.	App.	P.	2B(b)( 2 ).4 II.		DISCUSSION [¶ 7 ] On	appeal	Bilodeau	raises	 two	issues.		First,	he	contends	 that	 the trial	 court	 erred	 by	 denying	 his	 motion	 for	 judgment	 of	 acquittal. M.R.U.
Crim. P. 29(a)

- (b)

. Second,	he	contends	that	the	trial	court erred	in	denying	his motion	for	a	new	trial	based	on	allegedly improper	arguments	proffered	by	the State	during	its	closing	argument. For	the	reasons	discussed	below,	we	affirm the	judgment.
A. Sufficiency	of	the	Evidence [¶ 8 ] Bilodeau	contends	that	the trial	court	erred	by	denying	the	motion for	a	judgment	of	acquittal	that	he	lodged	at	the	close	of	the	State’s	case

- in

- chief, and	 by	 denying	 the	 motion	 when	 he	 renewed	 it	 post

- trial.	 	 Contrary	 to Bilodeau’s	contentions,	a	jury	could	rationally	have	found each	element	of	the charged	crime	beyond	a	reasonable	doubt based on	the	evidence	presented	by the	State	at	trial,	and	therefore	the	trial	court	did	not	err	in	denying	the	motion.
See State	v.	Williams ,	2020	ME	17,	¶	19,	225	A.3d	75 1

. [¶ 9 ] “ A	person	is guilty	of	manslaughter	if	that	person	.	.	.	[r]ecklessly,	or with	 criminal	 negligence,	 causes	 the	 death	 of	 another	 human	 being.”
17

- A M.R.S.	§	203(1) (A) .		“A	person	acts	recklessly	with	respect	to	a	result	of the	person ’ s	conduct	when	 the	person	conscious ly	disregards	a	 risk	 that	 the5
person ’ s	conduct	will	cause	such	a	result.” 17

- A	M.R.S.	§	35(3)(A)	(2020 ).		“A person	acts	with	criminal	negligence	with	 respect	 to	a	 result	 of	 the	person’s conduct	when	the	person	fails	to	be	aware	of	a	risk	that	the	person’ s	conduct will	cause	such	a	result.”		17

- A	M.R.S.	§	35(4)(A)	(2020).		The	person’s	failure to	be	aware	of	the	risk	or conscious disregard	of	the	risk,	“when	viewed	in	light of	 the	 nature	 and	 purpose	 of	 the	 person ’ s	 conduct	 and	 the	 circumstances known	 to	 th e	 person,	 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(3)(C),	(4)(C)	(2020). [¶1 0 ] “On	 appeal, we	 review the	 denial	 of	 a	 motion	 for	 judgment	 of

ac quittal	 by	 viewing	 the	 evidence	 in	 the	light	most	 favorable	 to	 the	 State	 to determine	whether	a	jury	could	rationally	have	found	each	element	of	the	crime proven	beyond	a	reasonable	doubt. ” Williams ,	2020	ME	17,	¶	19,	225	A.3d	751 (quotation	marks	omitted ) (alteration	omitted) ; see	also	State	v.	Lowden ,	2014 ME	29,	¶ 13,	87	A.3d	694 (“We	review	the	denial	of	a	motion	for	a	judgment	of acquittal	 under	 the	 same	 standard	 as	 a	 challenge	 to	 the	 sufficiency	 of	 the evidence	.	.	.	.”).		“The	jury	may	draw	all	reasonable	inferences	from	the	evidence presented	at	trial.” Williams ,	2020	ME	17, ¶	19,	225	A.3d	751.6 [¶ 1 1] The	 facts	 of	 the	case	were largely	undisputed	at	 trial.		 Bilodeau admitted	that	he	was	driving	the	car	that	struck the	victim ,	and	it	is	undisputed that	 the	 crash	 killed the	 victim

. However,	 Bilodeau	 contends	 that	 the	 State f

ailed	 to	present	 sufficient	 evidence	upon	which	 a	jury could rationally have f

ound beyond	 a	 reasonable	 doubt that	 he acted	 recklessly	 or	 with	 criminal negligence ,	 and	 therefore	 the trial court	 erred	 in	 denying	 his	 motion	 for acquittal

. See 17

- A	M.R.S

. § 203(1)(A). [¶1 2 ] Contrary	 to	 Bilodeau’s	 contentions,	 viewing	 the	 evidence	in	 the light	most	favorable	to	the	State,	a	jury	could rationally have	found beyond	a reasonable	 doubt that	Bilodeau	acted	 recklessly	 or	with	criminal	negligence

. Bilodeau	 told	 l aw	 enforcement	 immediately	 after	 the	 accident	 that	 he	 saw someone	or	something	in	the	crosswalk	as	he	approached

. He	confirmed	this fact	in	his	own	trial testimony

. Bilodeau	did	not	attempt	to	brake. Instead,	he piloted	his	car	into	the	oncoming	lane and through	the	crosswalk	in an	attempt to	 bypass the	 victim

. Testimony	 by	 an	 accident	 reconstructionist	 with	 the Maine	 State	 Police	 suggested	 that	 Bilodeau	 did	 not	 swerve	 in	 a	 last

- ditch attempt	to	avoid the	victim ,	but	rather	moved	gradually	into	the	o ncoming lane. Bilodeau’s	car	entered	the	crosswalk	straight

- on,	perpendicular	to	the	path	of7 the crosswalk. The jury	could	reasonably	infer	that	braking	was	an	alternative and	appropriate	reaction,	given	Bilodeau’s	speed. [¶1 3 ] These	facts	could	reason ably	support	a	conclusion	that	Bilodeau made	a	deliberate	choice	to	try	to avoid the	victim by	driving	around	him,	even after	he	saw the	victim in	the crosswalk. They	do	not	suggest	a	panicked	swerve made	without	time	to	stop	the	car. On	this	record ,	a	j ury	could rationally have found beyond	a	reasonable	doubt that Bilodeau either	failed	to	be	aware	of	the risk	 to the	 victim or consciously disregarded	 that	 risk,	 and	 that Bilodeau’s failure	 or	 disregard	 grossly	 deviated	 from	 the	 standard	 of	 conduct of	 a reasonable	and	prudent	person

. See State	v.	Carisio, 552	A.2d	23,	24,	27	(Me. 1988) (affirming	 conviction	 for	 manslaughter	 where	 defendant	 driver purposely	 ran	 a	 stop	 sign,	believing	 she	had	 sufficient	 time	 to	avoid	 victim’s vehicle); State	 v.	 Gammo n ,	 529	 A.2d	 813 , 815

- 16 (Me.	 1987) (affirming conviction	for	manslaughter	where defendant driver	saw	victim’s	car	stopped in	 roadway	 500	 feet	 ahead	 but	 failed	 to	 slow	 below	 the	 speed	 limit	 before colliding) ; State	v.	Hanks ,	397	A.2d	998 ,	1000	(Me. 1979)	(affirming	conviction for	 vehicular	manslaughter	where	defendant’s	car	had	mismatched	and	bald tires,	causing it to	leave	lane	of	 travel	and	strike	oncoming	car), overruled	on other	grounds by State	v.	Brewer ,	505	A.2d	774,	777	(Me.	1985)

. The	trial court8 did	not	err	in	denying	Bilodeau’s	motion	for	judgment	of	acquittal at	the	close of	the S tate’s	case	and	again when	he	renewed	the	motion	post

- trial.
B. Motion	for	New	Trial [¶1 4 ] Bilodeau also contends	that	the	trial	court	abused	its	discretion	in denying	his	motion	for	a	new	trial,	arguing	that	statements	made	by	the	State during	 its	 closing	 argument	 regarding	 Bilodeau’s	 disabilities	 were	 improper and	 violated	 his	 Constitutional	 and	 statutory protections. Contrary	 to Bilodeau’s	arguments,	the c ourt	did	not	err	in	concluding	that	he	had	failed	to demonstrate	that	the	State’s	comments	were	improper. 1 [¶1 5 ] “ We	review the	trial	cour t’s decision	on	a	motion	for	a	new	trial	for an	abuse	of	discretion	and	any	findings	underlying	its	decision	for	clear	error.” State	v.	Daluz ,	2016	ME	102,	¶	44,	143	A.3d	800 .		However,	where	the	defendant argues	 that	 the	State	made improper	comments	during its	closing	argument, and	 the	 defendant	 did	 not	 object	 to	 those	 statements	 at	 trial, we review	 for obvious	error. State	v.	Robinson ,	2016	ME	24,	¶	25,	134	A.3d	828 ; see	also State v.	 Fahnley ,	 2015	 ME	 82,	 ¶	 35,	 119	 A.3d	 727 (articulating	 the	 obvious	 error

1 Bilodeau	raised	the	alleged	impropriety	of	the	State’s	comments	in	his	amended	motion	for	a new	trial. However,	in	the	trial	court’s	order,	which	addressed	both	Bilodeau’s	motion	for	a	new	trial and	renewed	motion	for	judgment	of	acquittal,	the	trial	court	considered	the	alleged	prosecutorial misconduct	in	the	context	of	its	sufficiency	analysis. Bilodeau ’s	motions	to	the	trial	court	and	his arguments	on	appeal	make	clear	that	he	was	and	is	actually	seeking	a	new	trial

— not	a	judgment	of acquittal

— based	on	the	alleged	prosecutorial	misconduct.9 standard	in	the	context	of	a	claim	of	prosecutorial	misconduct ). Obvious	error is	 that	 which	 is	 plain	 and	 likely	 to	 have	 affected	 the	 defendant’s	 substantial rights,	while	also	likely	affecting	the	outcome	of	the	trial: If	a	defendant	demonstrates	on	app eal	that	there	was	prosecutorial misconduct	that	went	unaddressed	by	the	court, we will	consider whether	 the	 error	is	plain

— that	is,	whether	 the	error	is	 so	clear under	existing	law	that	the	court	and	the	prosecutor	were	required to	address	the	matter	even in	the	absence	of	a	timely	objection.	If there	 is	 error	 that	 is	 plain, we will	 then	 consider	 whether	 the defendant	 has	 demonstrated	 a	 reasonable	 probability	 that	 the error	 affected	 her	 substantial	 rights,	meaning	 that	 the	 error	was sufficiently	 prejudicia l	 to	 have	 affected	 the	 outcome	 of	 the proceeding. When	 a	 prosecutor ’s statement	 is	 not	 sufficient	 to draw	an	objection,	particularly	when	viewed	in	the	overall	context of	 the	 trial,	 that	 statement	will	rarely	be	 found	 to	have	created	a reasonable	 probabili ty	 that	 it	 affected	 the	 outcome	 of	 the proceeding. Fahnley ,	2015	ME	82,	¶	35,	119	A.3d	727	(quotation	marks	omitted)	(citations omitted). [¶1 6 ] In	his	amended	motion	 for	a	new	 trial,	Bilodeau	argued	 that	 the State	 improperly stated in	 its	 closing	 that Bilodeau	 “should	 not	 have	 been driving because	 of	his	physical	disability.”		He	 further	contended	 that	 “[i]t	is inappropriate	to	argue	that	a	disabled	person	should	not	be	driving	after	the10 government	approves	it	[by	granting	the	person	a	license].” 2 Bilodeau	did	not cite	any	law	 to	support	 these	claims. He	renew s these	arguments	on	appeal, again failing	to cit e any law	in	support	of	his	contentions

. [¶1 7 ] Contrary	to	Bilodeau’s	arguments,	neither	the	fact	that the	State	of Maine	issued	him a	driv er’s	license	nor	the	fact	that	he	was	disabled	serves	as a	defense	to	criminal	liability.		The	Maine	Criminal	Code	does	not	provide	any statutory	defense	to	manslaughter	related	to	a	defendant’s	physical	disability or	 preclude	 the State	 from	 presenting	 evi dence	 of	 that	 disability. See
17

- A M.R.S.	§§ 101

- 110 , 203 (2020).		Nor	does	the	Maine	Human	Rights	Act	or Maine	Civil	Rights	Act	limit	the	State’s	ability	to	present	relevant	evidence	of	a defendant’s	 disability	 in	 a	 criminal	 prosecution. See 5 M.R.S.	 §§ 4551

- 4634,
4681

- 4685	 (2020 ).	 	 Regulations	 promulgated	 by	 the	 Department	 of	 the Secretary	 of	 State	 set	 forth	 detailed	 processes	 by	 which	 the	 Department evaluates	 physical	 disabilities	 in	 the	 context	 of	 licensing	 drivers,	 but do not provide	 that	 a	 driver’s licensure	 constitutes	 a	 defense	 against	 reckless	 or criminally	 negligent	 operation. See 29

- 250	 C.M.R.	 ch.	 3	 ( effective Dec.	 31,
2016 ).

2 Bilodeau	 also	 moved	 for	 a	 new	 trial	 based	 on	 testimony	 from a	 State’s	 witness	 describing Bilodeau	as	exhibiting	“no	remorse”	following	the	crash

. The	trial	court	denied	the	motion	as	to	this ground,	and	Bilodeau does	not	renew	the	argument	on	appeal

.11 [¶1 8 ] Bilodeau	has	not	demonstrated	that	the	court	erred	in	permitting the	State	to	refer	to	Bilodeau’s	disabilitie s	in	its	closing	argument. See Fahnley , 2015	 ME	 82,	 ¶	 35,	 119	 A.3d	 727 .	 	 He	 has	 not	 identified	 any	 constitutional provisions,	 statutes,	 regulations,	 or	 case	 law	 to	 sugg est	 that	 the	 State’s arguments	 were	 improper. It	 was	 through	 Bilodeau’s	 own	 direct	 tes timony that	e vidence	of his disability	was	presented	to	the	jur y . The State’s	reference to	that	evidence in	its	closing	argument was	clearly	relevant	to	an	element	of the	charged	crime	and	failed	to	generate	any	objection	from Bilodeau. In	sum, Bilodeau	cannot	show	that	the	trial	court’s	decision	to	allow	the	State	to	refer to	his	disability	in	its	closing argument constituted error,	much	less obvious

error. Id.
III.		CONCLUSION [¶1 9 ] The	State	presented	evidence	upon	which	a	jury	could rationally have found	all	elements	of	the	charged	crime	beyond	a	reasonable	doubt,	and the	trial	court	did	not obviously	err in	allowing	the	State	to	refer	to	Bilodeau’s disabilit ies in	its	closing	argument. The	entry	is: Judgment	affirmed.12 Kevin P.	 Sullivan,	 Esq. (orally) ,	 Sullivan	 Law,	 P.C.,	 Gardiner,	 for	 appellant Andrew	P.	Bilodeau Maeghan	 Maloney,	 District	 Attorney,	 and	 Frayla	 Tarpinian, Dep .	 Dist.,	 Atty. (orally) ,	Prosecutorial	District	IV,	Augusta,	for	appellee	State	of	Maine

Kennebec	C ounty	Unified	Criminal	Docket	docket	number	CR

- 2018

- 508 F OR C LERK R EFERENCE O NLY