Submitted on Briefs December 18, 2014.
Judgment vacated. Remanded for entry of judgment of acquittal.
On the briefs:
Jeffrey C. Toothaker, Esq., Ellsworth, for appellant Shain Stanley.
William B. Entwisle, Asst. Dist. Atty., Prosecutorial District No. VII, Ellsworth, for appellee State of Maine.
Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HJELM, JJ.
[¶1] Shain Stanley appeals from a judgment of conviction for violating 12 M.R.S. § 6575-G (2014) entered by the District Court (Ellsworth, Mallonee, J.) following a bench trial. Section 6575-G makes it a Class D crime to " fish for or take elvers within 150 feet of any part of a dam with a fishway or within 150 feet of a fishway." (Emphasis added.) In a Uniform Summons and Complaint (U.S.C.), the State charged Stanley only with " fishing for elvers within 150 feet of a dam with a fishway," but the court found Stanley guilty of fishing for elvers within 150 feet of a fishway, not a dam. On appeal, Stanley argues that the court erred in convicting him based on conduct that was not alleged in the USC. We agree and vacate the judgment.
[¶2] From the evidence admitted at trial, the court could have found the following facts. See U.S. Bank, N.A. v. Thomes, 2013 ME 60,
¶ 2, 69 A.3d 411. On the evening of April 25, 2013, Marine Patrol
Officer Colin MacDonald was patrolling in the area of Denning Brook on Mount Desert Island looking for elver fishing activity. MacDonald observed Stanley, whom he knew and recognized, and a companion running a dip net back and forth in the brook, then turning it over and dumping its contents into a bucket, a technique MacDonald knew was commonly used for elver fishing. Previously, MacDonald had placed a stake 150 feet from a nearby fishway, and based on the location of the stake, MacDonald estimated that Stanley was about 100 feet from the fishway.
[¶3] MacDonald approached Stanley and saw elvers swimming in the bucket. MacDonald released the elvers and issued Stanley a USC, which charged Stanley with the crime of " fishing for elvers within 150 feet of a dam with a fishway" and included a citation to the statute.
[¶4] The State never sought to amend the complaint to allege the alternative statutory violation of fishing for elvers within 150 feet of a fishway, and the matter proceeded to a bench trial. At trial, a contested issue was whether Stanley was fishing near a " dam" within the meaning of section 6575-G. As a result, the State argued in its summation that it had proved both that Stanley was within 150 feet of a dam and that he was within 150 feet of a fishway. The court declined to reach the question of whether the State had proved that the structure in question was a dam pursuant to the statute, concluding that the State had proved its alternative argument that Stanley was fishing for elvers ...