MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	143	
Docket:	   Ken-16-36	
Argued:	   March	3,	2017	
Decided:	  July	6,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 STATE	OF	MAINE	
                                         	
                                       v.	
                                         	
                               ROLAND	L.	CUMMINGS	
	
	
SAUFLEY,	C.J.	

      [¶1]	 	 Aurele	 Fecteau,	 a	 ninety-two-year-old	 retiree	 living	 alone	 in	 his	

own	 home	 in	 Waterville,	 was	 stabbed	 to	 death	 in	 his	 bed	 during	 a	 burglary.		

Roland	L.	Cummings	was	found	guilty	by	a	jury	of	the	murder,	along	with	two	

other	 crimes.	 	 Cummings	 appeals	 only	 from	 the	 judgment	 of	 conviction	 of	

murder	 entered	 by	 the	 court	 (Kennebec	 County,	 Murphy,	 J.)	 after	 a	 trial	 in	

which	 the	 State	 presented	 the	 murder	 charge	 on	 alternative	 theories—

intentional	or	knowing	murder	and	depraved	indifference	murder.		Cummings	

argues	 that	 the	 evidence	 was	 insufficient	 to	 support	 the	 finding	 that	 he	 was	

the	person	who	committed	the	murder,	and	in	the	alternative,	he	argues	that,	

due	to	the	evidence	of	sixteen	stab	wounds	to	Fecteau’s	torso,	the	killing	was	

so	 certainly	 a	 knowing	 or	 intentional	 murder	 that	 the	 jury	 should	 not	 have	
2	

been	instructed	on	depraved	indifference	murder.		Thus,	he	contends	that	the	

court	erred	in	allowing	the	State	to	proceed	on	alternative	theories.		We	affirm	

the	judgment.			

                                  I.		BACKGROUND	

      [¶2]	 	 Cummings	 appeals	 from	 the	 judgment	 of	 conviction	 of	 murder,	

17-A	 M.R.S.	 §	 201(1)(A),	 (B)	 (2016).	 	 He	 does	 not	 challenge	 his	 additional	

convictions	of	burglary	of	a	dwelling	(Class	B),	17-A	M.R.S.	§	401(1)(A),	(B)(4)	

(2016),	 and	 theft	 by	 unauthorized	 taking	 or	 transfer	 (Class	 C),	 17-A	M.R.S.	

§	353(1)(A),	(B)(6)	(2016).		

	     [¶3]	 	 When	 the	 evidence	 is	 viewed	 in	 the	 light	 most	 favorable	 to	 the	

State,	 the	 jury	 could	 rationally	 have	 found	 the	 following	 facts	 beyond	 a	

reasonable	 doubt	 with	 respect	 to	 the	 murder	 conviction.	 	 See	 State	 v.	 Maine,	

2017	ME	25,	¶¶	2,	28,	155	A.3d	871.		On	May	21,	2014,	Cummings	forced	his	

way	into	Fecteau’s	home.		Cummings	knew	Fecteau,	who	was	the	father	of	one	

of	his	friends.		Cummings	stabbed	Fecteau	sixteen	times	in	the	torso,	causing	

his	death;	took	money	and	jewelry;	and	fled.		That	night,	Cummings	sold	two	

pieces	 of	 the	 stolen	 jewelry	 and	 used	 a	 $100	 bill	 stolen	 from	 Fecteau	 to	

purchase	 drugs.	 	 He	 also	 paid	 a	 debt	 to	 an	 acquaintance	 for	 drugs	 using	

half-dollar	coins	stolen	from	Fecteau’s	home.		
                                                                                        3	

	     [¶4]	 	 One	 of	 Fecteau’s	 sons,	 after	 unsuccessfully	 trying	 to	 reach	 his	

father	by	phone	on	May	22	and	23,	went	to	his	father’s	house	on	May	23.		He	

discovered	his	father’s	body,	and	the	police	began	an	investigation.			

	     [¶5]	 	 In	 June	 2014,	 Cummings	 was	 charged	 by	 complaint	 with	a	 single	

count	 of	 murder	 alleging	 intentional	 or	 knowing	 murder	 or	 depraved	

indifference	 murder.	 	 See	 17-A	 M.R.S.	 §	201(1)(A),	 (B).	 	 Later	 that	 month,	 he	

was	charged	by	indictment	with	murder,	id.;	burglary	of	a	dwelling	(Class	B),	

id.	 §	401(1)(A),	 (B)(4);	 burglary	 (Class	 B),	 17-A	 M.R.S.	 §	401(1)(A),	 (B)(2)	

(2016);	and	theft	(Class	C),	id.	§	353(1)(A),	(B)(6).			

	     [¶6]		The	court	held	a	six-day	jury	trial	from	November	12	to	19,	2015.		

The	State’s	case	included	testimony	from	a	Maine	Crime	Lab	DNA	analyst,	who	

found	Cummings’s	DNA	on	the	out-turned	pockets	of	Fecteau’s	pants	and	on	

one	 of	 the	 rings	 stolen	 from	 Fecteau.	 	 After	 the	 State	 presented	 its	 case,	

Cummings	unsuccessfully	moved	for	a	judgment	of	acquittal	on	all	counts.		See	

M.R.U.	 Crim.	 P.	 29(a).	 	 Cummings	 presented	 additional	 evidence	 but	 did	 not	

testify.		With	the	State’s	consent,	the	court	acquitted	Cummings	of	the	second	

burglary	count.			

	     [¶7]	 	 Before	 the	 court	 instructed	 the	 jury,	 Cummings	 objected	 to	 the	

proposed	 jury	 instructions	 on	 murder,	 arguing	 that	 the	 evidence	 could	 not	
4	

support	 a	 finding	 of	 depraved	 indifference,	 and	 he	 again	 moved	 for	 a	

judgment	 of	 acquittal.	 	 The	 court	 overruled	 the	 objection	 and	 denied	 the	

motion.	

	     [¶8]	 	 The	 State	 and	 Cummings	 offered	 closing	 arguments,	 after	 which	

the	court	delivered	instructions	to	the	jury	orally	and	in	writing.		With	respect	

to	 the	 murder	 charge,	 the	 court	 instructed	 on	 the	 alternative	 theories	 of	

intentional	or	knowing	murder	and	depraved	indifference	murder.			

	     [¶9]		The	jury	found	Cummings	guilty	of	murder,	burglary	of	a	dwelling,	

and	theft.		Cummings	moved	for	a	new	trial,	and	the	court	denied	his	motion.		

See		M.R.U.	Crim.	P.	33.	

	     [¶10]		After	a	sentencing	hearing,	the	court	sentenced	Cummings	to	life	

imprisonment	 for	 murder,	 ten	 years’	 imprisonment	 for	 burglary,	 and	 two	

years’	 imprisonment	 for	 theft,	 with	 the	 burglary	 and	 theft	 sentences	 to	 be	

served	concurrently	with	the	murder	sentence.		The	court	ordered	Cummings	

to	pay	$4,500	to	the	Victims’	Compensation	Fund	to	reimburse	the	fund	for	a	

portion	 of	 the	 Fecteau	 family’s	 funeral	 expenses.	 	 Cummings	 appealed	 from	

the	judgment	of	conviction	of	murder	and	applied	for	review	of	his	sentence.		
                                                                                                                  5	

See	15	M.R.S.	§§	2115,	2151	(2016);1	M.R.	App.	P.	2,	20.		The	Sentence	Review	

Panel	 denied	 his	 application	 for	 sentence	 review.	 	 State	 v.	 Cummings,	 No.	

SRP-16-37	(Me.	Sent.	Rev.	Panel	Mar.	29,	2016);	see	15	M.R.S.	§	2152	(2016);	

M.R.	App.	P.	20(f).		We	now	consider	Cummings’s	appeal.	

                                              II.		DISCUSSION	

A.	     Sufficiency	of	the	Evidence	that	Cummings	Killed	Fecteau	

	       [¶11]	 	 Cummings	 first	 argues	 that	 there	 was	 insufficient	 evidence	 for	

the	 jury	 to	 find	 him	 guilty	 of	 murder	 because	 his	 DNA	 was	 found	 only	 on	 a	

stolen	ring	and	on	the	pockets	of	pants	recovered	from	Fecteau’s	apartment—

not	 on	 Fecteau’s	 body—and	 his	 possession	 of	 stolen	 items	 cannot	 establish	

that	he	killed	Fecteau.		

        [¶12]		“When	reviewing	a	judgment	for	sufficiency	of	the	evidence,	we	

view	 the	 evidence	 in	 the	 light	 most	 favorable	 to	 the	 State	 [to]	 determin[e]	

whether	 the	 fact-finder	 could	 rationally	 have	 found	 each	 element	 of	 the	

offense	beyond	a	reasonable	doubt.”		Maine,	2017	ME	25,	¶	28,	155	A.3d	871	

(alterations	in	original)	(quotation	marks	omitted).		We	defer	to	all	credibility	

determinations	 and	 reasonable	 inferences	 drawn	 by	 the	 fact-finder,	 “even	 if	


    1		Section	2151	of	title	15	was	recently	amended	to	reference	the	Maine	Rules	of	Unified	Criminal	

Procedure.	 	 See	 P.L.	 2015,	 ch.	 431,	 §	 26	 (effective	 July	 29,	 2016)	 (codified	 at	 15	 M.R.S.	 §	2151(2)	
(2016)).	
6	

those	 inferences	 are	 contradicted	 by	 parts	 of	 the	 direct	 evidence.”	 	 Id.	

(quotation	marks	omitted).	

	     [¶13]	 	 Relevant	 here,	 a	 “person	 is	 guilty	 of	 murder	 if	 the	 person:	

A.	Intentionally	 or	 knowingly	 causes	 the	 death	 of	 another	 human	 being;	 [or]	

B.	 Engages	 in	 conduct	 that	 manifests	 a	 depraved	 indifference	 to	 the	 value	 of	

human	 life	 and	 that	 in	 fact	 causes	 the	 death	 of	 another	 human	 being.”		

17-A	M.R.S.	§	201(1).			

      [¶14]	 	 On	 the	 record	 presented,	 there	 is	 more	 than	 sufficient	 evidence	

from	 which	 the	 jury	 rationally	 could	 find,	 based	 on	 reasonable	 inferences	

drawn	from	circumstantial	and	DNA	evidence	connecting	Cummings	with	the	

murder	 and	 burglary,	 that	 Cummings	 was	 the	 person	 who	 caused	 Fecteau’s	

death.		See	17-A	M.R.S.	§§	35(1)(A),	(2)(A),	201(1)(A)	(2016);	Maine,	2017	ME	

25,	 ¶	28,	 155	 A.3d	 871;	 see	 also	 State	 v.	 Belhumeur,	 2015	 ME	 150,	 ¶	 6,	 128	

A.3d	 646	 (stating	 that	 the	 same	 standard	 of	 review	 is	 applied	 whether	 the	

evidence	 is	 circumstantial	 or	 direct).	 	 The	 remaining	 question	 is	 whether	

depraved	 indifference	 murder	 was	 properly	 submitted	 to	 the	 jury	 as	 an	

alternative	to	intentional	or	knowing	murder.			
                                                                                         7	

B.	   Alternative	Charge	of	Depraved	Indifference	Murder	

      [¶15]	 	 Cummings	 argues	 that	 the	 sixteen	 stab	 wounds	 inflicted	 on	

Fecteau	were	so	likely	to	cause	death	that	they	could	only	have	been	inflicted	

with	 the	 conscious	 object	 to	 cause	 death	 or	 with	 knowledge	 that	 death	 was	

practically	 certain	 to	 result.	 	 See	 17-A	M.R.S.	 §§	 35(1)(A),	 (2)(A),	201(1)(A).		

He	therefore	contends	that	the	evidence	can	demonstrate	only	intentional	or	

knowing	 murder—not	 depraved	 indifference	 murder,	 id.	 §	 201(1)(B)—and	

that	because	one	or	more	of	the	jurors	may	have	improperly	found	him	guilty	

based	on	depraved	indifference,	the	conviction	must	be	vacated	for	a	lack	of	

unanimity.			

	     [¶16]	 	 With	 respect	 to	 questions	 of	 law,	 including	 the	 construction	 of	

statutes,	our	review	is	de	novo.		See	State	v.	Kendall,	2016	ME	147,	¶	14,	148	

A.3d	1230;	State	v.	Kimball,	2016	ME	75,	¶	10,	139	A.3d	914.		“A	person	acts	

intentionally	 with	 respect	 to	 a	 result	 of	 the	 person’s	 conduct	 when	 it	 is	 the	

person’s	 conscious	 object	 to	 cause	 such	 a	 result,”	 whereas	 “[a]	 person	 acts	

knowingly	with	respect	to	a	result	of	the	person’s	conduct	when	the	person	is	

aware	that	it	is	practically	certain	that	the	person’s	conduct	will	cause	such	a	

result.”	 	 17-A	 M.R.S.	 §	 35(1)(A),	 (2)(A).	 	 A	 person	 acts	 with	 “depraved	

indifference	 to	 the	 value	 of	 human	 life”	 in	 Maine	 if	 the	 person’s	 “conduct,	
8	

objectively	 viewed,	 created	 such	 a	 high	 tendency	 to	 produce	 death	 that	 the	

law	attributes	to	him	the	highest	degree	of	blameworthiness.”		State	v.	Saenz,	

2016	ME	159,	¶	23,	150	A.3d	331	(quotation	marks	omitted).	

	     [¶17]		To	find	a	defendant	guilty	of	depraved	indifference	murder,	“the	

adjudicator	 must	 conclude	 that	 the	 defendant	 consciously	 .	 .	 .	 engaged	 in	

conduct	that	he	should	have	known	would	create	a	very	high	degree	of	risk	of	

death	or	serious	bodily	injury	and	it	must	also	under	the	circumstances	[have	

been]	 unjustifiable	 for	 him	 to	 take	 the	 risk.”	 	 Id.	 (alterations	 in	 original)	

(quotation	 marks	 omitted).	 	 “Put	 differently,	 death-producing	 conduct	 will	

justify	a	verdict	of	guilty	of	depraved	indifference	murder	if	a	jury	could	find	

that	 that	 conduct	 was	 so	 heinous	 in	 the	 eyes	 of	 the	 law	 as	 to	 constitute	

murder.”		Id.	(quotation	marks	omitted).	

	     [¶18]		The	depraved	indifference	murder	statute,	section	201(1)(B),	has	

replaced	 a	 common	 law	 definition	 of	 murder	 that	 allowed	 a	 fact-finder	 to	

convict	a	person	of	murder	upon	“proof	of	conduct	which	objectively	evaluated	

is	characterized	by	a	high	death	producing	potential.”		State	v.	Woodbury,	403	

A.2d	 1166,	 1172-73	 (Me.	 1979)	 (quotation	 marks	 omitted).	 	 Depraved	

indifference	is	derived	from	the	concept	of	“implied	malice,”	which	is	distinct	

from	 the	 state	 of	 mind	 characterized	 by	 the	 Criminal	 Code	 as	 recklessness	
                                                                                       9	

because	recklessness	requires	a	subjective	awareness	of	a	risk.		Id.	at	1172-73	

&	n.9.	

	     [¶19]		We	have	not	construed	depraved	indifference	as	incorporating	a	

culpable	mental	state.		Instead,	we	have	construed	section	201(1)(B)	“to	deal	

with	 those	 few	 instances	 in	 which,	 although	 the	 defendant	 did	 not	 act	

intentionally	or	knowingly,	his	conduct,	objectively	viewed,	created	such	a	high	

tendency	to	produce	death	that	the	law	attributes	to	him	the	highest	degree	of	

blameworthiness.”		State	v.	Lagasse,	410	A.2d	537,	540	(Me.	1980)	(emphasis	

added);	see	also	State	v.	Thongsavanh,	2007	ME	20,	¶	38,	915	A.2d	421	(“The	

offense	does	not	require	evidence	of	a	defendant’s	subjective	state	of	mind.”).	

	     [¶20]		Because	direct	evidence	of	a	defendant’s	intent	or	knowledge	can	

be	 difficult	 to	 obtain,	 the	 State	 may	 charge	 depraved	 indifference	 murder	 as	

an	 alternative	 to	 intentional	 or	 knowing	 murder,	 in	 a	 single	 count,	 in	 cases	

where	the	defendant’s	intent	is	not	known	when	the	defendant	is	charged.		See	

State	v.	Hickey,	459	A.2d	573,	581-82	(Me.	1983);	Lagasse,	410	A.2d	at	540.		If,	

after	 the	 evidence	 has	 been	 presented,	 the	 evidence	 could	 not	 establish	

depraved	 indifference	 murder,	 the	 court	 “may	 decline	 to	 instruct	 on	 the	

depraved	 indifference	 charge.”	 	 Hickey,	 459	 A.2d	 at	 582.	 	 When	 there	 are	

disputed	 facts	 regarding	 the	 defendant’s	 knowledge	 or	 intent	 at	 the	 close	 of	
10	

evidence,	however,	the	fact-finder	must	determine	if	the	State	has	proved	the	

elements	 of	 either	 form	 of	 murder,	 whether	 based	 on	 an	 inference	 of	 the	

defendant’s	knowledge	or	intentions,	or,	in	those	cases	where	it	exists,	direct	

evidence	of	the	defendant’s	state	of	mind;	or	based	on	an	objective	view	of	the	

nature	of	the	conduct.		See,	e.g.,	State	v.	True,	2017	ME	2,	¶¶	1,	3,	21,	153	A.3d	

106	 (affirming	 a	 murder	 conviction	 pursuant	 to	 section	 201(1)(A)	 or	 (B)	

when	the	evidence	showed	that	the	defendant	punched	and	kicked	the	victim	

while	another	man	stabbed	the	victim	in	the	back	of	the	neck	and	choked	him	

with	 a	 brake	 cable);	 State	 v.	 Erskine,	 2006	 ME	 5,	 ¶¶	6-7,	 9-11,	 889	 A.2d	 312	

(affirming	a	murder	conviction	pursuant	to	section	201(1)(A)	or	(B)	when	the	

evidence	showed	that	the	victim	suffered	a	head	injury	consistent	with	the	use	

of	a	hammer,	found	in	the	defendant’s	apartment,	on	which	the	victim’s	DNA	

was	discovered).	

	     [¶21]		Because	depraved	indifference	murder	may	be	charged	and	tried	

as	 an	 alternative	 to	 intentional	 or	 knowing	 murder	 in	 a	 single	 charge,	 see	

Erskine,	2006	ME	5,	¶	19,	889	A.2d	312,	a	unanimous	verdict	can	be	reached	

even	 if	 individual	 jurors	 disagree	 about	 whether	 the	 murder	 was	 an	

intentional	or	knowing	murder	or	a	depraved	indifference	murder,	id.,	as	long	

as	 the	 evidence	 presented	 to	 the	 jury	 is	 sufficient	 to	 support	 each	 of	 the	
                                                                                     11	

alternative	 theories,	 see	 id.;	 Maine,	 2017	 ME	 25,	 ¶	28,	 155	 A.3d	 871.	 	 Each	

juror,	 or	 the	 court	 as	 fact-finder	 in	 a	 jury-waived	 trial,	 thus	 determines	

whether	 (1)	the	 State	 proved	 beyond	 a	 reasonable	 doubt	 that	 the	 defendant	

acted	 knowingly	 or	 intentionally	 in	 killing	 another	 person;	 (2)	the	 State	

proved	beyond	a	reasonable	doubt	that	the	conduct,	although	not	undertaken	

with	 the	 intent	 to	 kill	 or	 with	 knowledge	 that	 the	 conduct	 was	 practically	

certain	to	cause	death,	demonstrated	a	depraved	indifference	to	the	value	of	

human	life;	or	(3)		the	State	failed	to	prove	either	theory	beyond	a	reasonable	

doubt.		17-A	M.R.S.	§§	35(1)(A),	(2)(A),	201(1)(A),	(B).	

	     [¶22]		Contrary	to	Cummings’s	argument,	the	repeated	stabbing	that	is	

reflected	 in	 the	 evidence	 here	 could	 be	 directly	 probative	 of	 whether	

Cummings’s	actions	manifested	a	depraved	indifference	to	the	value	of	human	

life.		See	id.	§	201(1)(B).		It	was	exclusively	within	the	jury’s	province	to	decide	

whether	 Cummings	 intended	 to	 kill	 Fecteau,	 was	 aware	 that	 his	 conduct	

would	practically	certainly	result	in	Fecteau’s	death,	or	killed	Fecteau	through	

conduct	manifesting	a	depraved	indifference	to	the	value	of	human	life.		See	id.	

§§	35(1)(A),	(2)(A),	201(1)(A),	(B).		As	we	have	held,	“the	alternative	theories	

of	committing	murder,	through	either	intentionally	or	knowingly	causing	the	

death	 of	 another	 or	 by	 engaging	 in	 conduct	 that	 manifests	 a	 depraved	
12	

indifference	 to	 the	 value	 of	 human	 life	 and	 that	 in	 fact	 causes	 the	 death	 of	

another,	 are	 permissible	 alternatives	 and	 not	 separate	 offenses.”	 	 Erskine,	

2006	ME	5,	¶	19,	889	A.2d	312.		The	jurors	need	not	unanimously	agree	on	the	

theory	of	murder	that	they	found	was	proved.		See	id.	

	     [¶23]		The	evidence	presented	here,	taken	in	its	entirety,	could	support	

more	than	one	theory	of	murder.		Specifically,	a	juror	could	rationally	find—

based	on	the	evidence	presented—that	Cummings	stabbed	Fecteau	repeatedly	

(1)	with	the	conscious	object	to	cause	Fecteau’s	death,	(2)	with	the	knowledge	

that	 Fecteau’s	 death	 was	 practically	 certain	 to	 result	 from	 his	 conduct,	 or	

(3)	without	 intent	 or	 knowledge	 but	 manifesting	 a	 depraved	 indifference	 to	

the	 value	 of	 human	 life.	 	 17-A	 M.R.S.	 §§	35(1)(A),	 (2)(A),	 201(1)(A),	 (B).		

A	juror	 finding	 that	 the	 stabbings	 did	 not	 demonstrate	 a	 knowing	 or	

intentional	 murder	 could	 nonetheless	 find,	 for	 instance,	 that	 Cummings	

intended	 to	 incapacitate	 Fecteau	 to	 facilitate	 the	 burglary,	 or	 had	 a	 frenzied	

reaction	 to	 Fecteau	 waking	 up	 during	 the	 burglary,	 and	 repeatedly	 stabbed	

him,	 which,	 “objectively	 viewed,	 created	 such	 a	 high	 tendency	 to	 produce	

death	 that	 the	 law	 attributes	 to	 [the	 defendant]	 the	 highest	 degree	 of	

blameworthiness.”		Saenz,	2016	ME	159,	¶	23,	150	A.3d	331	(quotation	marks	

omitted);	see	17-A	M.R.S.	§	201(1)(B).	
                                                                                    13	

	        [¶24]	 	 In	 sum,	 depraved	 indifference	 murder	 was	 properly	 charged	 as	

an	alternative	to	intentional	or	knowing	murder	in	a	single	count,	see	Erskine,	

2006	ME	5,	¶	19,	889	A.2d	312,	and	the	evidence	was	sufficient	to	support	any	

of	 the	 alternative	 theories	 of	 murder.	 	 We	 discern	 no	 error	 in	 the	 jury	

instructions	or	the	resulting	jury	verdict	and	conviction.	

	        The	entry	is:	

                            Judgment	affirmed.		
	
	      	      	       	    	     	
	
Tina	 Heather	 Nadeau,	 Esq.	 (orally),	 The	 Law	 Office	 of	 Tina	 Heather	 Nadeau,	
PLLC,	Portland,	for	appellant	Roland	L.	Cummings	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Donald	 W.	 Macomber,	 Asst.	 Atty.	 Gen.	
(orally),	Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine	
	
	
Kennebec	County	Superior	Court	docket	number	CR-2014-600	
FOR	CLERK	REFERENCE	ONLY	
