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State v. Martines
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 21
Docket: 	Cum-97-284
Submitted 
on Briefs:	January 8, 1998
Decided:	January 27, 1998

Panel:		WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA,  LIPEZ, and
		SAUFLEY, JJ.
STATE OF MAINE v. MARCELLUS MARTINES

RUDMAN, J.

	[¶1]  Marcellus Martines appeals from the judgment entered in the
Superior Court (Cumberland County, Fritzsche, J.) following a jury trial in
which he was found guilty of forgery pursuant to 17-A M.R.S.A. § 703(B)
(1983 & Supp 1997), Class C, and of receiving stolen property pursuant to
17-A M.R.S.A. § 359 (1983), Class C.  Martines contends that his conviction
for receiving stolen property should be vacated on the grounds that the trial
court erred by allowing the jury to consider a Class C classification of theft
and by refusing to allow the jury to consider the charge of attempted theft. 
We affirm the judgment.
	[¶2]  Martines was arrested when he attempted to negotiate a check
in the amount of $2,800 with a forged signature.  At his trial, Martines
objected to the court's instruction that the jury could find the stolen check
to be worth an amount over $2,000 and thereby find Martines guilty of Class
C theft.  He also objected to the court's failure to instruct the jury on Class D
attempted theft arguing that at best the evidence supported an attempt to
steal.
	[¶3]  Section 359 of Title 17-A M.R.S.A. provides:

1.  A person is guilty of theft, if he receives, retains or disposes
of the property of another knowing that it has been stolen, or
believing that it has probably been stolen, with the intention to
deprive the owner thereof.

The criminal code classifies all theft offenses for sentencing purposes
according to the value of the property or services stolen.  17-A M.R.S.A. §
362(3) (Supp. 1997) ("Theft is a Class C crime if:  A.  The value of the
property or services is more than $2,000 but not more than $10,000 . . ."). 
The fair market value of the property at the time and the place of the crime
is the standard for assessing the value of the stolen property for the
purposes of determining the classification of the crime.  State v. Lavigne,
588 A.2d 741, 742 (Me. 1991).  Section 352(5)(B) of Title 17-A M.R.S.A.
further provides:

[t]he value of a written instrument which does not have a readily
ascertainable market value shall, in the case of an instrument
such as a check, draft or promissory note be deemed the amount
due or collectible thereon . . . .

	[¶4]  In holding that the trial court did not err by instructing the jury
on Class C theft, we adopt the reasoning of the Pennsylvania Supreme Court
who, in considering a statutory provision similar to ours, stated:

This language convinces us that the legislative effort generally to
tailor punishment according to the amount of property which
the offender seeks to claim applies with equal force to forged
checks.  As the amount of the hoped-for gain from the forgery
increases, so too the punishment.

Commonwealth v. Lee, 434 A.2d 1182, 1184 (Pa. 1982).

	[¶5]  Martines further contends that because he only attempted to
steal $2,800 by means of attempting to cash a forged check, the jury should
have been allowed to consider a charge of attempted theft.  Martines was
charged with receiving stolen property pursuant to 17-A M.R.S.A. § 359 -- a
crime which was completed upon his possession of the forged check with
the requisite intent.  A jury instruction as to attempted theft of the proceeds
was therefore inappropriate and the court did not err in refusing to allow
the jury to consider such a charge.
	The entry is:
					Judgment affirmed.

Attorneys for State: Stephanie Anderson, District Attorney Anne Berlind, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: Karen A. Dostaler, Esq. 70 Deering Street Portland, ME 04101