MAINE SUPREME JUDICIAL COURT                                                           Reporter of Decisions
Decision: 2015 ME 2
Docket:   Pen-14-69
Argued:   October 8, 2014
Decided:  January 6, 2015

Panel:        SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.*



                                         STATE OF MAINE

                                                     v.

                                        DAVID M. WYMAN

JABAR, J.

         [¶1] David M. Wyman appeals from a judgment of conviction of perjury

(Class C), 17-A M.R.S. § 451(1)(A) (2014), entered by the trial court

(Anderson, J.) after a jury trial. David contends that the State failed to present

direct evidence of the falsity of his testimony that gave rise to the perjury charge

and that the evidence was therefore insufficient to support his conviction. He also

argues that the court abused its discretion in admitting cell phone billing records.

We reject David’s contentions and affirm his conviction.

                                         I. BACKGROUND

         [¶2] On April 20, 2011, Jeffrey P. Wyman was arrested for operating under

the influence (OUI). After a jury trial, Jeffrey was found not guilty. Jeffrey and


   *
   Silver, J., sat at oral argument and participated in the initial conference but retired before this opinion
was issued.
2

his son, David Wyman, both testified during the OUI trial, and it is this testimony

that gave rise to the instant perjury case.

      [¶3] During the OUI trial, Jeffrey testified that on April 20, 2011, he was

driving his wife’s Cadillac from his home in Millinocket to David’s home in Orono

when he lost control of the vehicle due to snowy driving conditions and went off

the interstate near Argyle at mile marker 204. Jeffrey testified that he went off the

road at 9:38 a.m., called David twice at 9:45 a.m., was unable to reach him, and

left a message. He testified that David called him back at 10:59 a.m. and that he

then asked David to call a tow truck. Jeffrey testified that he became bored and

drank eight beers on the side of the road while waiting for the tow truck, and that

he called David at 12:03 p.m. to check on the status of the tow truck.           He

acknowledged that he was inebriated when police officers arrived at the scene

shortly after the 12:03 p.m. phone call, but asserted that he had not been impaired

while he was driving.

      [¶4] David’s testimony during the OUI trial largely corroborated Jeffrey’s.

David testified that he was expecting a visit from Jeffrey on April 20, 2011. He

testified that, around 10:00 a.m., he began to wonder where Jeffrey was, checked

his phone, and saw that he had two missed calls and two voice messages from

Jeffrey. David testified that he called Jeffrey back at 10:59 a.m., at which point

Jeffrey told him that he was off the road and asked him to call a tow truck. David
                                                                                                         3

testified that his then-roommate was present at the time and that his roommate’s

phone was used to call 4-1-1 to get the number for Union Street Towing, and then

to call Union Street Towing, sometime between 10:59 a.m. and 12:03 p.m. David

testified that he called Jeffrey at 12:03 p.m. to let him know that a tow truck was

on its way.

        [¶5] After Jeffrey was acquitted of OUI in January 2012, the State began an

investigation into whether Jeffrey and David had testified falsely during the OUI

trial. In September 2012, both father and son were indicted for perjury. David was

accused of falsely testifying that when he called Jeffrey at 10:59 a.m., Jeffrey

reported that he had gone off the road and asked him to call a tow truck. He was

also accused of falsely testifying that his roommate’s phone was used to call 4-1-1

and the towing company sometime between 10:59 a.m. and 12:03 p.m.1

        [¶6] During the perjury trial, David’s then-roommate testified that he called

4-1-1 on April 20, 2011, at David’s request, but that he could not remember the

time of the request or the call.


   1
      David was charged with four counts of perjury, two of which concerned his testimony about the
substance of his 10:59 a.m. phone call to Jeffrey and one of which related to his testimony about the
timing of the calls to 4-1-1 and the towing company. The substance of the remaining count is not relevant
to this appeal. Because all of David’s testimony related to the same event and was given under one oath
in one proceeding, the trial court properly consolidated the three counts upon which David was ultimately
convicted into a single count. See State v. Walker, 506 A.2d 1143, 1149 (Me. 1986) (concluding that
when an indictment suffers from multiplicity, or the charging of a single offense in multiple counts, the
proper remedy is consolidation); State v. Shannon, 136 Me. 127, 133, 3 A.2d 899, 903 (1939)
(“[S]tatements relating to the same transaction . . . if made under one oath and in one judicial proceeding
constitute only one perjury.”).
4

      [¶7] An emergency dispatcher testified that she was working on April 20,

2011, and received a 9-1-1 call at 12:01 p.m. in which the caller reported seeing a

Cadillac go off the road. The person who made that call then testified that he

contacted 9-1-1 immediately after observing a large vehicle go off the road near

mile marker 204.

      [¶8] A police officer also testified that he was driving south on the interstate

on April 20, 2011, near mile marker 204, when he saw a large vehicle pass him and

go off the road at 12:05 p.m.

      [¶9]   The State then sought to introduce cell phone billing records for

Jeffrey, David, and David’s roommate, to contradict Jeffrey and David’s testimony

about the timing and substance of their phone calls on the day of the OUI arrest.

The State offered the records pursuant to the business records exception to the rule

against hearsay, M.R. Evid. 803(6). It intended to lay the requisite foundation

through the testimony of a Verizon employee offered as custodian of the records.

      [¶10] A voir dire of the Verizon employee showed that she would testify

that the “origination” and time columns on the billing records referred to the

location of the tower picked up by a phone and the time that a call was made or

received. David objected to admission of the records, arguing that Maine Rule of
                                                                                                      5

Evidence 403 prohibited their admission without expert interpretation. 2                            He

contended that without expert interpretation the records would lead the jury to

believe that the “origination” column established where the caller was at the time

that a call occurred, resulting in unfair prejudice to him.

       [¶11] The court admitted the billing records into evidence over David’s

objection, and the Verizon employee testified about their contents. The employee

testified that the billing record for David’s roommate’s phone showed that the

roommate called 4-1-1 at 12:06 p.m. She testified that the billing record for

David’s phone showed that David called his voicemail twice at 9:45 a.m., called

Jeffrey at 10:59 a.m., and received a call from Jeffrey at 12:03 p.m. She also

testified that the billing record for Jeffrey’s phone showed that Jeffrey received a

call from David at 10:59 a.m. “originating” through a tower in the vicinity of

Millinocket, and that Jeffrey called David at 12:03 p.m. with the call “originating”

through a tower in the vicinity of Argyle.

       [¶12] The defense then presented the testimony of an electrical engineer as

an expert on cell phone technology. The engineer testified that it is unusual for the

State to use cell phone billing records in court because billing records are

inaccurate and incomplete when compared with raw data records.                               He also

   2
     Although David also argued that the interpretation of the billing records was beyond the scope of a
custodian’s permissible testimony, he did not preserve this argument for appeal. At no time did David
object to admission of the records under Maine Rule of Evidence 803(6).
6

explained a number of reasons why the “origination” column on a billing record

should not be relied upon to establish where a person was when he made or

received a call.

         [¶13] The jury found David guilty of perjury. After the court denied his

motion for a judgment of acquittal, David was convicted, ordered to pay a $500

fine, and sentenced to five days’ imprisonment, execution of which was stayed

pending this appeal.3

                                       II. DISCUSSION

         [¶14] On appeal, David argues that the State presented no direct evidence of

the falsity of his statements and that the evidence was therefore insufficient to

support a guilty verdict. He also contends that the trial court abused its discretion

in admitting the cell phone billing records over his objection.

A.       Sufficiency of the Evidence

         [¶15]    When reviewing the sufficiency of the evidence to support a

conviction, “we view the evidence in the light most favorable to the State to

determine whether the fact-finder could rationally find every element of the

offense beyond a reasonable doubt,” drawing upon all reasonable inferences from

the evidence presented. State v. Haag, 2012 ME 94, ¶ 17, 48 A.3d 207 (quotation


     3
      The jury also found Jeffrey guilty of perjury and he too appealed from his conviction. We decide
Jeffrey’s appeal in a separate opinion. See State v. Wyman, 2015 ME 1, --- A.3d ---.
                                                                                  7

marks omitted).    “We will reverse a jury verdict only where no trier of fact

rationally could find proof of guilt beyond a reasonable doubt.” Id. (quotation

marks omitted).

      [¶16] A person is guilty of perjury if he makes a false material statement

under oath or affirmation in an official proceeding and he does not believe the

statement to be true. 17-A M.R.S. § 451(1)(A). To support a perjury conviction,

the falsity of the defendant’s statements must be proved by more than

circumstantial evidence. State v. Farrington, 411 A.2d 396, 401 (Me. 1980). This

rule, sometimes known as the “quantitative evidence rule,” requires that, in

addition to circumstantial evidence, there must be at least one witness who

provides direct evidence of facts that render the defendant’s statement false. State

v. Anthoine, 2002 ME 22, ¶ 8, 789 A.2d 1277 (quotation marks omitted).

      [¶17] David does not dispute that his statements at the OUI trial were

material and that they were made under oath in an official proceeding.           He

contends that his perjury conviction must be vacated because the State offered no

direct evidence that his testimony—that he learned Jeffrey was off the road and

that Jeffrey asked him to call a tow truck during their conversation at 10:59 a.m.,

and that his roommate’s phone was used to call 4-1-1 and the towing company

sometime between 10:59 a.m. and 12:03 p.m.—was false.
8

      [¶18] Contrary to David’s contention, the State did present direct evidence

that David’s roommate’s phone was not, in fact, used to call 4-1-1 and the towing

company sometime between 10:59 a.m. and 12:03 p.m. The Verizon employee’s

testimony from the billing records that David’s roommate’s phone was used to dial

4-1-1 at 12:06 p.m. directly contradicted David’s testimony about the timing of the

calls to 4-1-1 and the towing company, and rendered David’s statement of the facts

untrue. The Verizon employee’s testimony regarding the timing of the calls was

corroborated by the (1) testimony of an individual who observed a large vehicle go

off the road near mile marker 204 and then immediately called 9-1-1, (2) testimony

of the 9-1-1 dispatcher who received that individual’s call at 12:01 p.m., and (3)

testimony of a police officer who saw a Cadillac go off the road near mile marker

204 at 12:05 p.m.     Taken together, this evidence supports the inference that

Jeffrey’s Cadillac did not go off the road until sometime around noon, that Jeffrey

did not ask David to call a tow truck until after that time, and that David’s

roommate’s phone was not, in fact, used to call 4-1-1 or the towing company

before 12:03 p.m.

      [¶19] The State presented both direct and circumstantial evidence of at least

one of its specific allegations—i.e. that David’s testimony that his roommate’s

phone was used to call 4-1-1 and the towing company sometime between

10:59 a.m. and 12:03 p.m. was false. Because the State presented proof of the
                                                                                                         9

elements of perjury with respect to David’s testimony about the timing of the calls

to 4-1-1 and the towing company, and because we must view this evidence in the

light most favorable to the State, we conclude that there was sufficient evidence for

the jury to find David guilty of perjury beyond a reasonable doubt.

B.       Admission of the Cell Phone Billing Records

         [¶20] David argues that the cell phone billing records should have been

excluded pursuant to Maine Rule of Evidence 403.4 He contends that the Verizon

employee was not qualified to explain the meaning of the “origination” column on

the billing records, that the raw data records would have been more accurate than

the billing records, and that the relevance of the billing records was therefore

outweighed by their confusing, misleading, and prejudicial effects.

         [¶21] We afford trial courts wide discretion in balancing the probative value

of proffered evidence against the prejudicial, misleading, or confusing effects of

such evidence, and will vacate the admission of evidence over a Rule 403

objection only if the trial court clearly abused its discretion. Saucier v. Allstate Ins.

Co., 1999 ME 197, ¶ 29, 742 A.2d 482.

         [¶22] Here, the cell phone billing records had substantial probative value

because they tended to prove the State’s allegation that David’s testimony at the

     4
       Maine Rule of Evidence 403 provides in relevant part: “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury . . . .”
10

OUI trial was false. Although the billing records were damaging to David’s case,

they were not unfairly prejudicial because they were not likely to cause the jury to

make findings based on something other than the facts of the case. See Camp

Takajo, Inc. v. SimplexGrinnell, L.P., 2008 ME 153, ¶ 14, 957 A.2d 68.

Furthermore, although the meaning of the “origination” column on the billing

records may have been unclear standing alone, the column’s import was clarified

by the Verizon employee’s explanation of its significance for billing purposes and

by the defense expert’s explanation of its shortcomings for technological purposes.

      [¶23] Because the billing records had substantial probative value, were

unlikely to cause the jury to decide on an improper basis, and were the subject of

extensive custodial and expert testimony, the court did not abuse its discretion in

admitting them over David’s Rule 403 objection.

       The entry is:

                   Judgment affirmed.



On the briefs:

      Joseph P. Belisle, Esq., Bangor, for appellant David M. Wyman

      R. Christopher Almy, District Attorney, and Tracy Collins
      Lacher, Asst. Dist. Atty., Prosecutorial District V, Bangor, for
      appellee State of Maine
                                                                        11

At oral argument:

        Joseph P. Belisle, Esq., for appellant David M. Wyman

        Tracy Collins, Asst. Dist. Atty., for appellee State of Maine



Penobscot County Unified Criminal Docket docket number CR-2012-3788
FOR CLERK REFERENCE ONLY
