STATE OF MAINE v. GREGORY P. MCLAUGHLIN
Cum-19-259
Maine Supreme Judicial Court
June 4, 2020
2020 ME 82
Reporter of Decisions
Decision: 2020 ME 82
Docket: Cum-19-259
Argued: March 2, 2020
Decided: June 4, 2020
STATE OF MAINE
v.
GREGORY P. MCLAUGHLIN
HUMPHREY, J.
[¶1] Gregory P. McLaughlin appeals from a judgment of conviction of one count of Class B theft by deception,
[¶2] The State purports to cross-appeal, challenging the trial court‘s merger of the two charges of theft by deception for sentencing purposes and the legality of the sentence that it imposed. We do not reach the State‘s challenges because the State failed to file a notice of appeal and provide a written authorization of the Attorney General. See State v. Mullen, 2020 ME 56, ¶ 25, --- A.3d ---; see also
I. BACKGROUND
[¶3] Viewing the evidence in the light most favorable to the State, the jury rationally could have found the following facts beyond a reasonable doubt. See State v. Ouellette, 2019 ME 75, ¶ 2, 208 A.3d 399.
[¶4] The victims, a married couple, sought to convert a finished camp property on Sebago Lake into their full-time residence. In August 2016, the victims met McLaughlin, described their plans for renovating the Sebago Lake property, and told him that they had not yet found a contractor for their project. McLaughlin represented himself as a general contractor, agreed to take a look at their plans, and said that he would be available in a few weeks. During later conversations about the project, McLaughlin held himself out as having twenty years of building experience, a team of four to five carpenters who were available to work at the job site every day, and the ability to procure the services of electricians, plumbers, and excavators.
[¶5] In early December 2016, satisfied that McLaughlin would be able to renovate the property in their desired timeframe, the victims contracted with McLaughlin to do various construction and installation work on their property with a completion date of June 15, 2017. The contract called for an initial payment of $10,600, followed by payments of $4,040 on the first and fifteenth of each month, and a final payment of $4,040 upon completion.
McLaughlin‘s hours continued to decline, first to approximately three days, totaling twenty-five hours, per week, then to two days per week, and, finally, to just a few hours on a single day each week. At no point did McLaughlin procure the work crew or subcontractors that he had represented would be available to work on the project.
[¶7] The victims fired McLaughlin on June 27, 2017. By that time, he had completed, at most, about twenty percent of the project, and the victims had paid him approximately $80,000 for labor and materials. Of that sum, the victims paid McLaughlin $10,631 for certain materials, including rough plumbing materials, trusses, a joist, and other general building materials, which he never delivered. The work that McLaughlin did complete was inconsistent with the original building plan, was not structurally sound, violated local building codes, and would not have passed a building inspection. As a result, the victims had to remove all of McLaughlin‘s work and restart the project from scratch.
[¶8] McLaughlin was initially charged by indictment on February 9, 2018, with one count of theft by unauthorized taking (Class B),
[¶9] A superseding indictment was filed on August 10, 2018, charging McLaughlin with one count of theft by deception (Class B),
[¶10] At the close of the State‘s evidence, McLaughlin moved for a judgment of acquittal on the two theft by deception counts. See
[¶11] The court then provided the jurors with instructions concerning the offenses of theft by deception and home construction or repair fraud. McLaughlin did not object to these jury instructions or request any additional instructions.
[¶12] McLaughlin was found guilty of both counts of theft by deception.2 On the
[¶13] McLaughlin filed a motion for a new trial,
[¶14] For sentencing purposes, the court merged the two counts of theft by deception over the State‘s objection and entered judgment against McLaughlin. McLaughlin received a sentence of seven years’ imprisonment, all but two years suspended, and three years of probation. He was also ordered to pay $10,000 restitution to the victims and $35 to the Victims’ Compensation Fund, see
[¶15] McLaughlin timely appealed from the court‘s judgment.3
II. DISCUSSION
A. Merger of the Theft by Deception Counts at Sentencing
[¶16] The State argues that it was improper for the trial court to merge the two theft by deception charges for sentencing purposes and that the sentence imposed with respect to the Class C theft by deception count was unlawful. The State acknowledges that it did not appeal from the judgment but contends that it was not required to do so. See
[¶17] Because the State‘s arguments relate to alleged post-trial sentencing errors, the State was required to appeal to raise them.4 Ouellette, 2019 ME 75, ¶ 16, 208 A.3d 399. It failed to do so, and we therefore do not reach the State‘s claims of error related to sentencing. See Mullen, 2020 ME 56, ¶¶ 23-25, --- A.3d ---; see also
[¶18] McLaughlin argues that the evidence was insufficient for the jury to find beyond a reasonable doubt that he committed theft by deception because the State did not establish that the statutorily required elements of deception and an intent to deprive the victims of their money or property, see
[¶19] When a defendant challenges the sufficiency of the evidence upon conviction after a jury trial, we examine the evidence in the light most favorable to the State to determine whether the jury could rationally find every element of the offense beyond a reasonable doubt. See State v. Hayward, 2017 ME 33, ¶ 10, 156 A.3d 734. The jury is free to “draw all reasonable inferences from the evidence, and exclusively decides the weight to be given to the evidence and the credibility to be afforded to the witnesses.” Id. (alteration omitted) (quotation marks omitted); see also State v. Hall, 2019 ME 126, ¶ 16, 214 A.3d 19. “[I]ntent is seldom capable of direct proof. It is usually inferred from the proven surrounding circumstances.” State v. Berube, 185 A.2d 900, 902 (Me. 1962); see also Alexander, Maine Jury Instruction Manual § 6-39 at 6-77 (2019-20 ed. 2019).
[¶20] The crime of theft by deception occurs when a “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.”
[¶21] The jury rationally could have found beyond a reasonable doubt each element of theft by deception based on the testimonial and documentary evidence presented at trial and reasonable inferences drawn therefrom.5 See Hayward, 2017 ME 33, ¶ 10, 156 A.3d 734. The victims testified that
- McLaughlin held himself out as a highly experienced contractor who had a team of laborers at his disposal and the ability to secure various subcontractors to assist in completing the project, and that they would not have hired him but for these representations;
- They never observed any work crew at the site and McLaughlin never hired any subcontractors;
- Although McLaughlin‘s work was satisfactory at first, the number of hours he spent at the work site progressively decreased over a period of several months until, by the time he was fired in June 2017, he was working only three or four hours per week;
- The contract was renegotiated twice because McLaughlin was not making adequate progress and could not complete the work on time;
- When pressed about the lack of progress or the quality of his work, McLaughlin brushed off the victims’ concerns and made excuses;
-
When McLaughlin was fired at the end of June 2017, they had paid him roughly $37,000 for his labor, but he had completed, at most, twenty percent of the work; and - They paid McLaughlin $10,631 for various materials that they never received, including rough plumbing materials, trusses, a joist, and other general building materials.
Other witnesses for the State, including the Town of Standish‘s code enforcement officer, testified that the work McLaughlin did complete was not only inconsistent with the original building plan, but had to be torn down because it was not structurally sound and violated local building codes.
[¶22] Contrary to McLaughlin‘s argument, the record evidence is sufficient for the jury to have found that McLaughlin‘s deception was contemporaneous with the intent to deprive at some point.6 On this evidence, the jury rationally could have inferred that McLaughlin both deceived the victims about his intent to perform and intended to deprive them of their money all along.7 See
[¶23] McLaughlin‘s final contention on this issue is that his actions constituted a mere breach of contract, not a criminal theft by deception. A similar argument was raised in Degennaro, 2012 ME 68, ¶ 10, 46 A.3d 1147, and our holding in that case forecloses any argument that a theft by deception cannot occur where there is a contract between the parties, see id. ¶ 14. Even if we assume that McLaughlin‘s initial representations about his ability to complete the work were mere “puffery,” exaggerating or overselling his ability to convince the victims to hire him, see, e.g., United Concrete & Constr., Inc. v. Red-D-Mix Concrete, Inc., 836 N.W.2d 807, 815-16 (Wis. 2013), the evidence in the record is sufficient to support the jury‘s verdict.8
C. Jury Instructions
[¶24] McLaughlin contends that he requested a jury instruction regarding the nexus between the deception and the intent to deprive, and that the court‘s failure to give such an instruction constitutes prejudicial error.
[¶25] McLaughlin neither requested a jury instruction on this issue nor objected to the jury instructions that were given, even though he had multiple opportunities to do so.9 McLaughlin affirmatively agreed to the jury instructions, thereby waiving his ability to challenge them on appeal.10 See State v. Miller, 2018 ME 112, ¶ 14 n.6, 191 A.3d 356; see also
The entry is:
Judgment affirmed.
Valerie A. Randall, Esq. (orally), Hanly Law, Portland, for appellant Gregory McLaughlin
Jonathan Sahrbeck, District Attorney, and Carlos Diaz, Asst. Dist. Atty. (orally), Cumberland County District Attorney‘s Office, Portland, for appellee State of Maine
Cumberland County Unified Criminal Docket docket number CR-2018-678
FOR CLERK REFERENCE ONLY