Stare v. Porter
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:  1997 ME 74  
Docket:   SOM-95-631
Submitted on briefs March 14, 1997
Decided April 10, 1997

Panel:  WATHEN, C.J.,  ROBERTS,  GLASSMAN, CLIFFORD, RUDMAN, and LIPEZ, JJ.

STATE OF MAINE

v.

ALSTON PORTER

CLIFFORD, J.

	[¶1]  Alston Porter appeals from a judgment entered in the Superior
Court (Somerset County, Marsano, J.), after a jury-waived trial, finding him
guilty of aggravated assault (Class B) in violation of 17-A M.R.S.A. 208 (1)(C) 
(1983).{1} Porter's only contention on appeal{2} is that the evidence is
insufficient to meet the standard required for conviction pursuant to section
208(1)(C).  He disputes that the circumstances amount to manifest extreme
indifference to the value of human life within the meaning of section
208(1)(C), namely, that death or serious bodily injury to the victim was
reasonably likely to result from his conduct.  Concluding the evidence to be
sufficient, we affirm the judgment.
	[¶2]  The victim of Porter's assault, who was home alone with her
three-year-old son, testified that she was awakened early in the morning
when there was "a hand across my mouth and the back of my head was
being grabbed and my head was being twisted to the right severely hard." 
She testified that she felt that her neck was going to be snapped.  She
testified that the person's other hand was grabbing her hair and that she
believed the person to be a man because of his strength.  She also testified
that at one point her head hit the wall behind the bed causing a large bump
on the back of her head.  She then was dragged to the floor and pulled into
the hallway.  As she hit the man with her hands and feet, she eventually
kicked him hard enough so that he fell backwards.  She got up, turned on a
light, and recognized the man to be Porter.  She said that she was yelling at
him and that he asked her who she was.  He then said that he thought he
was in his own house.  Porter turned and fled from the house.  The victim
testified that she sustained bodily injury to her cheeks, red marks on her
neck, a bump on the back of her head, and that she lost hair for several days.
	[¶3]  Porter testified that he entered the victim's house intending to
get some vodka and any money that was there.  Porter testified that "I must
have woke [her] up when I went by or whatever.  I was looking around the
room with a flashlight and she hollered and wanted to know who it was and
what I wanted."  He said that he grabbed the victim and "hauled her out of
bed and was walking her down the hallway."  He testified that he "kept her
turned straight away from me."  He testified that he could see her hand
groping the wall and that he was pushing her face away from him so that she
could not identify him.  Porter testified that when she turned on the light,
they both fell to the floor.  He testified that he came "back up with her," and
he then let her go. 
	[¶4] The court denied a motion for a judgment of acquittal and
subsequently concluded that Porter was guilty of aggravated assault.  The
court stated that it had "no doubt that [Porter] was acting recklessly.  I have
no doubt at all but that the injuries amount to that which is required under
Section 208.  It seems to me that in the manner or method in which in the
injuries were inflicted that there was clearly an aggravated assault. . . ." 
Porter requested no further findings of fact, and this appeal followed.
	[¶5]  When reviewing a challenge to the sufficiency of the evidence, we
review the evidence in the light most favorable to the State to determine
whether a factfinder rationally could find beyond a reasonable doubt every
element of the offense charged.  State v. Hoffstadt, 652 A.2d 93, 94 (Me.
1995).  The factfinder is entitled to weigh conflicting evidence in
determining the guilt or innocence of the defendant, State v. Hinds, 485
A.2d 231, 235 (Me. 1984), and we will vacate a finding of guilt only if the
factfinder rationally could not have reached that conclusion on the basis of
the evidence before it.  State v. Caouette, 462 A.2d 1171, 1176 (Me. 1983). 
In addition, when a defendant fails to request further findings of fact, we
will deem the trial court to have made such findings of fact as are supported
by the evidence and that are necessary to sustain the court's ultimate
conclusion.  State v. Dodd, 503 A.2d 1302, 1307 (Me. 1986).
	[¶6]  Porter contends that insufficient evidence exists on the record
to support a conviction for the crime of aggravated assault pursuant to the
"extreme indifference to the value of life" provision of section 208(1)(C). 
Section 208(1)(C) (1983) provides:

§ 208.  Aggravated Assault

	1.  A person is guilty of aggravated assault if he
intentionally, knowingly, or recklessly causes:
	
	. . . 

	C.  Bodily injury to another under circumstances
manifesting extreme indifference to the value of human life. 
Such circumstances include, but are not limited to, the
number, location or nature of the injuries, the manner or
method inflicted, or the observable physical condition of the
victim.
	
It is not seriously disputed that Porter's victim suffered bodily injury.  State
v. Dodd, 503 A.2d at 1304; 17-A M.R.S.A. § 2(5) (1983).  Pursuant to section
208(1)(C), however, the bodily injury must be inflicted "under
circumstances manifesting extreme indifference to the value of human life." 
Extreme indifference requires "a serious impairment to life as a value -
death or a serious bodily injury - that, not having occurred in fact, was
nevertheless reasonably likely to result from a defendant's conduct in all of
the circumstances surrounding it." State v. Dodd, 503 A.2d at 1306.  In
other words, a grave result must be reasonably likely.  Id.  We have construed
a reasonable likelihood to mean "a not very high" likelihood of a serious
result.  Id. at 1304.{3} 
	[¶7] Porter argues that although the victim "could possibly sustain
serious bodily injury or death in this struggle . . . it cannot be said that death
or serious bodily injury were reasonably likely to have occurred."  Porter's
contention is unpersuasive.  The court was well aware of the extreme
indifference to the value of human life elements that the State was required
to prove and concluded that the State met its burden because of the manner
and method used to inflict the injuries.  The court accepted the victim's
testimony in its entirety, including that the defendant twisted her head with
severe force and that she felt her neck was about to snap.  She also testified
that he pulled her hair, and that he pulled her from the bed and dragged her
down the hallway.  The conclusion that serious bodily injury was reasonably
likely under the circumstances of this case is amply supported by that
evidence.  The court also found that Porter acted at least recklessly.  Viewed
in the light most favorable to the State, the evidence was sufficient to prove
beyond a reasonable doubt that Porter caused bodily injury to the victim
under circumstances manifesting extreme indifference to the value of human
life within the meaning of section 208(1)(C).  State v. Dodd, 503 A.2d at
1304.  State v. Anania, 340 A.2d 207, 211 (Me. 1975).
	The entry is:
									Judgment affirmed.
Attorneys for State:

David W. Crook, District Attorney
Andew Benson, Asst. Dist. Atty.
Court Street
Skowhegan, ME 04976

Attorney for defendant:

M. Michaela Murphy, Esq.
Daviau, Jabar & Batten
One Center Street
Waterville, ME 04901

FOOTNOTES******************************** {1} Section 208 provides: § 208. Aggravated Assault 1. A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes: A. Serious bodily injury to another; or B. Bodily injury to another with use of a dangerous weapon; or C. Bodily injury to another under circumstances manifesting extreme indifference to the value of human life. Such circumstances include, but are not limited to, the number, location or nature of the injuries, the manner or method inflicted, or the observable physical condition of the victim. {2} Porter also was charged with attempted murder, assault, burglary, possession of a firearm by a felon, violation of a condition of release, and violation of an order for protection from abuse. He was acquitted of attempted murder and assault but convicted of the remaining charges. {3} The "reasonable likelihood" or "not a very high" likelihood is to be distinguished from the "very high degree of risk of death or serious bodily injury" required to meet the definition of "conduct which manifests a depraved indifference to the value of human life" within the meaning of 17-A M.R.S.A. § 201(B) (1983) (depraved indifference murder). State v. Dodd. 503 A.2d at 1305-1306. See State v. Crocker, 435 A.2d 58, 63-67 (Me. 1981).