State v. Rice

2007 ME 122, 930 A.2d 1064, 2007 Me. LEXIS 122

• Court: Supreme Judicial Court of Maine
• Decided: August 28, 2007
• Status: Published

Opinions

Majority: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, and SILVER, JJ.

Dissent: MEAD and CALKINS, JJ.

ALEXANDER, J.

[¶ 1] Jeffrey Rice appeals from a judgment of conviction entered in the Superior Court (Cumberland County, Crowley, J.) for robbery (Class A), 17-A M.R.S. § 651(1)(B), (E) (2006); burglary (Class A), 17-A M.R.S. § 401(1)(B)(1) (2006); violation of conditions of release (Class E), 15 M.R.S. § 1092(1)(A) (2006); and criminal threatening (Class C), 17-A M.R.S. §§ 209(1), 1252(4) (2006). Rice argues that there was insufficient evidence that he used a firearm to support the enhancement of the robbery, burglary, and criminal threatening charges. He also asserts that there was insufficient evidence from which a jury could have found that he was the perpetrator of the crimes. We affirm the judgment.

I. CASE HISTORY

[¶ 2] The trial produced the following evidence. In the late afternoon of Saturday, May 13, 2006, a young woman was working alone at the Bellingham Coffee Company, located on Warren Avenue in Portland. The Bellingham Coffee Company is a drive-up coffee shop, with no inside seating. Cars are visible as they enter from Warren Avenue. When drivers pull up to the speaker to order, the attendant’s headset beeps to make her aware of the customer. When a customer orders at the speaker, the attendant cannot see the front of the car, but can see the rear part of the car if she looks out the back door.

[¶ 3] Around 4:45 P.M., on May 13, the young woman noticed a maroon, two-door Mercury pull up to the speaker to place an order. When the car pulled up to the window to pay, there was only one man in the car. He told the young woman that he did not have his wallet or any money, and that she should not make his coffee. He then asked her how late the shop was open and told her that he would return.

[¶ 4] At around 5:40 P.M., the man returned to the coffee shop. The young woman checked the clock when she saw the car pull up because it was close to closing time. After hearing the beep in her headset, the young woman stated, “good afternoon,” and the customer responded, “hold on one second.” She then heard the customer’s car door shut and heard banging on the only door to the shop. The door, which is not accessible to the public, was locked. She saw a man banging at the door and tried to hide so he could not see her inside the shop.

[¶ 5] After a few moments, the banging stopped. The victim then saw a man climbing through the service window. It was the same man who had come to the window about an hour earlier and told her he could not pay for his coffee. When the man entered the shop, he pulled out a gun and pointed it at the victim. The victim was asked in both direct and cross-examination about “the gun,” and she testified to the threatening manner in which the gun was displayed toward her. At one point, the gun was only six to eight inches from the victim’s face and pointed directly at her.

[¶ 6] The victim was shaking and crying and asked the man if he was going to hurt her. He told her that he was having a really bad day, and that his son had just died. He then walked over to the cash register, which was open, and took out the money, except for the one-dollar bills and the change. He also took $200 from the deposit box inside a safe that was open.

[¶ 7] After he took the money, the man told the victim that he was going to leave and that she should not call the police for at least ten minutes. The man then left the shop, got back in his car, and drove off, taking a right down Warren Avenue.

[¶ 8] The victim first tried to call her boss and then called the police. The police arrived soon after the robbery.

[¶ 9] Portland Police Officer Jessica Brown responded to the call shortly after 5:40 P.M. The victim told Officer Brown that the man who robbed her was a white male, approximately 5'9", thin, unshaven, smelling of cigarettes, wearing a green sweatshirt and blue jeans. She also stated that the man drove an older maroon, two-door Mercury.

[¶ 10] The victim testified that she was able to get a good look at the man and his car both times that he came to the shop. The victim could not describe the gun that the man was holding, except that it was black. She stated that because she was in shock and crying, she would not have been able to describe the man had the officer not asked her questions regarding specifics about what he looked like and what he was wearing.

[¶ 11] Portland Police Officer Terry Fitzgerald testified that he was on patrol on the afternoon of May 13, 2006. Around 5:15 P.M., Officer Fitzgerald initiated a traffic stop at the Park Street extension, after observing a car go through a red light at the intersection of State Street and York Street. When Officer Fitzgerald approached the car, the driver eventually identified himself as Jeffrey Rice. Rice was driving a red Mercury with the license plate 1349 NP.

[¶ 12] At the request of the State, Officer Fitzgerald timed the drive from the Park Street extension to the Bellingham Coffee Company. He testified that the drive took fifteen minutes. Rice hired a private investigator who also timed the drive from the Park Street extension to the Bellingham Coffee Company. He took a different route than Officer Fitzgerald, and the drive took him a little over seventeen minutes.

[¶ 13] Officer Richard Betters of the Portland Police Department testified that on May 7, 2006, he responded to a call at 182 Grant Street and came into contact with Rice. On May 14, 2006, Officer Betters heard a description of the suspect in the robbery of the Bellingham Coffee Company that had occurred the day before. After hearing the description of the suspect and his motor vehicle, Officer Betters thought of Rice because of his encounter with him a week earlier.

[¶ 14] Officer Richard Vogel of the Portland Police Department testified that he put together the photo lineup after learning about the robbery, Rice’s traffic stop preceding the robbery, and after speaking with Officer Betters. The photo lineup included Rice. When Officer Vogel showed the victim the photo lineup two days after the robbery, she immediately pointed to Rice’s picture and said, “that’s him.” He told her to take a look at the whole page again which she did. Again, she picked the picture of Rice.¹ The victim told Officer Vogel that Rice’s hair was longer at the time of the robbery than it was in the photo. Officer Vogel also testified that Rice had a 1989 Mercury Cougar two-door registered in his name, license plate 1349 NP.

[¶ 15] Rice was arrested on Monday, May 15, after police stopped his vehicle. The police searched Rice’s vehicle but did not find a gun. Rice was subsequently charged with robbery (Class A), 17-A M.R.S. § 651(1)(B), (E); burglary with a firearm (Class A), 17-A M.R.S. § 401(1)(B)(1); violation of conditions of release (Class E), 15 M.R.S. § 1092(1)(A); and criminal threatening with a dangerous weapon (Class C), 17-A M.R.S. §§ 209(1), 1252(4). The robbery, burglary, and criminal threatening charges were aggravated because of the allegation of use of a firearm.

[¶ 16] Before trial, Rice pleaded guilty to an unrelated theft. Rice waived his right to a jury trial for Count 3, violation of conditions of release, because he did not want the jury to learn that he was on bail at the time of the robbery. The parties stipulated that Rice was on pre-conviction bail at the time of the criminal acts. Rice stipulated that if he was found guilty on Counts 1, 2, and 4, he would also be found guilty of Count 3.

[¶ 17] At trial, after the State rested, Rice moved, pursuant to M.R.Crim. P. 29(a), for a judgment of acquittal on the firearm enhancement based on the fact that the State’s only evidence of the gun was the victim’s testimony. Rice argued that in order to meet the statutory definition of a firearm, 17-A M.R.S. § 2(12-A) (2006), the State was required to present evidence that the weapon could be used to fire projectiles with the use of an explosive. The court denied the motion, noting that viewing the evidence in the light most favorable to the State, there was sufficient evidence for the jury to infer that the weapon displayed was a firearm. Rice renewed the motion at the close of the evidence.

[¶ 18] When instructing the jury on burglary and robbery, the court defined the term “firearm,” pursuant to the definition in 17-A M.R.S. § 2(12-A), as follows: “a firearm means any weapon whether loaded or unloaded which is designed to expel a projectile by the action of an explosive and includes any such weapon commonly referred to as a pistol, revolver or gun.”²

[¶ 19] The jury returned guilty verdicts against Rice on Counts 1, 2, and 4. The court found Rice guilty of Count 3. The court sentenced Rice as follows: Count 1 (robbery): twenty years, all but twelve years suspended, with four years of probation, and $1260 restitution; Count 2 (burglary) twenty years, all but twelve years suspended, with four years of probation, concurrent with Count 1; Count 3 (violating conditions of release): six months concurrent with Count 1; Count 4 (criminal threatening with a dangerous weapon): five years concurrent with Count 1; and Count 5 (the unrelated theft by unauthorized taking or transfer): six months concurrent with Count 1. This appeal followed.

II. LEGAL ANALYSIS

[¶ 20] A firearm is “any weapon, whether loaded or unloaded, which is designed to expel a. projectile by the action of an explosive and includes any such weapon commonly referred to as a pistol, revolver, rifle, gun, machine gun or shotgun.” 17-A M.R.S. § 2(12-A).

[¶ 21] Rice argues that there was insufficient evidence in the record to support a finding that Rice used a firearm, as defined by the statute, when committing the offenses. Therefore, Rice asserts that the firearm factor, aggravating the classification of the robbery, burglary, and criminal threatening charges, was unproven. The State contends that it was not required to produce evidence of “the inner workings of the firearm” to support the convictions.

[¶ 22] We review a denial of a motion for a judgment of acquittal by using a sufficiency of the evidence analysis. State v. Kotredes, 2003 ME 142, ¶ 9, 838 A.2d . Therefore, we “view the evidence in the light most favorable to the State to see if any fact-finder could rationally find every element of [each] offense beyond a reasonable doubt.” Id.

[¶ 23] A firearm or a gun is something that people can identify from their common experience. The victim testified that Rice pointed a gun at her, and that, at one point, the gun was displayed within six to eight inches of her face. The evidence also indicates that Rice used and displayed the gun to threaten the victim, and that the manner in which he used the weapon supports the conclusion that Rice believed he was using a firearm, not some other object that would not have enhanced the seriousness of Rice’s crimes.

[¶ 24] The State is not required to produce the firearm used in a crime at trial to prove that the defendant committed a crime with the use of a firearm. State v. Millett, 392 A.2d 521, 527-28 (Me.1978). Nor does the State have to prove that the firearm was operable, absent evidence of inoperability. Id. See also United States v. Dobbs, 449 F.3d 904, 910-11 (8th Cir.2006). Dobbs involved the robbery of a convenience store. Id. at 906. Like the instant case, the firearm used to commit the robbery was not part of the evidence. Id. at 908, 910. The defendant argued that failure to produce the firearm barred conviction on the firearm charge because “a lay person such as the eyewitness store clerk is not competent to testify as to whether a particular object meets the statutory definition of a ‘firearm.’ ” Id. at 910. The Dobbs court rejected the defendant’s argument noting that “they offer no cases in support of these propositions.” Id. The court went on to hold that “numerous courts have held that, without a firearm in evidence and without expert opinions based on analysis of the firearm, lay testimony from eyewitnesses can be sufficient to support a finding that an object is, in fact, a firearm.” Id. at 910-11 (citing United States v. Kirvan, 997 F.2d 963, 966 (1st Cir.1993) (collecting cases)).³

[¶25] The Dobbs court noted that evidence supporting the finding that the firearm was used in the robbery included the store clerk’s testimony that she had seen a firearm and evidence that one of the defendants “handled the object as though it were a firearm.” Id. at 911. The evidence in Dobbs also included a security videotape of portions of the robbery in which one defendant handled an object that appeared to be a firearm. Id.

[¶ 26] Eyewitness observations and circumstantial evidence have also supported findings of use of a firearm, without the firearm being introduced into evidence, in Maine practice. In State v. Millett, the defendant was charged with two counts of being in possession of a firearm. 392 A.2d at 522. After he was convicted, two of his arguments on appeal were that the State failed to prove that the instrument he had in possession was a firearm and failed to prove that it was a firearm, “in operable condition, i.e. capable of firing a projectile.” Id. The evidence revealed that the defendant had displayed a gun visible to several people while a codefendant made threatening remarks and, on a later occasion, the codefendant had shot a different gun in their direction, causing some leaves and dirt to fly in the air. Id. at 523. One of the witnesses also expressed familiarity with guns and was convinced that the defendant had displayed an authentic handgun. Id. at 527.

[¶27] In Millett, we stated that we would assume, without deciding, that the possession statute required the State to prove beyond a reasonable doubt that the reference weapon was a gun in operable condition. Id. at 527. Based on the evidence about the gun from the witnesses and the fact that there was no evidence that the gun was inoperable, we determined that there was sufficient evidence to support the defendant’s convictions for possession of a firearm. Id. at 527-28.

[¶ 28] In State v. Nile, 557 A.2d 950, 951 (Me.1989), the defendant was charged with, inter aha, kidnapping with a dangerous weapon, criminal threatening with a firearm, and possession of a firearm by a felon. The defendant had kidnapped and raped his estranged wife. Id. The rifle used by the defendant during the criminal conduct was not introduced into evidence. Id. at 952. After he was convicted, the defendant argued on appeal that the State had not provided sufficient evidence of the “firearm” to support his conviction for the charges. Id. at 951-52. We held that the evidence that the rifle was one of many guns owned by the defendant, that he loaded it with ammunition, and pointed it at the victim, was sufficient to support the charges. Id. at 952.

[¶ 29] Here, the evidence that Rice used a firearm to commit the robbery, burglary, and criminal threatening included the victim’s testimony that Rice pulled out a black gun, pointed it at her, and threatened her. The evidence also included the victim’s description that Rice handled the object as though it was a firearm. See Dobbs, 449 F.3d at 911. Although the State offered more evidence in Millett and Nile to support a finding that a firearm was used by the defendant, the victim’s testimony in this case is sufficient to support the convictions. As we stated in Mil-lett, the State was not required to produce the gun or to prove that it was operable, absent any evidence of inoperability. 392 A.2d at 527-28. Federal precedent indicates that a firearm is such a familiar object in today’s society that one could be sufficiently identified by an eyewitness. Dobbs, 449 F.3d at 910-11. Therefore, the victim’s testimony was sufficient to establish Rice’s use of the firearm. The trial court did not err in denying Rice’s motion for judgment of acquittal on the firearm enhancement of the charges against him.

[¶ 30] Rice also argues that there was insufficient evidence to support the guilty verdicts against him as the perpetrator of the crimes. In reviewing a challenge to the sufficiency of the evidence, we review the facts in the light most favorable to the State “to determine whether the trier of fact rationally could have found beyond a reasonable doubt every element of the offense charged.” State v. York, 2006 ME 65, ¶ 7, 899 A.2d 780, 782. “Determinations regarding witness credibility are in the exclusive province of the fact-finder.” State v. Durant, 2004 ME 136, ¶ 12, 861 A.2d 637, 640. A conviction may be based on circumstantial evidence “and is not for that reason less conclusive.” State v. Ardolino, 1997 ME 141, ¶ 20, 697 A.2d 73, 80 (citing State v. Benner, 654 A.2d 435, 437 (Me.1995)). Furthermore, the fact-finder is allowed to draw all reasonable inferences from the circumstantial evidence. Id. The evidence in the record, discussed above, is sufficient to support Rice’s convictions on all four charges.

The entry is:

Judgment affirmed.

1 . The victim also identified Rice in the courtroom as the man who had robbed the store.

2 . The court stated that it was not going to repeat the definition of firearm again for purpose of the criminal threatening charge.

3 . Like Maine’s statute, the United States Code’s definition of a "firearm” includes characteristics of its "inner workings.” 18 U.S.C.S. § 921(a)(3) (LexisNexis 2006). "The term 'firearm' means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.” Id.