MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	33	
Docket:	   Kno-16-223	
Argued:	   February	7,	2017	
Decided:	  March	2,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 STATE	OF	MAINE	
                                        	
                                       v.	
                                        	
                                BETHANY	HAYWARD	
	
	
MEAD,	J.	

	     [¶1]		Bethany	Hayward	appeals	from	a	judgment	of	conviction	of	theft	by	

unauthorized	taking	or	transfer	(Class	C),	17-A	M.R.S.	§	353(1)(B)(6)	(2016),	

and	theft	by	deception	(Class	C),	17-A	M.R.S.	§	354(1)(B)(6)	(2016),	entered	by	

the	trial	court	(Knox	County,	Stokes,	J.)	following	a	jury	trial.		Hayward	contends	

that	 the	 evidence	 presented	 at	 trial	 was	 insufficient	 to	 support	 either	

conviction.		She	also	appeals	from	her	sentence,	arguing	that	the	court	violated	

her	right	to	be	free	from	double	jeopardy	by	convicting	and	sentencing	her	on	

both	 counts	 of	 theft	 without	 consolidating	 them.	 	 See	 State	 v.	 Murphy,	

2015	ME	62,	¶	27,	124	A.3d	647.		We	affirm	both	the	judgments	and	sentences.	
2	

                                           I.		BACKGROUND	

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

jury	 could	 rationally	 have	 found	 the	 following	 facts	 beyond	 a	 reasonable	

doubt.”		State	v.	Haag,	2012	ME	94,	¶	2,	48	A.3d	207.	

	        [¶3]		On	August	22,	2014,	Bethany	Hayward	was	shopping	at	a	Walmart	

in	Thomaston.		Hayward’s	demeanor	and	the	merchandise	in	her	cart	caught	

the	attention	of	an	asset	protection	associate	employed	by	Walmart.		He	noted	

that	Hayward	appeared	to	be	removing	adhesive,	barcoded	labels	from	adult	

shirts	and	putting	them	on	different	shirts.		Eventually,	Hayward	proceeded	to	

the	self-checkout	terminals1	at	the	front	of	the	store.	

	        [¶4]		The	Walmart	associate	continued	to	observe	Hayward	as	she	used	

the	self-checkout	terminal.		He	saw	her	repeatedly	scan	one	white	t-shirt	while	

bagging	different	t-shirts,	which	suggested	to	him	that	“she	was	trying	to	make	

the	register	believe	that	the	item	being	scanned	was	being	put	into	the	bag	but	

it	was	not	the	same	as	what	was	being	placed	in.”		Anticipating	that	Hayward	

intended	to	leave	the	store	with	merchandise	that	had	not	been	correctly	paid	




     1		The	self-checkout	terminals	allow	customers	to	scan,	bag,	and	pay	for	merchandise	without	the	

direct	assistance	of	a	cashier.		Each	terminal	is	equipped	with	a	touchscreen	monitor,	scanner,	and	
keypad	for	debit	or	credit	card	transactions.		There	is	a	bagging	area	off	to	the	side	that	is	equipped	
with	 a	 scale	 to	 determine	 whether	 a	 scanned	 item	 has	 been	 placed	 in	 the	 bagging	 area.	 	 A	 store	
employee	usually	oversees	operation	of	all	the	terminals	and	assists	customers	as	needed.	
                                                                                                         3	

for,	the	Walmart	associate	telephoned	the	police.	

	       [¶5]	 	 Hayward’s	 entire	 transaction	 at	 the	 self-checkout	 terminal	 was	

recorded	by	a	store	surveillance	camera,	and	the	video	footage	was	shown	to	

the	 jury.	 	 The	 video	 shows	 Hayward	 misusing	 the	 self-checkout	 process	

multiple	 times:	 she	 repeatedly	 scanned	 a	 single	 white	 t-shirt	 while	 putting	

different	colored	shirts	into	a	bag	in	the	bagging	area,	scanned	a	single	placemat	

and	 then	 simultaneously	 placed	 three	 placemats	 into	 a	 bag,	 scanned	 a	 set	 of	

plastic	bowls	containing	several	gel	shoe	inserts	but	placed	both	the	bowls	and	

inserts	into	a	bag	without	scanning	the	inserts,	and	scanned	one	item	of	girls’	

clothing	but	placed	what	appears	to	be	several	items	of	clothing	in	the	bag.	

	       [¶6]		After	spending	a	total	of	thirty-three	minutes	at	the	self-checkout	

terminal,2	Hayward	paid	for	the	items	that	had	been	scanned	and	left	the	store.		

The	Walmart	asset	protection	associate	intercepted	her	and	brought	her	to	an	

office	where	she	was	interviewed	by	a	Thomaston	police	officer.		The	interview	

was	recorded	in	part	and	played	for	the	jury.		Hayward	denied	switching	labels	

on	 t-shirts,	 claiming	 that	 she	 had	 reattached	 tags	 that	 had	 fallen	 off,	 and	

explained	 that	 she	 thought	 all	 the	 items	 were	 correctly	 scanned.	 	 She	 gave	

various	explanations	for	why	items	did	not	appear	on	the	receipt	and	expressed	


    2	 	 Other	 Walmart	 employees	 assisted	 Hayward	 several	 times	 during	 the	 self-checkout	 process,	

including	with	a	price	override	on	some	grapes	and	by	bagging	some	of	her	items.	
4	

that	the	self-checkout	had	been	confusing	to	use,	but	she	admitted	that	a	store	

associate	had	instructed	her	to	scan	each	item	separately.	

	        [¶7]	 	 The	 Walmart	 associate	 later	 scanned	 the	 items	 that	 were	 in	

Hayward’s	 cart	 when	 she	 exited	 the	 store	 and	 produced	 an	 itemized	 receipt	

reflecting	the	total	value	of	that	merchandise.		Comparing	that	receipt	to	the	

receipt	that	Hayward	received	from	the	self-checkout	terminal,	he	determined	

that	the	total	difference	in	the	value	between	what	was	in	her	cart	and	what	she	

had	scanned,	which	he	testified	at	trial	was	$93.80.3		The	discrepancies	in	the	

receipts	reflect	Hayward’s	failure	to	scan	seventeen	t-shirts	costing	$5.00	each	

and	five	t-shirts	costing	$3.00	each	while	instead	repeatedly	scanning	a	t-shirt	

costing	$2.00.		They	also	indicate	that	many	items—including	two	girls’	shirts,	

six	girls’	tank-tops,	five	girls’	shorts,	six	pairs	of	girls’	sandals,	two	pint-sized	

mums,	two	placemats,	and	a	bag	of	candy—had	simply	not	been	scanned	at	all.	

	        [¶8]		On	February	13,	2015,	Hayward	was	charged	by	indictment	with	

one	 count	 of	 theft	 by	 unauthorized	 taking	 or	 transfer	 (Class	 C),	 17-A	 M.R.S.	

§	 353(1)(B)(6),	 and	 one	 count	 of	 theft	 by	 deception	 (Class	 C),	 17-A	 M.R.S.	

§	354(1)(B)(6).4		She	pleaded	not	guilty	to	both	charges.		Following	a	trial	on	


     3		The	totals	on	the	receipts	themselves	indicate	a	price	difference	of	$111.96.	

     	
     4		The	counts	were	elevated	to	Class	C	because	of	Hayward’s	prior	theft	convictions,	to	which	she	

stipulated	at	trial.	
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March	 22,	 2016,	 the	 jury	 found	 Hayward	 guilty	 of	 both	 counts	 of	 theft.	 	 At	 a	

sentencing	 hearing	 on	 April	 28,	 2016,	 the	 court	 sentenced	 Hayward	 on	 each	

count	to	concurrent	sentences	of	three	years	of	incarceration	with	all	but	fifteen	

months	suspended,	to	be	followed	by	two	years	of	probation.	

	      [¶9]	 	 In	 May	 2016,	 Hayward	 filed	 a	 timely	 notice	 of	 appeal	 and	 an	

application	 to	 appeal	 her	 sentence	 pursuant	 to	 15	 M.R.S.	 §	 2151	 (2016)	 and	

M.R.	App.	P.	20.		On	July	5,	the	Sentence	Review	Panel	granted	Hayward	leave	

to	 appeal	 her	 sentence	 on	 the	 issue	 of	 “whether	 the	 trial	 court’s	 sentencing	

[her]	on	each	of	the	two	theft	counts	charged	constitutes	multiple	punishments	

for	the	same	offense.”		State	v.	Hayward,	No.	SRP-16-224	(Me.	Sent.	Rev.	Panel	

July	5,	2016).		Hayward’s	sentence	appeal	is	presently	before	us	with	her	direct	

appeal	from	the	judgments	of	conviction.		See	M.R.	App.	P.	20(h).	

                                    II.		DISCUSSION	

A.	    Sufficiency	of	the	Evidence	

	      [¶10]		When	reviewing	a	challenge	to	the	sufficiency	of	the	evidence,	“we	

view	the	evidence	in	the	light	most	favorable	to	the	State	to	determine	whether	

the	 fact-finder	 could	 rationally	 find	 every	 element	 of	 the	 offense	 beyond	 a	

reasonable	doubt.”		State	v.	Kittredge,	2014	ME	90,	¶	31,	97	A.3d	106	(quotation	

marks	 omitted).	 	 The	 jury	 may	 “draw	 all	 reasonable	 inferences	 from	 the	
6	

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

credibility	to	be	afforded	to	the	witness[es].”		State	v.	Drewry,	2008	ME	76,	¶	32,	

946	A.2d	981	(quotation	marks	omitted).		A	conviction	may	be	based	solely	on	

circumstantial	 evidence	 so	 long	 as	 the	 evidence	 proves	 each	 element	 of	 the	

crime	beyond	a	reasonable	doubt,	even	if	direct	evidence	contradicts	inferences	

made	 from	 circumstantial	 evidence.	 	 State	 v.	 Medeiros,	 2010	 ME	 47,	 ¶	 17,	

997	A.2d	95	(citation	omitted).	

	     [¶11]		To	support	the	verdict	of	guilty	of	theft	by	unauthorized	taking	or	

transfer,	the	record	must	demonstrate	that	Hayward	“(1)	obtained	or	exercised	

unauthorized	 control	 (2)	 over	 the	 property	 of	 another	 (3)	 with	 the	 intent	 to	

deprive	 the	 owner	 of	 that	 property.”	 	 State	 v.	 Flynn,	 2015	 ME	 149,	 ¶	 18,	

127	A.3d	1239	(quotation	marks	omitted);	see	17-A	M.R.S.	§	353(1)(A)	(2016).	

	     [¶12]		Based	on	the	evidence	presented	at	trial,	the	jury	could	rationally	

have	found	each	element	of	theft	by	unauthorized	taking	or	transfer	beyond	a	

reasonable	 doubt.	 	 The	 surveillance	 footage,	 Walmart	 associate’s	 testimony,	

and	 discrepancies	 between	 the	 two	 receipts	 indicate	 that	 Hayward	 left	

Walmart	 with	 merchandise	 that	 she	 did	 not	 scan	 or	 pay	 for	 (e.g.,	 several	

placemats	 and	 gel	 shoe	 inserts).	 	 Viewing	 the	 evidence	 in	 the	 light	 most	

favorable	to	the	State,	the	jury	could	rationally	have	concluded	that	Hayward	
                                                                                      7	

intended	to	deprive	Walmart	of	that	property.		Although	the	video	of	Hayward	

attempting	to	explain	her	actions	contradicts	her	intent	to	steal,	the	jury	was	

free	 to	 determine	 how	 much	 weight	 to	 give	 to	 that	 evidence.	 	 See	 Drewry,	

2008	ME	76,	¶	32,	946	A.2d	981.	

	     [¶13]	 	 The	 crime	 of	 theft	 by	 deception	 is	 committed	 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)	 (2016).	 	 “[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	.	.	.	value.”		17-A	M.R.S.	

§	354(2)(A)	(2016).	

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

each	 element	 of	 theft	 by	 deception	 based	 on	 the	 video,	 testimonial,	 and	

documentary	 evidence	 presented	 at	 trial.	 	 The	 surveillance	 video	 shows	

Hayward	 repeatedly	 scanning	 a	 single	 white	 t-shirt	 while	 bagging	 more	

expensive	 colored	 t-shirts,	 and	 the	 Walmart	 associate	 who	 witnessed	 this	

activity	 testified	 that	 he	 thought	 she	 was	 attempting	 to	 make	 the	 machine	

“believe”	 that	 she	 was	 bagging	 the	 less-expensive	 white	 t-shirts.	 	 Hayward’s	

receipt	 showed	 that	 she	 scanned	 one	 $3.00	 t-shirt	 and	 twenty-two	 white	
8	

t-shirts	costing	$2.00	each,	but	there	were	seventeen	$5.00	t-shirts,	six	$3.00	

t-shirts,	and	two	$2.00	t-shirts	in	her	cart	when	she	left	the	store.		Accordingly,	

the	jury	could	rationally	have	concluded	that	Hayward	obtained	and	exercised	

unauthorized	 control	 over	 Walmart’s	 property	 by	 inputting	 false	 price	

information	 into	 the	 self-checkout	 scanner,	 and	 that	 she	 intended	 to	 deprive	

Walmart	of	that	merchandise.	

B.	    Consolidation	

	      [¶15]		Hayward	argues	that	the	court	erred	when	it	failed	to	consolidate	

the	counts	of	theft	by	unauthorized	taking	or	transfer	and	theft	by	deception,	

and	 that	 this	 error	 infringed	 upon	 her	 constitutional	 right	 to	 be	 free	 from	

double	 jeopardy.	 	 We	 review	 de	 novo	 “[w]hether	 a	 criminal	 prosecution	

violates	 the	 constitutional	 prohibitions	 against	 double	 jeopardy.”	 	 Ayotte	 v.	

State,	2015	ME	158,	¶	12,	129	A.3d	285.	

	      [¶16]		The	Maine	Constitution	provides:	“No	person,	for	the	same	offense,	

shall	 be	 twice	 put	 in	 jeopardy	 of	 life	 or	 limb.”	 	 Me.	 Const.	 art.	 I,	 §	 8;	 see	 also	

U.S.	Const.	amend.	V	(“[N]or	shall	any	person	be	subject	for	the	same	offence	to	

be	 twice	 put	 in	 jeopardy	 of	 life	 or	 limb	 .	 .	 .	 .”);	 Ayotte,	 2015	 ME	 158,	 ¶	 12,	

129	 A.3d	 285	 (“The	 state	 and	 federal	 constitutions	 offer	 the	 same	 extent	 of	

protection.”).	 	 However,	 M.R.U.	 Crim.	 P.	 7(c)	 allows	 the	 State	 to	 charge	 a	
                                                                                                     9	

defendant	with	multiple	counts	as	alternative	charges	for	the	same	criminal	act	

when	that	act	may	have	been	completed	in	several	ways.5		Murphy,	2015	ME	62,	

¶	 27,	 124	 A.3d	 647.	 	 In	 instances	 when	 the	 State	 charges	 multiple	 counts	 as	

alternative	 theories	 for	 the	 same	 criminal	 act,	 however,	 “court	 action	 to	

consolidate	the	duplicative	counts	is	appropriate	to	assure	that	a	person	cannot	

be	convicted	or	punished	more	than	once	for	the	same	criminal	act.”		Id.	¶	28	

(quotation	marks	omitted).	

	       [¶17]		Here,	the	charges	of	theft	by	unauthorized	taking	or	transfer	and	

theft	 by	 deception	 were	 based	 on,	 and	 proved	 by,	 two	 separate	 courses	 of	

action,	each	involving	different	articles	of	merchandise.		The	count	of	theft	by	

unauthorized	 taking	 or	 transfer	 was	 premised	 on	 Hayward	 leaving	 the	 store	

with	unpurchased	merchandise,	for	example,	the	girls’	sandals,	the	mums,	and	

the	placemats.		The	count	of	theft	by	deception	was	based	on	her	repeatedly	

scanning	 a	 $2.00	 t-shirt	 while	 placing	 more	 expensive	 shirts	 in	 the	 bagging	

area.6	 	 Although	 the	 two	 counts	 of	 theft	 were	 premised	 on	 conduct	 that	


    5		The	language	of	M.R.	Crim.	P.	7(c),	cited	in	State	v.	Murphy,	2015	ME	62,	¶	27,	124	A.3d	647,	is	

nearly	identical	to	the	now-effective	M.R.U.	Crim.	P.	7(c).	
   	
   6		The	State	made	this	distinction	in	its	opening	statement:	

   	
        	 [W]hat	you’ll	see	on	video	and	through	[the	Walmart	associate]’s	testimony	is	that	
        the	Defendant	didn’t	properly	go	through	self-checkout.		Instead	she	took	the	same	
        $2.00	 shirt	 and	 rang	 it	 through	 twenty-two	 times	 putting	 different	 higher-value	
        pieces	of	clothing	in	the	bags.		And	there	are	other	items	that	she	didn’t	check—that	
10	

occurred	 during	 a	 single	 shopping	 trip,	 the	 State	 did	 not	 charge	 her	 with	

alternative	theories	for	the	same	conduct	and	was	not	required	to	consolidate	

the	 two	 counts	 of	 theft.	 	 See	 17-A	 M.R.S.	 §	 351	 (2016)	 (“If	 the	 evidence	 is	

sufficient	 to	 permit	 a	 finding	 of	 guilt	 of	 theft	 in	 more	 than	 one	 manner,	 no	

election	 among	 those	 manners	 is	 required.”);	 see	 also	 State	 v.	 Bouchard,	

2005	ME	106,	¶¶	11,	15,	881	A.2d	1130.	



      she	didn’t	scan	through	at	all.		At	one	point,	you’ll	see	she’s	going	to	scan	through	a	
      placemat	but	instead	there	were	three.		She	ends	up	with	twenty	pair	of	sandals	in	
      her	bag,	you’ll	see,	and	only	sixteen	of	those	showed	up	on	the	receipt.	
         	
      	 .	.	.	.	
         	
      	 Based	on	this	conduct,	the	State	has	charged	the	Defendant	with	theft	and	theft	
      by	deception.		That	she	exercised	unauthorized	control	over	merchandise	at	Walmart	
      with	the	intent	to	deprive	Walmart	of	that	property.		She	didn’t	scan	certain	items.	
      	
      	 The	State	has	also	charged	theft	by	deception—that	she	obtained	unauthorized	
      control	over	merchandise	as	a	result	of	deception	with	the	intent	to	deprive.		You’ll	
      see	how	she	scanned	the	same	shirt	over	and	over	again.	
  	
  The	State	made	this	distinction	again	when	opposing	Hayward’s	motion	for	judgment	of	acquittal:		
  	
      	 As	the	Court	can	see,	I	think	it’s	State’s	Exhibit	16,	has	twenty-two	instances	of	a	
      white	 t-shirt	 being	 rung	 through.	 	 If	 the	 Court	 compares	 that	 with	 State’s	 Exhibit	
      Number	17,	the	Court	will	only	see	that	there	are	two	of	those	UPC	numbers,	that	17	
      is	the	actual	items	gone	through.		And	there	are	a	number	of	more	valuable	shirts	that	
      the	 Defendant	 can	 be	 seen	 putting	 in	 the	 bags	 when	 she	 is	 repeatedly	 ringing	 this	
      $2.00	white	shirt.		So	there’s	an	instance	of	under-ringing.		As	well,	later	in	the	video	
      the	State	has	proof	of	the	Defendant	holding	more	than	one	thing	in	her	hand,	putting	
      [it]	by	the	scanner	once,	and	then	putting	those	two	things	in.		There’s	at	least	two	or	
      three	different	instances	of	that.	
      	
      	 Beyond	 that	 deception,	 that	 theft	 by	 deception,	 of	 under-ringing,	 the	 State	 has	
      proof	 of	 just	 straight	 up	 theft,	 by	 unauthorized	 taking.	 	 The	 Defendant	 had	 three	
      placemats	in	her	hand,	as	the	Court	can	see	when	it	reviews	the	video.	.	.	.	She	swipes	
      it	once	and	puts	them	in.		As	well,	the	Defendant	had	a	number	of	gel	packets	in	a	
      bowl,	and	she	didn’t	even	try	to	scan	those.	
                                                                                      11	

	        [¶18]	 	 Accordingly,	 we	 conclude	 the	 court	 did	 not	 err	 by	 entering	 a	

judgment	 of	 conviction	 on	 each	 count	 of	 theft	 or	 by	 sentencing	 Hayward	 on	

both	counts	of	theft.		Furthermore,	there	was	no	violation	of	Hayward’s	right	to	

be	free	from	double	jeopardy	because	the	convictions	and	sentences	were	not	

based	on	a	single	criminal	act.	

	        The	entry	is:	

	        	        	         Judgments	and	sentences	affirmed.	

	     	      	     	     	      	
	
James	M.	Mason,	Esq.	(orally),	Brunswick,	for	appellant	Bethany	Hayward	
	
Geoffrey	 Rushlau,	 District	 Attorney,	 and	 Jeffrey	 Baroody,	 Asst.	 Dist.	 Atty.	
(orally),	Prosecutorial	District	VI,	Rockland,	for	appellee	State	of	Maine	
	
	
Knox	Superior	Court	docket	number	CR-2014-189	
FOR	CLERK	REFERENCE	ONLY	
