Argued May 13, 2015.
On the briefs:
Lauren Wille, Esq., DeGrinney Law Offices, Portland, for appellant Joshua M. Robinson Sr.
Katie R. Hollstrom, Asst. Dist. Atty., Sagadahoc County District Attorney's Office, Bath, for appellee State of Maine.
At oral argument:
Lauren Wille, Esq., for appellant Joshua M. Robinson Sr.
Patricia Mador, Asst. Dist. Atty., Sagadahoc County District Attorney's Office, for appellee State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
[¶1] Joshua M. Robinson Sr. appeals from a judgment of conviction of burglary (Class C), 17-A M.R.S. § 401(1)(A) (2014), and theft by unauthorized taking or transfer (Class E), 17-A M.R.S. § 353(1)(A) (2014), entered by the Superior Court (Sagadahoc County, Horton, J. ) following a jury trial. Robinson contends that the trial court abused its discretion by allowing a witness to testify regarding the witness's previous identification of Robinson in a now-unavailable surveillance video recording. We affirm the judgment.
I. CASE HISTORY
[¶2] The following facts, viewed in the light most favorable to the jury's verdict, as required by our standard of review, are derived from the trial record. See State v. Ormsby, 2013 ME 88, ¶ 2, 81 A.3d 336.
[¶3] On August 26, 2013, at 1:20 a.m., an officer of the Bath Police Department was patrolling Water Street and Centre Street in Bath, " checking the backs of buildings" for security purposes. He observed Robinson at the back of one building, walking behind a large, parked box truck. Finding it unusual to see someone in that area at that time of night, the officer left his vehicle and met Robinson as he came around the back of the truck toward the officer. The officer noticed that Robinson had a " heavy odor of alcohol on his breath, his eyes were a little bit bloodshot, and once in a while he slurred words." Robinson later maintained that he had been urinating by the back of the truck. The officer did not see anyone other than Robinson in the area.
[¶4] The officer noticed a " strange pile of items" sitting on the ground next to the
truck. The pile included " four bottles of alcohol, roughly liter size," three of which were full and appeared unopened; " four boxes of wax food wrapping paper" ; " a butcher knife with a red handle on it" ; and " a Makita drill and . . . charger unit." On top of the pile was a cell phone, later determined to belong to Robinson.
[¶5] Two other officers arrived to check nearby businesses for signs of forced entry. The officers located an open window, with the screen removed, at Beale Street Barbeque. The restaurant's owner (" the owner" ) arrived in response to a call about the incident. The officers showed the owner the pile of items, and he identified the items as taken, without permission, from Beale Street Barbeque. On the night of the burglary, the officers did not ask the owner whether the restaurant had a surveillance system, and the owner never informed the officers about any surveillance system.
[¶6] While some officers were talking with the owner, another officer had placed Robinson in the back of a police cruiser. The owner stood approximately fifteen to twenty feet away from Robinson, and he recognized Robinson, who had worked as a cook at the restaurant from April 2005 to February 2007. During those years, the owner had seen Robinson " a minimum of" twenty to thirty times and had some " memorable occasions" with him.
[¶7] At the police station, Robinson stated that he had " no idea" how his cell phone ended up on the pile, and that " [h]e must have just sat there while he was waiting for his cousin." He did not know where his cousin was but said that they had been together at another bar when Robinson left that bar to urinate. When asked if his fingerprints would be found on the ...