MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	59	
Docket:	   Pen-16-96	
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	 judgment	 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’s	
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afternoon	feeding,	the	mother	gave	their	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.	 	 The	 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.		
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         [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	force,	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	traumatic	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	 the	 statutory	

definition	of	criminal	negligence.3		In	support	of	his	argument,	he	points	to	the	



    2	 	 Brown	 also	 filed	 an	 application	 to	 allow	 an	 appeal	 of	 his	 sentence,	 but	 his	 application	 was	

denied	by	the	Sentence	Review	Panel.		See	State	v.	Brown,	No.	SRP-16-097	(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)—
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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	 challenges	 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.	 	 See	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.		At	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	admitted	by	the	State	at	trial	could	raise	an	
                                                                                                                       5	

§	203(1)(A);	see	also	17-A	M.R.S.	§	34	(2016).		A	defendant	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	

unsupported	 by	 record	 evidence	 or	 violative	 of	 due	 process	 rights	 merely	

because	the	State	did	not	present	direct	evidence	as	to	the	defendant’s	exact	

actions	in	committing	the	crime,	nor	is	manslaughter	uniquely	situated	among	

crimes	 in	 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	 court—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	existence	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.”).	

       [¶10]	 	 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	 head	 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	the	
                                                                                    7	

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	

exactly	how	the	defendant	inflicted	the	injuries).			

      [¶11]	 	 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	 Examiner	 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—the	

infant	 had	 subdural,	 subarachnoid,	 optic	 nerve	 sheath,	 and	 retinal	

hemorrhages.		The	pathologists	opined	that	the	hemorrhages	were	caused	by	

acute	injuries	to	the	infant’s	head	and	that	he	had	died	within	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	

traumatic	brain	injury—the	result	of	a	rotational	or	acceleration-deceleration	
8	

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.			

      [¶12]	 	 Brown’s	 expert	 in	 pathology	 disagreed	 with	 the	 opinions	

presented	by	the	State’s	experts.		He	opined	that	the	infant	died	as	a	result	of	

choking	or	aspirating	on	formula.			

	     [¶13]		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	handed	him	to	another	person.		

	     [¶14]		Additionally,	given	that	Brown’s	evolving	explanations	as	to	the	

events	 leading	 to	 the	 infant’s	 death	 were	 inconsistent	 with	 the	 medical	

evidence	 and	 that	 there	 was	 nothing	 to	 suggest	 any	 alternative	 suspect,	 the	
                                                                                    9	

evidence	 established	 Brown	 as	 “the	 agent	 of	 the	 fatal	 injury.”	 	 Chapman,	

496	A.2d	at	305.			

	     [¶15]	 	 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	

definition	 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	prudent	person	

would	 observe	 in	 the	 same	 situation.”	 	 17-A	 M.R.S.	 §	 35(4)(C);	 cf.	 Allen,	

2006	ME	20,	¶¶	25-27,	892	A.2d	447.	

      [¶16]		Although	Brown	contends	that	the	State	was	required	to	present	

evidence	 of	 how	 a	 reasonable	 and	 prudent	 person	 would	 have	 acted	 in	

handling	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.		See	
10	

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	about	how	‘reasonable	and	prudent’	people	should	act	

in	a	particular	situation.”).		As	we	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	

deviation	 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,	1020	

(Me.	 1983)	 (noting	 that	 “extremely	 vigorous	 shaking	 of	 a	 baby	 can,	 alone,	

constitute	 depraved	 indifference”	 and	 rejecting	 the	 defendant’s	 argument	

“that	many	persons	are	not	aware	that	vigorous	shaking	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)).		

      [¶17]		Finally,	we	note	that,	to	the	extent	that	there	was	any	confusion	

about	the	trial	court’s	findings,	Brown	failed	to	request	further	findings	of	fact	

pursuant	to	M.R.U.	Crim.	P.	23(c).		We	therefore	infer	that	the	trial	court	found	
                                                                                   11	

all	 the	 facts	 necessary	 to	 support	 its	 judgment	 given	 that	 those	 inferred	

findings	are	supported	by	evidence	in	the	record.		See	State	v.	Dodd,	503	A.2d	

1302,	1307	(Me.	1986).	

         [¶18]		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	
FOR	CLERK’S	REFERENCE	ONLY	
