MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2013 ME 36
Docket:   Yor-11-611
Argued:   October 23, 2012
Decided:  March 26, 2013

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


                                STATE OF MAINE

                                         v.

                             THOMAS P. WOODARD

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.
2

                               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. See 32 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




    1
      Although these statutes have been amended in some ways since the events that gave rise to these
criminal charges, see, e.g., P.L. 2011, ch. 429, §§ 1-6 (effective July 1, 2012, for the amendment to
section 1866(4)(C) and Sept. 28, 2011, for all other provisions) (codified at 32 M.R.S. §§ 1865, 1866,
1871-A, 1872 (2012)), those amendments are not relevant here, and we cite to the current codification of
the statutes.
                                                                                     3

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).
4

                                      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. See 17-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, see 32 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

    2
    At the relevant time, the Department was known as the Department of Agriculture, Food and Rural
Resources; it is now the Department of Agriculture, Conservation and Forestry. See P.L. 2011, ch. 657,
§ W-5 (effective Aug. 30, 2012).
                                                                                   5

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

  3
      New Hampshire does not have a bottle bill.
6

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
    4
     From the voluminous evidence presented at trial, the jury found that Woodard had committed theft
of more than $10,000. Even assuming that all of the bottles delivered by Reed and Prybot were subject to
a commingling agreement and, therefore, generated only three cents per bottle in handling fees, the jury
could have found that the total accepted from distributors or their agents for those bottles was $10,099.68.
                                                                                   7

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.
8

      [¶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 Bottling Company employee who supervised redemption pick-up testified

that Pepsi had picked up hundreds of thousands of containers and paid tens of

thousands of dollars to Green Bee between April 2008 and February 2010. An

employee of Returnable Services, a container collection agency for about 300

distributors, testified that Returnable Services had paid Green Bee $134,000

between April 2008 and February 2010. That employee also testified that several

factors should be considered by redemption centers to determine if containers were

not purchased in Maine: (1) the presence of out-of-state license plates on the

delivering vehicle, (2) the customer’s presorting of the bottles, (3) repeated

business, (4) delivery outside normal business hours, and (5) delivery of a high

volume of unusual beverage containers.

      [¶15]    During the trial, the court admitted several documentary and

photographic exhibits offered by the State, including a series of photographs of the

containers that were seized. Certain bottles were identified as bottles that were not

sold anywhere in Maine at that time. The court also admitted, over Woodard’s
                                                                                   9

objection, photographs of the barn at Prybot’s residence in Massachusetts where

bottles were sorted.    Woodard did not offer any testimonial or documentary

evidence.

      [¶16] After the close of evidence, the prosecutor made a closing argument

that concluded with remarks that Woodard contends constitute prosecutorial

misconduct:

             This is a theft one nickel and three to 3-1/2 cents at a time. We
      need to send a message to those who would fraudulently redeem
      bottles in large quantities from away, we need to send a message that
      you can’t be ripping off Maine beverage distributors who will pass
      those costs along to Maine consumers. We ask you to find Tom
      Woodard guilty of theft by deception in the fraudulent redemption of
      bottles to Maine distributors.

(Emphasis added.) Woodard did not object to this closing argument at trial.

      [¶17]    Before the court charged the jury, Woodard requested a jury

instruction that “if the actor in fact believes in the accuracy of the impression

created or reinforced he is not guilty of deception even though his belief was stupid

or unreasonable.” The court declined to offer this instruction but did provide the

following instructions regarding state of mind for this particular crime:

      Deception occurs when a person intentionally, that is has the
      conscious purpose or object to do so, intentionally creates or
      reinforces an impression which is false and which that person does not
      believe to be true or fails to correct an impression which is false and
      which a person does not believe to be true and which that person
      previously created or reinforced. . . .
10

         ....

                Now, on the necessary state of mind in which the State must
         prove that the actions of each Defendant were intentional, on the
         subject of intent, intent often cannot be proven directly because there
         is not always direct evidence of a person’s state of mind, but you may
         infer a person’s state of mind from surrounding circumstances. In
         determining whether the State has proven beyond a reasonable doubt
         that a Defendant acted with intent to deprive of property, you may
         consider any statement made or any act done or omitted by a
         Defendant and all other facts in evidence which may indicate a state
         of mind.

The court also instructed, “[S]tatements or arguments of counsel are not evidence.”

         [¶18] The jury found Woodard guilty of theft by deception of property

worth more than $10,000. See 17-A M.R.S. § 354(1)(B)(1). The court sentenced

Woodard to twenty-one months in prison, all but twenty-one days suspended, with

two years of probation, and ordered him to pay $10,000 in restitution and $25 to

the Victims’ Compensation Fund, see 5 M.R.S. § 3360-I (2011).5 Woodard timely

appealed pursuant to 15 M.R.S. § 2115 (2012) and M.R. App. P. 2.

                                      III. DISCUSSION

A.       Sufficiency of the Evidence

         [¶19] “When a defendant in a criminal case challenges the sufficiency of the

evidence to support the finding of guilt, we view the evidence in the light most

favorable to the State to determine whether the fact-finder could rationally find

     5
     This statute was recently amended to provide that the imposition of the assessment may not be
waived. See P.L. 2011, ch. 628, § 1 (effective Aug. 30, 2012) (codified at 5 M.R.S. § 3360-I (2012)).
                                                                                  11

every element of the offense beyond a reasonable doubt.” Haag, 2012 ME 94,

¶ 17, 48 A.3d 207 (quotation marks omitted). “As the fact-finder, the jury is

permitted to draw all reasonable inferences from the evidence presented at trial.”

Id. For instance, “intent can be inferred from the evidence.” State v. Schmidt,

2008 ME 151, ¶ 21, 957 A.2d 80. We will vacate a judgment entered upon a jury

verdict “only where no trier of fact rationally could find proof of guilt beyond a

reasonable doubt.” Haag, 2012 ME 94, ¶ 17, 48 A.3d 207 (quotation marks

omitted).

      [¶20] A person commits the Class B crime of theft by deception if “[t]he

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,”          17-A M.R.S.

§ 354(1)(A) (2012) (emphasis added), and the property is worth more than

$10,000, id. § 354(1)(B)(1). “A person acts intentionally with respect to a result of

the person’s conduct when it is the person’s conscious object to cause such a

result.” 17-A M.R.S. § 35(1)(A) (2012).

      [¶21] Two definitions of deception could apply based on the evidence

presented here. First, deception occurs when a person intentionally “[c]reates or

reinforces an impression that is false and that the person does not believe to be

true, including false impressions as to identity, law, value, knowledge, opinion,

intention or other state of mind.” 17-A M.R.S. § 354(2)(A) (2012). Alternatively,
12

deception occurs when a person intentionally “[f]ails to correct an impression that

is false and that the person does not believe to be true and that . . . [t]he person had

previously created or reinforced.” 17-A M.R.S. § 354(2)(B)(1) (2012).

      [¶22] Here, the State offered evidence that Woodard exercised control over

funds that belonged to Maine beverage distributors by intentionally creating the

false impression that the beverage containers that he delivered in exchange for

those funds had been sold to consumers in Maine. See id. §§ 35(1)(A), 354(1)(A),

(2)(A). The State offered circumstantial evidence that, in taking these actions,

Woodard did not believe that the containers had originally been sold as full

beverage containers to consumers in Maine, with a five-cent deposit collected from

the consumer. See id. § 354(2)(A). Specifically, Woodard was aware that Reed

was from New Hampshire and delivered containers after hours; he was in contact

with Reed by telephone soon after Reed’s bottle delivery was interrupted by law

enforcement; he knew that Prybot was from Massachusetts and that Prybot

delivered large numbers of containers for redemption without being questioned

about their origins; and he understood from signs and cards that the Department of

Agriculture required him to post and hand out at Green Bee that containers not sold

in Maine were not eligible for redemption.

      [¶23] Although the trial record does not contain direct evidence that each of

the thousands of redeemed containers was from a beverage that was purchased by
                                                                                  13

the consumer outside of Maine, “[a] conviction based on circumstantial evidence is

not . . . any less conclusive” of a defendant’s guilt. State v. Deering, 1998 ME 23,

¶ 13, 706 A.2d 582. “A factfinder may draw all reasonable inferences from the

circumstantial evidence, and it is not necessary for the factfinder to eliminate any

possible alternative explanation of the evidence . . . .”     Id. (quotation marks

omitted). Instead, “the question is whether such alternative is sufficiently credible

in light of the entire record that it necessarily raises a reasonable doubt.” Id.

(quotation marks omitted). Here, the circumstantial evidence was sufficient for a

jury to rationally find beyond a reasonable doubt that (1) Woodard knew the

containers were not from beverages sold to consumers in Maine and (2) Woodard

nonetheless submitted the containers to distributors, creating the impression that

they were from Maine, in order to obtain eight to eight-and-one-half cents per

container. See 17-A M.R.S. §§ 35(1)(A), 354(1)(A), (2)(A). He did not at any

time correct this false impression. See 17-A M.R.S. § 354(2)(B).

      [¶24]   Finally, the State offered direct and circumstantial evidence to

demonstrate that the funds accepted by Woodard from the distributors for the

out-of-state containers exceeded $10,000 in value. See id. § 354(1)(B)(1). Even

using the lower three-cent-per-container charge for handling fees, evidence of

checks issued to Reed and Prybot from Green Bee could have persuaded the jury

of redemptions generating a total of $10,099.68 in refunds and handling fees. The
14

circumstantial evidence was, therefore, sufficient for a jury to rationally find

beyond a reasonable doubt that Green Bee had redeemed enough out-of-state

bottles to have received and taken control of more than $10,000 from distributors.

See id.

        [¶25] There was competent evidence in the record from which a jury could

rationally find each element of the charged crime beyond a reasonable doubt. See

id. §§ 35(1)(A), 354(1)(A), (1)(B)(1), (2)(A); Haag, 2012 ME 94, ¶ 17, 48 A.3d

207. Accordingly, we will affirm Woodard’s conviction unless some other defect

in the proceedings requires us to vacate the judgment.

B.      Evidence of Acts Outside the Time Range Stated in the Indictment

        [¶26] Woodard argues that, although the indictment charged that he had

committed theft “[f]rom on or about April 4, 2008, to on or about February 18,

2010,” the State’s evidence concerned events that occurred primarily in March

2010.

        [¶27] “Proof of the commission of [an] offense on any date within the

statute of limitations, regardless of the date alleged in the indictment, is not a

material variance from the indictment, unless it prejudices the defendant.” State v.

Standring, 2008 ME 188, ¶ 14, 960 A.2d 1210; see also State v. St. Pierre, 1997

ME 107, ¶ 14, 693 A.2d 1137 (explaining that the State need not prove that alleged

criminal conduct occurred on a specific date if time is not an element of the crime).
                                                                                   15

Prejudice is avoided as long as the indictment is “sufficiently specific to enable the

preparation of a defense and to protect the defendant against further jeopardy for

the same offense.” Standring, 2008 ME 188, ¶ 14, 960 A.2d 1210. If heightened

specificity has not been obtained through a request for a bill of particulars, “a time

variance between the allegation in the indictment and the proof at trial is not fatal

to a criminal conviction.” Id.

      [¶28] Here, the one-month variance in the approximate end date of the

charged conduct did not prejudice Woodard, who had notice that he was charged

with theft that was ongoing over a period of about two years. Furthermore, the

evidence regarding the March 2010 events was relevant and admissible as

circumstantial evidence that Woodard committed the charged crime through an

ongoing scheme of accepting out-of-state bottles for redemption. See M.R. Evid.

401, 402, 404(b); State v. Allen, 2006 ME 20, ¶ 18, 892 A.2d 447 (stating that

evidence is admissible notwithstanding Rule 404(b) “to show lack of accident,

design, motive, knowledge, plan, scheme, and identity” because such evidence is

not offered to show action in conformity with a character trait).

      [¶29]    That Woodard was not also charged with attempted theft by

deception, see 17-A M.R.S. §§ 152, 354 (2012), for his role in the March 2010

bottle delivery, which was interrupted by Trahan and local police, does not change

this outcome. Evidence of Woodard’s conduct at that time served to demonstrate
16

the nature of his ongoing arrangement with Reed and was therefore probative and

admissible regarding the charged crime. See Allen, 2006 ME 20, ¶ 18, 892 A.2d

447.6

C.       Admission of Photographs of Prybot’s Barn

         [¶30] Woodard contends that the photographs of Prybot’s barn should not

have been admitted because Woodard was unable to cross-examine Prybot fully

about whether he or his father was responsible for setting up the sorting station in

the Prybot barn. Woodard contends that these photos were part of the evidence

used to indict Prybot’s father, who died before he could be tried, and that Woodard

and the State agreed before trial that Prybot’s father would not be mentioned.

         [¶31] We do not review claims of error that result from a party’s choice of

trial strategy. State v. Rega, 2005 ME 5, ¶ 17, 863 A.2d 917. Although Woodard

complains that he was constrained by the agreement that he and the State struck,

which required both parties not to mention Prybot’s father, we will not, on appeal,

relieve him of the consequences of that agreement. Furthermore, because the State

based its case on evidence of checks that were issued to Prybot—not his father—

cross-examination regarding whether Prybot acted alone is largely irrelevant. See

M.R. Evid. 401 (“‘Relevant evidence’ means evidence having any tendency to

     6
      We are unpersuaded by Woodard’s additional agreement that the evidence was inadmissible because
its probative value was outweighed by the risk of unfair prejudice, and we do not discuss this issue. See
M.R. Evid. 403.
                                                                                  17

make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.”

(emphasis added)).

D.    Prosecutorial Misconduct

      [¶32] Woodard next argues that the prosecutor’s demand of the jury to

“send a message to those who would fraudulently redeem bottles in large quantities

from away” gave rise to an obvious error or defect because the jury was asked to

convict for a reason other than Woodard’s guilt.

      [¶33] When the defense does not object to a prosecutor’s comments in

closing, we will vacate the resulting judgment only if any improper conduct gave

rise to obvious error. See M.R. Crim. P. 52(b); State v. Dolloff, 2012 ME 130,

¶ 35, 58 A.3d 1032. “To demonstrate obvious error, the defendant must show that

there is (1) an error, (2) that is plain, and (3) that affects substantial rights.”

Dolloff, 2012 ME 130, ¶ 35, 58 A.3d 1032 (quotation marks omitted). To establish

that the error affected a defendant’s substantial rights, the defendant has a

significant burden of demonstrating “a reasonable probability that [the prosecutor’s

statement] affected the outcome of the proceeding.” Id. ¶¶ 37-38. “Even if these

three conditions are met, we will set aside a jury’s verdict only if we conclude that

(4) the error seriously affects the fairness and integrity or public reputation of

judicial proceedings.” Id. ¶ 35 (quotation marks omitted).
18

      [¶34]   Although we have not previously had occasion to opine on the

propriety of a prosecutor asking a jury to “send a message,” we have long

criticized prosecutors’ appeals to public perception or other social issues that go

beyond the evidence produced at trial. See id. ¶ 40 (stating that a prosecutor’s

“efforts must be tempered by a level of ethical precision that avoids overreaching

and prevents the fact-finder from convicting a person on the basis of something

other than evidence presented during trial”); State v. Martel, 103 Me. 63, 66, 68

A. 454 (1907) (requiring that a prosecutor’s comments be “strictly confined to the

domain of facts in evidence”). The jury’s function is to decide the case on the

evidence before it in accordance with the law as instructed by the trial judge.

Accordingly, a “prosecutor should refrain from argument which would divert the

jury from its duty to decide the case on the evidence.”       ABA Standards for

Criminal Justice: Prosecution Function and Defense Function § 3-5.8(d) (1993);

see also United States v. Manning, 23 F.3d 570, 574 (1st Cir. 1994) (explaining

that “it should be beyond question that . . . arguments urging a jury to act in any

capacity other than as the impartial arbiter of the facts in the case before it are

improper”). Within our constitutional framework, it is not the role of a jury in a

criminal case to send messages about matters of public concern, even though that

may be the effect of a verdict in some instances. Jurors should not be invited to
                                                                                19

arrive at a verdict for any reason other than their evaluation of the evidence of a

defendant’s guilt or innocence.

      [¶35] As the Maine Jury Instruction Manual more particularly provides,

“Arguments to juries urging them to ‘send a message’ or other similar invitations

to consider possible consequences of their verdict outside the parameters of the

record of the case are improper.” Alexander, Maine Jury Instruction Manual,

§ 5-7 at 5-15 (4th ed. 2012); see Dolloff, 2012 ME 130 ¶¶ 67-73, 58 A.3d 1032

(criticizing the prosecutor’s “do justice” argument); see also Campbell v. State,

679 So. 2d 720, 724 (Fla. 1996) (criticizing “message to the community”

arguments in death penalty sentencing proceedings as “an obvious appeal to the

emotions and fears of the jurors” (quotation marks omitted)); Commonwealth v.

DeJesus, 860 A.2d 102, 113-19 (Pa. 2004) (vacating a sentence because the

prosecutor argued to the jury, “there are messages to be sent” on the streets by

imposing the death penalty—a plea to an “external irrelevancy” that is prejudicial

per se in the context of death penalty sentencing).

      [¶36] In view of these longstanding legal principles, the first two prongs of

the obvious error analysis have been met. The prosecutor’s tactic in this case of

asking the jury to “send a message” amounted to (1) error that is (2) plain.

Nevertheless, addressing the third prong of the obvious error analysis, we conclude

that Woodard has failed to meet his significant burden of demonstrating a
20

reasonable probability that the error was sufficiently prejudicial to have affected

the outcome of the proceeding, thereby affecting his substantial rights. Dolloff,

2012 ME 130, ¶¶ 37-38, 58 A.3d 1032. The State presented a strong case against

Woodard, and the prosecutor’s appeal to the jury to “send a message” was

mentioned only briefly and was not a focus of the prosecutor’s closing arguments.

Furthermore, the court instructed the jurors in Woodard’s trial that they were not to

consider the attorneys’ arguments as evidence.

      [¶37] Viewing the error in relation to the trial as a whole, the error was not

“sufficiently prejudicial to have affected the outcome of the proceeding.” Id. ¶ 37

(quotation marks omitted); see United States v. Stover, 2012 U.S. Dist. LEXIS

24777, at *27-30 (S.D.W.V. 2012) (holding that an unpreserved claim of error

arising from a prosecutor’s statement, in an otherwise relatively strong case, that

the jury should “send a message” did not affect the defendant’s substantial rights);

People v. Gallegos, 260 P.3d 15, 27-28 (Colo. App. 2010) (holding that, although

it is improper for a prosecutor to ask a jury to find a defendant guilty to “send a

message to the community,” the statement was not so egregious in the context of

the trial as to require that the conviction be vacated); People v. Desantiago, 850

N.E.2d 866, 873-75 (Ill. App. Ct. 2006) (affirming a conviction on plain error

review despite the prosecutor’s argument encouraging the jury to “send a
                                                                                 21

message,” in part because the court instructed the jury that the closing arguments

were not evidence).

      [¶38] Because we conclude that Woodard failed to demonstrate that the

prosecutorial misconduct affected his substantial rights, we do not address the

fourth prong of the obvious error analysis: whether the error seriously affected the

fairness and integrity or public reputation of judicial proceedings. See Dolloff,

2012 ME 130, ¶ 35, 58 A.3d 1032.

E.    Jury Instructions

      [¶39] Woodard argues that the court erred in denying his request to instruct

the jury that, to find him guilty, it had to find he had been knowingly deceitful—

not ignorant or negligently unaware—when processing the out-of-state containers.

      [¶40] “We review the denial of a requested jury instruction for prejudicial

error, and will vacate a judgment on this basis only when the denied instruction

(1) stated the law correctly; (2) was generated by the evidence in the case; (3) was

not misleading or confusing; and (4) was not sufficiently covered in the

instructions the court gave.” State v. Ouellette, 2012 ME 11, ¶ 7, 37 A.3d 921

(quotation marks omitted).

      [¶41] Regarding the mens rea for theft by deception, the court stated clearly:

      Deception occurs when a person intentionally, that is has the
      conscious purpose or object to do so, intentionally creates or
      reinforces an impression which is false and which that person does not
22

        believe to be true or fails to correct an impression which is false and
        which a person does not believe to be true and which that person
        previously created or reinforced.

These instructions sufficiently explained the state of mind that a person must

possess to be convicted of theft by deception. See 17-A M.R.S. §§ 35(1)(A),

354(1)(A), (2)(A), (2)(B)(1). The instructions were adequate to inform the jury

that it could not convict Woodard upon a finding that Woodard processed the

out-of-state containers through mere negligence or ignorance.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Richard D. Grundy, Esq., Lynnfield, Massachusetts, and Neil Jamieson,
        Esq., Prescott, Jamieson, Nelson & Murphy, Portland, for appellant Thomas
        Woodard

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

At oral argument:

        Richard D. Grundy, Esq., for appellant Thomas Woodard

        Leanne Robbin, Asst. Atty. Gen., for appellee State of Maine


York County Superior Court docket number CR-2011-405
FOR CLERK REFERENCE ONLY
