State v. John Moon
MAINE SUPREME JUDICIAL COURT
Reporter of Decisions
Decision: 2000 ME 142
Docket: Pen-00-03Submittedon Briefs: June 27, 2000
Decided: July 21, 2000
Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.
WATHEN, C.J. [¶1] Defendant John R. Moon appeals from a judgment entered inthe Superior Court (Penobscot County, Hjelm, J.) following a jury verdictfinding him guilty of theft (Class B), 17-A M.R.S.A. § 353 (1983).{1} Defendantcontends that the court erred in limiting his expert's testimony, ininstructing the jury concerning the charges of theft by unauthorized takingor transfer and theft by misapplication of property, in instructing the juryconcerning the time at which an intention to deprive must exist, and inallowing 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, wasrecruited to be a resident advisor of the Sigma Chi Fraternity house. Afterthe local chapter of the Sigma Chi was closed, he was again recruited byalumni of the Rho Rho Chapter of Sigma Chi to resurrect the chapter at theUniversity. He was hired as director of the fundraising campaign, projectmanager of the renovation project, and live-in resident advisor. He alsoserved, without compensation, as treasurer of the Rho Rho Chapter. Duringthe period defendant was treasurer, he transferred funds from thefraternity's bank accounts on numerous occasions to either himselfpersonally or to Marsh Island Development Company (MIDCO), a corporationin which he was a significant shareholder. He used the funds primarily torenovate a four-story brick townhouse located at 137 Main Street, Bangor,with the intention of then obtaining conventional residential financing. Inthe end, he was unable to obtain residential financing. He concealed thesetransfers from the Board of Trustees of the fraternity and obtained noauthorization from the Board. During the period defendant was taking thefunds, his personal bank balances were low and he incurred substantial debt,the proceeds of which he used in part to repay the fraternity. Defendantcontinued to take funds even when he knew that obtaining the residentialfinancing would be difficult. He admits that from 1991 to 1994 he tookapproximately $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 nointent to deprive. He argued that he always intended to repay the moneyand that he believed he had $110,000.00 in equity in his Main Streetproperty to cover the money he had taken. To support his defense,defendant testified himself as to his intent and also introduced thetestimony of Gregory Noonan, a certified fraud examiner, certified publicaccountant and attorney. Noonan testified before the jury as follows: Defendant kept a separate account entitled "accounts receivable-other" inthe journal and properly recorded each transaction in which defendanteither took funds from the fraternity or returned funds. It was significantthat defendant included no other receivables within the "accountsreceivable-other" account, in accordance with generally acceptedaccounting principles, and important that he included none of thesetransfers in the general accounts receivable account, which would have beenimproper 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 totrace the transactions back to the check register and determine that thefunds were made payable to John Moon or MIDCO. Noonan's review of therecords confirmed that during the period from 1991 to 1994 the totalamount that went to defendant was $123,477.86 and the amount repaid bydefendant was approximately $103,505.00, leaving a balance ofapproximately $19,000.00. [¶4] Defendant was indicted in 1997 for theft by unauthorizedtaking or transfer in violation of 17-A M.R.S.A. § 353 (1983) andsubsequently indicted for theft by misapplication of property in violation of17-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 andnow appeals.
[¶5] Despite the fact that Noonan testified at length, defendant nowargues that the court erred by refusing to let him introduce the experttestimony of Noonan that would explain to the lay person how the financialrecords were kept, how the records created an audit trail, and how theaudit trail was inconsistent with all methods of obscuring theft in the booksof a business. In fact, the court excluded only the last element of Noonan'stestimony. 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 againstreceivables; that in fourteen years of experience he has not seen a situationof account receivable or cash fraud that fell outside of these four categories;and this case is distinguished because "every transaction was documentedright to the T." [¶6] The court refused to allow this portion of Noonan's testimonyon the basis of relevancy under M.R. Evid. 401 and 402 and jury confusionunder M.R. Evid. 403. The court determined that the expert's testimonydealt with embezzlement schemes, that defendant was charged with theft,and that embezzlement and theft are not necessarily co-extensive. It furtherfound that the testimony could confuse the jurors because Noonan's auditstandards for the embezzlement schemes differ from the statutory elementsof theft. [¶7] We review evidentiary rulings on relevancy and prejudicialeffect for clear error or an abuse of discretion. See State v. Shuman, 622A.2d 716, 718 (Me. 1993). "[W]e accord wide discretion to the court'sdetermination on the relevancy of the proffered evidence, as well as to itsevaluation of any unfair prejudice that may result from the admission of theevidence." Id. (citations omitted). Evidence is relevant if it has "anytendency to make the existence of any fact that is of consequence to thedetermination of the action more probable or less probable than it would bewithout the evidence." M.R. Evid. 401. Even if the proffered evidence onvoir dire might have helped the jury understand that defendant's conductwas different than the normal conduct of one who takes money in anembezzlement scheme, it was not relevant because it did not make thedetermination of a fact of consequence more or less probable. [¶8] The jury had the expert's testimony, without the profferedportion, that explained how the financial records were kept and how therecords created an audit trail. This evidence, without the profferedevidence, supported defendant's argument that because of his meticulousrecordkeeping and because he returned a substantial portion of the funds,he did not intend to deprive the fraternity of the funds permanently, butinstead intended to repay the debt. Moreover, whether defendant's conductconforms with historical patterns of embezzlement is irrelevant to whetherdefendant committed theft by unauthorized taking or by misapplication offunds as defined by the statute. The court correctly found that theembezzlement schemes to which the expert would have testified and thecrime of theft as defined by the statute are not co-extensive. [¶9] Expert testimony may be relevant when it is offered to showthat the defendant's conduct conformed with a criminal technique. SeeState v. Gervais, 394 A.2d 1183, 1187-88 (Me. 1978) (allowing admission ofexpert testimony that "directions" technique was a commonly recognizedmethod of operation used by burglars to help the jury appreciate therelationship between seemingly innocent acts); United States v. Brawner,173 F.3d 966, 970-71 (6th Cir. 1999) (allowing admission of experttestimony concerning telemarketing schemes to help the jury decidewhether the defendant's operations were fraudulent). The opposite couldbe relevant, but in this context the issue is more problematic. Simplybecause a person is clever enough to devise a new method of committing atheft that does not conform with a known existing embezzlement scheme,or foolhardy enough to document his activity, does not make it less probablethat the crime of theft was committed. Although defendant and his expertwitness focused on his intent to repay the money to support his contentionthat 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 hecommitted 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 concerningembezzlement schemes is not relevant and does not tend to prove thatdefendant lacked the intent to deprive based on the complete statutorydefinition of theft.
[¶10] We review jury instructions "to ensure that they correctlyinformed 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 inthe same language as requested, provided the court's instructions arecomplete and accurate. See State v. Carvelle, 290 A.2d 190, 193 (Me. 1972). [¶11] Defendant argues that the court erred in consolidating thetwo 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 becauseit confused the jury. He argues that he submitted two proposed instructionsthat treated the two indictments separately, but that the court did not usehis instructions and instead improperly combined the indictments. Heargues that because the two crimes of theft require proof of differentelements, by mixing the two in its jury instructions, the court invited thejurors to mix the elements so that the verdict does not necessarily meanthat they found all the elements of one offense in order to reach theirverdict. [¶12] Reviewed as a whole, the jury instructions were bothcomplete and accurate and not confusing to the jury. At the beginning of thetrial, the court instructed the jury as follows: "I do want to alert you at thispoint that those charges will be consolidated for your purposes ofdeliberation; in other words, when you deliberate and reach a verdict, youwill be reaching one verdict, whether it's guilty or not guilty, rather thantwo separate verdicts on two separate charges." In its jury instructions atthe end of the trial, the court separately described the elements of theft byunauthorized taking and the elements of theft by misapplication and definedthe meaning of the various terms therein. The court explained that the jurycould find defendant guilty if the jury found that the State had provenbeyond a reasonable doubt that the defendant committed the crime of theft,either theft by unauthorized taking or transfer or theft by misapplication ofproperty. Therefore, the jury instructions relating to the two alternativesfor finding theft were not erroneous. [¶13] Defendant also argues that the court erred because it refusedto provide his proposed jury instructions which emphasized that thenecessary mental element of intent to deprive must exist "at the time of thetaking." Defendant's proposed instruction stated in relevant part:
This intent to deprive the true owner of the property musthave existed at the time that the unauthorized control firsttook place. . . . [I]f you find that the Defendant exercisedunauthorized control over the fraternity's money, you mustthen examine the evidence whether, at the time Defendantbegan exercising unauthorized control, he then and therehad 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 obtainsor exercises unauthorized control over the property ofanother with the intent, at the time he obtains or exercisesunauthorized control over the property, to deprive the ownerthereof.
The difference between the instructions is that defendant sought to limitthe criminal act to a single point in time, namely, "the time Defendant beganexercising unauthorized control," for the purpose of determining thepresence of the required mental element. The distinction, however, if any,is not relevant in this case. Even if defendant intended to repay the funds atthe precise moment he took them, he nonetheless consciously used themoney in a way which the jury could find made it unlikely that the fraternitywould recover it, in violation of section 352(3)(C).
[¶14] Defendant also argues that the court erred in allowingevidence that he filed bankruptcy years after he took the funds and that hehad not repaid the fraternity up until the time of the trial. He argues thatthe evidence was too remote and thus prejudicial because the intent todeprive must be at the time of initially obtaining possession or control. Thisargument also focuses on his intent to repay the money at the time of thetaking and thus lacks merit because it does not negate the particular variantof intent to deprive involved in this case. In any event, the jury could haveinferred that defendant had not repaid the fraternity based on his testimonyon direct examination that he owes the fraternity $19,972.41. The entry is: Judgment affirmed.