State v. Rand

• Decision Date: 08 June 1981
• Parties: STATE of Maine v. Paul B. RAND.
• Court: Maine Supreme Court

Page 808

430 A.2d 808

STATE of Maine v. Paul B. RAND.

Supreme Judicial Court of Maine.

Argued Jan. 20, 1981.

Decided June 8, 1981.

Janet Mills, Dist. Atty., J. Scott Davis, Asst. Dist. Atty., South Paris (orally), for plaintiff.

Gauvreau & Thibeault, Paul Thibeault, Lewiston (orally), for defendant.

Before WERNICK, GODFREY, NICHOLS, ROBERTS and CARTER, JJ., and DUFRESNE, A.R.J.

DUFRESNE, Acting Retired Justice.

Convicted by jury in the Superior Court, Oxford County, of burglary (17-A M.R.S.A. § 401(1), (2)(C) a Class C crime, punishable by imprisonment for a definite period not to exceed 5 years, 17-A M.R.S.A. § 1252(2)(C)) and of theft (17-A M.R.S.A. § 353 a Class E crime, punishable by imprisonment for a term not exceeding 6 months, 17-A M.R.S.A. § 362(1), (5), § 1252(2)(E)), and sentenced to the Maine State Prison to a term of 5 years on the burglary and 6 months on the theft, Paul Rand, the defendant appeals. We sustain the appeal and vacate the judgments.

The JDS Corner Market in South Paris was broken into just before midnight on November 27, 1979. Awakened by noise coming from the store next door, Richard Ramsey, a mechanic by trade, investigated from his second floor bedroom window and saw two men with long hair emerge from the rear of the market carrying boxes the size of beer cases. One of the men caught his vest on Ramsey's woodpile as they cut across his yard toward the street. Hurrying downstairs to his front door, Ramsey saw through the glass two men running across the street into the shadows of a parking lot. He testified that he could not identify the two individuals, except that they had long hair and thought the taller man had a plaid shirt with an outside vest like a ski vest, while the shorter person wore dark clothing. When dialing the police from his phone by the door, Ramsey heard the roar of an automobile which pulled out of the parking lot into the glare of the street lamps heading down Western Avenue; relating what he was observing, Ramsey told the police that he thought the car was a 1972 to 1974 Chevrolet, gold or bronze in color, with a V-type arrangement on the back window.

Officers Marston and Henderson of the South Paris police department arrived at the scene around midnight. Ramsey recounted his observations and the officers thereafter made an exterior check of the area while Ramsey notified the owner of the store by phone. Officer Marston found a roll of pennies by Ramsey's woodpile and made the observation that a window on the second floor of the market had been broken. Resuming their patrol of the area for some ten minutes, the officers returned to the market without spotting the fleeing automobile.

By that time the owner had arrived and the officers were let in the store. Papers and boxes were strewn about by the cash register and a vent in the ceiling was kicked open. Missing, insofar as the owner could determine, were approximately fifteen cases of beer, including Michelob, twelve cartons of cigarettes, including Marlboro, some thirty rolls of pennies such as had been found near Ramsey's woodpile, a plastic bag containing unrolled pennies, and about ten dollars in loose change that had been left in the cash register. It was a day or two later that a complete inventory revealed the additional loss of about one hundred blank checks and miscellaneous deposit slips.

Prior to resuming their search for the fleeing automobile, the officers noticed two pairs of bootprints which were plainly visible up to the point where Ramsey had seen the car drive off; one of the two markings showed a smooth imprint. About one hour later, when making a turn onto Gothic Street, the officers spotted a gold Chevrolet car, matching Mr. Ramsey's description, parked in a driveway between apartments 59 and 61. Stopping to investigate, the officers walked up the driveway with flashlights. They noted that, unlike other parked cars, the Chevrolet's windows were clear of frost; bootprints similar to the two prints observed previously near the Corner Market were seen on the ground beside the car; fingerprints were visible on the trunk. The officers testified that they did not search the car at that time, nor did they shine their lights into the interior of the vehicle, but retreated to their cruiser to seek information as to the owner of the suspect automobile based on its license plate. They were informed the car belonged to the defendant, Paul Rand.

While waiting for the district attorney's advice which they had commissioned a third officer to obtain, the officers saw some unidentifiable person leaving one of the apartments get in the Chevrolet and drive off. They followed the properly driven automobile for approximately a mile and one half before stopping the vehicle. Approaching from both sides, the officers flashed their lights in the car. Officer Marston testified that, prior to reaching the driver, he saw two six-packs of Michelob on the floor behind the passenger's seat, a roll of pennies and some loose change on the floor behind the driver's seat, with two packs of Marlboro cigarettes protruding therefrom.

Paul Rand, who, so the officer testified, had shoulder-length hair at the time, was then informed why he was stopped. After refusing the officer's request for permission to search the car, Rand was told by Officer Marston that he was under arrest for burglary and theft. The Chevrolet was then locked and towed to a clearing by a woods road about one hundred yards behind the home of Officer Bradley Taylor, another member of the South Paris police department, where it remained undisturbed for some six hours, until it was further towed to the fenced-in impoundment area behind the county jail.

The next day,the police obtained a warrant to search Rand's vehicle, but executed the same a day later. In addition to the articles they had observed at the time of arrest, the officers found a carton of Winston cigarettes, a plastic bag containing loose pennies, ten rolls of pennies, four cases of beer, including Budweiser, and some one hundred blank checks stamped with the name of the JDS Market, besides miscellaneous deposit slips. The items retrieved from the car were "not anywhere near half" of the property taken.

I

While several questions are presented on appeal, we will first consider the trial Court's only reversible error, the refusal of the defendant's request to instruct the jury on theft by receiving under 17-A M.R.S.A. § 359. ¹

A person who enters or surreptitiously remains in a structure such as the Corner Market store in this case, knowing that he is not licensed or privileged to do so, with the intent to commit a crime therein, is guilty of burglary. 17-A M.R.S.A. § 401. This provision of the Maine Criminal Code, effective May 1, 1976, preserves the essential elements of the pre-Code offense of burglary, save the common law requirement that there be a "breaking." See State v. Luce, Me., 394 A.2d 770, 773 (1978); Comment to Section 401 (Pamphlet 1980).

The crime of burglary is complete when the defendant makes an unauthorized entry into a structure if at the time of his entry into the building he entertains the actual intent to commit a specific crime therein, which may be theft by unauthorized taking. State v. Field, Me., 379 A.2d 393, 395 (1977). The burglar, after making his unauthorized entry with the intent to commit the crime of theft by taking, may change his mind and come out empty-handed; he still could be prosecuted for burglary. But, if he did commit the crime of theft by taking which he intended to commit when entering, he would be subject to prosecution for both burglary and theft, since he would have committed two crimes and could be convicted of both offenses. 17-A M.R.S.A. § 401(3); see State v. Gatcomb, Me., 389 A.2d 22, 25 (1978).

Prior to the adoption of the Maine Criminal Code, the offense of receiving, now known as theft by receiving, was a distinct and substantive crime in itself, and was not merely accessorial to the offense of larceny or theft by taking. Nissenbaum v. State, 135 Me. 393, 395, 197 A. 915 (1938). And, the statutory offense of receiving stolen property was viewed conceptually as excluding the person guilty of the actual caption and asportation, i. e. the original thief. Philosophically speaking, the receiving of stolen property had to be subsequent to the theft of the property and not be a part of the original larceny; in other words, a single act may not constitute both the larceny and the receiving. State v. Dall, Me., 305 A.2d 270, n. 1 (1973); State v. Thibodeau, Me., 317 A.2d 172, 180 (1974). See also State v. Slate, 38 N.C.App. 209, 247 S.E.2d 430, 433 (1978); Hardin v. Commonwealth, Ky., 437 S.W.2d 931 (1968). Procedurally, the fact that the indictment charged the offense of receiving by alleging its commission in the various statutory modes possible did not require the State to prove all the modes of conduct stated. State v. Jackson, Me., 331 A.2d 361 (1975); State v. Creamer, Me., 379 A.2d 733 (1977).

Thus, if an indictment charged burglary in one count and receiving stolen property in another, the defendant could not be adjudicated guilty of the crime of receiving stolen property, where the evidence disclosed that the subject property of the count of receiving was the identical property proven to have been taken by the accused in the burglary, since the actual thief cannot receive from himself the fruits of his larceny. People v. Morales, 263 Cal.App.2d 211, 69 Cal.Rptr. 553 (1968).

The Maine Criminal Code, however, under 17-A M.R.S.A. § 351 consolidated various modes of conduct into one single crime of theft; now, the receiver of stolen property is also a "thief." ² It further made for more procedural flexibility in permitting proof of the crime of theft, as broadly conceived under the consolidation, by evidence of any manner of conduct defined as theft in the Code, notwithstanding that the manner of conduct proven is...