MAINE SUPREME JUDICIAL COURT                                                   Reporter of Decisions
Decision: 2020 ME 82
Docket:   Cum-19-259
Argued:   March 2, 2020
Decided:  June 4, 2020

Panel:       MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.*



                                       STATE OF MAINE

                                                 v.

                                 GREGORY P. MCLAUGHLIN


HUMPHREY, J.

         [¶1] Gregory P. McLaughlin appeals from a judgment of conviction of one

count of Class B theft by deception, 17-A M.R.S. § 354(1)(B)(1) (2020), and one

count of Class C theft by deception, 17-A M.R.S. § 354(1)(B)(6) (2020), entered

by the court (Cumberland County, Warren, J.) after a jury trial. McLaughlin

contends that the court erred in failing to include a “nexus” element in its

instruction to the jury on the charge of theft by deception. He also contends

that the evidence was insufficient to convict him of theft by deception, and that

his actions constituted a breach of contract, not a criminal offense. We affirm

the judgment.



   * Although Chief Justice Saufley participated in this appeal, she resigned before this opinion was
certified.
2

      [¶2] The State purports to cross-appeal, challenging the trial court’s

merger of the two charges of theft by deception for sentencing purposes and

the legality of the sentence that it imposed. We do not reach the State’s

challenges because the State failed to file a notice of appeal and provide a

written authorization of the Attorney General. See State v. Mullen, 2020 ME 56,

¶ 25, --- A.3d ---; see also 15 M.R.S. § 2115-A(3), (5) (2020); M.R.

App. P. 2A(f)(2), 21(a)-(c).

                                I. BACKGROUND

      [¶3] Viewing the evidence in the light most favorable to the State, the

jury rationally could have found the following facts beyond a reasonable doubt.

See State v. Ouellette, 2019 ME 75, ¶ 2, 208 A.3d 399.

      [¶4] The victims, a married couple, sought to convert a finished camp

property on Sebago Lake into their full-time residence. In August 2016, the

victims met McLaughlin, described their plans for renovating the Sebago Lake

property, and told him that they had not yet found a contractor for their project.

McLaughlin represented himself as a general contractor, agreed to take a look

at their plans, and said that he would be available in a few weeks. During later

conversations about the project, McLaughlin held himself out as having twenty

years of building experience, a team of four to five carpenters who were
                                                                                                 3

available to work at the job site every day, and the ability to procure the

services of electricians, plumbers, and excavators.

       [¶5] In early December 2016, satisfied that McLaughlin would be able to

renovate the property in their desired timeframe, the victims contracted with

McLaughlin to do various construction and installation work on their property

with a completion date of June 15, 2017. The contract called for an initial

payment of $10,600, followed by payments of $4,040 on the first and fifteenth

of each month, and a final payment of $4,040 upon completion.

       [¶6] Initially, McLaughlin worked full days at the victims’ property

nearly every business day. Over time, McLaughlin’s appearance at the work site

became inconsistent and he worked fewer and fewer hours. In late January or

early February 2017, the victims and McLaughlin entered into a revised

contract with a new completion date of July 1, 2017, because the work could

not be completed by June 15.1 In March, it became clear that McLaughlin would

not be able to meet the July 1 deadline. On March 15, 2017, the victims and

McLaughlin agreed on a new schedule, with a completion date of August 20,

2017, and more specific timelines for completing various phases of the project.


   1 The revised contract also contained adjustments to labor costs, allowances, and the payment
schedule based on the later completion date and to reflect amounts already paid under the contract,
but the substance of the work McLaughlin was to perform remained the same.
4

McLaughlin’s hours continued to decline, first to approximately three days,

totaling twenty-five hours, per week, then to two days per week, and, finally, to

just a few hours on a single day each week. At no point did McLaughlin procure

the work crew or subcontractors that he had represented would be available to

work on the project.

      [¶7] The victims fired McLaughlin on June 27, 2017. By that time, he had

completed, at most, about twenty percent of the project, and the victims had

paid him approximately $80,000 for labor and materials. Of that sum, the

victims paid McLaughlin $10,631 for certain materials, including rough

plumbing materials, trusses, a joist, and other general building materials, which

he never delivered. The work that McLaughlin did complete was inconsistent

with the original building plan, was not structurally sound, violated local

building codes, and would not have passed a building inspection. As a result,

the victims had to remove all of McLaughlin’s work and restart the project from

scratch.

      [¶8] McLaughlin was initially charged by indictment on February 9,

2018, with one count of theft by unauthorized taking (Class B), 17-A M.R.S.

§ 353(1)(B)(1) (2020), one count of home repair fraud (Class D), 17-A M.R.S.
                                                                               5

§ 908(1)(D) (2020), and one count of aggravated criminal mischief (Class C),

17-A M.R.S. § 805(1)(A) (2020).

      [¶9] A superseding indictment was filed on August 10, 2018, charging

McLaughlin      with   one   count   of   theft   by   deception     (Class   B),

17-A M.R.S. § 354(1)(B)(1), one count of theft by deception (Class C),

17-A M.R.S. § 354(1)(B)(6), and one count of home repair fraud (Class D),

17-A M.R.S. § 908(1)(D). McLaughlin entered a plea of not guilty to each charge

at his arraignment, and the case proceeded to trial in March 2019.

      [¶10] At the close of the State’s evidence, McLaughlin moved for a

judgment of acquittal on the two theft by deception counts.          See M.R.U.

Crim. P. 29(a). McLaughlin argued that the State did not prove that he had the

requisite “intent to deprive” the victims of their property at the time of the

initial deception. See 17-A M.R.S. § 354(1)(B)(1). The court denied the motion.

      [¶11] The court then provided the jurors with instructions concerning

the offenses of theft by deception and home construction or repair fraud.

McLaughlin did not object to these jury instructions or request any additional

instructions.
6

       [¶12] McLaughlin was found guilty of both counts of theft by deception.2

On the Class D home repair fraud charge, the court declared a mistrial because

the jury was unable to reach a verdict.

       [¶13] McLaughlin filed a motion for a new trial, M.R.U. Crim. P. 33,

arguing that “[t]he court erred in declining to provide [an] additional [jury]

instruction regarding nexus between intent to deceive and intent to deprive.”

Prior to sentencing, the court held a hearing on McLaughlin’s motion.

McLaughlin conceded that “there was no specific request for an instruction”

regarding a “nexus” between the between the deception and the intent to

deprive the victims of their property. The court denied McLaughlin’s motion.

       [¶14] For sentencing purposes, the court merged the two counts of theft

by deception over the State’s objection and entered judgment against

McLaughlin. McLaughlin received a sentence of seven years’ imprisonment, all

but two years suspended, and three years of probation. He was also ordered to



   2 With respect to the Class B count, the jury found beyond a reasonable doubt that the State proved

the basic elements of theft by deception and that the value of the amount obtained was over $10,000.
17-A M.R.S. § 354(1)(B)(1) (2020). The Class C charge was based on the same underlying conduct as
the Class B charge but, rather than requiring proof that the amount obtained was over $10,000,
instead required the State to prove that McLaughlin had two or more prior convictions for an
enumerated offense or offenses. Id. § 354(1)(B)(6) (2020). Before trial, McLaughlin stipulated that
he had two or more previous convictions for theft and forgery. See id. Because the jury found that
the State proved the basic elements of theft by deception beyond a reasonable doubt and McLaughlin
stipulated that he had at least two prior convictions for theft and forgery, the court found McLaughlin
guilty on the Class C count. Id.
                                                                                                    7

pay $10,000 restitution to the victims and $35 to the Victims’ Compensation

Fund, see 5 M.R.S. § 3360-I (2020).

         [¶15] McLaughlin timely appealed from the court’s judgment.3

                                        II. DISCUSSION

A.       Merger of the Theft by Deception Counts at Sentencing

         [¶16] The State argues that it was improper for the trial court to merge

the two theft by deception charges for sentencing purposes and that the

sentence imposed with respect to the Class C theft by deception count was

unlawful. The State acknowledges that it did not appeal from the judgment but

contends that it was not required to do so. See 15 M.R.S. § 2115-A (2020). The

State is correct; it is not required to appeal when the defendant appeals.

However, if it does not appeal, the State is limited to arguing that error “harmful

to it” occurred prior to trial or during trial. 15 M.R.S. § 2115-A(3); see Ouellette,

2019 ME 75, ¶ 16, 208 A.3d 399.

         [¶17]     Because the State’s arguments relate to alleged post-trial

sentencing errors, the State was required to appeal to raise them.4 Ouellette,



   3 McLaughlin also applied for leave to appeal his sentence, but the Sentence Review Panel denied

his application. See State v. McLaughlin, No. SRP-19-274 (Me. Sent. Rev. Panel Aug. 7, 2019); see also
15 M.R.S. § 2151 (2020); M.R. App. P. 20.

    The State also did not file a motion for correction or reduction of sentence pursuant to M.R.U.
     4

Crim. P. 35. See 15 M.R.S. § 2115(2-B) (2020). Thus, even if the State had properly filed a notice of
8

2019 ME 75, ¶ 16, 208 A.3d 399. It failed to do so, and we therefore do not

reach the State’s claims of error related to sentencing. See Mullen, 2020 ME 56,

¶¶ 23-25, --- A.3d ---; see also 15 M.R.S. § 2115-A(3), (5); M.R. App. P. 2A(f)(2),

21(a)-(c).

B.     Sufficiency of the Evidence

       [¶18] McLaughlin argues that the evidence was insufficient for the jury

to find beyond a reasonable doubt that he committed theft by deception

because the State did not establish that the statutorily required elements of

deception and an intent to deprive the victims of their money or property, see

17-A M.R.S. § 354 (2020), existed at the same time. McLaughlin refers to this as

the “nexus” requirement.

       [¶19] When a defendant challenges the sufficiency of the evidence upon

conviction after a jury trial, we examine the evidence in the light most favorable

to the State to determine whether the jury could rationally find every element

of the offense beyond a reasonable doubt. See State v. Hayward, 2017 ME 33,

¶ 10, 156 A.3d 734. The jury is free to “draw all reasonable inferences from the

evidence, and exclusively decides the weight to be given to the evidence and the



appeal and obtained the Attorney General’s approval, id. § 2115(5), it is not clear that the State would
have had any statutory basis for an appeal of the sentence.
                                                                                  9

credibility to be afforded to the witnesses.” Id. (alteration omitted) (quotation

marks omitted); see also State v. Hall, 2019 ME 126, ¶ 16, 214 A.3d 19. “[I]ntent

is seldom capable of direct proof. It is usually inferred from the proven

surrounding circumstances.” State v. Berube, 185 A.2d 900, 902 (Me. 1962); see

also Alexander, Maine Jury Instruction Manual § 6-39 at 6-77 (2019-20 ed.

2019).

      [¶20] The crime of theft by deception occurs when a “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).

“[D]eception 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 . . . knowledge, opinion, intention or other

state of mind.” Id. § 354(2)(A). But “an intention not to perform a promise, or

knowledge that a promise will not be performed, may not be inferred from the

fact alone that the promise was not performed.”            Id. (emphasis added).

Deception also 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.”         Id. § 354(2)(B).
10

“Whether a theft by deception occurred in a particular case is a fact-specific

question.” State v. Degennaro, 2012 ME 68, ¶ 14, 46 A.3d 1147.

      [¶21] The jury rationally could have found beyond a reasonable doubt

each element of theft by deception based on the testimonial and documentary

evidence presented at trial and reasonable inferences drawn therefrom. See

Hayward, 2017 ME 33, ¶ 10, 156 A.3d 734. The victims testified that

      • McLaughlin held himself out as a highly experienced contractor who
      had a team of laborers at his disposal and the ability to secure various
      subcontractors to assist in completing the project, and that they would
      not have hired him but for these representations;

      • They never observed any work crew at the site and McLaughlin never
      hired any subcontractors;

      • Although McLaughlin’s work was satisfactory at first, the number of
      hours he spent at the work site progressively decreased over a period of
      several months until, by the time he was fired in June 2017, he was
      working only three or four hours per week;

      • The contract was renegotiated twice because McLaughlin was not
      making adequate progress and could not complete the work on time;

      • When pressed about the lack of progress or the quality of his work,
      McLaughlin brushed off the victims’ concerns and made excuses;

      • When McLaughlin was fired at the end of June 2017, they had paid him
      roughly $37,000 for his labor, but he had completed, at most, twenty
      percent of the work; and

      • They paid McLaughlin $10,631 for various materials that they never
      received, including rough plumbing materials, trusses, a joist, and other
      general building materials.
                                                                                                 11

Other witnesses for the State, including the Town of Standish’s code

enforcement officer, testified that the work McLaughlin did complete was not

only inconsistent with the original building plan, but had to be torn down

because it was not structurally sound and violated local building codes.5

         [¶22]      Contrary to McLaughlin’s argument, the record evidence is

sufficient for the jury to have found that McLaughlin’s deception was

contemporaneous with the intent to deprive at some point. On this evidence,

the jury rationally could have inferred that McLaughlin both deceived the

victims about his intent to perform and intended to deprive them of their

money all along.6 See 17-A M.R.S. § 354(2)(A); Degennaro, 2012 ME 68, ¶¶ 11,

13-14, 46 A.3d 1147. Alternatively, the jury could have found that McLaughlin

deceived the victims with respect to his ability to perform the work—i.e., his

knowledge of home construction, the existence of his team of laborers, and his

ability to retain subcontractors—to secure the contract, and, although he may

have initially intended to do the work, he developed the intent to deprive later,



   5   Many photos of the work site were admitted in evidence for the jury’s consideration.
   6 McLaughlin contends that the jury could not rationally have found that he deceived the victims
at the time they entered into the December 2016 contract because that was an element of the home
construction or repair fraud charge on which the jury was unable to reach a verdict. See 17-A M.R.S.
§ 908(1)(D) (2020). However, inconsistent verdicts on separate counts of an indictment will not
invalidate a guilty verdict. See State v. Lowe, 2015 ME 124, ¶¶ 28-30, 124 A.3d 156; State v.
Finnemore, 1997 ME 44, ¶¶ 7-9, 690 A.2d 979.
12

showing up at the work site periodically as part of a ruse designed to ensure

that the victims continued to pay him. See 17-A M.R.S. § 354(2)(B); State v.

Brasslett, 451 A.2d 890, 895 (Me. 1982). Or the jury could have simply inferred

that he deceived the victims with respect to those materials that were never

delivered and accepted the payments for those materials, totaling $10,631, with

the intent not to purchase or deliver the materials, but to instead keep the

money.7 See Degennaro, 2012 ME 68, ¶¶ 11, 13-14, 46 A.3d 1147. We need not

determine which inferences the jury drew or whether it could have drawn

others; we are concerned only with whether the verdict was supported by

sufficient evidence. See State v. Manion, 112 A.3d 506, 521 (Md. 2015). We

conclude that it was.

         [¶23] McLaughlin’s final contention on this issue is that his actions

constituted a mere breach of contract, not a criminal theft by deception. A

similar argument was raised in Degennaro, 2012 ME 68, ¶ 10, 46 A.3d 1147,

and our holding in that case forecloses any argument that a theft by deception

cannot occur where there is a contract between the parties, see id. ¶ 14. Even




     7Although we conduct our own review of the sufficiency of the evidence, McLaughlin conceded
at the hearing on his motion for a new trial that the jury could have found him guilty of theft by
deception on the evidence presented. He also conceded that the jury could have found him guilty of
theft by unauthorized taking. See 17-A M.R.S. § 351 (2020).
                                                                                                    13

if we assume that McLaughlin’s initial representations about his ability to

complete the work were mere “puffery,” exaggerating or overselling his ability

to convince the victims to hire him, see, e.g., United Concrete & Constr., Inc. v.

Red-D-Mix Concrete, Inc., 836 N.W.2d 807, 815-16 (Wis. 2013), the evidence in

the record is sufficient to support the jury’s verdict.8

C.       Jury Instructions

         [¶24]     McLaughlin contends that he requested a jury instruction

regarding the nexus between the deception and the intent to deprive, and that

the court’s failure to give such an instruction constitutes prejudicial error.

         [¶25] McLaughlin neither requested a jury instruction on this issue nor

objected to the jury instructions that were given, even though he had multiple

opportunities to do so.9               McLaughlin affirmatively agreed to the jury




     8 Of course, the jury could have found that McLaughlin’s initial representations of his
qualifications and knowledge of home construction were not puffery and rose to the level of
deception. See 17-A M.R.S. § 354(2)(A) (2020).
    9 At the hearing on his motion for a new trial, McLaughlin conceded that “there was no specific

request for an instruction.” However, McLaughlin also contends that he requested this instruction at
some point during a discussion in chambers that took place off the record. Both cannot be true.
Either he requested the instruction or he did not. When this issue came up during the hearing on
McLaughlin’s motion for a new trial, neither the court nor the attorney for the State had any
recollection of a request for this instruction having been made off the record. We are limited to
reviewing the record in front of us, and we decline to assume that the issue was preserved in the face
of McLaughlin’s on-the-record admission that he did not request the instruction and in the absence
of any indication elsewhere in the record that he requested it. See State v. King, 2015 ME 41, ¶ 4, 114
A.3d 664; Alexander, Maine Appellate Practice § 5.2 at 96 (5th ed. 2018).
14

instructions, thereby waiving his ability to challenge them on appeal.10

See State v. Miller, 2018 ME 112, ¶ 14 n.6, 191 A.3d 356; see also 17-A M.R.S.

§ 101(1) (2020); M.R.U. Crim. P. 51; State v. Nobles, 2018 ME 26, ¶¶ 34-35, 179

A.3d 910; State v. Ford, 2013 ME 96, ¶ 15, 82 A.3d 75; State v. Cleaves, 2005 ME

67, ¶¶ 7-8, 15, 874 A.2d 872.

          The entry is:

                           Judgment affirmed.



Valerie A. Randall, Esq. (orally), Hanly Law, Portland, for appellant Gregory
McLaughlin

Jonathan Sahrbeck, District Attorney, and Carlos Diaz, Asst. Dist. Atty. (orally),
Cumberland County District Attorney’s Office, Portland, for appellee State of
Maine


Cumberland County Unified Criminal Docket docket number CR-2018-678
FOR CLERK REFERENCE ONLY




      Having reviewed the court’s written and oral instructions, we are satisfied that they “fairly and
     10

accurately informed the jury of all necessary elements of the governing law.” State v. Lajoie, 2017 ME
8, ¶ 18, 154 A.3d 132.
