State v. Shofner
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 88
Docket:	Sag-98-603
Submitted
on Briefs:	May 24, 1999
Decided:	June 9, 1999

Panel:	 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
Majority:	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, and CALKINS, JJ.
Concurrence:SAUFLEY, and ALEXANDER, JJ.

STATE OF MAINE

v.

MARTIN A. SHOFNER

CALKINS, J.

	[¶1]  	Martin Shofner appeals from a judgment of conviction of
reckless conduct with a dangerous weapon (Class C), 17-A M.R.S.A. §§ 211,
1252(4) (1983), entered after a jury trial in Superior Court (Sagadahoc
County, Warren, J.).  On appeal, Shofner challenges, inter alia, a jury
instruction given by the court on the presumption of intoxication established
by 29-A M.R.S.A. § 2432 (1996).  Finding no error, we affirm the judgment.
	[¶2]  	Shofner was arrested and indicted after an incident in which,
after consuming a considerable amount of alcohol, he discharged a firearm at
night in the vicinity of a forest ranger.  At trial, a deputy sheriff testified
without objection that after arresting Shofner, he administered an
intoxilyzer test that revealed Shofner's blood-alcohol level to be 0.16%.  The
deputy further testified, also without objection, that the legal limit in Maine
for operating a motor vehicle is 0.08%, and that Shofner's blood-alcohol
level was twice that limit.
	[¶3]  	Over Shofner's objection, the trial court instructed the jury that
"if you find that the defendant had a blood/alcohol content in excess of .08
percent, you may infer that the defendant was under the influence of
intoxicants."  That instruction was based on 29-A M.R.S.A. § 2432(3): "In
proceedings other than [OUI prosecutions], a person is presumed to be
under the influence of intoxicants if that person has a blood-alcohol level of
0.08% or more."
	[¶4]  	Shofner argues that the instruction, derived from a section of
the motor vehicle code, was improper in a case not involving a motor
vehicle.  We have approved jury instructions based on the predecessor to
section 2432 to help the jury decide whether a manslaughter defendant
acted recklessly or with criminal negligence.  See State v. Herbest, 551 A.2d
442, 446 (Me. 1988); State v. Carter, 443 A.2d 958, 960-61 (Me. 1982);
State v. Rhoades, 380 A.2d 1023, 1026 (Me. 1977).  Those cases all involved
motor vehicles.  Nothing in those cases or the statute, however, suggests
that the presumption of intoxication is only relevant in a case where the
defendant was operating a motor vehicle.   The inference that a defendant
was under the influence of alcohol when he chose to drive is relevant to
whether he acted with the recklessness or criminal negligence required for
a manslaughter conviction.  See Herbest, 551 A.2d at 446.  In the same way,
the inference that a defendant was under the influence when he chose to
fire a gun is relevant to the recklessness required for a reckless conduct
conviction. 
	[¶5]  	The trial court's instruction was appropriate here, because the
jury heard the deputy testify that Shofner's blood-alcohol level of 0.16% was
twice the legal limit for driving.  Although that testimony was accurate, see
29-A M.R.S.A. § 2411(1)(B) (1996) (a person commits OUI by driving with a
blood-alcohol level of 0.08% or more), the court's instruction explained the
relevant law and made it clear to the jury that the blood-alcohol level of
0.08% or higher raised an inference of intoxication that the jury was free to
accept or reject. See M.R. Evid. 303(c). The challenged instruction was not
error.
	[¶6]  	Shofner's other contentions on appeal do not require discussion.
	The entry is:
			Judgment affirmed.               

ALEXANDER, J., with whom SAUFLEY, J., joins, concurring.

	[¶7]  We concur in the Court's opinion.  We write separately only to
emphasize that while we hold that giving the section 2432(3) inference
instruction here was not error, the instruction also was not required in the
circumstances of the case.
	[¶8]  Use of inference instructions, not statutorily related to the
offense at trial, must be considered with caution, as a jury, hearing the
instruction, may give the fact at issue undue significance.  Maine rules
mandate particular caution:  

The court is not authorized to direct the jury to find a presumed
fact against the accused.  The court may submit the question of
guilt or of the existence of the presumed fact to the jury, if, but
only if, a reasonable juror on the evidence as a whole, including
the evidence of the basic facts, could find guilt or the presumed
fact beyond a reasonable doubt. 

M.R. Evid. 303(b).
	[¶9]  Interpreting Rule 303(b), limits on use of inferences, Field &
Murray, Maine Evidence