*1 STATE of Maine Dean
Arol CROCKER.
Supreme of Maine. Judicial Court
Argued Sept.
Decided Oct. Cox, F. Atty., Gary M. Dist.
David Thorne, Atty. (orally), Dover- Asst. Dist. Foxcroft, plaintiff. (orally), Bangor, Macdonald
William E. for defendant. *2 Trott, would have tended Mr. which McKUSICK, J., with a and
Before C. GOD- NICHOLS, CARTER, believed he had FREY, that Crocker to establish and WATHEN, the Hamm house and JJ. to enter permission VIOLETTE was exclud- items.1 remove VIOLETTE, Justice. place colloquy took following ed after defendant, Crocker, ap- Arol Dean examination counsel’s direct during defense peals from convictions of two counts of Crocker: 401(1), burglary, 17-A and two M.R.S.A. § where and you remember Q Okay. Do theft, 353(1), counts of Trott) (with Mr. when that conversation Court, Piscataquis Superior entered place? took ap- County, following trial. in, in guess, I ... We was A It was peal alleges the trial that Dexter, Dover, I recall. He can’t Dover. rulings: erred in two first exclud- me, owned a it to said his aunt mentioned ing testimony relating defendant’s place and she— incidents; at the time of the ATTORNEY: DISTRICT ASSISTANT second, by refusing to ad- Honor, anything Mr. to Your ditional instruction on the definition of being offered for being said if Trott —as the term “structure” as it is used in the matter. truth of the statute. We sustain the objection, proper THE It’s COURT: and vacate the convictions. that. Jury will COUNSEL: DEFENSE FACTS well, Q understand you Did from — 26,1979 On November and November strike that. 1979, defendant Arol and his code- Crocker your As a result Perkins, trial, fendant at David A. removed Trott, a relation- understand you Mr. did away and took in a truck various items Trott and Lena Mr. ship to exist between belonging from a house to Lena Hamm? Testimony Hamm. at trial indicated that ATTORNEY: DISTRICT ASSISTANT surrounding property the Hamm house and Honor, going again if this Your un- unoccupied, dilapidated were matter, it would be based defendants, kept condition. Crocker Mr. Trott. he obtained from information Perkins the items taken from the sold just another would be It THE COURT: antiques house to a dealer in and Crocker rule, way getting around trial, money received for the items. At so it would be excluded. him question counsel undertook to of 1979 COUNSEL: May about a conversation he had in DEFENSE permission items out of there to take the The substance of the conversation was admit- place through they tear the were to ted into evidence earlier testimony the trial because of a officer to whom Crocker down. did, permission, had related the contents of the conversation. Mr. Trott Who had Q you on cross examina- testified understood it? Crocker, yes, follows: defense counsel as Mr. it from A As understood right. Sergerson, you Deputy that Mr. said Q something you permis- Trott had indicated Mr. about You understood said to Q Crocker; permission gotten Mr. Trott. And I same sion he’d from Gene that, didn’t understand the detail exactly correct? say you you’re in the did Mr. about that if A The case would be there, permission gotten go you may, stop into Ham you he had want area (sic) residence? she’d Lewis’ because and take it to Pauline indication, it; yes. A He Trott back in had been with Mr. buy that was the referring May you’re suggested that what to? you that Trott So understood —is Q taking then, Well, guess. goes Yes. it back to Q A Lewis’? items to Pauline these Well, supposedly had told when Mr. Trott telling Well, is what Mr. Crocker A house him that that owned the me. they was his aunt and that were—that he
HH Q Did you permission have go only The record indicates that residence? seriously at trial was wheth disputed issue permission A I did er Crocker had to enter and re from Mr. Trott. items from the Hamm house. Refus move ASSISTANT DISTRICT ATTORNEY: al to as to his allow the defendant Honor, again— Your *3 alleged mind at the time THE COURT: Now the Jury commission of the “is tantamount that because that’s the same depriving opportunity of matter that I’ve excluded twice before. any to make defense at all.” Defense counsel made no proof offer of Clark, Me., (1978). 394 A.2d We made attempt no judge inform the magnitude note also that the of the error rule or principle he relied for the emphasized jury’s involved here is the admissibility of the evidence. acquittal of the codefendant this case. I. EXCLUDED TESTIMONY codefendant, Perkins, permitted State, testify, from the as Burglary A. Convictions on bearing One of the of elements the crime (Perkins) his understanding having per of of burglary under the Maine Criminal Code mission to enter the Hamm house and re which the State prove must therefrom; move items the same line of accused entered a structure “knowing that evidence that precluded Crocker was from (was) not privileged licensed or to do so.” testifying to. Based on this state of the 401(1). M.R.S.A. Consequently, § evidence, jury we conclude that could defendant present is entitled to evidence at have found that Perkins believed he trial, within the strictures of the Maine privilege” “license or to enter and remove Evidence, Rules of tending disprove house, items from the Hamm whereas knowledge element of the crime. Rule 802 Crocker knew he did not have a “license or of the Maine Rules of Evidence states that privilege” because he was not allowed to hearsay evidence is not except admissible contrary. magnitude provided by law or by other Maine rules of excluding the error in evidence. See M.R.Evid. 803 and 804 for on the state of mind issue was not reduced exceptions. Rule 801 defines as “a by the earlier statement, other than one made the de- regarding the conversation told clarant while testifying at the trial or hear him he had with Mr. Trott. There is a ing, offered in evidence to the truth significant jury difference between the of the matter asserted.” M.R.Evid. hearing from the offi It is clear that the excluded testimony was cer hearing it from the defendant him relevant, nonhearsay evidence which went self. Crocker was entitled to have the to the issue of whether the defendant knew hear and consider own he did not have a license or privilege to making their determination of whether enter the Hamm house. The tes Crocker knew or did not know he had no timony was not offered to privilege” “license or to enter and remove of the matter but rather to items from house. The excluded establish the factual basis for Crocker’s testimony was material and crucial to the state of mind at the time defendant’s case on the state of mind issue into the Hamm house. judge The trial er preju and we find its exclusion was so roneously excluded the evidence. Because require dicial as to reversal we conclude from the record before us that convictions under the “manifest error/seri defense counsel did save the injustice” ous standard. error appeal our review is limited to the question of whether the error preju was so B. Theft Convictions dicial as to meet the “manifest error/seri injustice” ous Howard, standard. State v. The theft under which Crocker was convicted reads as follows: II. JURY INSTRUCTION Theft unauthorized
§ transfer argues The defendant refusing judge
1. A if he trial erred guilty of theft We find no merit in requested instruction. obtains or exercises unauthorized control argument. of another with deprive him thereof. 17-A M.R.S.A. judge correctly charged the presiding 353(1). § thoroughly and com- jury, instructing them of the crime of the elements pletely on Although particular section of the gave burglary. theft statute does not contain the word legislative definition of “structure”. See “knowing” we determine that a completion of 2(24). After 17-A M.R.S.A. § conjunction 353 in with section instructions, counsel re- the defense Criminal Code us to include *4 judge further instruct the quested that the culpable section 353 the state of mind of a structure within jury on what constituted knowledge. provides requested instruc- the Criminal Code. as follows: the definition al- essentially restated defining If a statute crime a in this established law in ready given. It is well prescribe culpa- code does not expressly a need not that a trial State ble mental respect state with to some or he has otherwise requested instruction if all of the elements in- culpa- the content of covered Smith, Me., See, v. g., e. State ble mental state struction. required, is nevertheless Wallace, 749, (1979); pursuant 3, to subsections 2 and unless: A.2d A. The expressly provides entry is: person may guilty be of a crime with- elements; out culpability as to those or Appeal sustained. legislative
B. A impose lia- Judgments of conviction vacated. bility culpability without as to those con- proceedings further Remanded for appears. elements otherwise opinion herein. sistent with We conclude that section 353 does not GODFREY, NICHOLS, CARTER expressly provide guilt culpabil- for without WATHEN, JJ., concurring. ity legislature and that did not intend impose liability culpability.2 MeKUSICK, ROBERTS, J., with whom C.J., joins dissenting.
As a result our of the theft statute, was excluded materi- Justice, with whom McKU- al and crucial on the defendant’s state of SICK, Justice, joins, dissenting. Chief when removed the items from the with Part Court’s disagree Specifically, Hamm house. the excluded respectfully dissent. opinion therefore testimony was relevant on the issue of general ob- Had the trial court sustained whether Crocker knew control I would concur jection by prosecutor, Hamm items was unauthorized at the time case, how- In this majority decision. analysis preju- the incidents. Our ever, specifically framed was effect dicial of the excluded which the evidence purpose for to limit applies equal convictions admitted, ... if viz. “I was to be weight to the theft convictions and matter.” being for the truth of the offered us to reverse those convictions as well. M.R.Evid. 223.2, legislative the draftsmen the comments to section comment to section 353 states required that its basic mens rea for the “unlawful” structure taken from the Model state “the aspect 223.2(1) taking control of Penal or Code. Section of the Model Pe- of the defendant’s Code, effectively knowledge.” disposi- nal “theft unlawful another’s tion,” 223.2, Code, closely approximates comment 7. section 353 and Model Penal “knowing.” also does not include the word limi- however, counsel, accepted never majority asserts that “[t]he admissibility. statement’s was offered tation the statement
the truth of the matter but rather Without the limitation to establish the basis for Crocker’s excluded. hearsay factual state of mind at the time of added.) (Emphasis
into the house.” agree would not be if merely offered Trott’s as a
statement factual basis premises
belief that the owner of conduct.
authorized Crocker’s Defense