State v. Thibodeau

• Decision Date: 15 March 1976
• Citation: 353 A.2d 595
• Parties: STATE of Maine v. Gene THIBODEAU.
• Court: Maine Supreme Court

Page 595

353 A.2d 595

STATE of Maine v. Gene THIBODEAU.

Supreme Judicial Court of Maine.

March 15, 1976.

Thomas E. Delahanty, II, County Atty., Herbert Bunker, Jr., Asst. County Atty., Auburn, Paul R. Gosselin, Legal Intern, for plaintiff.

Isaacson & Isaacson, by Robert S. Hark, Lewiston, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

In the late evening of February 25, 1974 the defendant, Gene Thibodeau, met a male juvenile at a club on lower Lisbon Street, in Lewiston. The pair conversed at length and in the course of their conversation the idea of burglarizing a building in the Lewiston area was explored. After considering a number of targets which could possibly serve their nocturnal excursion, the pair settled upon the Marcotte Mobile Homes (a division of Marcotte Chevrolet, Inc.), with the understanding that the juvenile would be the one to carry out the burglary, while the defendant would provide the transportation to the scene and away therefrom once their purpose had been achieved.

In execution of their plan of action, so the jury could find from the evidence, the defendant drove south on Lisbon Road and, upon reaching the vicinity of the Marcotte Mobile Homes, he stopped the vehicle and his young companion left the car to accomplish his mission. Thibodeau then continued on in a southerly direction toward Lisbon.

The young lad testified that he walked one hundred feet or so to the small office building which occupied a portion of the lot, broke into the building and while inside took a lighter, a calculator and a coffee pot. When he emerged from the office, the Thibodeau car had returned heading in a northerly direction. The boy re-entered the vehicle carrying with him the items taken from the Marcotte Mobile Homes building and the two drove off toward Lewiston.

At trial, Officer Roger Plourde of the Lewiston Police Department testified that at approximately 2:00 a. m. on February 26, while patrolling upper Lisbon Street, he observed a dark blue car with two occupants heading south toward Lisbon. At about 3:15 a. m. he saw the same car headed in the opposite direction and decided to stop it to 'check it out.' The officer identified the driver of the subject vehicle as the defendant Thibodeau. He further testified that while he was detaining the car and its occupants he observed a calculator and what appeared to be a 'tea pot' in the back seat of the automobile.

The evidence discloses that, sometime after the break and the stopping of the car by Officer Plourde, the defendant and his adolescent friend went to the apartment of one Hazel Demambro. She testified that the two individuals brought with them a calculator and a coffee pot. She further stated that Thibodeau left the coffee pot with her and said he would return to pick it up later.

The testimony of Officer Plourde indicates that in the course of the investigation of the break at Marcotte Mobile Homes he had occasion to go to the apartment of Hazel Demambro where he recovered a coffee pot which he testified was the same one he had seen in the back seat of Thibodeau's car.

The defendant was charged by indictment with the crime of breaking, entering and larceny in the nighttime in violation of 17 M.R.S.A. § 2103. ¹ Upon trial by a jury in the Superior Court, Androscoggin County, he was found guilty and sentenced to a term in Maine State Prison.

In his appeal from the judgment of conviction, Thibodeau raises several points touching upon (1) the sufficiency of the indictment; (2) the admission of an exhibit into evidence; (3) the sufficiency of the evidence as it relates to the charge specified in the indictment; and (4) the correctness of the presiding Justice's instructions to the jury on the issue of 'constructive presence.'

We deny the appeal.

I. Sufficiency of the Indictment

Thibodeau's first claim of error is that the indictment is fatally defective for not stating that the items removed from the office of Marcotte Mobile Homes were taken with intent permanently to deprive the owner thereof. ² Such omission, so he says, results in a failure of the indictment to allege an offense against the State.

It is well settled that an intent to deprive permanently the owner of his property is an essential element of the crime of larceny and, of course, of the crime of breaking and entering within the provisions of 17 M.R.S.A. § 2103, since the commission of larceny in the building broken into and entered is a necessary ingredient of the criminal activity condemned by the statute. This is so, even though neither the statute defining larceny, 17 M.R.S.A. § 2101, nor the reference statute prohibiting breaking and entering, expressly mentions any specific intent. State v. McKeough, 1973, Me., 300 A.2d 755, 757.

In McKeough, we held as error the omission in a robbery case to instruct the jury that the accused had to harbor the specific intent to deprive the owner permanently of the subject property taken as a prerequisite to conviction, yet we concluded, on the facts present in the case and in the context of the error not having been saved at trial, that the failure to instruct fully thereon did not result in serious prejudice to the defendant and did not amount to manifest and reversible error.

In State v. Gordon, 1974, Me., 321 A.2d 352, 357, this Court re-affirmed the McKeough concept that 'the specific intent requisite for 'robbery' is defined solely in terms of the injury projected to the interests of the property owner:-specific intent 'to deprive permanently the owner of his property. " (Emphasis supplied).

In Gordon, we clarified what the specific intent to deprive permanently the owner of his property meant in the context of a constituent element of the crimes of robbery and larceny. Disagreeing with State v Greenlaw, 1963, 159 Me. 141, 189 A.2d 370, we expanded the 'permanent deprivation' concept and stated that

'to negate, as a matter of law, the existence of specific intent to deprive permanently the owner of his property, a wrongful taker of the property of another must have in mind not only that his retention of possession, or control, will be 'temporary' but also that when he will relinquish the possession, or control, he will do it in some manner (whatever, particularly, it will be) he regards as having affirmative tendency toward getting the property returned to its owner. In the absence of such thinking by the defendant, his state of mind is fairly characterized as indifference should the owner never recover his property; and such indifference by a wrongdoer who is the moving force separating an owner from his property is appropriately regarded as his 'willingness' that the owner never regain his property. In this sense, the wrongdoer may appropriately be held to entertain specific intent that the deprivation to the owner be permanent.' (Emphasis in original).

Jury instructions in compliance with the Gordon principles, if not given, would be error under McKeough, because a specific intent to deprive the owner of his property is an essential element of the crimes of robbery and larceny.

We must not lose sight of the fact that the present issue is raised, not in the context of instructions to the jury as in McKeough, supra, but in relation to the allegations of the charge as contained in the indictment.

In Martin v. State, 1969, Me., 249 A.2d 871, where this very issue presently raised by the defendant was before the Court, the allegation of the intent to deprive the owner of his property permanently was viewed as unnecessary and surplusage, since the information carried the terminology 'did steal, take and carry away.'

Because McKeough has re-affirmed the legal reality that an intent to deprive permanently the owner of his property is an essential element of the crime of larceny, a necessary component of the compounded crime of breaking, entering and larceny, and because in Martin it would appear that some reliance was placed on the quoted statement from Wharton's Criminal Law and Procedure (Anderson), to the effect that

'It is not necessary, in charging a statutory offense, to allege criminal intent * * * when the statute does not make them (sic) essential ingredients of the offense denounced,' (Emphasis ours)

we will reconsider the issue as requested by the defendant.

In Logan v. State, 1970, Me., 263 A.2d 266, at 268, we stated that

'(t)o satisfy the demands of our State and Federal constitutional provisions (Constitution of Maine, Article I § 6; the Sixth-Fourteenth Amendments to the Constitution of the United States) and of our Rule 7(c) of the Maine Rules of Criminal Procedure, the indictment must contain such plain, concise and definite allegations of the essential facts constituting the intended offense as shall adequately apprise an accused of reasonable and normal intelligence of the criminal act charged and the nature thereof, sufficiently enabling him to defend and, upon conviction or acquittal, to make use of the judgment as a basis of a plea of former jeopardy, should the occasion arise.'

Such test had been given prominent support in State v. Charette, 1963, 159 Me. 124, 127, 188 A.2d 898, 900 and was restated in State v. O'Clair, 1972, Me., 292 A.2d 186, 190 and in State v. Thibodeau, 1974, Me., 317 A.2d 172, 180, 181.

The instant indictment charges the defendant with the nighttime breaking and entering of the officer of Marcotte Chevrolet, Inc. and that he 'therein did, steal, take and carry away one (1) West Bend coffee pot and two (2) Brothers Pro-Cal 408 Calculator of the aggregate value of one-hundred twenty-five (125.00) dollars, the property of Marcotte Chevrolet, Inc.' This charge upon which Thibodeau was indicated is couched in such clear language respecting both the nature of the accusation and the identity of the particular statutory prohibition involved as to enable him, as well as any other person of reasonable...