Argued: May 7, 2019
Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for
appellant Donald F. Rutherford
Maeghan Maloney, District Attorney, and Frayla Tarpinian,
Asst. Dist. Atty. (orally), Prosecutorial District IV,
Augusta, for appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM,
In this appeal, we clarify the evidentiary foundation
required for the admission of an otherwise hearsay statement
as the adoptive admission of a defendant in a criminal trial.
Donald F. Rutherford appeals from a judgment of conviction of
operating under the influence (Class D), 29-A M.R.S. §
2411(1-A)(A), (5) (2018), entered by the court (Kennebec
County, Marden, J.) after a jury trial in which the
court admitted, as an adoptive admission and over
Rutherford's objection, the inculpatory statement of
Rutherford's friend, who did not testify at trial.
Because silence alone is not enough, and there was no other
evidence that Rutherford adopted his friend's statement
identifying him as the driver, we vacate the judgment and
remand for further proceedings.
At about 11:15 p.m. on December 2, 2017, Gardiner Police
Department officers responded to a call and found Rutherford
and a friend standing near a vehicle that was in a ditch near
the entrance to an apartment complex. Rutherford was arrested
at the scene and, after the administration of a breath test
at the police department, was issued a uniform summons and
complaint charging him with operating under the influence. He
entered a plea of not guilty.
During the jury trial held in September 2018, the officer who
spoke with Rutherford at the scene of the accident testified,
over Rutherford's hearsay objection, that when she asked
Rutherford and his friend what had happened, Rutherford's
friend said that Rutherford was not from the area and had
missed the turn, thus indicating that Rutherford had been
driving. The court admitted the statement of the friend as an
admission adopted by Rutherford, ruling that the statement
was admissible as an opposing party's statement.
See M.R. Evid. 801(d)(2)(B) (providing that a
statement is not hearsay if "[t]he statement is offered
against an opposing party and . . . [i]s one the party
manifested that it adopted or believed to be true"). The
friend did not testify and was not present at trial.
The court also admitted-over the same objection-a prearrest
video recording, with audio, from the officer's body-worn
camera that included the friend's statement identifying
Rutherford as the driver and also Rutherford's own
response to law enforcement that he was the owner of the
vehicle. Rutherford objected to the admission of the
friend's statement a third time after consulting
additional legal resources. He argued that he had not
manifested adoption of the statement by merely standing next
to his friend when she said he had missed the turn. The court
reiterated its earlier rulings, finding-based on the
officer's testimony and the video-that Rutherford had
been standing two feet away from his friend when they were
both being questioned, he had heard the question and answer,
he had not disputed her representation that he was the
driver, and he had cooperated fully in field sobriety tests
Rutherford did not testify, and when all evidence had been
presented, he moved for a judgment of acquittal. See
M.R.U. Crim. P. 29. He argued, among other things, that there
was no properly admitted evidence that could show beyond a
reasonable doubt that Rutherford had been the driver. The
court denied the motion for a judgment of acquittal.
The jury found Rutherford guilty. The court sentenced
Rutherford to forty-eight hours in jail and $650 in fines,
surcharges, and assessments. His license was suspended for
150 days. Rutherford timely appealed from the judgment and
moved to stay the execution of his sentence pending appeal-a
motion that the court granted.
Rutherford contends that the statement of his friend was
hearsay and did not constitute an admission by him that he
was driving the car. Hearsay, which is a "statement that
. . . [t]he declarant does not make while testifying at the
current trial" and that is offered by a party "to
prove the truth of the matter asserted in the
statement," is generally inadmissible. M.R. Evid.
801(c), 802. A statement is not hearsay, however, if
"[t]he statement is offered against an opposing ...