MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	120	
Docket:	      Pen-16-359	
Submitted	
  On	Briefs:	 May	25,	2017	
Decided:	     June	15,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                               STATE	OF	MAINE	
                                        	
                                       v.	
                                        	
                         FRANCO	A.	FLORES-MONTECINOS	
	
	
PER	CURIAM	

       [¶1]	 	 Franco	 A.	 Flores-Montecinos	 appeals	 from	 a	 judgment	 convicting	

him	 of	 theft	 by	 unauthorized	 taking	 or	 transfer	 (Class	 E),	 17-A	 M.R.S.	

§	353(1)(A)	(2016),	entered	by	the	trial	court	(Penobscot	County,	 A.	Murray,	

J.)	 after	 a	 jury	 trial.	 	 For	 the	 first	 time	 in	 this	 case,	 Flores-Montecinos	

challenges	 the	 constitutionality	 of	 17-A	 M.R.S.	 §	 361-A(2)	 (2016),	 which,	 in	

pertinent	 part,	 creates	 a	 permissible	 inference,	 see	 M.R.	 Evid.	 303,	 that	 a	

defendant	 engaged	 in	 the	 conduct	 that	 constitutes	 the	 crime	 of	 theft	 by	

unauthorized	taking	or	transfer	if	the	State	proves	beyond	a	reasonable	doubt	

that	 the	 defendant	 “concealed	 unpurchased	 property	 stored,	 offered	 or	

exposed	 for	 sale	 while	 the	 defendant	 was	 still	 on	 the	 premises	 of	 the	 place	

where	it	was	stored,	offered	or	exposed.”		We	affirm.	
2	

          [¶2]	 	 Contrary	 to	 Flores-Montecinos’s	 argument,	 section	 361-A(2)	 is	

sufficiently	 clear	 to	 give	 an	 ordinary	 person	 adequate	 notice	 of	 the	 type	 of	

conduct	that	gives	rise	to	the	permissible	inference	of	the	specified	elements	

of	 theft.1	 	 See	 State	 v.	 Reckards,	 2015	 ME	 31,	 ¶¶	 4-5,	 113	 A.3d	 589;	 see	 also	

State	 v.	 Preston,	 2011	 ME	 98,	 ¶	 7,	 26	A.3d	850	 (stating	 that	 an	 unpreserved	

vagueness	challenge	to	a	statute	is	reviewed	only	for	obvious	error).	

          [¶3]		Flores-Montecinos’s	remaining	contention	that	section	361-A(2)	is	

subject	 to,	 and	 fails	 to	 survive,	 strict	 scrutiny	 is	 not	 persuasive.	 	 See	 United	

States	v.	Jenkins,	909	F.	Supp.	2d	758,	776	(E.D.	Ky.	2012)	(“[C]riminal	statutes	

are	 not	 per	 se	 subject	 to	 strict	 scrutiny.”);	 see	 also	 Chapman	 v.	 United	 States,	

500	 U.S.	 453,	 464-65	 (1991)	 (reflecting	 the	 general	 principle	 that	 the	

constitutional	 protections	 inherent	 in	 criminal	 process	 are	 sufficient	 to	

protect	 a	 defendant’s	 liberty	 interest,	 and	 so,	 unless	 a	 criminal	 statute	

implicates	 some	 other	 fundamental	 right,	 only	 rational	 basis	 review	 is	

required).			




     1	
      	 Although	 Flores-Montecinos	 attempts	 to	 make	 an	 argument	 that	 because	 of	 the	 alleged	
vagueness	in	17-A	M.R.S.	§	361-A(2)	(2016),	his	arrest,	prosecution,	or	conviction	may	have	been	
ethnically	motivated,	there	is	nothing	in	the	record	to	support	that	contention.		We	caution	that	in	
the	 future,	 if	 a	 party	 has	 concerns	 about	 improper	 conduct	 motivated	 by	 race,	 ethnicity,	 or	 some	
other	protected	status,	that	party	should	develop	a	proper	record	and	raise	those	concerns	during	
the	trial	court	proceedings.	
                                                                                      3	

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	     	      	      	     	
	
Rory	 A.	 McNamara,	 Esq.,	 Drake	 Law,	 LLC,	 Berwick,	 for	 appellant	 Franco	 A.	
Flores-Montecinos	
	
R.	 Christopher	 Almy,	 District	 Attorney,	 and	 Tracy	 Collins,	 Asst.	 Dist.	 Atty.,	
Prosecutorial	District	V,	Bangor,	for	appellee	State	of	Maine	
	
	
Penobscot	County	Unified	Criminal	Docket	docket	number	CR-2016-76	
FOR	CLERK	REFERENCE	ONLY	
