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State v. Finnemore
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 1997 ME 44						
Docket: Cum-95-295								
Submitted on Briefs January 24, 1997
Decided March 13, 1997



	[¶1]  Alan Finnemore appeals from the judgment of conviction entered
in the Superior Court (Cumberland County, Fritzsche, J.) on a jury verdict
finding him guilty on one count of theft by unauthorized taking or transfer
(Class E) in violation of 17-A M.R.S.A. § 353 (1983).  Finnemore argues the
evidence was insufficient to support his conviction.  We affirm the judgment.
	[¶2]  At 11 p.m. on November 16, 1991, Judith Cossar looked out the
window of her place of employment and saw a man in the back seat of her
car attempting to start a small fire with some papers and other items.  Along
with two co-workers, Cossar attempted to stop the man, and subsequently
chased him through the neighborhood.  While they failed to apprehend him,
they gave a description of him to the police.  Shortly thereafter, the police
spotted a man in the neighborhood, Alan Finnemore, who met the
description.  Finnemore ran and the police eventually caught him.  In
Finnemore's pocket was Cossar's prescription medicine bottle with her
name on it, which had been taken from her car.
	[¶3]  In addition to the charge of theft by unauthorized taking or
transfer, Finnemore was charged with arson (Class A) in violation of 17-A
M.R.S.A. § 802(1)(A) (1983), burglary of a motor vehicle (Class C) in violation
of 17-A M.R.S.A. § 405 (Supp. 1996), and criminal mischief (Class E) in
violation of 17-A M.R.S.A. § 806(1) (1983 & Supp. 1996).  Finnemore was
tried and the jury found him guilty of theft of the prescription bottle, but
acquitted him of the other three charges.  
	[¶4]  Finnemore now challenges the conviction, arguing that in light of
the acquittals on the other charges, which stem from the same underlying
incident, the evidence must have been insufficient to support a finding of
guilt on the theft charge.  When examining whether a finding of guilt was
based on sufficient evidence, we review the evidence in the light most
favorable to the State to determine whether a trier of fact rationally could
find beyond a reasonable doubt every element of the offense charged. State v.
Marden, 673 A.2d 1304, 1311 (Me. 1996.)
	[¶5]  Finnemore's contention is based on two erroneous assumptions. 
First, he argues the State cannot rely on 17-A M.R.S.A. § 361(2) (1983) that
establishes a presumption that a person in exclusive possession of recently
stolen property is guilty of theft.  He supports this position by pointing out,
correctly, that the court's instructions to the jury did not mention section
361(2) or the permissible inference the jury could draw therefrom.  When a
challenge is made, however, to the sufficiency of the evidence to support a
conviction, we review that evidence in the abstract, without regard to the
nature or quality of the jury instructions.  This is so because an argument
that the evidence was insufficient, which seeks as a remedy a judgment of
acquittal, necessarily moots any inquiry into the jury instructions, for the
inadequacy of which the remedy is merely a new trial.
	[¶6]  Second, Finnemore contends the jury verdict of guilty on the
theft charge is inconsistent with the not guilty verdicts on the first three
counts and, therefore, erroneous.  We disagree.  Although our prior cases
contain inconsistent statements concerning the consequence of
inconsistent verdicts, we have never reversed a conviction on that ground. 
In State v. Upton, 362 A.2d 738, 739 (Me. 1976), we stated that we need
not decide the question concerning inconsistent verdicts because the
evidence supported the disparate result.  In State v. DiPietro, 420 A.2d 1233
(Me. 1980), we stated, "Mere inconsistency between guilty and not guilty
verdicts on separate counts of a single indictment will not render the guilty
verdict erroneous." Id. at 1237 (citing Dunn v. United States, 284 U.S. 390,
52 S.Ct. 189, 76 L.Ed. 356 (1932) and Commonwealth. v. Scott, 245 N.E.2d
415 (Mass. 1969)).  Later, in State v. Engstrom, 453 A.2d 1170 (Me. 1982),
we stated in dictum that "Inconsistent verdicts require reversal only if they
are incapable of logical reconciliation."  Id. at 1174 (citing Upton and
DiPietro).  Later still, in State v. Snow, 513 A.2d 274 (Me. 1986), we stated
that the dictum in Engstrom should have read:  "Logically reconcilable
verdicts are not inconsistent and therefore do not require reversal."  Id. at
	[¶7]  Today, we follow the reasoning of Justice Holmes in Dunn.  There
the United States Supreme Court stated, "Consistency in the verdict is not
necessary."  Dunn, 284 U.S. at 393.  The Court added, "[T]he verdict may
have been the result of compromise, or of a mistake on the part of the
jury ....  But verdicts cannot be upset by speculation or inquiry into such
matters."  Id. at 394.
	[¶8]  More recently, the Court reaffirmed the vitality of its decision in
Dunn.  In United States v. Powell, 469 U.S. 57 (1984), the Court reversed a
decision of the Ninth Circuit Court of Appeals, United States v. Powell, 708
F.2d 455 (9th Cir. 1983).  The Court noted that one of the bases for the
opinion in Dunn no longer had currency, namely, that "[i]f separate
indictments had been presented against the defendant ... and had been
separately tried ... an acquittal on one could not be pleaded as res judicata of
the other."  Powell, 469 U.S. at 64 (citing Ashe v. Swenson, 397 U.S. 436
(1970)).  Notwithstanding that this element of Dunn could "no longer be
accepted," the Court found that "the Dunn rule rests on a sound rationale
that is independent of its theories of res judicata, and that it therefore
survives an attack based upon its presently erroneous reliance on such
theories."  Id.  The Court itemized a number of factors embodied in the
Dunn rule.  First, inconsistent verdicts should not be interpreted as a
windfall to the prosecution because the jury may have properly reached its
guilty verdict, "and then through mistake, compromise, or lenity, arrived at
an inconsistent conclusion ...."  Id. at 65.  Of course, the prosecution has no
recourse to correct the jury's error under such circumstances and,
therefore, the verdicts present a situation where "'error,' in the sense that
the jury has not followed the court's instructions, most certainly has
occurred, but it is unclear whose ox has been gored."  Id.  Second, any
attempt to separate a verdict that may be the product of an error that
worked against one of the parties would be based on pure speculation or
would involve inappropriate inquiry into the jury's deliberations.  Id. at 66. 
Third, a criminal defendant is already protected against jury irrationality or
error by independent review of the sufficiency of the evidence by the trial
and appellate courts.  Id. at 67.  The Court concluded there was no reason to
vacate the conviction "merely because the verdicts cannot rationally be
reconciled."  Id. at 69.  Because Powell received the benefit of the acquittals,
the Court concluded it was neither irrational nor illogical to require her to
accept the burden of the convictions.  Id.  The rule in Dunn, the Court
stated, had stood without exception for 53 years and should remain that way.
	[¶9]  We agree with the reasoning of the Court in Powell.  Mere
inconsistency between guilty and not guilty verdicts on separate counts of a
single indictment will not render the guilty verdict invalid.  In the case at
bar, the evidence was sufficient to support a finding that Finnemore was
guilty of theft.  See Marden, 673 A.2d at 1311.  We will not speculate as to
why the jury elected to acquit Finnemore of the other charges, nor will we
vacate his conviction on that basis.
	The entry is:
				Judgment affirmed.
Attorneys for State: Stephanie Anderson, District Atttorney Julia Sheridan, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: Karen A. Dostaler, Esq. Evans & Dostaler 70 Deering Street Portland, ME 04101