State v. Fournier

• Citation: 617 A.2d 998
• Parties: STATE of Maine v. Michael FOURNIER.
• Decision Date: 30 November 1992
• Court: Supreme Judicial Court of Maine (US)

Page 998

617 A.2d 998

STATE of Maine v. Michael FOURNIER.

Supreme Judicial Court of Maine.

Argued May 1, 1992.

Reargued Sept. 10, 1992.

Decided Nov. 30, 1992.

Stephanie Anderson, Dist. Atty., Jane Elizabeth Lee (orally), Asst. Dist. Atty., Portland, for the State.

James P. Boone (orally), Caron & Boone, Saco, for defendant.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ.

ROBERTS, Justice.

Michael Fournier appeals from his convictions entered on a jury verdict in Superior Court (Cumberland County, Lipez, J.) on fifteen counts of theft by receiving stolen property and one count of negotiating a worthless instrument. 17-A M.R.S.A. §§ 359 & 708 (1983 & Supp.1991). Because the State impermissibly aggregated the amount of stolen property the defendant received into several separate theft counts, we modify the judgment to reflect a single conviction of theft and a single conviction of negotiating a worthless instrument. As so modified, we remand to the Superior Court for resentencing.

I.

Between June 1988 and January 1990, Fournier knowingly received from his mother, Muriel Fournier, over $400,000 in stolen money. Mrs. Fournier had stolen the money on over one hundred separate occasions from St. John the Baptist Parish in Brunswick, and on each occasion had given all of the money to the defendant. Mrs. Fournier gave her son the stolen money by cashing a church check and giving the cash directly to him, by depositing the money into her own account and writing him a check, by directly paying expenses that he had previously incurred, or by wiring him money via Western Union.

During this period of time the defendant and his wife, after an expensive wedding and honeymoon in St. Martin, continued to live an ostentatious lifestyle. They bought a camp on a lake, rented and lavishly furnished an elegant home, purchased a new Cadillac, and traveled extensively, including trips to Aruba, Atlantic City, Miami, and Niagara Falls.

In early January 1990, Mrs. Fournier was arrested for the thefts. On January 23, 1990, after her son had learned that he could no longer obtain stolen funds from the church through his mother, he negotiated a check in the amount of $14,929. Three days after writing the check, it was returned for insufficient funds. Although the defendant promised to cover the check, he never did.

The defendant was subsequently indicted for fifteen counts of aggregated theft by receiving stolen property, 17-A M.R.S.A. § 352(5)(E), and one count of knowingly negotiating a worthless instrument. The fifteen counts of theft by receiving included all one hundred-plus incidents of theft and differed only as to the allegation of the dates during which the criminal conduct allegedly occurred. The defendant moved to consolidate the fifteen counts of theft by receiving into a single count, but the court (Cole, J.) denied the motion. The jury found the defendant guilty of all counts and this appeal followed.

II.

Maine's aggregation statute, 17-A M.R.S.A. § 352(5)(E), states in pertinent part:

Amounts of value involved in thefts committed pursuant to one scheme or course of conduct ... may be aggregated to charge a single theft of appropriate class or grade.

Because the thefts were unquestionably committed pursuant to one scheme or course of conduct and because the State elected to aggregate the defendant's receipt of the money into a single theft under section 352(5)(E), we must decide whether the State may then redivide that single theft into any number of separate counts arbitrarily based on units of time. We conclude the answer is no.

A fundamental rule in statutory construction is that words must be given their plain and ordinary meaning. Mullen v. Liberty Mut. Ins. Co., 589 A.2d 1275, 1277 (Me.1991). We seek to discern from the plain language the real purpose of the legislation, avoiding results that are absurd, inconsistent, unreasonable, or illogical. See Bangor Hydro-Elec. Co. v. Board of Envtl. Protection, 595 A.2d 438, 442 (Me.1991); State v. Niles, 585 A.2d 181, 182 (Me.1990). Only if the statutory language is ambiguous will we look beyond the words of the statute to its history, the policy behind it, and other extrinsic aids to determine legislative intent. See Lewiston Raceway, Inc. v. Maine State Harness Racing Comm'n, 593 A.2d 663, 665 (Me.1991); State v. Edward C., 531 A.2d 672, 673 (Me.1987).

When the Legislature originally enacted the Criminal Code, section 352(5)(E) provided:

Amounts of value involved in thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the class or grade of crime.

P.L.1975, ch. 499, § 1. This sentence essentially followed verbatim the second sentence of section 223.1(2)(c) of the Model Penal Code. In 1976 prior to the effective date of the Criminal Code, however, the Legislature enacted a series of amendments recommended by the same commission that had proposed the Code. Section 352(5)(E) was amended as follows:

Amounts of value involved in thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated to charge a single theft of appropriate class or grade .

P.L.1975, ch. 740, § 54 (effective May 1, 1976). We conclude that the amendment made explicit that which had previously been implicit only. ¹ Giving the amended section its plain and ordinary meaning leads to the conclusion that the Legislature intended to provide the State with the authority either to charge each instance of theft in a separate count or to charge the entire course of conduct in a single count. Thus the State, having elected to proceed pursuant to section 352(5)(E), may not divide a single count of theft by receiving into fifteen separate counts of theft by receiving.

At least one jurisdiction has departed from the language of the Model Penal Code to permit the result sought by the State in this case. Minnesota's criminal code expressly permits the aggregation of thefts within a six-month period. Minn.Stat.Ann. § 609.52(3)(5) (Supp.1992). If the state elects to proceed under that section, all offenses within the period must be aggregated into a single charge. State v. Harris, 277 Minn. 351, 152 N.W.2d 728, 730 (1967).

Although we agree with the defendant's contention that the court erred in allowing the fifteen separate counts, we reject his argument that such error requires a new trial. Rather, since the defendant was proven guilty beyond a reasonable doubt of each of the fifteen counts of Class B theft by receiving, the proper remedy is to merge the guilty verdicts into a single conviction of Class B theft by receiving, subjecting the defendant to only one sentence for that conviction. See State v. Allard, 557 A.2d 960, 962 (Me.1989).

III.

Fournier also argues that the court erred in denying his motion for acquittal on each of the counts of theft by receiving based on the State's failure to prove that he received the money, in specie, that was stolen from the church. Fournier argues that because the dollar bills he received were not the same as the dollar bills stolen from the church, he did not receive stolen property, but simply the proceeds of stolen property. We reject this argument as a "hyper-technical" view of the transactions involved. Cf. State v. Key, 118 Ariz. 196, 575 P.2d 826 (1978) (receipt of proceeds of stolen check satisfies the "stolen property" requirement). Given the fungible nature of money, the State satisfied its burden of proving beyond a reasonable doubt the defendant's receipt of stolen money by tracing the path of the money from the church account through Mrs. Fournier to the defendant.

IV.

Finally, Fournier argues that there is insufficient evidence in the record to support his conviction of negotiating a worthless instrument beyond a reasonable doubt. Contrary to his assertion, the evidence showed that the defendant wrote a check for $14,929 on January 23, 1990, knowing he would be unable to acquire more money from his mother. The day before negotiating the check, the defendant had a balance in the account of $1,253.06. On the day after, he had a balance of $261.29. Fournier has never honored the check. A trier of fact rationally could find beyond a reasonable doubt that the defendant issued the check knowing it would be dishonored. See State v. Barry, 495 A.2d 825, 826 (Me.1985).

V.

Because of our disposition of the aggregation error, we need not reach the defendant's argument concerning the propriety of the court's imposition of consecutive sentences of probation.

The entry is:

Judgment modified to reflect a single conviction of aggregated theft by receiving and a single conviction of negotiating a worthless instrument, and, as so modified, affirmed.

Remanded to the Superior Court for resentencing on both convictions.

WATHEN, C.J., and GLASSMAN, CLIFFORD and RUDMAN, JJ., concurring.

COLLINS, Justice dissenting.

Because in my view the court construes 17-A M.R.S.A. § 352(5)(E) (1983) ¹ too narrowly, I respectfully dissent.

Under our sentencing statutes, theft offenses are classified according to the value of the property stolen. 17-A M.R.S.A. § 362 (1983 & Supp.1991). Section 352(5)(E) of the statute allows the State to aggregate amounts of value involved in related thefts to achieve a higher sentencing classification than if each theft were prosecuted separately. Its purpose is to give the State flexibility in its charging decisions in theft cases to ensure that the degree of the offense charged is "appropriate" and bears a reasonable relationship to the seriousness of the defendant's conduct. See Model Penal Code & Commentaries Part II, § 223.1 at 141 (1989).

In construing a statute, our primary focus should be to ascertain the real purpose of the legislation. State v. Niles, 585 A.2d 181, 182 (Me.1990). We should avoid results that are "absurd, inconsistent,...