MAINE SUPREME JUDICIAL COURT                                            Reporter of Decisions
Decision: 2019 ME 74
Docket:   And-18-311
Argued:   March 5, 2019
Decided:  May 21, 2019

Panel:      SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority:   SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Dissent:    ALEXANDER, J.



                                   STATE OF MAINE

                                             v.

                                  ABDIAZIZ HUSSEIN


GORMAN, J.

       [¶1] Abdiaziz Hussein appeals from judgments of conviction for failure

to sign a criminal summons (Class E), 17-A M.R.S. § 15-A(1) (2018), refusing

to submit to arrest by physical force (Class D), 17-A M.R.S. § 751-B(1)(B)

(2018), and assault (Class D), 17-A M.R.S. § 207(1)(A) (2018), entered by the

court (Androscoggin County, Lawrence, J.) following a jury trial. Hussein

argues that the trial court abused its discretion by excluding from evidence a

cellphone video that showed some of the events that occurred during his

arrest. We agree and, as a result, vacate the convictions and remand the case

for a new trial.1


   1Because our holding renders Hussein’s second argument moot, we do not reach the issue of
whether his conviction violates principles of double jeopardy.
2


                                      I. BACKGROUND

        [¶2] Viewed in the light most favorable to the jury’s verdict, competent

evidence in the record supports the following facts. See State v. Fahnley,

2015 ME 82, ¶ 2, 119 A.3d 727.

        [¶3]    On November 10, 2017, an officer with the Lewiston Police

Department went to Hussein’s apartment in Lewiston to serve him a criminal

summons. After the officer was in the apartment, he told Hussein that he was

issuing him a criminal summons and that Hussein “ha[d] to sign the

summons.”        The officer emphasized, however, that the summons simply

established a court date for Hussein and that signing it was not an admission

of guilt. After Hussein repeatedly refused to sign the summons, the officer

said, “Okay, you don’t want to sign the summons, you’re under arrest.”2

        [¶4] Hussein then attempted to “run,” but the officer “grabbed ahold of”

Hussein and twisted his arm into what the officer described as an “arm bar.”

Despite the arm bar, Hussein punched the officer in the face. As the officer

persisted in attempting to arrest Hussein, he tried to pin Hussein to the floor

of the apartment, but Hussein kept “flailing and fighting violently.” At some

point during these events, the officer noticed that Hussein’s sister was filming


    2It is not clear why the officer did not simply mark “refused to sign” on the summons and leave
a copy of it with Hussein.
                                                                                                   3


the arrest on her cellphone. The officer called for backup as he attempted to

subdue Hussein.          Shortly thereafter, additional officers arrived and took

Hussein into custody.

       [¶5]     The State charged Hussein with refusing to sign a criminal

summons (Class E), 17-A M.R.S. § 15-A(1), refusing to submit to arrest by

physical force (Class D), 17-A M.R.S. § 751-B(1)(B), and assault (Class D), 17-A

M.R.S. § 207(1)(A); Hussein pleaded not guilty to all charges. During pretrial

discovery, Hussein produced his sister’s cellphone video of the arrest.3

       [¶6] On July 19, 2018, two weeks after a jury had been selected, and

one day before the trial was to start,4 the State filed a motion in limine

requesting that it be permitted to “inspect the entire recording.” The State

requested that, absent a showing by Hussein that the video captured the

entire incident, the video “be excluded from the trial” because it would be

“misleading for the jury to see a video capturing only the incident after the

warnings were given to the defendant regarding his failure to sign the

criminal summons, after the defendant attempted to flee the room, and after


   3 Although the arresting officer was aware of the video, the police did not seize the phone as
evidence nor did the State request a copy of the video before Hussein produced it.
   4 Another jury had been selected in May, but that trial was cancelled at the request of the State.
The record does not indicate when the prosecutor became aware of the existence of the video. As
indicated above, the arresting officer was aware that Hussein’s sister filmed some or all of the
events, but he did not view the video until July 18, 2018.
4


the assault of [the arresting officer].” The court viewed the video with counsel

for the State and Hussein and subsequently denied the State’s motion—all on

the same day it was filed.

       [¶7] On the next day, July 20, 2018, the court held a one-day jury trial.

The State’s case relied exclusively on the testimony of the arresting officer and

one of the other officers who had responded to the arresting officer’s request

for assistance.       At trial, the arresting officer testified that he had seen

Hussein’s sister record a portion of the arrest on her cellphone. Hussein’s

counsel then attempted to authenticate the video through the officer.

Although the officer acknowledged that the recording fairly and accurately

represented a portion of his interaction with Hussein, the court excluded the

video, reasoning, “With respect to the attempt to authenticate this particular

piece of evidence through [the officer], given his testimony as to his belief that

it is not complete, [the] [c]ourt will sustain the State’s objection.”5 Hussein

asked the court to reconsider its ruling, but the court again sustained the

State’s objection.




   5 Because the trial court viewed the video as an offer of proof, it should have been made part of

the record on appeal. No copy of the video played at trial was in the trial court’s file, however.
Hussein obtained another copy of the video and filed a motion to supplement the trial court record
on appeal with a CD containing the video. The State did not object and we granted Hussein’s
motion; the video is therefore properly part of the record on appeal.
                                                                              5


      [¶8] Hussein’s counsel then told the court that he wanted to use the

video to impeach the arresting officer’s testimony. The court sent the jury out

of the courtroom and had the arresting officer review the video again. The

officer again testified that the video fairly and accurately represented what

happened during the period of time captured on the video. Hussein’s attorney

asked the arresting officer a series of questions about the video, and then

indicated that he was ready to have the jury brought back. When the jury

returned, Hussein’s counsel continued in his cross-examination of the

arresting officer, and, although the jury had not seen the video, what the video

showed was discussed in great detail in front of the jury:

             Q: Corporal . . . , in the full two minutes leading up to the
      moment that the other officers secure Mr. Abdiaziz—excuse me,
      Mr. Hussein in handcuffs, he did not—he, in fact, did not punch at
      you, right?

            A: He could not.

           Q: But the specific answer to the question is he did not
      punch at you, correct?

            A: Yes. He could not.

            Q: And he, at most, had his right leg or his right knee drawn
      up, correct?

            A: Yes, he had his right leg, yup, shoved into my side.

            Q: And, in fact, he did not kick you, did he?
6


          A: He’s trying to push me off with his leg, yeah. Be more
    specific with me ‘cause you’re not letting—you’re asking me did
    he kick me. I—once I had him pinned and I got my body weight
    on him, he’s got his leg up into my ribs, and I’m keeping my body
    weight on there so he doesn’t drive me because he’s trying to fight
    free. He’s not—he’s not complying. He’s still fighting.

           If you looked at what your question is . . . I can’t honestly
    answer your question with a yes or no because he was still
    fighting on the floor. He’s got his leg up. It’s in my ribs and I’ve
    got him pinned with my body weight. If I was up, yeah, he
    probably could have kneed me with his knees.

          Q: But he didn’t?

          A: He couldn’t because I had my body weight on him. Yes.
    Yes, he did not knee me is what you’re asking because I did not
    allow him to do that.

         Q: So he didn’t strike you with his knee, and he didn’t kick
    you with his feet, did he?

          A: In the last portion of the video, no, sir.

          Q: The two minutes up to the time that the other officers
    secured him, correct?

          A: Yes.

         Q: Beyond that, he has a pen in his left hand that whole two
    minutes, right?

           A: No. I think that come from the trash can and th[e]n went
    flying over. I just see the video the other day. I just viewed this
    and he has a pen in his hand laying on the floor. Where it came
    from I don’t know.

          Q: But a moment ago I asked you he has a pen in his hand
    this whole time, right, and you said yes?
                                                                         7



        A: Well, you’re saying the whole time. What is the whole
time?

        Q: The two minutes.

        A: For this video, yes.

        Q: He has a pen in his hand?

      A: Well, I—I want to disagree with you because what I see
on the video is once I’ve got him pinned on the floor—and we can
see a portion of the video, not the whole two minutes—then you
see a pen in his hand because there was trash on the floor.

     Q: Are you now changing your testimony from a moment
ago where you said he did have a pen in his hand?

     A: No, I’m not. I’m answering your question. You asked, Did
he have a pen in his hand for the whole two minutes? I don’t
know. I can’t answer that. I only see the last portion of this.

        ....

      Q: Is it true that in the two minutes leading up to the time
the other officers secure Mr. Hussein he has a pen in his left hand?

       A: He has a pen in his hand at the very end of your video,
yes, sir.

      Q: And a few moments ago I asked you to confirm that he
has a pen in his hand, right? I asked you that question?

      A: If I understood your question right, you stated it for the
entire video, for the two-minute video he had a pen in his hand;
and I answered no to that because alls I see a pen in his hand is at
the very last. I don’t know how much time he has a pen in his
hand. That’s the last part of it. The very first part of it when I was
8


    fighting with him he did not have a pen in his hand, so I don’t
    know how to answer you.

          Q: Did you see him pick a pen up from the trash?

           A: I really can’t tell you that. I know the trash can went
    flying over and debris spewed all over the floor because it was—it
    was in front of us. It may have been an opportunity for him to
    pick up a pen, but he did not have a pen when I first grabbed
    ahold of him. He did not have a pen in his hand until we went to
    the floor.

          ....

           Q: In the final two minutes leading up to the moment when
    the other officers put handcuffs on Abdiaziz, he has his left hand
    like this, right?

           A: His left hand and he’s on his shoulder. As we’re trying to
    get him on the ground, he is laying on his left shoulder with this
    arm pinned down with a pen in his hand and I have his other arm
    like this and I have my body weight on him. That’s the last part of
    the video that I see that he has a pen and it was probably—may
    have been my pen dropped in the altercation. I don’t know that.
    But he’s pinned on the ground like this, and he’s got a pen in his
    left hand, yes. He’s laying on the ground and I’ve got him pinned
    and I see the video, he actually had control of a writing utensil,
    whether it was a pencil or a pen.

           Q: And, specifically, he’s got it with his thumb holding it,
    right, like this? You can see—you saw the pen in his hand?

          A: When we watched this video, I’m not paying much
    attention to where—how he holds the pen. I just know he has an
    object in his hand and it looks like a pen and it looks like one of
    my gray big pens that I sign summonses with.

          Q: His left hand is open facing you, right, in that two minutes
    we’re talking about?
                                                                         9



      A: Is it open? He’s in possession of the last part of it with a
pen. That’s what you’ve been asking me.

      Q: But the question is—

      A: In the beginning he had nothing in his hand. When he
was pinned up against the wall in a sitting position, he would not
comply. He had nothing in his hand. He had his hand out trying to
brace against the wall as I’ve got his right arm locked in an arm
bar hold and he’s trying to use that as leverage and I had to
continue to put pressure on him to get him down to a partial
subline (sic) position where he’s laying and his arm is out, yes.

      Q: The question I’m asking you is can you confirm that in
that two minutes his left hand is open facing you?

      A: I’d have to review it again. I just know that I watched the
video and we’re fighting into the wall and it’s not clear until the
camera gets to a certain position and then you see his hand with a
pen in it. I don’t—I don’t recall seeing his hand with a pen in it the
whole time because I never gave him a pen.

      Q: Are you denying that his hand was open like this facing
you in that final two minutes?

     A: Sometime in the last two minutes, yes, his hand was
probably open, yes.

      Q: And it’s not only open but drawn in like this, right?

     A: He’s laying on his side so I—I would say so. I don’t know
how he’s got it extended. I’m on top of him so. And I only see his
hand out there.

      Q: And multiple times he said, I’ll sign the summons, right?

      [Prosecutor]: Objection.
10


              ....

              THE COURT: Objection’s sustained.

              ....

            Q: [Arresting Officer], you had Abdiaziz—in that two
      minutes we’re talking about you had Abdiaziz in an arm bar the
      entire time?

              A: Yes.

              Q: And you were in the kitchen, correct?

              A: Yes, sir.

      [¶9] At the conclusion of the trial, the jury found Hussein guilty of all

three counts. On July 30, 2018, the court entered a judgment on the verdict,

sentencing Hussein to ten days in jail and a fine of $500.00 for assault, seven

days in jail—to run concurrently with the ten days—for refusing to submit to

arrest, and twenty hours of public service for refusing to sign the criminal

summons. Hussein timely appeals. See 15 M.R.S. § 2115 (2018); M.R. App. P.

2B(b)(1).

                                 II. DISCUSSION

      [¶10]     Hussein argues that the trial court abused its discretion by

excluding the cellphone video from evidence. We review a trial court’s rulings

on the admissibility of evidence for an abuse of discretion. State v. Maine,

2017 ME 25, ¶ 23, 155 A.3d 871. “A court abuses its discretion in ruling on
                                                                              11


evidentiary issues if the ruling arises from a failure to apply principles of law

applicable to a situation resulting in prejudice.”       Id. (quotation marks

omitted); accord Koon v. United States, 518 U.S. 81, 100 (1996) (“A district

court by definition abuses its discretion when it makes an error of law.”),

superseded on other grounds by statute, Prosecutorial Remedies and Other

Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act),

Pub. L. 108-21, 117 Stat. 650; Saka v. Holder, 741 F.3d 244, 250 (1st Cir. 2013)

(“Under [the abuse of discretion] standard, we uphold decisions unless they

are made without a rational explanation, inexplicably depart from established

policies, or rest on an impermissible basis. Any error of law is, inherently, an

abuse of discretion.” (citations omitted) (quotation marks omitted)).

A.    Authentication

      [¶11]   Maine Rule of Evidence 901(a) articulates the standard for

authentication of a proffered exhibit: “To 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.” M.R. Evid. 901(a). One method of satisfying the authentication

requirement is to present a witness who testifies that the “item is what it is

claimed to be.” M.R. Evid. 901(b)(1). We have held that “Maine Rule of

Evidence 901 embodies a flexible approach to authentication reflecting a low
12


burden of proof.” State v. Dube, 2016 ME 50, ¶ 11, 136 A.3d 93 (quotation

marks omitted); see also 2 Kenneth S. Broun et al., McCormick on Evidence

§ 212, at 6 (7th ed. 2013) (“There is no single formula [for authenticating

evidence] that must be satisfied in every case . . . .”).

      [¶12] In this case, the officer twice testified that the video “fairly and

accurately” represented the events that occurred during the time span of the

video. Contrary to the State’s argument, neither Rule 901 nor our case law

requires that the person taking the video be the one to authenticate it. Cf.

State v. Sargent, 361 A.2d 248, 251 (Me. 1976) (“The foundation for admission

of a photograph into evidence may properly be laid by any witness who knows

that it fairly represents what it purports to represent.” (emphasis added));

Field & Murray, Maine Evidence § 403.2.1 at 117 (6th ed. 2007) (“[T]he

foundation necessary to introduce a photograph can be established simply.

The proponent merely asks a witness who has familiarity with the object or

scene depicted at the relevant time whether in fact the identified and

proffered photograph fairly and accurately depicts the . . . scene . . . in question

at the relevant time.” (quotation marks omitted)).

      [¶13] Because the arresting officer clearly had familiarity with what is

shown in the video, and because he testified that the video “fairly and
                                                                                                  13


accurately” represented the events shown in the scene, the officer could—and

did—properly authenticate the video. See M.R. Evid. 901(b)(1).

B.       Admissibility

         [¶14] Even if an exhibit is properly authenticated, however, a court may

exclude the evidence if its probative value is substantially outweighed by a

danger of unfair prejudice or misleading the jury. M.R. Evid. 403; see, e.g.,

State v. Michaud, 2017 ME 170, ¶ 8, 168 A.3d 802. “For purposes of Rule 403,

prejudice means an undue tendency to move the fact finders to decide the

issue on an improper basis.” Michaud, 2017 ME 170, ¶ 8, 168 A.3d 802

(quotation marks omitted).

         [¶15] In this case, the State repeatedly argued that, even if the video

accurately depicted a portion of the interaction between the arresting officer

and Hussein, it should not be admitted because it was not a “complete” record

of the arrest. If, by focusing on the “incompleteness”6 of the video, the State

was intending to argue that it was unfairly prejudicial, its argument is not

persuasive.


     The rule of completeness, as set out in Maine Rule of Evidence 106, logically applies only after
     6

one party has actually “utilized” a part of a writing or recording: if one party introduces only a
segment of evidence, the opposing party may seek to introduce the remaining portion in order to
place the previously admitted portion into context. See, e.g., State v. Archer, 2011 ME 80, ¶ 27, 25
A.3d 103. Rule 106 was not designed as a tool to preclude the admission of evidence; rather, the
rule creates a remedy for those times when “fairness demands” that an additional portion of a
“writing or recorded statement” be admitted. Id. (quotation marks omitted).
14


      [¶16] We acknowledge that, in some cases, the completeness of a video

may well be a concern because, with respect to video evidence, “[t]here is no

question that the probative value of videotaped evidentiary presentations is

very high,” but “[t]he potential for unfair prejudice from video evidence is also

high.” Field & Murray, Maine Evidence § 403.2.3 at 122 (6th ed. 2007). Here,

however, because the court did not mention any prejudicial effect of the video,

let alone any unfair prejudicial effect, we must conclude that the court’s denial

of the defendant’s request was not based on any 403 considerations. See State

v. Poland, 426 A.2d 896, 900 (Me. 1981) (stating that a trial court should

“articulate[] on the record at least some of the factors bearing upon [its]

exercise of Rule 403 discretion”).

      [¶17] Because the trial court did not rely on Rule 403 when excluding

the video, and because Hussein properly authenticated the video, the court’s

refusal to admit the video so that the jury could view it was an abuse of

discretion. See Koon, 518 U.S. at 100; Saka, 741 F.3d at 250; Maine, 2017 ME

25, ¶ 23, 155 A.3d 871. We note that a determination that a trial judge has

“abused his discretion” does not equate to a finding of bad faith, intentional

wrongdoing, or misconduct by the judge. Trial judges are called upon to make

multiple, swift decisions—in “real” time—during the course of trials and
                                                                                                15


hearings. Abuses of discretion occur when, in making one of those rulings, the

judge makes an error in the application of the law to the facts:

         Preliminarily, it may be said that judicial discretion means legal
         discretion in the exercise of which the court must take account of
         the law applicable to the particular circumstances of the case and
         be governed accordingly. Implicit is conscientious judgment
         directed by law and reason and looking to a just result.
         Consequently, if the trial judge misconceives the applicable law or
         misapplies it to the factual complex, in total effect the exercise of
         legal discretion lacks a foundation and becomes an arbitrary act.
         When this occurs it is the duty of the reviewing court to
         adjudicate the controversy in the light of the applicable law in
         order that a manifest denial of justice be avoided.

Wasserstein v. Swern & Co., 200 A.2d 783, 786 (N.J. Super. Ct. App. Div. 1964)

(citations omitted). That is what occurred here when the court concluded that

the recording had not been properly authenticated.

C.       Harmless Error

         [¶18] The State asserts that, even if the trial court did err by excluding

the video, any error was harmless, a position echoed by the dissent.7 Because

the State’s case rested, in large part, on the credibility of the arresting officer,

and because the video could be viewed as undermining some portions of that

officer’s testimony, we disagree.




    The dissent also suggests that the video is “repetitive” of the testimonial evidence. There was
     7

no claim by the State that the two-minute video would cause undue delay, waste time, or
“needlessly present[] cumulative evidence.” M.R. Evid. 403.
16


      [¶19] Rule 52 of the Maine Rules of Unified Criminal Procedure

provides, “[a]ny error, defect, irregularity, or variance that does not affect

substantial rights shall be disregarded.” M.R.U. Crim. P. 52(a). “An error is

harmless when it is highly probable that it did not affect the jury’s verdict. In

contrast, harmful error is error that affects the criminal defendant’s

substantial rights, meaning that the error was sufficiently prejudicial to have

affected the outcome of the proceeding.” State v. Jaime, 2015 ME 22, ¶ 38, 111

A.3d 1050 (alteration omitted) (citations omitted) (quotation marks omitted);

accord State v. Elwell, 2002 ME 60, ¶ 14, 793 A.2d 499.

      [¶20] Here, the arresting officer testified that Hussein (1) refused to

sign the summons; (2) had run from him; (3) had punched him in the face; and

(4) was “flailing and fighting violently” as the officer attempted to arrest

him—all facts that support Hussein’s conviction.

      [¶21] In contrast, Hussein correctly argues that the video shows him

pinned to the ground by the officer, with a pen in hand, repeatedly saying that

he will sign the summons—not fighting and flailing—and that the video

contains no evidence that he ever assaulted the officer. At trial, Hussein was

permitted to ask the arresting officer, who had seen the video at least three

times, about what the video showed—parts of this testimony we quote above.

Hussein asserts that the video contradicts portions of the officer’s testimony,
                                                                            17


and that the jurors should have been permitted to view the video in order to

assess the officer’s credibility. We agree.

      [¶22] Here, “where the verdict of guilty depended upon the jury’s

finding [the officer] credible, the exclusion of admissible evidence that had a

tendency to undermine [his] credibility is prejudicial.” Elwell, 2002 ME 60,

¶ 14, 793 A.2d 499. As such, the trial court’s exclusion of the video was

sufficiently prejudicial to have affected the outcome of the proceeding—the

error was not harmless. See id.; Jaime, 2015 ME 22, ¶ 38, 111 A.3d 1050.

      The entry is:
                  Judgment vacated. Remanded to the trial court
                  for a new trial.



ALEXANDER, J., dissenting.

      [¶23] I respectfully dissent.

      [¶24] Abdiaziz Hussein was charged and ultimately pleaded guilty, as

part of this proceeding, to theft of a stun gun in Lewiston on or about

November 9, 2017. See 17-A M.R.S. § 353(1)(A) (2018).

      [¶25] In an appropriate exercise of discretion, the Lewiston police

elected to summons rather than arrest Hussein for that offense. Accordingly,

on November 10, 2017, a Lewiston police officer went to Hussein’s residence

to attempt to serve the summons.         At the residence, the officer advised
18


Hussein that he was issuing a criminal summons and that Hussein had to sign

the summons. The officer emphasized that the summons, and signing the

summons, simply established a court date and that signing the summons was

not an admission of guilt. Despite this advice, Hussein repeatedly refused to

sign the summons.

         [¶26] Because he refused to sign the summons, the officer indicated

that he had to arrest Hussein. Hussein then attempted to flee, but the officer

grabbed Hussein’s arm, at which point Hussein punched the officer in the face.

In punching the officer in the face, Hussein committed the Class C felony of

assault on an officer.8 17-A M.R.S. § 752-A (2018).

         [¶27] Hussein and the officer then continued to struggle, causing them

both to end up on the floor of the apartment, with the officer on top of

Hussein. At some point after the charged crimes had been committed, and

after Hussein and the officer were on the floor, another occupant of the

apartment began video recording the struggle, using a cellphone.

         [¶28] Sometime prior to trial, the State learned of the existence of the

cellphone video recording, sought to inspect it, and moved that the video be

excluded from the trial. At several points before and during the trial, the

     8The record does not indicate why the State elected to charge Hussein with simple assault
(Class D), 17-A M.R.S. § 207(1)(A) (2018), rather than the more serious felony that the record
indicates Hussein actually committed.
                                                                              19


parties debated whether the video should be allowed to be offered into

evidence.

      [¶29] The record to support Hussein’s offer of the video into evidence

included the testimony of the arresting officer and another officer as to the

events at the apartment, the video itself, and representations—but no

testimony or affidavits—by Hussein’s counsel as part of an offer of proof, M.R.

Evid. 103(a)(2), (b), seeking to admit the video.

      [¶30] Although the trial court ultimately decided that the video should

not be admitted, it permitted extensive examination of the officer regarding

the events that appeared on the video, with that examination quoted in the

Court’s opinion. Court’s Opinion ¶ 8. That examination, consistent with the

video itself, indicates that Hussein and the officer were struggling on the floor

for approximately two minutes while the recording was going on and that,

during that time, Hussein, at some point, possessed a pen. Hussein’s counsel

argued that Hussein’s possession of the pen and statements heard on the

video demonstrated that Hussein, after initially refusing to sign the summons

and being subject to arrest, was indicating a willingness to sign the summons.

      [¶31] The Court holds, surprisingly, that because the officer’s testimony

purportedly “fairly and accurately represented the events” shown on the

video and properly authenticated the video, M.R. Evid. 901(b)(1), the trial
20


court’s refusal to admit the video was “an abuse of discretion.”         Court’s

Opinion ¶¶ 13, 17.

      [¶32] In my view, the trial court did not err in refusing to admit the

video. And even if, as the Court concludes, the trial court abused its discretion

in refusing to admit the video because it deemed the video not properly

authenticated, that error was harmless. See M.R.U. Crim. P. 52(a).

      [¶33]   The Court’s opinion itself describes the officer’s testimony

regarding the events that occurred and are depicted on the video and notes

that the officer testified that the video “fairly and accurately represented the

events shown in the scene.” Court’s Opinion ¶ 13. If the officer’s testimony

represented that the video fairly and accurately described the events shown

regarding the struggle that occurred in attempting to arrest Hussein after the

crimes had been committed, then the video could properly have been

excluded as repetitive of testimony already given.

      [¶34] Further, and more importantly, there is no dispute that the video

recording began only after Hussein had refused to sign the summons,

attempted to flee, punched the officer in the face, and refused to submit to

arrest—the crimes with which he was charged and convicted by the jury. The

only relevance of the video was to show the continuing struggle to arrest

Hussein after he had refused to submit to arrest, to indicate minor
                                                                                21


discrepancies between the after-the-crimes events as depicted on the video

and the officer’s testimony about those events, and to provide support for

Hussein’s claim that, with a pen, he was attempting to indicate to the officer

that he was then willing to sign the summons. Hussein’s prior attempt at

flight, refusal to sign the summons, and punching the officer in the face had

ended any chance that Hussein would not be arrested well before the video of

the struggle with the officer had begun and Hussein had made his belated

offer to sign the summons.

         [¶35] Because the video did not demonstrate major discrepancies in

the officer’s descriptions of the crimes committed, and was irrelevant to the

crimes with which Hussein was charged—being a recording only of events

after the crimes had been committed—the trial court properly excluded the

video.

         [¶36] Although the trial court indicated that its reason for excluding the

video was lack of proper authentication, M.R. Evid. 901(b)(1), all relevant

factors must be considered in determining whether—or not—the court

abused its discretion in excluding the video.           The abuse of discretion

determined by the Court may be found only when the appellant demonstrates

that the trial court, in discretionary decision-making: (1) considered a factor

prohibited by law; (2) declined to consider a legally proper factor under a
22


mistaken belief that the factor cannot be considered; (3) acted or declined to

act based on a mistaken view of the law; or (4) expressly or implicitly found

facts not supported by the record according to the clear error standard of

review. Smith v. Rideout, 2010 ME 69, ¶ 13, 1 A.3d 441; Pettinelli v. Yost,

2007 ME 121, ¶ 11, 930 A.2d 1074; see also Sager v. Town of Bowdoinham,

2004 ME 40, ¶ 11, 845 A.2d 567 (abuse of discretion may be found only when

an appellant demonstrates that the decision-maker “exceeded the bounds of

the reasonable choices available to it, considering the facts and circumstances

of the particular case and the governing law”).

      [¶37] Considering that the video was repetitive of evidence presented

to the jury, did not demonstrate significant discrepancies in the officer’s

description of the criminal acts, and began after the crimes had been

committed, there is no basis for the Court to conclude that the trial court

abused its discretion, requiring that the convictions for these charges be

vacated.

      [¶38] Seeking to vacate the assault conviction, Hussein also argues that

convictions for both assault and refusing to submit to arrest result in two

convictions for the same criminal act, violating his constitutional protection

from double jeopardy.      See Ayotte v. State, 2015 ME 158, ¶¶ 12-14,
                                                                            23


129 A.3d 285. Double jeopardy concerns are avoided if each statute at issue

requires proof of a fact that the other does not. Id. ¶ 14.

      [¶39] Assault requires intentionally, knowingly, or recklessly causing

bodily injury or offensive physical contact. 17-A M.R.S. § 207(1)(A) (2018).

Refusing to submit to arrest requires an intent to hinder, delay, or prevent a

law enforcement officer from effecting an arrest with use of physical force

against the law enforcement officer.        17-A M.R.S. § 751-B(1)(B) (2018).

Refusing to submit to arrest requires proof that the crime was committed

against a law enforcement officer, an element of proof not required for an

assault. Assault requires proof that the perpetrator inflicted bodily injury or

offensive physical contact on the victim, an element of proof not required for

refusing to submit to arrest, where the physical force used may, as initially

occurred here, involve pulling away and attempting to flee from a law

enforcement officer without causing injury or offensive contact. It should also

be noted that the physical contacts related to Hussein’s refusal to submit to

arrest continued for minutes after his specific assault on the officer,

constituting a separate criminal act. Thus, no double jeopardy is generated by

the convictions.

      [¶40] I would affirm the trial court’s judgment entered on the jury’s

verdict.
24




Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant
Abdiaziz Hussein

Andrew S. Robinson, District Attorney, Michael B. Dumas, Asst. Dist. Atty., and
Lisa R. Bogue, Asst. Dist. Atty. (orally), Prosecutorial District III, Lewiston, for
appellee State of Maine


Androscoggin County Unified Criminal Docket docket number CR-2017-3619
FOR CLERK REFERENCE ONLY
