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State v. Marc Tarmey

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 23
Docket:	And-99-136
on Briefs:	January 14, 2000
Decided:	February 10, 2000




	[¶1]  Marc Tarmey appeals the judgment of the Superior Court
(Androscoggin County, Delahanty, J.) entered on a jury verdict finding him
guilty of theft by unauthorized use of property pursuant to 17­p;A
M.R.S.A. § 360(1)(A) (1983).{1}  Tarmey argues on appeal that the court erred
in instructing the jury that he could be found guilty even if he did not intend
to take, operate, or exercise control over a motor vehicle without the
owner's consent at the time he first obtained possession of the vehicle.  We
affirm the judgment of conviction.
	[¶2]  On August 20, 1998, Marc Tarmey asked his son's 18-year-old
girlfriend, Heather Jeselskis, for a favor.  He  gave her $80 or $90 and asked
her to rent a truck for him.  Tarmey was planning to leave the State in the
rented truck in order to avoid the consequences of an operating under the
influence charge and an operating after suspension charge acquired while on
probation for burglary and theft convictions.  Jeselskis rented the truck for
Tarmey and drove it to Tarmey's house, where Tarmey resided with three of
his five children.  The Tarmeys loaded the truck with Tarmey's washer and
dryer, which he planned to sell for funds, two mattresses on which the
family could sleep, and the family members' personal items.  Because he was
concerned that the police would be looking for him, Tarmey asked Jeselskis
to drive the truck to a rendezvous point where he would take control of the
truck.  To transport himself to the rendezvous point, Tarmey obtained
Jeselskis's consent to use her 1992 Ford Escort.  Tarmey's sons, Chris and
Phil, rode with Jeselskis in the rented truck.  His daughter, April, rode with
Tarmey in the Escort.  The police stopped the truck, apparently in search of
Tarmey.  Tarmey saw that the police had stopped the truck and, abandoning
his boys, he left the State with his daughter in Jeselskis's Escort.
	[¶3]  April testified that they had no particular destination in mind,
only that they "thought about different . . . places" and would "pretty
much . . . get there first and then . . . decide."  During the course of their
wanderings, Tarmey would periodically stop and work construction in order
to earn money.  According to April, Tarmey wanted to show her places "like
the Redwood Forest" and "like Anaheim," and "he taught [her] a lot" while
she was otherwise unenrolled in school.  Tarmey and April visited "a lot of
places" in the Escort, including New York, Illinois, Iowa, the Dakotas,
Oregon, and California before deciding to go to "Uncle Joe's" in Florida.  
	[¶4]  Sometime in late September or early October, Tarmey and April
drove to Maine to pick up Chris and Phil and bring the boys back to Florida. 
Shortly after returning to Florida, Tarmey was apprehended by the police. 
Jeselskis's father paid an auto carrier to transport the Escort back to Maine. 
According to Jeselskis, the Escort had approximately 30,000 additional
miles on it when she recovered it, two months after it was taken.  
	[¶5]  Tarmey was indicted by the grand jury for criminal restraint by a
parent pursuant to 17-A M.R.S.A. § 303 (1983),{2} and for unauthorized use of
property pursuant to 17-A M.R.S.A. § 360.  After trial, the jury returned its
verdict acquitting Tarmey of criminal restraint by a parent and convicting
him of unauthorized use of property.  The court sentenced Tarmey to 364
days and imposed a restitution order in the amount of $3,000 to
compensate Jeselskis for the damage and depreciation to her Escort. 
Tarmey filed a timely notice of appeal.  
	[¶6]  This appeal presents a single legal issue: whether 17-A
M.R.S.A. § 360(1)(A) requires the State to prove that a defendant had the
intent to use or exercise control over property without the owner's consent
at the moment possession was initially obtained.
	[¶7]  Tarmey does not claim that Jeselskis gave him consent to take
her Escort on his extended travels.  Rather, Tarmey contends that, had the
court instructed the jury properly, the jury would not have convicted him
because Jeselskis's testimony clearly indicated that she consented to
Tarmey's initial possession of the Escort. 
	[¶8]  The court instructed the jury as follows:
As to the second count . . . Maine law says a person is guilty of
theft if, knowing that he does not have the consent of the owner,
he takes, operates, or exercises control over a vehicle. . . .  The
State must prove to you beyond a reasonable doubt that Mr.
Tarmey took, operated, or exercised control over a vehicle, that
this vehicle did not belong to him, but belonged to somebody
else, in this case, specifically, Heather Jeselskis, and at the time
he knew that he did not have the consent of Heather Jeselskis.
	[¶9]  We review jury instructions to ensure that they correctly
informed the jury of the governing law.  See State v. Ashby, 1999 ME 188,
¶ 3, __ A.2d __,     .  The interpretation of a statute is a question of law and
is reviewed de novo by this Court.  See State v. Raymond, 1999 ME 126, ¶ 6,
737 A.2d 554, 555.  In order to effectuate the Legislature's intent, we look
to the plain meaning of the language used in a statute, see id., keeping in
mind that we must construe penal statutes strictly so that a criminal offense
is not created by inference or implication, see Ashby, 1999 ME 188, ¶ 6,
___ A.2d at ___.  
	[¶10]  The common law crime of larceny required the State to prove
that the defendant had larcenous intent at the time he or she took
possession of the property.  See Clewley v. State, 288 A.2d 468, 474 (Me.
1972); State v. Boisvert, 236 A.2d 419, 423 (Me. 1967).  However, the
Maine Criminal Code "was intended to be a complete codification of
common law principles," and the idiosyncracies of common law crimes no
longer govern to the extent they conflict with the Code.   See State v. Poole,
568 A.2d 830, 831 (Me. 1990).
	[¶11]  In Raymond, we considered an appeal from convictions for
burglary of a motor vehicle and theft by unauthorized use of property.  We
held that proof of the elements necessary to support the conviction for theft
by unauthorized use of a motor vehicle also supported the conviction for
burglary of a motor vehicle pursuant to 17-A M.R.S.A. § 405 (1985 & Supp.
1999).  See Raymond, 1999 ME 126, ¶¶ 6-9, 737 A.2d at 555-56.  In
response to the defendant's argument that the Legislature could not have
intended to make proof of theft by unauthorized use of a motor vehicle
tantamount to proof of burglary of a motor vehicle, because every violation of
the former would necessarily be a violation of the latter, we noted:
A violation of section 360(1)(A) does not necessarily result in a
violation of section 405.  A person can enter a vehicle with the
owner's consent, but then take the vehicle for an extended drive
that the owner did not authorize and violate section 360(1)(A),
while not violating section 405.   
Id., ¶ 9, 737 A.2d at 556.  
	[¶12]  The language of section 360(1)(A), when redacted to eliminate
language irrelevant to the facts of this case, reads, "A person is guilty of theft
if . . . [k]nowing that he does not have the consent of the owner, he . . .
operates or exercises control over a vehicle."  17-A M.R.S.A. § 360(1)(A). 
The plain meaning of this language indicates that a person can be convicted
of theft by unauthorized use of a motor vehicle despite the fact that he or
she initially had permission to use the vehicle, if the control exercised over
the vehicle extends beyond the use originally permitted.  Accordingly, we
find no error in the court's instruction. 
	The entry is:
			Judgment affirmed.
Attorneys for State: Norman R. Croteau, District Attorney Craig E. Turner, Deputy Dist. Atty. 2 Turner Street Auburn, ME 04210 Attorney for defendant: Michael Whipple, Esq. Law Offices of William Maselli 98 Court Street Auburn, ME 04210
FOOTNOTES******************************** {1} . Title 17-A, section 360(1)(A) provides: § 360. Unauthorized use of property 1. A person is guilty of theft if: A. Knowing that he does not have the consent of the owner, he takes, operates or exercises control over a vehicle, or, knowing that a vehicle has been so wrongfully obtained, he rides in such vehicle; . . . . 3. It is a defense to a prosecution under this section that the actor reasonably believed that the owner would have consented to his conduct had he [or she] known of it. 17-A M.R.S.A. § 360(1)(A) & (3) (1983). {2} . The case at trial involved an issue of whether Tarmey properly had custody of April during their travels.