State v. Barker

• Decision Date: 26 May 1978
• Citation: 387 A.2d 14
• Parties: STATE of Maine v. Linwood BARKER.
• Court: Maine Supreme Court

Page 14

387 A.2d 14

STATE of Maine v. Linwood BARKER.

Supreme Judicial Court of Maine.

May 26, 1978.

Cheryl Harrington (orally), Asst. Atty. Gen., Augusta, for plaintiff.

Eames & Sterns by Richard Sterns (orally), Skowhegan, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

McKUSICK, Chief Justice.

The defendant, Linwood Barker, was found guilty by a Kennebec County jury on six indictments charging cheating by false pretenses, 17 M.R.S.A. § 1601 (1964), ¹ and six indictments charging theft by deception, 17-A M.R.S.A. § 354 (Supp.1977). ² He appeals the judgments and sentences entered thereon.

We deny the appeal.

From the evidence presented at trial, the jury was justified in finding the following facts beyond a reasonable doubt. At the times pertinent to the matters charged in the indictments, the defendant was the owner of the Northland Press, a publishing company. In January 1972 defendant began publishing on a weekly basis a magazine entitled "Maine Athlete" devoted primarily to covering high school boys' sports activities. Through July 1972 he published 24 issues of "Maine Athlete." Having by then determined that it was not feasible to continue publication on a weekly basis, the defendant concluded that the best method would be monthly publication. By his own admission, however, his publishing of "Maine Athlete" after July 1972 was on an "extreme quarterly" basis and only four issues appeared, at sporadic intervals, between August 1973 and March 1975. In the spring of 1974 defendant also published a single issue of a second magazine called "Megaphone" covering girls' athletic activities.

In early 1975 defendant embarked on yet a third business venture involving "Maine Athlete of the Year" awards. Through an agent, he contacted several businesses and solicited funds for "all-star" trophies to be awarded to selected students at local schools. Each business signing into the program was to be named as a sponsor on the trophy purchased by it, and the athletes to whom the trophies were awarded were to be specially featured in issues of "Maine Athlete."

Throughout 1975 and up to the date of his indictments in July 1976, defendant, through a succession of sales representatives, continued to solicit and collect money for advertising to appear in both "Maine Athlete" and "Megaphone." In their solicitation, defendant's agents represented that both publications were monthlies, notwithstanding that no issue of either magazine had appeared since "Maine Athlete" in March of 1975. During 1975 defendant also obtained money from various businesses which subscribed as sponsors of "Maine Athlete" trophies. Through this prolonged period of nonpublication, defendant in part paid his own living expenses from moneys collected for advertising and trophy sponsorships and took virtually no affirmative steps, beyond merely soliciting funds, toward publication of advertisements or award of "all-star" trophies.

The uncontradicted evidence showed that in several instances no "Maine Athlete" all-stars were ever selected and featured in the magazine, nor were trophies ever awarded, as represented by the defendant. It is also undisputed that although defendant did in fact publish one further issue each of "Maine Athlete" and "Megaphone" including several of the solicited advertisements, defendant published those issues in early October 1976, over two months after he had been indicted on July 28, 1976, for several alleged acts of cheating by false pretenses and theft by deception, and on the eve of his trial on those indictments. ³

I. Sufficiency of the Section 354 Indictments

Defendant initially attacks his convictions for theft by deception on the ground that each section 354 indictment fails to allege all essential elements of the offense. Each indictment under section 354 of the Maine Criminal Code charged:

"On or about the -- -- -- -- day of may, 1976, At -- -- -- -- , in the county of Kennebec and State of Maine, Linwood Barker, with intent to deprive (a named business person) of its (his) property, did obtain or exercise unauthorized control over the property of the said business or person, to wit, -- -- -- -- dollars ($ -- -- -- --), by falsely promising through his agent, (name omitted), to place a commercial ad in a publication entitled the Megaphone."

None of the defendant's section 354 indictments directly and positively avers that the promise made by the defendant, through his agent, was "unconditional" and "made without present intention of performance." Under the pre-Code counterpart of section 354, 17 M.R.S.A. § 1601 (1964), it was necessary for the State to allege and prove that a promise bore both those characteristics in order for it to constitute a "false pretense" within the meaning of that statute. ⁴ State v. Austin, 159 Me. 71, 188 A.2d 275 (1963). Contrary to defendant's assertions, however, the State's failure expressly to plead those facts in the section 354 indictments does not render those instruments fatally defective.

Section 354 makes a "person . . . guilty of theft if he obtains or exercises unauthorized control over property of another as a result of deception and with an intention to deprive him thereof." (Emphasis added) On its face, each of defendant's indictments alleges unequivocally that the defendant, through his agent, obtained or exercised unauthorized control over the property of another with the intent to deprive the owner thereof and that the property was obtained by him "as a result of deception," i. e., "by falsely promising." ⁵ Furthermore, each indictment here involved goes further than merely to allege the essential element of "deception" in general conclusory terms. ⁶ Each indictment specifically alleges that the defendant obtained the property "by falsely promising . . . to place a commercial ad in a publication entitled the Megaphone." That language amply serves to describe the means of deception allegedly utilized by the defendant in carrying out the thefts charged.

Section 354(2)(A) assists us in reaching that determination. That paragraph provides:

"For purposes of this section, deception occurs when a person intentionally:

"Creates or reinforces an impression which is false and which that person does not believe to be true, including false impressions as to law, value, knowledge, opinion, intention or other state of mind. Provided, however, that an intention not to perform a promise, or knowledge that a promise will not be performed, shall not be inferred from the fact alone that the promise was not performed . . . ." (Emphasis added)

In contrast to the former statute, which only in recent times was amended to permit any promise whatsoever to constitute a false pretense, the definition of "deception" under the code offense embraces any intentional conduct which has the proscribed effect of "creat(ing) or reinforc(ing) an impression which is false and which the actor does not believe to be true . . . ." The definition of deception is unrestricted as to means. Clearly, a promise falls within the statute, and equally clearly, it is no longer material whether that promise is conditional or not.

Under section 354 the false impression created or reinforced by the defendant can relate to an "intention" or any other "state of mind" of the actor. The deception is complete if the false impression as to intention is given to a third person and, in the terms of the statute, the actor does not subjectively believe at the time of promising that he intends to carry out the promise. The commentary to the analogous provision of the Model Penal Code, ⁷ obviously the model for our section 354, sheds light upon the meaning of the latter requirement:

"If the actor in fact believes in the accuracy of the impression created or reinforced, he is not guilty of deception even though his belief was stupid or unreasonable. But it is not necessary for the prosecution to prove that the actor affirmatively disbelieved; if he created the impression that he believed something to be true, when in fact he had no belief on the subject, he has deceived." (Emphasis added) Model Penal Code § 206.2, Comment at 66 (Tent. Draft No. 2, 1954).

Of course, when the actor's deception consists of creating a false impression by means of a promise that he intends to perform in accordance with that promise, the State must plead and prove not only that the actor did not believe in his intention to perform, but also, because of the requirement that the actor's impression of intention be false, that the actor did not in fact intend to perform at the moment of making his promise.

From this analysis we conclude that the phrase "by falsely promising" adequately states the means of deception allegedly employed by the defendant. That language charged the defendant, through his agent, with having created, by means of a promise, an impression in the minds of the third parties named that he intended to publish a commercial advertisement in "Megaphone," at some unspecified date, in exchange for the consideration paid. The word "falsely" suffices to connote both that the impression created was false, i. e., that the defendant did not in fact intend to publish at all and, by necessary implication, that the defendant did not at the time of promising believe that he intended to publish as promised. Cf. State v. Thibodeau, Me., 353 A.2d 595 (1976); Logan v. State, Me., 263 A.2d 266 (1970). ⁸

We find no infirmity in defendant's indictments for theft by deception under section 354 of the Maine Criminal Code.

II. Sufficiency of the Evidence

By timely motion for judgment of acquittal at the close of all the evidence, which was denied, defendant preserved for appellate review the issue whether the jury was justified on all the evidence in believing that defendant was guilty beyond a reasonable doubt on each of the twelve indictments. See, e. g., State v. Lewis, Me., 373 A.2d...