State v. McLaughlin

235 A.3d 854

STATE of Maine

v.Gregory P. MCLAUGHLIN

Docket: Cum-19-259

Supreme Judicial Court of Maine.

Argued: March 2, 2020

Decided: June 4, 2020

Valerie A. Randall, Esq. (orally), Hanly Law, Portland, for appellant Gregory McLaughlin

Jonathan Sahrbeck, District Attorney, and Carlos Diaz, Asst. Dist. Atty. (orally), Cumberland County District Attorney's Office, Portland, for appellee State of Maine

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.^*

HUMPHREY, J.

[¶1] Gregory P. McLaughlin appeals from a judgment of conviction of one count of Class B theft by deception, 17-A M.R.S. § 354(1)(B)(1) (2020), and one count of Class C theft by deception, 17-A M.R.S. § 354(1)(B)(6) (2020), entered by the court (Cumberland County, Warren, J. ) after a jury trial. McLaughlin contends that the court erred in failing to include a "nexus" element in its instruction to the jury on the charge of theft by deception. He also contends that the evidence was insufficient to convict him of theft by deception, and that his actions constituted a breach of contract, not a criminal offense. We affirm the judgment.

[¶2] The State purports to cross-appeal, challenging the trial court's merger of the two charges of theft by deception for sentencing purposes and the legality of the sentence that it imposed. We do not reach the State's challenges because the State failed to file a notice of appeal and provide a written authorization of the Attorney General. See State v. Mullen , 2020 ME 56, ¶ 25, ––– A.3d –––– ; see also 15 M.R.S. § 2115-A(3), (5) (2020) ; M.R. App. P. 2A(f)(2), 21(a)-(c).

I. BACKGROUND

[¶3] Viewing the evidence in the light most favorable to the State, the jury rationally could have found the following facts beyond a reasonable doubt. See State v. Ouellette , 2019 ME 75, ¶ 2, 208 A.3d 399.

[¶4] The victims, a married couple, sought to convert a finished camp property on Sebago Lake into their full-time residence. In August 2016, the victims met McLaughlin, described their plans for renovating the Sebago Lake property, and told him that they had not yet found a contractor for their project. McLaughlin represented himself as a general contractor, agreed to take a look at their plans, and said that he would be available in a few weeks. During later conversations about the project, McLaughlin held himself out as having twenty years of building experience, a team of four to five carpenters who were available to work at the job site every day, and the ability to procure the services of electricians, plumbers, and excavators.

[¶5] In early December 2016, satisfied that McLaughlin would be able to renovate the property in their desired timeframe, the victims contracted with McLaughlin to do various construction and installation work on their property with a completion date of June 15, 2017. The contract called for an initial payment of $10,600, followed by payments of $4,040 on the first and fifteenth of each month, and a final payment of $4,040 upon completion.

[¶6] Initially, McLaughlin worked full days at the victims' property nearly every business day. Over time, McLaughlin's appearance at the work site became inconsistent and he worked fewer and fewer hours. In late January or early February 2017, the victims and McLaughlin entered into a revised contract with a new completion date of July 1, 2017, because the work could not be completed by June 15.¹ In March, it became clear that McLaughlin would not be able to meet the July 1 deadline. On March 15, 2017, the victims and McLaughlin agreed on a new schedule, with a completion date of August 20, 2017, and more specific timelines for completing various phases of the project. McLaughlin's hours continued to decline, first to approximately three days, totaling twenty-five hours, per week, then to two days per week, and, finally, to just a few hours on a single day each week. At no point did McLaughlin procure the work crew or subcontractors that he had represented would be available to work on the project.

[¶7] The victims fired McLaughlin on June 27, 2017. By that time, he had completed, at most, about twenty percent of the project, and the victims had paid him approximately $80,000 for labor and materials. Of that sum, the victims paid McLaughlin $10,631 for certain materials, including rough plumbing materials, trusses, a joist, and other general building materials, which he never delivered. The work that McLaughlin did complete was inconsistent with the original building plan, was not structurally sound, violated local building codes, and would not have passed a building inspection. As a result, the victims had to remove all of McLaughlin's work and restart the project from scratch.

[¶8] McLaughlin was initially charged by indictment on February 9, 2018, with one count of theft by unauthorized taking (Class B), 17-A M.R.S. § 353(1)(B)(1) (2020), one count of home repair fraud (Class D), 17-A M.R.S. § 908(1)(D) (2020), and one count of aggravated criminal mischief (Class C), 17-A M.R.S. § 805(1)(A) (2020).

[¶9] A superseding indictment was filed on August 10, 2018, charging McLaughlin with one count of theft by deception (Class B), 17-A M.R.S. § 354(1)(B)(1), one count of theft by deception (Class C), 17-A M.R.S. § 354(1)(B)(6), and one count of home repair fraud (Class D), 17-A M.R.S. § 908(1)(D). McLaughlin entered a plea of not guilty to each charge at his arraignment, and the case proceeded to trial in March 2019.

[¶10] At the close of the State's evidence, McLaughlin moved for a judgment of acquittal on the two theft by deception counts. See M.R.U. Crim. P. 29(a). McLaughlin argued that the State did not prove that he had the requisite "intent to deprive" the victims of their property at the time of the initial deception. See 17-A M.R.S. § 354(1)(B)(1). The court denied the motion.

[¶11] The court then provided the jurors with instructions concerning the offenses of theft by deception and home construction or repair fraud. McLaughlin did not object to these jury instructions or request any additional instructions.

[¶12] McLaughlin was found guilty of both counts of theft by deception.² On the Class D home repair fraud charge, the court declared a mistrial because the jury was unable to reach a verdict.

[¶13] McLaughlin filed a motion for a new trial, M.R.U. Crim. P. 33, arguing that "[t]he court erred in declining to provide [an] additional [jury] instruction regarding nexus between intent to deceive and intent to deprive." Prior to sentencing, the court held a hearing on McLaughlin's motion. McLaughlin conceded that "there was no specific request for an instruction" regarding a "nexus" between the between the deception and the intent to deprive the victims of their property. The court denied McLaughlin's motion.

[¶14] For sentencing purposes, the court merged the two counts of theft by deception over the State's objection and entered judgment against McLaughlin. McLaughlin received a sentence of seven years' imprisonment, all but two years suspended, and three years of probation. He was also ordered to pay $10,000 restitution to the victims and $35 to the Victims' Compensation Fund, see 5 M.R.S. § 3360-I (2020).

[¶15] McLaughlin timely appealed from the court's judgment.³

II. DISCUSSION

A. Merger of the Theft by Deception Counts at Sentencing

[¶16] The State argues that it was improper for the trial court to merge the two theft by deception charges for sentencing purposes and that the sentence imposed with respect to the Class C theft by deception count was unlawful. The State acknowledges that it did not appeal from the judgment but contends that it was not required to do so. See 15 M.R.S. § 2115-A (2020). The State is correct; it is not required to appeal when the defendant appeals. However, if it does not appeal, the State is limited to arguing that error "harmful to it" occurred prior to trial or during trial. 15 M.R.S. § 2115-A(3) ; see Ouellette , 2019 ME 75, ¶ 16, 208 A.3d 399.

[¶17] Because the State's arguments relate to alleged post-trial sentencing errors, the State was required to appeal to raise them.⁴ Ouellette , 2019 ME 75, ¶ 16, 208 A.3d 399. It failed to do so, and we therefore do not reach the State's claims of error related to sentencing. See Mullen , 2020 ME 56, ¶¶ 23-25, ––– A.3d –––– ; see also 15 M.R.S. § 2115-A(3), (5) ; M.R. App. P. 2A(f)(2), 21(a)-(c).

B. Sufficiency of the Evidence

[¶18] McLaughlin argues that the evidence was insufficient for the jury to find beyond a reasonable doubt that he committed theft by deception because the State did not establish that the statutorily required elements of deception and an intent to deprive the victims of their money or property, see 17-A M.R.S. § 354 (2020), existed at the same time. McLaughlin refers to this as the "nexus" requirement.

[¶19] When a defendant challenges the sufficiency of the evidence upon conviction after a jury trial, we examine the evidence in the light most favorable to the State to determine whether the jury could rationally find every element of the offense beyond a reasonable doubt. See State v. Hayward , 2017 ME 33, ¶ 10, 156 A.3d 734. The jury is free to "draw all reasonable inferences from the evidence, and exclusively decides the weight to be given to the evidence and the credibility to be afforded to the witnesses." Id. (alteration omitted) (quotation marks omitted); see also State v. Hall , 2019 ME 126, ¶ 16, 214 A.3d 19. "[I]ntent is seldom capable of direct proof. It is usually inferred from the proven surrounding circumstances." State v. Berube , 158 Me. 433, 185 A.2d 900, 902 (1962) ; see also Alexander, Maine Jury Instruction Manual § 6-39 at 6-77 (2019-20 ed. 2019).

[¶20] The crime of theft by deception occurs when a "person obtains or exercises control over property of another as a result of deception and with intent to deprive the other person of the property." 17-A M.R.S. § 354(1)(A). "[D]eception occurs when a person intentionally ... [c]reates or reinforces...