State v. Bouchard

• Decision Date: 08 September 2005
• Citation: 881 A.2d 1130,2005 ME 106
• Parties: STATE of Maine v. Jason BOUCHARD.
• Court: Maine Supreme Court

881 A.2d 1130

2005 ME 106

STATE of Maine v. Jason BOUCHARD.

Supreme Judicial Court of Maine.

Argued: October 19, 2004.

Decided: September 8, 2005.

G. Steven Rowe, Attorney General, Leanne Robbin, Asst. Atty. Gen. (orally), Augusta, for State.

Peter B. Bickerman, Esq. (orally), Verrill Dana LLP, Augusta, for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, CALKINS, and LEVY, JJ.¹

CLIFFORD, J.

[¶ 1] Jason Bouchard appeals from judgments of conviction for theft by deception (Class C), 17-A M.R.S.A. § 354 (Supp. 2004); theft by unauthorized taking or transfer (Class B), 17-A M.R.S.A. § 353 (Supp.2004); and misuse of entrusted property (Class D), 17-A M.R.S.A. § 903 (1983), entered in the Superior Court (Penobscot County, Mead, J.) following a jury trial. Bouchard contends that there is insufficient evidence to support each of his convictions, and also asserts that the court erred or acted beyond its discretion (1) by failing to merge two of the counts, (2) in the way it instructed the jury, (3) by excluding certain evidence at trial, and (4) in the sentence it imposed on him. We affirm the judgment.

I. BACKGROUND

[¶ 2] Viewed in a light most favorable to the State, see State v. Turner, 2001 ME 44, ¶ 6, 766 A.2d 1025, 1027,

the following facts are supported by the record. Bouchard was a warden pilot for the Maine Warden Service stationed out of the Lincoln Airport in Lincoln. In the performance of his duties, Bouchard regularly operated a State aircraft for which he was permitted to purchase fuel. As a warden pilot, Bouchard could refuel his State aircraft at any one of various aircraft fuel businesses around the State without paying at the time of refueling, and the fuel business would then bill the State directly.

[¶ 3] Bouchard was the sole owner of an aviation fuel business known as Riverside Fuel, located at the Lincoln Airport. When Bouchard disclosed his interest in Riverside Fuel to his supervisors at the Warden Service, his supervisors instructed him not to buy fuel for his State aircraft from Riverside Fuel because that would constitute a conflict of interest in violation of State law. Nevertheless, Bouchard began purchasing fuel for his State aircraft from Riverside Fuel. Bouchard charged the State a retail price commensurate with the prices charged by other aircraft fuel suppliers in the State.

[¶ 4] Keith Strange was a friend of Bouchard's who owned and operated an aircraft maintenance and service business known as Riverside Aviation, also located at the Lincoln Airport. Riverside Aviation did not sell aviation fuel. For some time, Strange managed Bouchard's fuel pumps at Riverside Fuel, including the billing and accounting. During that time, invoices for the unauthorized fuel purchases made by Bouchard at Riverside Fuel for his State aircraft were sent to the State on the letterhead of Riverside Aviation. Thus, the fact that the fuel for Bouchard's State plane was actually being purchased from Riverside Fuel was concealed from State officials. The State paid the fuel invoices it received from Riverside Aviation, unaware that the fuel had actually been purchased at Riverside Fuel, and Riverside Aviation then issued corresponding checks to Bouchard. If the Warden Service had known that it was in fact purchasing fuel from Bouchard, it would not have authorized the purchases, nor paid the invoices. The theft by deception charge was based on Bouchard's acts of deceiving the State into paying for purchases of fuel for his State plane from his own business in violation of Warden Service orders.

[¶ 5] Bouchard later told his supervisors that he had sold his entire interest in Riverside Fuel to Forrest Dudley. Dudley was another friend of Bouchard's who owned a garage and fuel station known as Dudley Citgo. Although Dudley and Bouchard had discussed a sale of Riverside Fuel to Dudley, Dudley never in fact purchased or maintained any interest in Bouchard's aviation fuel business.

[¶ 6] Bouchard was also issued a State fuel credit card to facilitate the purchase of fuel for his State aircraft. A warden pilot using a State fuel credit card to obtain fuel would present the card to the proprietor of a fuel business, the proprietor would bill the State directly for the fuel purchase, and the State would then pay the credit card invoice directly to the proprietor.

[¶ 7] At some point, Bouchard began using his State fuel credit card to obtain cash without authorization. It was for these acts that Bouchard was charged with theft by unauthorized taking, and with misuse of entrusted property. Bouchard would present his card at Dudley Citgo, which did not sell aviation fuel. Dudley Citgo would then bill the State for an aviation fuel purchase ostensibly made by Bouchard, but that in fact was not made. When the State paid the invoice to Dudley Citgo, Dudley would then issue that amount back to Bouchard in cash. Corresponding cash deposits were made into Bouchard's personal bank account.

[¶ 8] Bouchard's charges on his State fuel credit card totaled $14,631.75. During the time that Bouchard was using his State fuel credit card to obtain cash, he was also making legitimate fuel purchases for his State aircraft from locations other than Dudley Citgo. The value of the amount of fuel Bouchard actually used in his State aircraft for State business during this period was less than the $14,631.75 charged to his State fuel credit card. Thus, some portion of the $14,631.75 charged to his State fuel card could not have been used for legitimate fuel purchases. The State paid the fuel invoices it received from Dudley Citgo, but would not have done so had it known that the invoices did not represent actual fuel sales, and that Bouchard was instead using the State fuel credit card to obtain cash.

[¶ 9] Bouchard was charged with one count each of theft by deception (Class C), 17-A M.R.S.A. § 354; theft by unauthorized taking or transfer (Class B), 17-A M.R.S.A. § 353; and misuse of entrusted property (Class D), 17-A M.R.S.A. § 903. Following a jury verdict, Bouchard was convicted on all three counts and sentenced to nine months incarceration for the two counts of theft, with all but twelve days suspended, and five days incarceration for the misuse of entrusted property count, to be served concurrently. He was also placed on probation for four years, with a condition of probation being that Bouchard make restitution to the State in an amount up to the $14,631.75 in cash he obtained from the use of his State fuel credit card. Bouchard's appeal followed.

II. DISCUSSION

A. Sufficiency of the Evidence

[¶ 10] Bouchard challenges the sufficiency of the evidence as to each of his three convictions. In reviewing a challenge to the sufficiency of the evidence in a criminal matter, we view the evidence "in the light most favorable to the State to determine whether the trier of fact rationally could have found beyond a reasonable doubt every element of the offense charged." Turner, 2001 ME 44, ¶ 6, 766 A.2d at 1027 (quotation marks omitted). Further, the fact-finder may "draw all reasonable inferences from the evidence." State v. Michaud, 1998 ME 251, ¶ 11, 724 A.2d 1222, 1228 (quotation marks omitted).

1. Theft By Deception

[¶ 11] "A person is guilty of theft if. . . [t]he 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.A. § 354; see also State v. Maier, 423 A.2d 235, 240 n. 7 (Me.1980)

. The charge of theft by deception resulted from Bouchard's acts in arranging for the State's purchase of fuel from Bouchard's own business contrary to his supervisors' instructions. Bouchard contends that because he charged the State a fair market value for the fuel, and because the State would have purchased the exact same amount of fuel at the exact same times, the State suffered no resulting deprivation as a result of his acts of deception, and therefore there was no theft. We disagree.

[¶ 12] Section 354 contains no requirement that the victim of a theft by deception suffer any pecuniary loss as a result of the defendant's actions, and we will not read that requirement into the statute. The Criminal Code instructs that an "[i]ntent to deprive" includes, among other things, an intent "[t]o use or dispose of the property under circumstances that make it unlikely that the owner will recover it." 17-A M.R.S.A. § 352(3)(C) (1983). Thus, a theft is committed when the actor deprives an owner of the control or use of the owner's property, regardless of whether, in the end, the owner suffered a resulting financial loss. Here, the State suffered a deprivation because, by Bouchard's deceptive acts, it lost control over to whom its money was paid, even though the money paid was used to purchase goods the State needed and otherwise would have purchased.

[¶ 13] The Criminal Code denominates "theft" as constituting "a single crime embracing the separate crimes such as those heretofore known as larceny, larceny by trick, larceny by bailee, embezzlement, false pretenses, extortion, blackmail, shoplifting and receiving stolen property." 17-A M.R.S.A. § 351 (1983) (emphasis added). "[I]t is generally held that the lack of financial loss is no defense to false pretenses." 3 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 19.7(i)(3) (2d ed.2003). This view is expressly adopted in subsection (3) of section 354, which states: "It is not a defense to a prosecution under this section that the deception related to a matter that was of no pecuniary significance. . . ." 17-A M.R.S.A. § 354(3). The absence of a pecuniary loss is not a defense to a charge of theft, and proof of a pecuniary loss is not an element of the crime of theft by deception. It is the nature of the deception, not the presence or absence of a substantial pecuniary loss, that is the operative inquiry in a theft case.

[¶ 14] The evidence presented at trial showed that Bouchard...