MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2023 ME 4 Docket: Cum-22-58 Argued: November 1, 2022 Decided: January 12, 2023
Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.
STATE OF MAINE
v.
BRANDON J. GIBB
CONNORS, J.
[¶1] Brandon J. Gibb appeals from a judgment of conviction entered by
the trial court (Cumberland County, MG Kennedy, J.) for various criminal
offenses based on his actions toward a female human resources staffer after she
terminated his employment.1 Gibb’s principal argument is that the trial court
erred or abused its discretion in allowing the victim to identify him as the
individual telephoning her because her lay opinion testimony lacked the
foundational requirements for admission. We affirm the judgment and clarify
the standard governing voice identification.
1 Gibb was convicted of two counts of stalking (Class D), 17-A M.R.S. § 210-A(1)(A)(1) (2022);
two counts of violation of a protective order (Class D), 5 M.R.S. § 4659(1) (2022); criminal threatening (Class D), 17-A M.R.S. § 209 (2022); and harassment (Class E), 17-A M.R.S. § 506-A(1)(A)(1)(a) (2022), after a jury trial, and violation of condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2022), after a bench trial. 2
I. BACKGROUND
[¶2] “Viewing the evidence admitted at trial in the light most favorable
to the State, the jury could rationally have found the following facts beyond a
reasonable doubt.” State v. Athayde, 2022 ME 41, ¶ 2, 277 A.3d 387. The
procedural history is based on the record.
[¶3] In December 2020, Gibb was working as a temporary employee at a
food processing company. Because of COVID-19, all employees were required
to wear face masks and other personal protective equipment provided by the
company. The victim, an employee in the human resources department,
informed her supervisor that Gibb was not following the face mask protocol,
and her supervisor instructed her to fire him immediately. Gibb was escorted
to the victim’s office where she explained that his employment was being
terminated because of his failure to follow the face mask protocol. With his
mask down, showing his face, Gibb began yelling obscenities and derogatory
names at the victim, and the victim repeatedly asked him to leave. After
throwing his reflective vest at the victim, he left her office.
[¶4] Two days later, the victim received a voicemail on her office phone.
The caller identified himself as “Brandon”; stated, “How dare you fire me, you
fat bitch”; and threatened to come to her place of work to sexually assault her. 3
She believed the caller to be Gibb because he was the only individual with the
first name “Brandon” that she had ever fired. The victim consulted with her
supervisor about the voicemail, and they agreed to not call the police.
[¶5] Between January and May 2021, the victim continued to receive
voicemails and calls from Gibb where he made similar statements and threats.
Consequently, the victim filed a complaint seeking an order for protection from
harassment (PFH), and the District Court (Portland, Darvin, J.) issued a
temporary order.
[¶6] In May 2021, after Gibb was served with the temporary order, the
victim received one more phone call and two more voicemails in which the
speaker called her derogatory names and threatened to sexually assault her.
Gibb was then arrested and charged by complaint with stalking (Class D),
17-A M.R.S. § 210-A(1)(A)(1) (2022); violation of a protective order (Class D),
5 M.R.S. § 4659(1) (2022); criminal threatening (Class D), 17-A M.R.S. § 209
(2022); and harassment (Class E), 17-A M.R.S. § 506-A(1)(A)(1)(a) (2022). He
was released on bail with a condition that he not have contact with the victim.
[¶7] Roughly one week later, the District Court (Kelly, J.) held an
evidentiary hearing on the victim’s PFH complaint. The court entered a final 4
order of protection in favor of the victim and against Gibb. At the hearing, the
victim heard Gibb speak and observed his appearance and demeanor.
[¶8] Once the final PFH order was in place, the victim did not receive
another call until September 2021. She received two calls and two voicemails
that month. Gibb was charged by complaint with stalking (Class D), 17-A M.R.S.
§ 210-A(1)(A)(1); violation of a protective order (Class D), 5 M.R.S. § 4659(1);
and violation of condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2022).
[¶9] A jury trial on all charges, except the violation of condition of
release, which was jury waived, began on March 1, 2022. Over Gibb’s objection
that her testimony lacked foundation, the victim identified Gibb as the caller
based on her familiarity gained from the day that she terminated his
employment and the PFH hearing.
[¶10] The jury returned a verdict of guilty on all counts, and the trial
court found Gibb guilty of violation of condition of release. He was sentenced
on March 8, 2022,2 and timely appealed the judgment against him. See 15 M.R.S.
§ 2115 (2022); M.R. App. P. 2B(b)(1).
2 As to the first set of charges, Gibb was sentenced to six months’ imprisonment on both the harassment and criminal threatening charges, and he was sentenced to 364 days’ imprisonment with all but six months suspended and one year of probation on the charges of stalking and violation of a protective order. The court ordered that all the sentences on the first set of charges be served concurrently. As to the second set of charges, Gibb was sentenced to thirty days in jail on the charges of violation of a protective order and violation of condition of release, to be served concurrently with 5
II. DISCUSSION
[¶11] We review Gibb’s challenge to the trial court’s evidentiary ruling
for clear error and an abuse of discretion.3 See State v. Hinkel, 2017 ME 76, ¶ 7,
159 A.3d 854. He argues, citing Maine Rule of Evidence 701, that the trial court
erred or abused its discretion in allowing the victim to testify that Gibb was the
caller because her lay opinion testimony identifying him as the caller lacked the
foundational requirements for admission. Voice identification is, however,
more specifically addressed under Maine Rule of Evidence 901.
See United States v. Mendiola, 707 F.3d 735, 739 (7th Cir. 2013);4 State v. Houde,
596 A.2d 330, 333-34 (R.I. 1991); cf. State v. Dube, 2016 ME 50, ¶ 10, 136 A.3d
the first set of charges. Gibb was sentenced to 364 days’ imprisonment, wholly suspended, and one year of probation on the stalking charge, to be served consecutively to all other sentences.
The docket record in each of these matters is inconsistent with the trial court’s judgments, however, erroneously stating the concurrent and consecutive nature of the sentences.
3 Gibb also argues that the trial court erred in denying his motion for judgment of acquittal as to
the criminal threatening charge and in not instructing the jury on the “imminence” element of criminal threatening. Gibb did not raise either argument before the trial court, so we review only for obvious error. See State v. Solomon, 2015 ME 96, ¶¶ 13-14, 120 A.3d 661. The trial court did not plainly err in denying the motion for judgment of acquittal. See id.; State v. Bilodeau, 2020 ME 92, ¶ 8, 237 A.3d 156.
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2023 ME 4 Docket: Cum-22-58 Argued: November 1, 2022 Decided: January 12, 2023
Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.
STATE OF MAINE
v.
BRANDON J. GIBB
CONNORS, J.
[¶1] Brandon J. Gibb appeals from a judgment of conviction entered by
the trial court (Cumberland County, MG Kennedy, J.) for various criminal
offenses based on his actions toward a female human resources staffer after she
terminated his employment.1 Gibb’s principal argument is that the trial court
erred or abused its discretion in allowing the victim to identify him as the
individual telephoning her because her lay opinion testimony lacked the
foundational requirements for admission. We affirm the judgment and clarify
the standard governing voice identification.
1 Gibb was convicted of two counts of stalking (Class D), 17-A M.R.S. § 210-A(1)(A)(1) (2022);
two counts of violation of a protective order (Class D), 5 M.R.S. § 4659(1) (2022); criminal threatening (Class D), 17-A M.R.S. § 209 (2022); and harassment (Class E), 17-A M.R.S. § 506-A(1)(A)(1)(a) (2022), after a jury trial, and violation of condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2022), after a bench trial. 2
I. BACKGROUND
[¶2] “Viewing the evidence admitted at trial in the light most favorable
to the State, the jury could rationally have found the following facts beyond a
reasonable doubt.” State v. Athayde, 2022 ME 41, ¶ 2, 277 A.3d 387. The
procedural history is based on the record.
[¶3] In December 2020, Gibb was working as a temporary employee at a
food processing company. Because of COVID-19, all employees were required
to wear face masks and other personal protective equipment provided by the
company. The victim, an employee in the human resources department,
informed her supervisor that Gibb was not following the face mask protocol,
and her supervisor instructed her to fire him immediately. Gibb was escorted
to the victim’s office where she explained that his employment was being
terminated because of his failure to follow the face mask protocol. With his
mask down, showing his face, Gibb began yelling obscenities and derogatory
names at the victim, and the victim repeatedly asked him to leave. After
throwing his reflective vest at the victim, he left her office.
[¶4] Two days later, the victim received a voicemail on her office phone.
The caller identified himself as “Brandon”; stated, “How dare you fire me, you
fat bitch”; and threatened to come to her place of work to sexually assault her. 3
She believed the caller to be Gibb because he was the only individual with the
first name “Brandon” that she had ever fired. The victim consulted with her
supervisor about the voicemail, and they agreed to not call the police.
[¶5] Between January and May 2021, the victim continued to receive
voicemails and calls from Gibb where he made similar statements and threats.
Consequently, the victim filed a complaint seeking an order for protection from
harassment (PFH), and the District Court (Portland, Darvin, J.) issued a
temporary order.
[¶6] In May 2021, after Gibb was served with the temporary order, the
victim received one more phone call and two more voicemails in which the
speaker called her derogatory names and threatened to sexually assault her.
Gibb was then arrested and charged by complaint with stalking (Class D),
17-A M.R.S. § 210-A(1)(A)(1) (2022); violation of a protective order (Class D),
5 M.R.S. § 4659(1) (2022); criminal threatening (Class D), 17-A M.R.S. § 209
(2022); and harassment (Class E), 17-A M.R.S. § 506-A(1)(A)(1)(a) (2022). He
was released on bail with a condition that he not have contact with the victim.
[¶7] Roughly one week later, the District Court (Kelly, J.) held an
evidentiary hearing on the victim’s PFH complaint. The court entered a final 4
order of protection in favor of the victim and against Gibb. At the hearing, the
victim heard Gibb speak and observed his appearance and demeanor.
[¶8] Once the final PFH order was in place, the victim did not receive
another call until September 2021. She received two calls and two voicemails
that month. Gibb was charged by complaint with stalking (Class D), 17-A M.R.S.
§ 210-A(1)(A)(1); violation of a protective order (Class D), 5 M.R.S. § 4659(1);
and violation of condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2022).
[¶9] A jury trial on all charges, except the violation of condition of
release, which was jury waived, began on March 1, 2022. Over Gibb’s objection
that her testimony lacked foundation, the victim identified Gibb as the caller
based on her familiarity gained from the day that she terminated his
employment and the PFH hearing.
[¶10] The jury returned a verdict of guilty on all counts, and the trial
court found Gibb guilty of violation of condition of release. He was sentenced
on March 8, 2022,2 and timely appealed the judgment against him. See 15 M.R.S.
§ 2115 (2022); M.R. App. P. 2B(b)(1).
2 As to the first set of charges, Gibb was sentenced to six months’ imprisonment on both the harassment and criminal threatening charges, and he was sentenced to 364 days’ imprisonment with all but six months suspended and one year of probation on the charges of stalking and violation of a protective order. The court ordered that all the sentences on the first set of charges be served concurrently. As to the second set of charges, Gibb was sentenced to thirty days in jail on the charges of violation of a protective order and violation of condition of release, to be served concurrently with 5
II. DISCUSSION
[¶11] We review Gibb’s challenge to the trial court’s evidentiary ruling
for clear error and an abuse of discretion.3 See State v. Hinkel, 2017 ME 76, ¶ 7,
159 A.3d 854. He argues, citing Maine Rule of Evidence 701, that the trial court
erred or abused its discretion in allowing the victim to testify that Gibb was the
caller because her lay opinion testimony identifying him as the caller lacked the
foundational requirements for admission. Voice identification is, however,
more specifically addressed under Maine Rule of Evidence 901.
See United States v. Mendiola, 707 F.3d 735, 739 (7th Cir. 2013);4 State v. Houde,
596 A.2d 330, 333-34 (R.I. 1991); cf. State v. Dube, 2016 ME 50, ¶ 10, 136 A.3d
the first set of charges. Gibb was sentenced to 364 days’ imprisonment, wholly suspended, and one year of probation on the stalking charge, to be served consecutively to all other sentences.
The docket record in each of these matters is inconsistent with the trial court’s judgments, however, erroneously stating the concurrent and consecutive nature of the sentences.
3 Gibb also argues that the trial court erred in denying his motion for judgment of acquittal as to
the criminal threatening charge and in not instructing the jury on the “imminence” element of criminal threatening. Gibb did not raise either argument before the trial court, so we review only for obvious error. See State v. Solomon, 2015 ME 96, ¶¶ 13-14, 120 A.3d 661. The trial court did not plainly err in denying the motion for judgment of acquittal. See id.; State v. Bilodeau, 2020 ME 92, ¶ 8, 237 A.3d 156. And contrary to Gibb’s assertion, the court did instruct the jury on the element of “imminence.” What Gibb wanted was an instruction defining the term “imminent,” and it was not obvious error for the court to not do so on its own after Gibb was provided multiple opportunities to request additional instructions. See State v. Coleman, 2019 ME 170, ¶¶ 22, 26-27, 29, 221 A.3d 932. 4 “When applying the Maine Rules of Evidence, we may look to cases applying the Federal Rules of Evidence.” State v. Miller, 1999 ME 182, ¶ 7 n.6, 741 A.2d 448. 6
93 (explaining that lay opinion testimony about handwriting is specifically
admissible under M.R. Evid. 901(b)(2)).
[¶12] Under Rule 701, lay opinion testimony, as a general matter, is
limited to opinions that are “[r]ationally based on the witness’s perception” and
“[h]elpful to clearly understanding the witness’s testimony or to determining a
fact in issue.” Rule 901(b)(5) addresses voice identification specifically and
provides that “[a]n opinion identifying a person’s voice—whether heard
firsthand or through mechanical or electronic transmission or recording—[can
be] based on hearing the voice at any time under circumstances that connect it
with the alleged speaker.” The relevant advisory note explains that “such
testimony may lack credibility, but this goes to its weight and not its
admissibility.” M.R. Evid. 901 Advisers’ Note to former M.R. Evid. 901
(Feb. 2, 1976).
[¶13] Thus, although Rule 701 provides that lay opinion testimony is
admissible when based on perception, Rule 901(b)(5) elucidates, with respect
to voice identification, that “[t]he bar for familiarity is not a high one.” Mendiola,
707 F.3d at 740 (noting that the Seventh Circuit had previously held that
“hearing a defendant’s voice once during a court proceeding satisfies the
minimal familiarity requirement”); United States v. Axselle, 604 F.2d 1330, 1338 7
(10th Cir. 1979) (explaining that a single telephone call combined with hearing
the defendant’s voice in court was sufficient for voice identification testimony
to go to the jury and that the defendant’s objection that the witness had only
heard his voice one time other than the call in question went to the weight of
the evidence); 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence § 901.06 (Matthew Bender & Co., Inc. 2d ed. 2012), LEXIS (“A lay
witness may identify a person’s voice based on having heard that person’s voice
on at least one other occasion under circumstances connecting the voice with
the person.”).
[¶14] In sum, although a voice identification must meet the requisites of
both Rules 701 and 901(b)(5), Rule 901(b)(5) makes clear that the Rule 701
requirement of perception is a low bar that can be based on minimal exposure
to the voice in question. Applying this standard, the court’s allowance of the
victim’s testimony, given the victim’s exposure to Gibb’s voice on the phone and
in person when initially terminating him and at the PFH hearing, was neither
infected with legal error nor an abuse of discretion. Gibb was free to contest
the credibility of the victim’s testimony before the jury on cross-examination.
The entry is:
Judgment affirmed. Remanded to the trial court to correct both docket records to reflect 8
accurately the concurrent and consecutive nature of Gibb’s sentences.
Stuart W. Tisdale, Jr., Esq. (orally), Law Office of Stuart Tisdale, Portland, for appellant Brandon Gibb
Jennifer F. Ackerman, Dept. Dist. Atty., and Wesley W. Birdsong, Stud. Atty. (orally), Prosecutorial District No. Two, Portland, for appellee State of Maine
Cumberland County Unified Criminal Docket docket numbers CR-2021-2085 and CR-2021-4076 FOR CLERK REFERENCE ONLY