Argued: December 14, 2016
R. Libby, Esq., and Tyler J. Smith, Esq. (orally), Libby
O'Brien Kingsley & Champion, LLC, Kennebunk, for
appellant Dana P. Lajoie.
Christopher Almy, District Attorney, and Tracy Collins, Asst.
Dist. Atty. (orally), Prosecutorial District V, Bangor, for
appellee State of Maine.
SAUFLEY, C.J., and ALEXANDER. MEAD, GORMAN, JABAR, HJELM, and
Dana P. Lajoie appeals from a judgment of conviction for
baiting deer (Class E), 12 M.R.S. § 11452(1)(A), (2)
(2016), and hunting from an observation stand overlooking
deer bait (Class E), 12 M.R.S. § 11452(1)(B), (2)
(2016), entered by the trial court (Piscataquis County,
Stitham, J.) following a one-day jury
trial. On appeal, Lajoie argues that (1) the
trial court committed obvious error when it failed to
expressly instruct the jury on the requisite mens rea
required for each offense charged, and (2) statements by the
prosecutor during his opening and closing-regarding the
unfairness of Lajoie's actions and the importance of
hunting in the local community- constituted prosecutorial
misconduct, which resulted in obvious error that was
sufficiently prejudicial to have affected the outcome of the
proceeding. We affirm the judgment of the trial court.
Viewed in the light most favorable to the State, the jury
could have rationally found the following facts beyond a
reasonable doubt. See State v. Haag, 2012 ME 94,
¶ 2, 48 A.3d 207.
On October 31, 2015-during the open season on deer-two game
wardens encountered Lajoie hunting from his tree stand in the
woods near Rips Road in Brownville. Lajoie was wearing
camouflage clothing and had a loaded Winchester rifle and a
deer call. There were apples belonging to Lajoie at the base
of the tree stand, apples in view of the tree stand, apples
scattered throughout the area, and no apple producing trees
nearby. Lajoie had placed apples in that area on that day and
on days earlier in the fall. Lajoie used the apples to attract
deer and to cover his scent, because he knew deer were
attracted to apples.
As a result of this conduct, Lajoie was charged with
illegally baiting deer, 12 M.R.S. § 11452(1)(A), and
hunting from an observation stand overlooking deer bait, 12
M.R.S. § 11452(1)(B). He pleaded not guilty to both
charges. A one-day jury trial was held on March 17, 2016.
Lajoie proceeded unrepresented at trial.
In his opening statement, the prosecutor stated that hunting
was a great resource in this State, and that there were rules
about how hunting was to be done-and claimed that "the
purpose of these statutes is to make sure that there's a
level playing field, that everybody has - every hunter has
the same opportunity as the next one." Lajoie did not
object to these statements.
The State presented testimony from the two wardens involved
in the investigation of Lajoie's actions. After the State
rested its case, Lajoie testified in his own defense. He
denied using apples to "bait" deer into the area
below his tree stand and explained to the jury that he was
using the apples for scent cover rather than bait. He
explained that there were many products used to cover human
scent-such as "Buck Jam, " which is rubbed on a
hunter's boots. He concluded by stating that he chose
apples for scent cover over other products because apples
provide a "more natural scent."
Lajoie and the prosecutor discussed proposed jury
instructions with the court and agreed that the jury
instructions would contain the language from the deer baiting
statute and would also define "hunting" for the
jury. The agreed-to instructions were given by the court.
In his closing argument to the jury, the prosecutor returned
to his claims about the policy reasons for the hunting laws.
He stated that "the purpose of these laws is to create a
level playing field ... especially in this area - this is an
area where hunting is important to people." Lajoie did
not object to these statements.
Prior to deliberations, the court reminded the jurors that it
was their responsibility to decide the facts and to apply the
law provided by the court to those facts. The court further
stated that the opening statements and closing arguments by
the parties were not evidence from which the jury could find
The jury returned a verdict of guilty on both baiting deer
pursuant to 12 M.R.S. § 11452(1)(A), and hunting from an
observation stand overlooking deer bait pursuant to 12 M.R.S.
§ 11452(1)(B). The court entered a judgment on the
verdicts imposing fines of $400 for illegally baiting deer
and $400 for hunting from an observation stand overlooking