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State v. John Moon
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 142
Docket:	Pen-00-03
Submitted
on Briefs:	June 27, 2000
Decided:	July 21, 2000	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.




STATE OF MAINE v. JOHN R. MOON


WATHEN, C.J.


	[¶1]  Defendant John R. Moon appeals from a judgment entered in
the Superior Court (Penobscot County, Hjelm, J.) following a jury verdict
finding him guilty of theft (Class B), 17-A M.R.S.A. § 353 (1983).{1}  Defendant
contends that the court erred in limiting his expert's testimony, in
instructing the jury concerning the charges of theft by unauthorized taking
or transfer and theft by misapplication of property, in instructing the jury
concerning the time at which an intention to deprive must exist, and in
allowing overly remote evidence of the mental element.  Finding no error,
we affirm.
	[¶2]  The relevant facts may be summarized as follows:  Defendant,
while working on his M.B.A. degree at the University of Maine at Orono, was
recruited to be a resident advisor of the Sigma Chi Fraternity house.  After
the local chapter of the Sigma Chi was closed, he was again recruited by
alumni of the Rho Rho Chapter of Sigma Chi to resurrect the chapter at the
University.  He was hired as director of the fundraising campaign, project
manager of the renovation project, and live-in resident advisor. He also
served, without compensation, as treasurer of the Rho Rho Chapter.  During
the period defendant was treasurer, he transferred funds from the
fraternity's bank accounts on numerous occasions to either himself
personally or to Marsh Island Development Company (MIDCO), a corporation
in which he was a significant shareholder.  He used the funds primarily to
renovate a four-story brick townhouse located at 137 Main Street, Bangor,
with the intention of then obtaining conventional residential financing.  In
the end, he was unable to obtain residential financing.  He concealed these
transfers from the Board of Trustees of the fraternity and obtained no
authorization from the Board. During the period defendant was taking the
funds, his personal bank balances were low and he incurred substantial debt,
the proceeds of which he used in part to repay the fraternity. Defendant
continued to take funds even when he knew that obtaining the residential
financing would be difficult. He admits that from 1991 to 1994 he took
approximately $120,000.00, returned over $100,000.00, and still owes
$19,972.41. 
	[¶3]  His defense at trial focused on demonstrating that he had no
intent to deprive.  He argued that he always intended to repay the money
and that he believed he had $110,000.00 in equity in his Main Street
property to cover the money he had taken.  To support his defense,
defendant testified himself as to his intent and also introduced the
testimony of Gregory Noonan, a certified fraud examiner, certified public
accountant and attorney. Noonan testified before the jury as follows: 
Defendant kept a separate account entitled "accounts receivable-other" in
the journal and properly recorded each transaction in which defendant
either took funds from the fraternity or returned funds. It was significant
that defendant included no other receivables within the "accounts
receivable-other" account, in accordance with generally accepted
accounting principles, and important that he included none of these
transfers in the general accounts receivable account, which would have been
improper because he was an employee.  As a result, according to Noonan,
defendant left a very good audit trail so that it was easy for an auditor to
trace the transactions back to the check register and determine that the
funds were made payable to John Moon or MIDCO.  Noonan's review of the
records confirmed that during the period from 1991 to 1994 the total
amount that went to defendant was $123,477.86 and the amount repaid by
defendant was approximately $103,505.00, leaving a balance of
approximately $19,000.00. 
	[¶4]  Defendant was indicted in 1997 for theft by unauthorized
taking or transfer in violation of 17-A M.R.S.A. § 353 (1983) and
subsequently indicted for theft by misapplication of property in violation of
17-A M.R.S.A. § 358 (1983).{2}  In a trial on the consolidated counts,
defendant was found guilty of theft in violation of 17-A M.R.S.A. § 353 and
now appeals.
I. Exclusion of Expert Testimony
	[¶5]  Despite the fact that Noonan testified at length, defendant now
argues that the court erred by refusing to let him introduce the expert
testimony of Noonan that would explain to the lay person how the financial
records were kept, how the records created an audit trail, and how the
audit trail was inconsistent with all methods of obscuring theft in the books
of a business.  In fact, the court excluded only the last element of Noonan's
testimony.  In voir dire, Noonan testified that there are four basic
"embezzlement schemes," i.e., lapping a/k/a kiting, fictitious receivables,
diverting payments in old written off receivables, and borrowing against
receivables; that in fourteen years of experience he has not seen a situation
of account receivable or cash fraud that fell outside of these four categories;
and this case is distinguished because "every transaction was documented
right to the T."
	[¶6]  The court refused to allow this portion of Noonan's testimony
on the basis of relevancy under M.R. Evid. 401 and 402 and jury confusion
under M.R. Evid. 403.  The court determined that the expert's testimony
dealt with embezzlement schemes, that defendant was charged with theft,
and that embezzlement and theft are not necessarily co-extensive.  It further
found that the testimony could confuse the jurors because Noonan's audit
standards for the embezzlement schemes differ from the statutory elements
of theft.
	[¶7]  We review evidentiary rulings on relevancy and prejudicial
effect for clear error or an abuse of discretion.  See State v. Shuman, 622
A.2d 716, 718 (Me. 1993). "[W]e accord wide discretion to the court's
determination on the relevancy of the proffered evidence, as well as to its
evaluation of any unfair prejudice that may result from the admission of the
evidence." Id. (citations omitted). Evidence is relevant if it has "any
tendency to 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." M.R. Evid. 401.  Even if the proffered evidence on
voir dire might have helped the jury understand that defendant's conduct
was different than the normal conduct of one who takes money in an
embezzlement scheme, it was not relevant because it did not make the
determination of a fact of consequence more or less probable. 
	[¶8]  The jury had the expert's testimony, without the proffered
portion, that explained how the financial records were kept and how the
records created an audit trail. This evidence, without the proffered
evidence, supported defendant's argument that because of his meticulous
recordkeeping and because he returned a substantial portion of the funds,
he did not intend to deprive the fraternity of the funds permanently, but
instead intended to repay the debt.  Moreover, whether defendant's conduct
conforms with historical patterns of embezzlement is irrelevant to whether
defendant committed theft by unauthorized taking or by misapplication of
funds as defined by the statute.  The court correctly found that the
embezzlement schemes to which the expert would have testified and the
crime of theft as defined by the statute are not co-extensive. 
	[¶9]  Expert testimony may be relevant when it is offered to show
that the defendant's conduct conformed with a criminal technique. See
State v. Gervais, 394 A.2d 1183, 1187-88 (Me. 1978) (allowing admission of
expert testimony that "directions" technique was a commonly recognized
method of operation used by burglars to help the jury appreciate the
relationship between seemingly innocent acts); United States v. Brawner,
173 F.3d 966, 970-71 (6th Cir. 1999) (allowing admission of expert
testimony concerning telemarketing schemes to help the jury decide
whether the defendant's operations were fraudulent).  The opposite could
be relevant, but in this context the issue is more problematic.  Simply
because a person is clever enough to devise a new method of committing a
theft that does not conform with a known existing embezzlement scheme,
or foolhardy enough to document his activity, does not make it less probable
that the crime of theft was committed.  Although defendant and his expert
witness focused on his intent to repay the money to support his contention
that he did not intend to deprive the fraternity of the funds permanently,
see 17-A M.R.S.A. § 352(3)(A), they ignored the patent possibility that he
committed theft in violation of the statute by using the fraternity's money
"under circumstances that make it unlikely that the owner will recover it." 
17-A M.R.S.A. § 352(3)(C).  Accordingly, the expert's testimony concerning
embezzlement schemes is not relevant and does not tend to prove that
defendant lacked the intent to deprive based on the complete statutory
definition of theft.  
II. Jury Instructions
	[¶10]   We review jury instructions "to ensure that they correctly
informed the jury of the governing law." State v. Tarmey, 2000 ME 23, ¶ 9,
__ A.2d __ (citation omitted).  A court is not required to give instructions in
the same language as requested, provided the court's instructions are
complete and accurate. See State v. Carvelle, 290 A.2d 190, 193 (Me. 1972).
	[¶11]  Defendant argues that the court erred in consolidating the
two indictments for theft, theft by unauthorized taking, 17-A M.R.S.A. § 353,
and theft by misapplication, 17-A M.R.S.A. § 358, before the verdict because
it confused the jury.  He argues that he submitted two proposed instructions
that treated the two indictments separately, but that the court did not use
his instructions and instead improperly combined the indictments. He
argues that because the two crimes of theft require proof of different
elements, by mixing the two in its jury instructions, the court invited the
jurors to mix the elements so that the verdict does not necessarily mean
that they found all the elements of one offense in order to reach their
verdict.
	[¶12]  Reviewed as a whole, the jury instructions were both
complete and accurate and not confusing to the jury.  At the beginning of the
trial, the court instructed the jury as follows: "I do want to alert you at this
point that those charges will be consolidated for your purposes of
deliberation; in other words, when you deliberate and reach a verdict, you
will be reaching one verdict, whether it's guilty or not guilty, rather than
two separate verdicts on two separate charges."  In its jury instructions at
the end of the trial, the court separately described the elements of theft by
unauthorized taking and the elements of theft by misapplication and defined
the meaning of the various terms therein.  The court explained that the jury
could find defendant guilty if the jury found that the State had proven
beyond a reasonable doubt that the defendant committed the crime of theft,
either theft by unauthorized taking or transfer or theft by misapplication of
property.  Therefore, the jury instructions relating to the two alternatives
for finding theft were not erroneous.
	[¶13]  Defendant also argues that the court erred because it refused
to provide his proposed jury instructions which emphasized that the
necessary mental element of intent to deprive must exist "at the time of the
taking."  Defendant's proposed instruction stated in relevant part:
This intent to deprive the true owner of the property must
have existed at the time that the unauthorized control first
took place. . . . [I]f you find that the Defendant exercised
unauthorized control over the fraternity's money, you must
then examine the evidence whether, at the time Defendant
began exercising unauthorized control, he then and there
had the intent to deprive the fraternity of that money.
The court instructed the jury as follows:
A person commits the crime of theft ... if that person obtains
or exercises unauthorized control over the property of
another with the intent, at the time he obtains or exercises
unauthorized control over the property, to deprive the owner
thereof.
The difference between the instructions is that defendant sought to limit
the criminal act to a single point in time, namely, "the time Defendant began
exercising unauthorized control," for the purpose of determining the
presence of the required mental element.  The distinction, however, if any,
is not relevant in this case.  Even if defendant intended to repay the funds at
the precise moment he took them, he nonetheless consciously used the
money in a way which the jury could find made it unlikely that the fraternity
would recover it, in violation of section 352(3)(C).
III. Remote Evidence
	[¶14] Defendant also argues that the court erred in allowing
evidence that he filed bankruptcy years after he took the funds and that he
had not repaid the fraternity up until the time of the trial.  He argues that
the evidence was too remote and thus prejudicial because the intent to
deprive must be at the time of initially obtaining possession or control.  This
argument also focuses on his intent to repay the money at the time of the
taking and thus lacks merit because it does not negate the particular variant
of intent to deprive involved in this case.  In any event, the jury could have
inferred that defendant had not repaid the fraternity based on his testimony
on direct examination that he owes the fraternity $19,972.41.
	The entry is:
				Judgment affirmed.
                 
Attorneys for State: R. Christopher Almy, District Attorney C. Daniel Wood, Asst. Dist. Atty. 97 Hammond Street Bangor, ME 04401 Attorney for defendant: Paul A. Weeks, Esq. Norton & Weeks 900 Hammond Street, suite 907 Bangor, ME 04401
FOOTNOTES******************************** {1} . The statute provides as follows: 1. A person is guilty of theft if he obtains or exercises unauthorized control over the property of another with intent to deprive him thereof. 2. As used in this section, "exercises unauthorized control" includes but is not necessarily limited to conduct heretofore defined or known as common law larceny by trespassory taking, larceny by conversion, larceny by bailee and embezzlement. 17-A M.R.S.A. § 353 (1983). "Intent to deprive" is defined by statute as follows: "Intent to deprive" means to have the conscious object: A. To withhold property permanently or for so extended a period or to use under such circumstances that a substantial portion of its economic value, or the use and benefit thereof, would be lost; or B. To restore the property only upon payment of a reward or other compensation; or C. To use or dispose of the property under circumstances that make it unlikely that the owner will recover it or that manifest an indifference as to whether the owner will recover it. 17-A M.R.S.A. § 352(3) (1983). {2} . The statute provides in pertinent part as follows: 1. A person is guilty of theft if he obtains property from anyone or personal services from an employee upon agreement, or subject to a known legal obligation, to make a specified payment or other disposition to a 3rd person or to a fund administered by himself, whether from that property or its proceeds or from his own property to be reserved in an equivalent or agreed amount, if he intentionally or recklessly fails to make the required payment or disposition and deals with the property obtained or withheld as his own. 17-A M.R.S.A. § 358 (1983).