[¶ 1] Malcolm Brace LaVallee-David-son killed a man by putting a gun to his head and pulling the trigger during consensual sexual activity. At trial, LaVallee-Davidson argued that he did not know that the gun was loaded. After a jury found him guilty of manslaughter (Class A), 17-A M.R.S. § 203(1)(A) (2010),
I. FACTUAL AND PROCEDURAL HISTORY
[¶ 2] LaVallee-Davidson was charged by indictment with manslaughter (Class A), 17-A M.R.S. § 203(1)(A), pleaded not guilty, and proceeded to trial. Viewing the evidence in the light most favorable to the jury’s verdict, see State v. Filler,
[¶ 3] On Friday, April 17, 2009, LaVal-lee-Davidson went to the victim’s home in South Portland to engage in consensual sexual activity with the victim and another man. He brought with him three guns and ammunition for each gun. Throughout the evening, the men ingested or inhaled a combination of alcohol and drugs and used LaVallee-Davidson’s guns for various sexual purposes. The aсtivity culminated in LaVallee-Davidson placing a gun to the head of the victim and twice pulling the trigger without first checking to see if the gun was loaded. The victim died of a single gunshot wound to the head after LaVallee-Davidson pulled the trigger the second time.
[¶ 4] Following the shooting, LaVallee-Davidson twice said, “I think I killed him.” LaVallee-Davidson placed a blanket on the victim, he and the other man wiped down various items, and LaVallee-Davidson placed some items in the trash bucket. LaVallee-Davidson left and took with him his guns, ammunition, and personal items, as well as the victim’s laptop and cell phone.
[¶ 5] After they left the victim’s house, the other man told LaVallee-Davidson, both by phone and electronically, that the deаth needed to be reported. LaVallee-Davidson responded that he was not ready to do so and told the other man that he wanted to say that the victim had killed himself. The other man refused to corroborate that story and called the South Portland Police Department to report the shooting.
[¶ 6] LaVallee-Davidson later turned over to the police the guns, the ammunition, the victim’s computer, and the victim’s cell phone. He told the police that he had thrown the bullet casing from the shooting out his car window, and the police never recovered the casing. The police determined that LaVallee-Davidson’s DNA was included in the mixture of DNA found on two of the guns and identified his DNA on several unfired cartridges.
[¶ 8] At the conclusion of the trial, the court instructed the jury on the states of mind necessary to prove manslaughter and included the following specific instructions on evidence of mistake of fact:
In determining whether the necessary mental state, either recklessness or criminal negligence, has been proven beyond a reasonable doubt, you should consider any evidence of mistake of fact because evidence of a mistake of fact may raise a reasonable doubt as to the existence of a required culpable state of mind, in this case either recklessness or criminal negligence.
Although LaVallee-Davidson initially objected to this instruction, he withdrew his objection and agreed to the instruction.
[¶ 9] The jury returned a guilty verdict on the single count of manslаughter. See 17-A M.R.S. § 203(1)(A). The court sentenced LaVallee-Davidson to fifteen years’ imprisonment, with all but ten years suspended and three years of probation, and required him to pay $7,135 in restitution and $25 to the Victims’ Compensation Fund, see 5 M.R.S. § 3360-I (2010), and to forfeit the firearm used. LaVallee-David-son timely appealed.
II. DISCUSSION
A. Mistake of Fact
[¶ 10] To convict LaVallee-David-son of the charged crime of manslаughter, the State had the burden of establishing beyond a reasonable doubt that he acted either recklessly
[¶ 11] “No area of the substantive criminal law has traditionally been surrounded by more confusion than that of ignorance or mistake of fact or law.” 1 Wayne R. LaFave, Substantive Criminal Law § 5.6(a) at 394 (2d ed. 2003). That confusion is evident in this matter, where LaVallee-Davidson argues that his mistaken belief that the gun was empty of bullets gave rise to an affirmative defense to the charge of manslaughter based on a mistake of fact.
[¶ 13] In the second category, the defendant raises a defense, such as a justification or an excuse, that requires the State to disprove certain facts beyond a reasonable doubt in addition to meeting its burden of establishing еach element of the crime beyond a reasonable doubt. See id.; 17-A M.R.S. § 101(1) (2010) (requiring the State to disprove beyond a reasonable doubt expressly designated defenses, exceptions, exclusions, or authorizations “in issue as a result of evidence admitted at the trial that is sufficient to raise a reasonable doubt on the issue”); see also State v. Thurston,
[¶ 14] In the third category are affirmative defenses. The Legislature has expressly designated certain affirmative defenses to some crimes. See, e.g., 15 M.R.S. § 1092(2) (2010) (affirmative defense to violation of condition of release); 17 M.R.S. § 1033(3) (2010) (affirmative defense to the crime of animal fighting); 17-A M.R.S. § 255-A(1)(Q), (R) (2010) (affirmative defenses to unlawful sexual contact); 17-A M.R.S. § 1105-C(1)(K), (L), (3) (affirmative defenses to aggravated furnishing of scheduled drugs); see also State v. Okie,
[¶ 15] Here, the criminal statute governing the crime charged, manslaughter, does not provide “that the state of mind established by [a] ... mistake constitutes a defense.” 17-A M.R.S. § 36(2); see 17-A M.R.S. § 203(1)(A). Therefore, LaVal-lee-Davidson could not assert mistake of fact as a defense designated in the criminal statute establishing the offense, and the State was not required to disprove the mistake-of-fact defense. See 17-A M.R.S. § 36(2). Further, LaVallee-Davidson could not assert mistake of fact or law as an affirmative defense pursuant to 17-A M.R.S. § 36(4) (governing improper communication of a law to the public), which he then would have had to prove by a preponderance of the evidence. See 17-A M.R.S. § 101(2).
[¶ 16] Rather, LaVallee-Davidson’s only available option on this issue was to argue a mistake of fact in an effort to “raise a reasonable doubt as to the existence of a required culpable state of mind.” 17-A M.R.S. § 36(1). His assertion of mistake of fact was a failure-of-proof defense and, accordingly, the State did not have the burden of disproving evidence of mistake of fact raised by LaVallee-David-son. See 17-A M.R.S. §§ 36(1), (2), 203(1)(A); Alexander, Maine Jury Instruction Manual § 6-47 at 6-64. The State instead had the burden to prove recklessness or criminal negligence beyond a reasonable doubt nоtwithstanding any evidence of mistake of fact. “Instead of speaking of ... mistake of fact ... as a defense, it would be just as easy to note simply that the defendant cannot be convicted when it is shown that he does not have the mental state required by law for commission of that particular offense.” 1 LaFave, Substantive Criminal Law § 5.6(a) at 395; see State v. Sexton,
[¶ 17] LaVallee-Davidson argued to the jury that he did not possess the required mental state of recklessness or criminal negligence because he did not know that his gun contained bullets before he pulled thе trigger. At the conclusion of the trial, the court instructed the jury without objection that it “should consider any evidence of mistake of fact because
[¶ 18] Accordingly, the court’s jury instructions correctly explained the mistake-of-fact statute, 17-A M.R.S. § 36(1), and contained neither error nor obvious error, see State v. Burdick,
B. Identification and Sufficiency of the Evidence
[¶ 19] LaVallee-Davidson’s remaining arguments on appeal are not persuasive. Contrary to his contention, there was sufficient evidence for the jury to conclude beyond a reasonable doubt that the individual in the courtroom was the same LaVallee-Davidson who caused the death of the victim. See State v. Cook,
[¶ 20] Finally, the evidence was more than sufficient for the jury to find that LaVallee-Davidson acted either recklessly or with criminal negligence when he twice pulled the trigger of the gun placed against the head of the viсtim without first assuring himself that the gun did not contain the bullets that LaVallee-Davidson had brought to the victim’s house. 17-A M.R.S. §§ 35(3), (4), 203(1)(A); see State v. Allen,
The entry is:
Judgment affirmed.
Notes
. 17-A M.R.S. § 203 (2010) states, in relevant part:
1. A person is guilty of manslaughter if that person:
A. Recklessly, or with criminal negligence, causes the deаth of another human being. Violation of this paragraph is a Class A crime.
. The other man testified that he heard no discussion of, and did not participate in, any form of "roulette.”
. The Sentence Review Panel denied LaVal-lee-Davidson leave to appeal form his sentence.
. 17-A M.R.S. § 35 (2010) states, in relevant part:
3. "Recklessly.”
A. A person acts recklessly with respect to a result of the person's conduct when the person consciously disregards a risk that the person’s conduct will cause such a result.
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C. For purposes of this subsection, the disregard of the risk, when viewed in light of the nature and purpose of the person's conduct and the circumstances known to the person, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation.
. 17-A M.R.S. § 35 states, in relevant part:
4. "Criminal negligence.”
A. A person acts with criminal negligence with respect to a result of the person’s conduct when the person fails to be aware of a risk that the person's conduct will cause such a result.
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C. For purposes of this subsection, the failure to be aware of the risk, when viewed in light of the nature and purpose of the person's conduct and the circumstances known to the person, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation.
. The confusion regarding the nature of the defense is understandable. There is at least one inaccurate version of State v. Collin,
. LaVallee-Davidson concedes that he did not object to the instruction, but he contends that the instructions as a whole constituted obvious error that produced a manifest injustice. See U.C.D.R.P.-Cumberland County 30(b) ("No party may assign as error the giving or the failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection."); U.C.D.R.P.-Cumberlаnd County 52(b) ("Obvious errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”); State v. Burdick,
. 17-A M.R.S. § 36 (2010) states:
1. Evidence of ignorance or mistake as to a matter of fact or law may raise a reasonable doubt as to the existence of a required culpable state of mind.
2. Ignorance or mistake as to a matter of fact or law is a defense only if the law provides that the state of mind established by such ignorance or mistake constitutes a defense.
3. Although ignorance or mistake would otherwise afford a defense to the crime charged, the defense is not available if the defendant would be guilty of another crime had the situation been as the defendant supposed.
4. It is an affirmative defense if the defendant engages in conduct that the defendant believes does not legally constitute a crime if:
A. The statute violated is not known to the defendant and has not been published or otherwise reasonably made available prior to the conduct alleged; or
B. The defendant acts in reasonable reliance upon an official statement, afterward determined to be invalid or erroneous, contained in:
(1) A statute, ordinance or other enactment;
(2) A final judicial decision, opinion or judgment;
(3) An administrative order or grant of permission; or
(4) An official interpretation of the public officer or body charged by law with re*832 sponsibility for the interpretation, administration or enforcement of the statute defining the crime. This subsection does not impose any duty to make any such official interpretation.
5. A mistaken belief that facts exist which would constitute an affirmative defense is not an affirmative defense, except as otherwise expressly provided.
. In at least one publication, defenses to criminal liability have been classified according to five types of defenses: failure of proof defenses, offense modification defenses, justifiсations, excuses, and nonexculpatory defenses. 2 Wayne R. LaFave, Substantive Criminal Law § 9.1(a) at 4-9 (2d ed. 2003). We do not parse the varieties of defenses this finely in our review of Maine criminal law today.
. Although LaVallee-Davidson attempts to support his claim of error by citing to State v. Sexton,
If you find that the State has not proven beyond a reasonable doubt that the defendant was reckless in forming his belief that the gun was not loaded, defendant should be acquitted of the offense of manslaughter. On the other hand, if you find that the State has proven beyond a reasonable doubt that the defendant was reckless in forming the belief that the gun was not loaded, and consciously disregarded a substantial and unjustifiable risk that a killing would result from his conduct, then you should convict him of manslaughter.
Id.