MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2022 ME	27

Docket: And-21-216

Argued: April	6,	2022

Decided: May	17,	2022

Panel: MEAD,	JABAR,	HUMPHREY,	HORTON,	and	CONNORS,	JJ.

STATE	OF	MAINE

v.

CLIFTON	THOMAS

JABAR,	J.

[¶1]	 Clifton	 Thomas	 appeals	 from	 a	 judgment	 of	 conviction	 of six	

offenses,1 entered	by	the	trial	court	(Androscoggin	County,	McKeon,	J.)	after	a	

three-day	jury	trial.		Thomas	challenges	the	denial	of	his request	for	sanctions	

for	 the	 State’s alleged	 discovery	 violations	 and	 the	 denial	 of	 his	 motion	 to	

dismiss	because	of	the	makeup	of	the	jury	venire.	 Thomas	also	contends	that

the	trial	court	committed	an	obvious	error by	admitting	testimony	of	a	police	

officer	 that	 contained hearsay; that	 the trial	 court	 abused	 its	 discretion	 by	

1 The	offenses	for	which	Thomas	was	charged	were domestic	violence	criminal	threatening	with	

a	dangerous	weapon	(Class	C),	17-A	M.R.S.	§	209-A(1)(A) (2022) (Count	1);	reckless	conduct	with	a	

firearm	 (Class	C),	17-A M.R.S.	 §	211(1) (2022) (Count	2);	domestic	 violence	 terrorizing	 (Class	D),	

17-A	M.R.S.	§ 210-B(1)(A)	 (2022) (Count	3);	 threatening	display	of	a	weapon	 (Class	D),	25	M.R.S.	

§ 2001-A(1)(A)	 (2022) (Count	 4);	 domestic	 violence	 assault	 (Class	D),	17-A	M.R.S.	 §	 207-A(1)(A)	

(2022) (Count	5);	domestic	violence	assault	(Class	D),	17-A	M.R.S.	§	207-A(1)(A)	(2022) (Count	6);	

possession	of	a	firearm	by	a	prohibited	person	(Class	C),	15	M.R.S.	§	393(1)(A-1)(3)	(2022)(Count 7).		

The	jury	found	Thomas	not	guilty	on	Count	5.
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failing	to	admit	a	letter that	Thomas	claimed was	written	on	behalf of	the	victim	

because	it	could	not	be	authenticated; and	that	there	was	insufficient	evidence	

for	the	jury	to	convict	him.	 We	affirm.

I.	 BACKGROUND

A. Facts

[¶2]	 	 “Viewing	 the	 evidence	 in	 the	 light	 most	 favorable	 to	 the	 jury’s	

verdict,	the trial record	supports	the	following	facts.”	 See	State	v.	Murray,	2021	

ME	47,	¶	2,	259	A.3d	1276.		On	February	7,	2020,	Thomas	beat	the	victim—a	

former	romantic	partner	and	the	mother	of	Thomas’s	child—causing	swelling	

and	bruising	to	her	face.		At	the	time,	the	victim did	not	report	this	incident	to	

the	police.		

[¶3]		On	February	26,	2020,	Thomas	entered	the	victim’s home	and	began	

yelling	at	her.		He	drew	a	firearm,	loaded	it,	and	pointed	it	at	her	while	she	had	

a	child	on	her	lap.		He	took	the	victim’s cell	phone	from	her and	stated that	he	

would give	it	back	if	she would let	him	shoot	her	in	the	leg.		After	hearing	a	noise	

outside,	Thomas	left	with	the	victim’s	cell	phone.		Once	Thomas	departed, the	

victim left	 the	 apartment,	 brought	 her	 children	 to	 safety,	 and	 reported	 this	

incident, as	well	as	the	incident on	February	7, to	the	police.		
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[¶4]	 	On	 February	 27,	 2020,	 the	 police	learned	 that	 Thomas	might	 be	

staying	at	an	apartment	in	Lewiston.		The	police	reviewed	surveillance	video	of	

the	building	and	observed	Thomas	at	the	building.		The	police	then	searched	

the	apartment	and	found	a	.22-caliber	handgun, ammunition, and	the	victim’s

cell	phone.2		The victim later	said	that	the	gun found	in	the	apartment was	not	

the	gun that Thomas	had	threatened	her	with.		

B. Arrest	and	Indictment

[¶5]	 	 Thomas was	 arrested	 on	 February	 27,	 2020.	 	 At	 the	 time	 of	 his	

arrest, the	police	found	two	cell	phones	on	his	person.		The	next	day, the	cell	

phones	 were	 turned over	 to	 the	 New	 York	 Police	 Department	 because	 they	

were	related	to	an	ongoing	investigation in	New	York.		

[¶6]	 	 The	 State	 filed	 a	 two-count	 complaint	 against	 Thomas	 for	 the	

domestic	violence	incidents that	occurred on	February	7	and	February	26.		On	

July	 6,	 2020,	 an	 Androscoggin	 County	 Grand	 Jury	 returned	 a	 six-count	

indictment	 for	 the	 events	 that	 allegedly	 occurred	 in February	 2020.	 	 On	

October 5,	2020,	the	Androscoggin	County	Grand	Jury	returned	a	seven-count	

superseding	indictment	adding	an	additional	charge of	possession	of	a	firearm	

by	a	prohibited	person.		Thomas	pleaded	not	guilty	on	all	counts.		

2		The	legality	of	the	entry	and	search	of	the	apartment	is	not	at	issue	on	appeal.
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C. Motion	for	Discovery

[¶7]		On	November	17,	2020,	Thomas	filed	a	motion	for	discovery	seeking	

the	two	cell	phones	the	police	seized	from	him	when	he	was	arrested	and	that	

were	 in	 the	 custody	 of	 the	 NYPD.	 	 Thomas	 claimed	 the	 phones	 contained	

exculpatory	evidence	and	sought	sanctions	against	the	State for	not	providing	

them.		The	court	(Stanfill,	J.)	held	a	hearing	on	this	motion	on	March	26,	2021.		

On	April	23,	2021,	the	court	denied	the	motion,	determining	that	“the	Lewiston	

Police	Department	had	no	particular	reason	to	think	the	cell	phones	would	have	

exculpatory	information	or	indeed	any	relevant	information	on	them	when	[the	

phones]	were	turned	over	to	the	NYPD,” and	that	there	was	“no	showing	that	

[evidence	on	the	phones]	was	materially	exculpatory.”		

D. Jury	Selection	and	Motion	to	Dismiss

[¶8]	 	 The	 jury	 was	 selected	 on	 May	 10,	 2021.	 	While	 350 prospective	

jurors	 were	 summonsed	 to	 be	 in	 the	 jury	 venire,	 only	 165	 potential	 jurors	

appeared.		According	to the	court’s	observations,	there	were	three	persons of	

color	in	the	jury	venire.		

[¶9]		Thomas,	who	is	African American,	and	two	other	African American	

defendants in	other	cases shared the	same	jury	venire.		Each	of	the	defendants

filed	a	motion	to	dismiss	due	to	the	failure	of	the	jury	venire	to	represent	a	fair	
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cross	section	of	 the	community.		The	court	(McKeon,	J.)	held	a	hearing	on	all	

three	motions	in	all	three	cases on	May	13,	2021.		The	court stated	that	it had	

“no	 information	 .	 .	 .	 actually	 on	 the	 record	 except	 for	 perhaps	 [the	 2019	

Androscoggin	County]	census	stat[istics]	[provided	by	the	State]	and	the	jury	

data	the	Court	accumulated	in	preparation	for	today.”		Instead	of	denying	the	

motion,	 the	 court	gave Thomas	the	 option	 of	 continuing	his trials	 so that he

could	better	develop	his arguments,	but	Thomas	elected	 to	proceed	with	 the	

jury	trial.		The court	denied	the	motion	to	dismiss.		

E. The	Trial

[¶10]		A three-day	jury	trial	was	held	on	May	18	through	May	20,	2021.		

Before	 the	 jury	 was	 brought	 into	 the	 courtroom for	 the	 first	 time,	 Thomas	

indicated	that	he	was	going	to	cross-examine	the	victim about	a	letter	that	she

allegedly sent	 him	 while	 he	 was	 incarcerated	 in	 the	 county	 jail.	 	 The	 State	

questioned the	 authenticity	 of	 the	 letter.	 	 The	 court deferred	 ruling	 on	 the	

matter,	indicating that,	if	the	victim were	to	deny	that	she	authored	the	letter,	

then	Thomas	 would	 have	 to	 authenticate	 it	 with	 other	 evidence.	 	When	the	

victim was	asked	about	the	letter	outside	the	presence	of	the	jury,	she	denied	

having	 written	 the	 letter.	 	When	 Thomas later tried	 to	 present	 the	 letter	 as	
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evidence	during	his	 testimony,	 the	court	did	not	admit	 the	letter,	ruling that

there	was	insufficient	evidence	to	authenticate	it.		

[¶11]		The	State	called	the	victim, who testified	about	her	relationship	

with	 Thomas	 and	 the	 incidents	 that	 occurred	 in	 February	 2020.	 	 On	

cross-examination,	Thomas	attacked	the	victim’s credibility,	introducing	a	false	

statement	made	by	the	victim	to	the	police,	a 9-1-1	call	that	refuted	her	claim

that	 she	 drove	 to	 the	 police	 station on	 February	 26,	 and	 other	 examples	 of	

purported	embellishment.		The	State	also	called	the	Lewiston	police	officer	who	

first	interviewed the	victim,	and	he	testified	to statements that the	victim	made

on	February	26,	2020,	that	were	consistent	with	the	victim’s	testimony	at	trial.		

Thomas	 did	 not	 object	 to	 the	 officer’s testimony regarding	 the	 victim’s	

statements	to	him.		

[¶12]		The jury	found	Thomas	guilty	of	Counts	1,	2,	3,	4,	and	6.		After	the	

jury	was	excused,	the	court	found	Thomas,	a	convicted	felon,	guilty	of	Count	7.		

The court sentenced	Thomas	to	three	years	and	six	months’ incarceration on	

Counts	 1,	 2,	 and	 7,	 concurrent	 with	 each	 other;	 364	 days’ incarceration on	

Counts	 3	 and	 4	 to	 run	 concurrently with	 each	 other	 and with Count	 1;	 and	

364 days’ incarceration and two	 years’	 probation	 on	 Count	 6, to	 run	
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consecutively to the	other	counts.		Thomas	timely	appealed.		15	M.R.S.	§	2115	

(2022);	M.R.	App. P. 2B(b)(1).

II.	 DISCUSSION

[¶13]		Thomas	makes five	claims on	appeal:	(1)	 the	court	should	have	

dismissed	all charges	as	a	discovery	sanction	after	the	state	failed	to	preserve	

the	exculpatory	evidence	that	was	allegedly	on the cell	phones	that	were	turned	

over	to	the	NYPD;	(2)	the	court	erred	when	it admitted statements	of	a	police	

officer	 that	 constituted hearsay;	 (3)	 the	 court	 abused	 its	 discretion	 by	

determining that a	letter offered	by	Thomas was	not	properly	authenticated;	

(4)	the	court	should	have	dismissed	all	charges because	the	jury	pool	did	not	

represent	 an	 adequate	 cross-section	 of	 the	 community;	 and,	 (5) there	 was	

insufficient	evidence	for	a	jury	to	convict	Thomas	of	his	crimes.3		

A. Discovery	Violation

1. State’s	Duty	to	Preserve	Evidence

[¶14]		Thomas	argues	that	the	State’s	failure to	preserve	the	exculpatory	

evidence	 that	 was	 allegedly	 on	 the	 cell	 phones	 turned	 over	 to	 the	 NYPD

3 Thomas	has	asserted	and	developed	his	constitutional	claims	based	only	on	the	Constitution	of	

the	United	States,	not	the	Maine	Constitution,	and	therefore	we	review	his	claims by applying	federal	

law	and	principles.		See	State	v.	Philbrick,	481	A.2d	488,	493	n.3	(Me. 1984) (“Because	the	Defendant	

does	 not	 argue	 that	 his	 state	 constitutional	 rights	 were	 infringed,	 we	 depart	 from	 our	 preferred	

practice	 of	 deciding	 issues	 on	 the	 basis	 of	 our	 state	 constitution	 before	 we	 address	 federal	

constitutional	questions.		 Just	as	certain	considerations	of	judicial	restraint	ordinarily	impel	us	 to	

ground	a	decision	on	state,	rather	than	federal[,] law,	other	considerations	of	judicial	restraint	lead	
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constituted a	discovery	violation,	entitling	him	to	a	dismissal	as	a	sanction.	 See	

M.R.U.	 Crim. P. 16(e).	 	 Although “prosecutors	 have	 a	 constitutional	 duty	 to	

preserve	material	evidence”	 to	 “protect	a	criminal	defendant’s	 right	 to	a	 fair	

trial,”	the	defendant	bears	the	burden	of	proving	a	violation	of	his	constitutional	

rights.	 	 State	 v.	 Cote, 2015	 ME	 78,	 ¶¶	 11,	 14-15, 118	 A.3d	 805.	 	 We	 have	

instructed	that	courts	undertake	a	“bifurcated	analysis”	in	which

[f]irst,	the	court	must	determine	whether	the	evidence	possessed	

an	exculpatory	 value	 that	was	apparent	before	 the	evidence	was	

destroyed.	 	 If	 so,	 then	 the	 defendant	 must	 show	 only	 that	 the	

evidence	was	of	such	a	nature	that	the	defendant	would	be	unable	

to	 obtain	 comparable	 evidence	 by	 other	 reasonably	 available	

means. If,	however,	the	exculpatory	value	of	the	evidence	was	not	

apparent	 at	 the	 time	 of	 its	 loss	 or	 disappearance,	 the	 defendant	

cannot	establish	a	constitutional	deprivation	without	proof	that	the	

State	also	acted	in	bad	faith	in	failing	to	preserve the	evidence.

Id.	¶	15 (citations and	quotation	marks	omitted).		

2. Application

[¶15]	 	 In	 conducting the	 first	 part	 of	 the	 analysis,	 we	 conclude	 that

Thomas	has	not	shown	that	either	cell	phone	contained	apparent	exculpatory	

value.		The	motion	court (Stanfill,	J.) heard	testimony	from	the	detective	who	

first	entered	the	phones	into	evidence	at	the	Lewiston	Police	Department;	he

us	to	refrain	from	deciding	important	state	constitutional	issues	that	have	been	neither	briefed	nor	

argued.” (citations	omitted)).		
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testified	that	he	did	not	review the	data	on	the	phones	before	they	were	sent to	

the	 NYPD.	 	 Similar	 testimony	 was	 elicited	 from	 another	 detective	 and	 the	

Lewiston	Police	Department’s	evidence	manager.		There	is no	evidence that	the	

police	had	any	indication that the	phones	had	exculpatory	value.		There	is	“a	

distinction	 between	 apparently	 exculpatory	 evidence	 and	 potentially	 useful	

evidence.”		Cote, 2015	ME	78,	¶	13,	118	A.3d	805.		Thomas	did	not	offer	any	

evidence	indicating that	either	cell	phone had any	specific	exculpatory	evidence	

but	instead	relied	on	the	generalization	that	domestic	partners	communicate	

with	each	other using	such	devices.4		

[¶16]		Because	there	was	no	exculpatory	value that	was	apparent at	the	

time	 the	 phones	 left	 Lewiston	 Police	 Department	 custody,	 Thomas	 had	 the	

burden	to	prove	that	the police	acted	in	bad	faith	in	failing	to	preserve	the	cell	

phones.	 An	act of	“bad	faith”	requires	more	than	mere negligence.		Id. ¶	19	n.5.	

[¶17]		In	the	second	part	of	the	bifurcated	analysis, Thomas	must	prove	

that	 the	 phones	 contained “potentially	 useful”	 evidence	 and that	 “the	 State	

acted	in	bad	faith	in	failing	to	preserve	[the	evidence].”		See	id. ¶	19. Thomas’s

4	 	 Even if we	 agreed	 that	 the	 exculpatory	 value	 of	 the	 phones	 should	 have	 been	 apparent	 to	

authorities,	 Thomas	 would	 still	 have	 to	 show	 “that	 the	 evidence	 was	 of	 such	 a	 nature	 that	 the	

defendant	would	be	unable	 to	obtain	comparable	evidence	by	other	reasonably	available	means.”		

State	v.	Chan,	2020	ME	91,	¶	14,	236	A.3d	471 (quotation	marks	omitted).		However,	Thomas	admits	

that	he	“did	possess some	copies	of	texts”	between	the	victim	and	himself,	and these	text	messages	

were	submitted	as	evidence	at	trial.		
10

motion	asserted	that	the	authorities	acted	in	bad	faith	when	they	“intentionally	

disposed”	 of	 the	 phones,	 but	 he	 presented	 no	 evidence	 or	legal	 authority	 to	

support	his	contention.		Further,	the	court	found	that	the	police	did	not	act	in	

bad	faith, and	this	finding	is	supported	by	the	evidence.		

[¶18]		We	conclude	that	the	court	did	not	err	in	determining	that	Thomas	

failed	to	establish	the	necessary	elements	proving	that	the	police	violated	their	

duty	to	preserve	exculpatory	evidence	and	that	therefore the	State’s	failure	to	

provide	access	to	the	seized	cell	phones did	not	deny	Thomas	his	constitutional	

right	to	a	fair	trial.		

B. Hearsay	Evidence

[¶19]	 	Thomas	 next	argues	 that	 the	 trial	 court	 (McKeon,	J.)	 committed	

obvious	 error	 when	 it	 admitted	 testimony	 of a	 Lewiston	 police	 officer	 that	

constituted hearsay	 under	 M.R.	 Evid	 801.	 	 As	 Thomas	 recognizes,	 because	

Thomas failed	 to	 object	 to the officer’s	 testimony,	 we	 review	 the	 court’s	

admission	of	the	evidence	for	obvious	error.		See	State	v.	Dolloff,	2012	ME	130,	

¶	52,	58	A.3d	1032.		“To	demonstrate	obvious	error,	the	defendant	must	show	

that	 there	 is	 ‘(1)	 an	 error,	 (2)	 that	 is	 plain,	 and	 (3)	 that	 affects	 substantial	

rights.’”		Id.	¶	35 (quoting	State	v.	Pabon,	2011	ME	100,	¶	29,	28	A.3d	1147).		

“[I]f	these	three	conditions	are	met,	we will	set	aside	a	jury’s	verdict	only	if	we
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conclude	that	(4) the	error	seriously	affects	the	fairness	and	integrity	or	public	

reputation	of	judicial	proceedings.”		Dolloff,	2012	ME	130,	¶	35,	58	A.3d	1032	

(quotation marks omitted).

[¶20]		“Hearsay	is	an	out-of-court	statement	made	by	a	declarant	offered	

in	 evidence by	 a	 witness	 to	 prove	 the	 truth	 of	 the	 matter	 asserted	 and	 is	

generally	inadmissible.”		Needham	v.	Needham,	2022	ME	7,	¶	11,	267	A.3d	1112;	

see	M.R.	Evid.	801,	802.		However,	Maine’s	rules	of	evidence	set	forth several	

categories	 of	 statements	 that	 are	 not	 hearsay.	 	M.R.	 Evid.	 801(d).	 	 One	 such	

statement is	a	declarant-witness’s	prior	statement	that	“[i]s	consistent	with	the	

declarant’s	testimony	and	is	offered:	(i)	to	rebut	an	express	or	implied	charge	

that	 the declarant	 recently	 fabricated	 it	 or	 acted	 from	 a	 recent	 improper	

influence	 or	 motive in	 so	 testifying;	 or	 (ii)	 to	 rehabilitate	 the	 declarant’s	

credibility	 as	 a	 witness	 when	 attacked	 on	 another	 ground.”	 	 M.R.	

Evid. 801(d)(1)(B).	 	 This	 type	 of	 statement can be	 used	 “both	 for	 its

rehabilitative	and	substantive	effect.”		M.R.	Evid.	801	Advisory	Committee	Note	

– August	2018.

[¶21]		Here,	the	officer testified	about	what	the	victim had	told	him	on	

the	 night	 of	 February	 26,	 2020,	 when	 she	 first	 reported	 the	 February	 2020	

incidents.		This	included	her	statement	that	Thomas	had	brandished	a	gun	at	
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her,	that	he	had	made	threats	to	her,	that	Thomas	had	taken	her	cell	phone,	and	

that	there	had	been	previous	episodes	of	domestic	violence	that	Thomas	had	

committed	against	her.		At	this	point	in	the	trial,	the	victim had	already	testified	

to	 these	 events	 and	 had	 been	 cross-examined	 by	 Thomas.	 	 During	 the	

cross-examination,	to	demonstrate	she	was	unable	to	“get	her	story	straight,”	

Thomas attacked	 her	 character	 for	 truthfulness,	 brought	 her	 memory	 and	

recollection	into	question,	and	questioned	the	consistency	of	her	statements.		

[¶22]	 	 The	 officer’s testimony	 supported	 the	 victim’s credibility	 after	

Thomas	 attacked	it and	was	 consistent	with	the	 victim’s in-court	 testimony.		

These	 statements by	 the	 victim	 to	 the	 officer were	 not	 hearsay	 and	 were	

admissible	 under M.R.	 Evid. 801(d)(1)(B).	 The trial	 court	 did	 not	 commit	

obvious	error	in	admitting	the	officer’s testimony.

C. Admissibility	of	the	Letter

[¶23]		Thomas	next	argues	that	the	trial	court	abused	its	discretion	when	

it	did	not	allow	him	to	introduce	a	letter that he	claimed that the	victim had sent	

him	while	he	was	in	 the	Androscoggin	County	 Jail.		We	review	a	 trial	court’s	

ruling	 on	 admissibility	 of	 evidence	 for	 abuse	 of	 discretion.	 	 State	 v.	 Hussein,	

2019	ME	74,	¶	10,	208	A.3d	752.		 “A	court	abuses	its	discretion	in	ruling	on	

evidentiary	issues	if	the	ruling	arises	from	a	failure	to	apply	principles	of	law	
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applicable	 to	 the	 situation[,] resulting	 in	 prejudice.”	 	 Id.	 (quotation	 marks	

omitted).

[¶24]		The	standard	for	authentication	is	articulated	in M.R.	Evid. 901(a),	

which	states that “[t]o	satisfy	the	requirement	of	authenticating	or	identifying	

an	item	of	evidence,	the	proponent	must	produce	evidence	sufficient	to	support	

a	 finding	 that	 the	item	is	what	 the	proponent	claims	it	is.”		This	is	“a	 flexible	

approach	to	authentication	reflecting a	low	burden	of	proof.”		Hussein,	2019	ME	

74,	¶	11,	208	A.3d	752.		

[¶25]		Here,	 the	letter	in	question,	which	is	unsigned,	was	purportedly	

written	 on	 behalf	 of	the	 victim and	 claimed	 that	the	 victim was	 angry	 with	

Thomas	at	the	time	of	her	report	and	that	she	had	given inconsistent	statements	

to	the	police.		Thomas	offered	with	the	letter	an	envelope	addressed	to Thomas	

at	the	Androscoggin	County	Jail.		However,	when	asked	about	the	letter	outside	

the	presence	of	the	jury,	the	victim denied	writing the	letter	or	having	anyone	

else	write	the	letter	for	her.		She	admitted	that	she	sent	the	envelope	to	the	jail	

but	stated	that	it	contained	photographs	and	not	the	letter.		The	person who	

Thomas	claimed	wrote	the	letter	on	the	victim’s behalf	was	in	the	courtroom	

and	was	a	listed	witness	for	Thomas,	but	she	was	not	called	to	testify.		Although
14

Thomas	testified	that he	received	the	letter,	he	produced	no	further	evidence	

that	demonstrated that the	letter	was	sent	by	the	victim or	on	her	behalf.		

[¶26]		In a	sidebar	conversation,	 the	court	clearly	articulated	Rule	901	

and	stated	 that	Thomas—without	a	handwriting	expert,	 the	 testimony	of	 the	

writer,	or	even	the	original	letter—was	unable	to	meet	his	burden.		The court	

did	not	abuse	its	discretion	when	it	did not	admit	the	unauthenticated	letter.

D. Jury	Venire

[¶27] The Sixth	 Amendment	 guarantees	 that	 “[i]n	 all	 criminal	

prosecutions,	the	accused	shall	enjoy	the	right	to	a	.	.	.	trial,	by	an	impartial	jury	

of	 the	State	and	district	wherein	 the	crime	shall	have	been	committed.”		U.S.	

Const.	amend. VI.	 	This	jury	must	 be	 drawn	 from	a	 “fair	 cross	 section	 of	 the	

community,”	but	a	“fair	cross	section”	does	not	guarantee	that	juries	be	“of	any	

particular	 composition.” Taylor	 v.	 Louisiana,	 419	U.S.	 522,	 527,	 538	 (1975).		

Instead,	the	“jury	wheels,	pools	of	names,	panels,	or	venires	from	which	juries	

are	drawn	must	not	systematically	exclude	distinctive	groups	in	the	community	

and	thereby	fail	to	be	reasonably	representative	thereof.”		Id. at	538.	

[¶28]		Relying	on	the	Supreme	Court	case	Duren	v.	Missouri,	439	U.S.	357,	

364	(1979),	we	have	stated:

To	 establish	 a	 prima	 facie	 claim	 that	 a	 jury	 selection	 process	

violates	 the	 constitutional	 requirement	 that	 the	 jury	 be	 selected	
15

from	 a	 pool	 representative	 of	 the	 community	 at	 large,	 the	

challenging	 party	 has	 the	 burden	 to	 show	 that:	 (1)	 the	 group	

alleged	 to	be	excluded	is	a	 “distinctive”	group	in	 the	community;	

(2)	the	representation	of	this	group	in	jury	pools	from	which	juries	

are	selected	is	not	fair	and	reasonable	in	relation	to	the	number	of	

such	persons	in	the	community;	and	(3)	this	underrepresentation	

is	 due	 to	 systematic	 exclusion	 of	 the	 group	 in	 the	 jury	 selection	

process.

State	v.	Holland,	2009	ME	72,	¶	23,	976	A.2d	227.		 “Certain	groups—such	as	

those	defined	by	race	or	sex—are	unquestionably	‘distinctive.’”		State	v. Anaya,	

456	A.2d	1255,	1260	(Me.	1983) (footnotes	omitted).		

[¶29]	 	 Here,	 Thomas,	 has	 met	 the	 first	 element	 of	 the	 Duren test	 by	

alleging	 that	 a	 ‘distinctive’	 group—African	 Americans—were	 excluded	 from	

the	jury	venire.		See	Holland,	2009	ME	72,	¶	24,	976	A.2d	227.		However,	Thomas	

failed	to	carry	his	burden as	to	the	other	two	elements	of	the	test.		The	State,	

not	Thomas,	provided	limited	evidence	of	the	proportion	of	the	community’s	

population	 that	 was	 African	 American.	 	 Furthermore,	 Thomas	 provided	 no	

evidence	of	a	systematic	exclusion	in	the jury	selection process.		Thomas	was	

given	the	option	to	continue	the	trial	so	he	could	better	develop	the	record	for	

this	challenge,	but	he	chose	to	proceed with	the	trial.		Because	Thomas	failed	to	

establish	the	second	and	third	elements	of	the	Duren	test,	the	court	did	not	err	

in	denying Thomas’s motion.
16

E. Sufficiency	of	the	Evidence

[¶30]	 	 We	 review	 a	 challenge	 to	 the	 sufficiency	 of	 the	 evidence by	

reviewing	the	evidence	adduced	at	trial “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.	Smen,	2006	ME	

40,	¶	7,	895	A.2d	319 (quotation	marks	omitted).		Fact finders	are	“permitted	

to	draw	all	reasonable	inferences	 from	 the	evidence,”	State	v.	Williams,	2012	

ME	63,	¶	49,	52	A.3d	911,	and	“[t]he	weight	to	be	given	to	the	evidence	and	the	

determination	 of	 witness	 credibility	 are	 the	 exclusive	 province	 of	 the	 jury.”	

State	v.	Filler,	2010	ME	90,	¶	24,	3	A.3d	365 (quotation	marks	omitted).		“[A]	

jury’s	acquittal	of	a	defendant	on	one	charge	does	not	limit	the	evidence	that	

can	 be	 considered	 in	 a	 post-trial	 determination	 of	 whether	 the	 evidence	 is	

sufficient	 to	 support	the	jury’s	guilty	 verdict	 on	a	 different	 charge.”	 	State	 v.	

Lowe,	2015	ME	124,	¶	29,	124	A.3d	156.		

[¶31]	 	Thomas	 does	 not	 challenge	 any	 specific	 elements	 of	 any	 of	 the	

crimes	the	jury	convicted	him	of,	and	broadly challenges all of the	evidence.5		

5		Thomas’s	argument reads	 that	“[n]o	rational	juror	could	have	been	convinced	of	Appellant’s	

guilt	beyond	a	 reasonable	doubt”	and	 that	 there	was	 “insufficient	evidence	 for	a	jury	 to	conclude	

Appellant was	guilty	beyond	a	reasonable	doubt.”		Although the	court	did	“note	the jury verdict	that	

required	 a	 finding	 of	 possession	 of	 a	 weapon”	 given	 that	 Count	 7	 was	 the	 court’s	 decision,	

independent	 of	 the	 jury,	 we	 interpret Thomas’s	 appeal as	 challenging only the	 jury	 verdicts	 on	

Counts 1,	2,	3,	4,	and	6.
17

The	jury heard	 testimony	 from	the	 victim about	 the	physical	 abuse	 that	 she	

suffered	from	Thomas and	the	incident	when Thomas	pointed	a	gun	at	her.		This	

evidence	was	supported	by	the	testimony	of	police	officers,	photographs	of	the	

injuries	 she	 suffered,	 and	items	 found	in	 the	 apartment.	 	While	 Thomas	 did	

testify	 and	 claimed	 that	 he	 did	 not	 strike	 or	 threaten	 the	 victim, the	 jury	

apparently did	not	find	him	credible.		See	Filler,	2010	ME	90,	¶ 24,	3	A.3d	365.		

There was	sufficient	evidence	for	the jury	to	have	rationally	found	that	every	

element	 of	 each	 count Thomas	 was	 convicted	 of	 was	 proved beyond	 a	

reasonable	doubt.	

The	entry	is:

Judgment	affirmed.

Verne	E.	Paradie,	Jr.,	Esq. (orally),	Lewiston,	for	appellant	Clifton	Thomas

Katherine	 E.	 Bozeman,	 Asst.	 Dist.	 Atty. (orally), and	 Katherine	 M.	 HudsonMacRea,	 Asst.	 Dist.	 Atty.,	 Androscoggin	 County	 District	 Attorney’s	 Office,	

Lewiston,	for	appellee	State	of	Maine

Androscoggin	County	Unified	Criminal	Docket	docket	number	CR-2020-610

FOR	CLERK	REFERENCE	ONLY