Background
In July 2020, Trevor Averill was alone with his two-month-old daughter in the early morning hours when the infant stopped breathing. Officers who responded found the child unresponsive, gray, and cold. She was transported to a hospital and died four days later. A post-mortem examination revealed a skull fracture, subdural and subarachnoid hemorrhaging, retinal hemorrhages, and injuries to the spine — findings the State’s experts attributed to nonaccidental, abusive head trauma. Averill maintained that the child had choked on formula and lost oxygen, aggravating older injuries from a prior accidental drop.
A grand jury indicted Averill in September 2021 on charges of depraved indifference murder and manslaughter. After a nine-day jury trial in Androscoggin County in January 2025, the jury acquitted Averill of murder but convicted him of manslaughter under 17-A M.R.S. § 203(1)(A). The trial court sentenced him to twenty-three years of imprisonment with all but eighteen years suspended, plus six years of probation.
Averill appealed, raising four categories of error: (1) improper admission of autopsy photographs and body-worn camera footage under M.R. Evid. 403; (2) improper admission of evidence of a prior rib fracture and skull fracture under M.R. Evid. 404(b); (3) insufficiency of the evidence; (4) prosecutorial error in closing argument; and (5) multiple sentencing improprieties.
The Court’s Holding
The Maine Supreme Judicial Court affirmed the conviction and sentence in all respects. On the evidentiary challenges, the court held that Averill had waived review of all autopsy photographs except Exhibits 3 and 4 by explicitly disclaiming any objection at trial; those two photographs were properly admitted because their probative value — corroborating expert testimony about scalp swelling — was not substantially outweighed by the risk of unfair prejudice. The body-worn camera footage was likewise properly admitted given its significant probative value in showing Averill’s demeanor, his statements at the scene, and the condition of the child, none of which was rendered cumulative merely because a responding officer also testified. Similarly, Averill waived any Rule 404(b) objection to the rib fracture evidence by affirmatively telling the court he was not objecting and then using that evidence in his own defense; admission of the skull fracture evidence, reviewed only for obvious error, was not erroneous because the timing of that fracture was a genuinely disputed trial issue.
On sufficiency, the court held that the extensive expert medical testimony — including an ophthalmologist’s opinion that retinal hemorrhaging of the type observed is seen only in shaken-baby nonaccidental trauma and a medical examiner’s finding of inflicted traumatic head injury — was sufficient for a rational jury to find beyond a reasonable doubt that Averill caused his daughter’s death, given that he was her sole caretaker when she became nonresponsive. The court further held that the prosecutor’s closing argument statement that Averill “hired experts to support that implausible story” constituted improper personal vouching, but that the trial court’s prompt curative instruction cured any resulting prejudice, rendering the error harmless.
As to sentencing, the court rejected each of Averill’s three challenges. The sentencing court’s reference to Averill’s lack of truthfulness with medical personnel — not his decision to stand trial — was an appropriate basis for finding failure to take responsibility. Consideration of the child’s prior sentinel injuries (bruising, rib fracture, bleeding under the tongue) at sentencing was permissible because courts may consider uncharged conduct that is factually reliable and relevant. And the sentencing court did not abuse its discretion in treating the ongoing impact on the victim’s family as an aggravating factor even though some family members had requested leniency.
Key Takeaways
- A defendant who affirmatively disclaims an evidentiary objection at trial — or who uses the challenged evidence in his own defense — waives appellate review entirely, foreclosing even obvious-error analysis.
- Prosecutors may comment on the fact that defense experts are paid consultants, but cross the line when they imply those experts are lying because of their fee or otherwise personally vouch for the credibility of the State’s witnesses; a timely curative instruction can render such error harmless absent exceptional prejudice or bad faith.
- A manslaughter conviction for abusive head trauma may rest on circumstantial evidence, including expert medical testimony and the defendant’s status as sole caretaker at the time the infant became nonresponsive, without requiring direct evidence of the specific injurious act.
- A sentencing court does not punish a defendant for exercising the right to trial when it bases a “failure to take responsibility” finding on affirmative false statements the defendant made to third parties rather than on the defendant’s decision not to plead guilty.
Why It Matters
This decision reinforces the high bar Maine courts apply before reversing convictions on evidentiary grounds, particularly where defense counsel’s own trial conduct — disclaiming objections or exploiting contested evidence — forecloses appellate review. For criminal practitioners, the case is a pointed reminder that strategic silence or affirmative approval of evidence at trial carries permanent consequences: obvious-error review is unavailable where the defendant has invited or waived the alleged error.
The decision also provides useful guidance on the boundary between permissible and impermissible prosecutorial commentary on expert witnesses. Noting that a defense expert is compensated is fair game; suggesting the expert fabricated an opinion to earn that compensation is not. That the error here was cured by instruction underscores the importance of swift judicial intervention, but practitioners should not count on a curative instruction as a safety net — the court reserved that such instructions may be inadequate where prejudice is exceptional or the conduct reflects prosecutorial bad faith.