State v. Woodard

• Decision Date: 26 March 2013
• Docket Number: Docket No. Yor–11–611.
• Parties: STATE of Maine v. Thomas P. WOODARD.
• Court: Maine Supreme Court

68 A.3d 1250

2013 ME 36

STATE of Maine

v.Thomas P. WOODARD.

Docket No. Yor–11–611.

Supreme Judicial Court of Maine.

Argued: Oct. 23, 2012.

Decided: March 26, 2013.

Richard D. Grundy, Esq. (orally), Lynnfield, MA, and Neil Jamieson, Esq., Prescott, Jamieson, Nelson & Murphy, Portland, for appellant Thomas Woodard.

William J. Schneider, Attorney General, and Leanne Robbin, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

SAUFLEY, C.J.

[¶ 1] Thomas P. Woodard, who operated a returnable bottle redemption center, was convicted of theft by deception (Class B), 17–A M.R.S. § 354(1)(B)(1) (2012), for turning over empty beverage containers that were not from beverages purchased in Maine and accepting deposit refunds and handling fees from Maine beverage distributors for those containers. Woodard now appeals from the judgment, which was entered by the trial court ( Bradford, J.) after a jury found him guilty. Woodard argues that the evidence was insufficient to support the conviction; that the court erred in admitting evidence regarding bad acts committed outside the time alleged in the charging instrument; that the court abused its discretion in admitting certain photographs; that the prosecutor engaged in misconduct by asking the jury to “send a message”; and that the court erred in failing to give requested jury instructions. We affirm the judgment.

I. THE MAINE BOTTLE BILL

[¶ 2] Maine's bottle bill was enacted in 1976. P.L.1975, ch. 739, § 16 (effective Jan. 1, 1978) (codified as subsequently amended at 32 M.R.S. §§ 1861–1873 (2012)¹). The purpose of the legislation, as now codified, is to create incentives for manufacturers, distributors, dealers, and consumers of beverages sold in Maine to reuse or recycle beverage containers to decrease litter and waste. See32 M.R.S. § 1861(2).

[¶ 3] By statute, most beverage containers sold or offered for sale in Maine “must have a deposit and refund value,” id. §§ 1862(2), 1863–A, with the deposit to be charged to the consumer at the time of sale and refunded upon redemption. See id.§§ 1863–A, 1866. Beverage distributors that sell beverages to dealers for retail sale to consumers in Maine bear the costs of the bottle bill. See id.§§ 1862(5), (7), 1866(3), (4). To comply with their obligations, the distributors pay per-bottle handling fees, established at a statutory minimum rate, to authorized redemption centers. Id. § 1866(4). In exchange, those redemption centers receive empty beverage containers from consumers, refund the consumers' deposits, and sort the containers for collection by the distributors or their agents. See id. §§ 1866(3)-(5), 1867.

[¶ 4] During the relevant course of time, the statutory minimum rate for handling fees ranged from three cents per container to three and one-half cents per container, depending on whether the containers were handled subject to a commingling agreement between manufacturers or distributors. See id.§§ 1862(2–A), 1866(4), 1866–D. The separate minimum deposit and refund value has, since the enactment of the bottle bill, been set at five cents for all containers other than wine and spirits containers. See id.§ 1863–A(1) to (3).

[¶ 5] Pursuant to the bottle bill, distributors owe a refund to consumers only if the redeemed containers were “originally sold in this State as filled beverage containers.” Id. § 1866(8). To protect against the redemption of containers from beverages sold to consumers outside of Maine, the redemption centers, which act on behalf of the distributors in issuing refunds, must post signs warning that fines may be imposed on those who tender bottles sold outside of Maine. See id. A redemption center is subject to civil penalties, and possibly license revocation, if it tenders to a distributor more than forty-eight containers that it knows or has reason to know were not originally sold in Maine. See id.§§ 1862(11), 1866(8), (9).

II. BACKGROUND

[¶ 6] Woodard's wife owned, and Woodard operated, Green Bee Redemption in Kittery, Maine. The primary questions for the jury to consider in determining whether a crime had been committed were (1) did Woodard and his wife (who was also tried and ultimately acquitted) redeem certain customers' bulk container deliveries knowing that the containers were not originally sold in Maine as filled beverage containers and then seek handling fees and reimbursement for refunded deposits from distributors for these non-Maine containers, and (2) did the deposits and handling fees that they received from distributors for redeeming those containers reach felony theft levels. See17–A M.R.S. § 354(1)(B)(1).

[¶ 7] Viewing the evidence admitted at trial in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt. See State v. Haag, 2012 ME 94, ¶ 2, 48 A.3d 207.

[¶ 8] The Department of Agriculture,² which is responsible for enforcing the bottle bill, see32 M.R.S. §§ 1862(6), 1871–B to 1871–D, was tipped off to a possible scheme to redeem non-Maine beverage containers at Green Bee. Resulting surveillance revealed that, on Thursday, March 18, 2010, at about 7:00 p.m., Dennis Reed, the owner of Sports Zone, a large sports complex in Derry, New Hampshire,³ drove a sport utility vehicle away from Sports Zone pulling a trailer filled with large bags full of empty beverage containers. Reed drove the trailer filled with containers to Maine and parked in a lot behind a building located at 230 U.S. Route One Bypass, also known as 230 State Road, in Kittery. The building was located approximately a mile away from Green Bee. Reed exited his vehicle and moved all of the bags of containers from the trailer into a white box truck that was parked at that location. Reed then drove away but was soon pulled over by an officer of the Kittery Police Department. The contents of the white box truck were seized by the Department of Agriculture and placed in a truck supplied for the Department's use by National Distributors.

[¶ 9] Based on a conversation with Reed, Randy Trahan, a consumer protection inspector from the Department of Agriculture's Division of Quality Assurance and Regulations, called Woodard on the telephone to inquire about the containers. Woodard did not answer but later returned Trahan's call, and the two men arranged to meet in person. At that meeting, Woodard admitted to Trahan that Reed would deliver containers to the white box truck and leave a receipt in the cab of the truck. Woodard referred to Reed as coming from New Hampshire.

[¶ 10] Woodard admitted that Green Bee would pay Reed five cents per container by check for the bottles that he delivered. Although Woodard denied having spoken with Reed on the telephone on the day in question, telephone records that were subpoenaed showed calls between his mobile phone and Reed's on several occasions, including on that day, both before and after the interception of the containers.

[¶ 11] Between April 2008 and February 2010, Green Bee received at least $3,787.38 in handling fees for bottles redeemed by Reed and by an out-of-state Green Bee employee named Thomas Prybot. With the five-cent-per-bottle redemption amount calculated in, Maine distributors paid Green Bee a minimum of $10,099.68 for redeeming and handling those bottles.⁴

[¶ 12] Woodard was charged by indictment with theft by deception (Class B), 17–A M.R.S. § 354(1)(B)(1). He pleaded not guilty and proceeded to a jury trial. During the four-day trial, the State offered testimony from those who had assisted in investigating Woodard's operations, including Trahan, the redemption recycling manager from Coca–Cola Bottling Company of Northern New England who conducted surveillance of Sports Zone in New Hampshire for Trahan, the Kittery Police Department officer who assisted in locating the trailer when it arrived in Kittery, and the driver supervisor for National Distributors who supplied the truck to pick up the intercepted containers. The State also offered the testimony of a detective from the Attorney General's office who assisted in the investigation by obtaining through subpoena (1) bank records from Green Bee that showed several payouts to Reed and Prybot and (2) telephone records that demonstrated contact between Reed and the Woodards several times between 2007 and 2010, including between March 17 and 19, 2010.

[¶ 13] The State offered testimony from employees of the New Hampshire Sports Zone and Green Bee. An employee who began working at Sports Zone in February 2010 testified about container-sorting instructions at Sports Zone that called for setting apart those containers that, although likely purchased at Sports Zone or elsewhere in New Hampshire, had the proper markings for redemption in Maine. Apparently, the containers from beverages sold at this New Hampshire facility were sorted in an effort to exclude containers that could not have been sold to consumers in Maine. The Sports Zone employee also testified that he saw a trailer leave Sports Zone on one Thursday night each month with bags of bottles and then return empty. Thomas Prybot, an employee of Green Bee, testified that he lived in Massachusetts but had received hundreds of dollars for redeemed bottles from Green Bee without having been questioned about where the beverages had been purchased. Other Green Bee employees testified that that they rarely saw Woodard's wife at the redemption center and identified Woodard as the boss.

[¶ 14] The State also offered evidence from professionals working in the bottle-redemption industry. The chief financial officer of National Distributors testified that National Distributors had paid hundreds of thousands of dollars to Green Bee between 2008 and 2010 to reimburse Green Bee for deposits and to pay Green Bee a handling fee of three cents to three and one-half cents per container. A Pepsi...