State v. Collin

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MAINE SUPREME JUDICIAL COURT
					Reporter of Decisions
Decision:  1997 ME 6
Docket: ARO-95-551
Argued  October 1, 1996
Decided  January 8, 1997


Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ., and
ARCHIBALD, A.R.J.


STATE OF MAINE

v.

EMILE COLLIN

DANA, J.

	[¶1]  Emile Collin appeals from a judgment entered in the Superior
Court (Aroostook County, Pierson, J.) following a jury trial finding him guilty
of theft.  Because we agree with Collin's contention that the Superior Court
did not have subject matter jurisdiction over Collin's alleged theft by
receiving stolen property, we vacate the conviction and remand for a new
trial.
	[¶2]  	In the spring of 1994 Fraser Paper Limited ("Fraser") began
disposing of scrap metal that had accumulated in a storage yard at its
Madawaska mill.  Fraser assigned John Paul Cyr to oversee the disposal
project and to designate material for removal.  Gallant Enterprises
("Gallant"), a trucking company located in Edmundston, New Brunswick,
hauled away the material slated for removal.  Among the materials at Fraser's
scrap yard were several large, heavy, brass pumps.  Fraser wanted to keep
the pumps for replacement parts.  During the cleanup, Collin, a Fraser
employee, visited the scrap yard and spoke with Cyr and Yvon Dufour,
Gallant's truck driver, about the pumps and remarked that they were "worth
some money."  On another visit to the yard, Collin ran a file across one of the
pumps, removing the tarnish and revealing the brass color beneath.  Cyr
informed Collin and Dufour that the pumps were to remain in Fraser's scrap
yard.  On May 24, 1994, Dufour loaded one of the brass pumps on the Gallant
truck, piled other scrap material on top of it, and drove out of the yard.  Cyr
knew that Dufour had loaded the pump and was present when Dufour left
the yard but he did nothing to stop Dufour from taking the pump. 
	[¶3]  Although Collin did not testify at trial, the State introduced
testimony of Fraser employees who were present with Collin at several
meetings held at Fraser's mill shortly after Dufour removed the pump from
the scrap yard.  According to Collin's account of events during the meetings,
Dufour drove the pump to Edmundston but never took it to Gallant's yard. 
Instead, Dufour called Collin at his home near Edmundston and asked if he
could sell the pump in exchange for half of the sale proceeds.  According to
Collin's statements to a police officer on May 30, 1994, Collin rented a
U­p;Haul and drove the dismantled pump to Quebec, where he sold it to a
scrap dealer for $5,813.58; he then returned to the Fraser mill in
Madawaska and gave Cyr $200 for allowing the removal of the pump from
Fraser's yard.  
	[¶4]  The Aroostook County grand jury indicted Collin on the charge of
theft by obtaining or exercising unauthorized control over property having a
value over $5,000, in violation of 17-A M.R.S.A. § 353 (1983).   During the
trial the State requested, pursuant to 17-A M.R.S.A. § 351 (1983),{1} that the
jury be instructed on two types of theft:  theft by unauthorized taking and
theft by receiving stolen property.  Collin objected to the instructions on
theft by receiving stolen property on the ground that all parts of that offense
took place in Canada and the court therefore lacked subject matter or
territorial jurisdiction pursuant to 17-A M.R.S.A. § 7 (1983).{2}   Collin also
argued that the court was required to instruct the jury that it must find
beyond a reasonable doubt that the crime occurred in Maine.  The court
instructed the jury on both types of theft but did not inform the jury that it
had to find the offense occurred in Maine.  Instead, the court determined
that the State had proved territorial jurisdiction beyond a reasonable doubt
pursuant to 17-A M.R.S.A. § 7 and the jury did not need additional
instructions regarding the location of the offense.  The jury found Collin
guilty of theft, but did not specify which type of theft Collin committed.
I.
	[¶5]  Collin first contends that the trial court erred by failing to
instruct the jury that it had to find beyond a reasonable doubt that an
element of the offense of theft by receiving stolen property occurred in
Maine.   He argues that the court should not have made the determination
that it had jurisdiction over the receiving charge because the existence of
territorial jurisdiction is a factual matter to be decided by the jury.
	[¶6]  Maine's territorial applicability statute, 17-A M.R.S.A. § 7(1)(A)
(1983), provides that a person can be convicted of a crime only when the
State proves beyond a reasonable doubt that "[e]ither the conduct which is
an element of the crime or the result which is such an element occurs
within this State or has a territorial relationship to this State . . . ."  
Territorial jurisdiction should be decided by the jury when there is a
question of fact regarding where the crime occurred, but can be determined
by the court when the determination does not require resolution of a factual
dispute.  See, e.g., State v. Willoughby, 892 P.2d 1319, 1327 (Ariz. 1995);
cert. denied, 116 S. Ct. 725 (1996); State v. Liggins, 524 N.W.2d 181, 184
(Iowa 1994).  Cf. State v. True, 330 A.2d 787, 791 (Me. 1975) (court, not
jury, decides questions concerning venue and territorial jurisdiction of a
grand jury).
	[¶7]  The court did not err by making this determination itself.  The
uncontroverted evidence presented at the trial showed that Dufour
contacted Collin in Canada and Collin dismantled the pump and sold it
there.  The only question for the court was whether these facts satisfied the
requirements of 17-A M.R.S.A. § 7, not whether those acts occurred within
Maine's borders.  The existence of jurisdiction was a legal issue for the court
rather than a factual question for the jury.
II.
	[¶8]  Collin next contends that the trial court erred when it found it
had territorial jurisdiction over the theft by receiving charge.  We agree. 
Collin's conduct did not have a territorial relationship to the state and no
conduct or result that was an element of the offense occurred in Maine.  
	[¶9]  	The trial court found that it had jurisdiction over the theft by
receiving charge because Collin's conduct and its result had a "territorial
relationship" to the state as defined by section 7(4).  Section 7(1)(A)
provides that a person can be convicted of a crime in Maine only if "[e]ither
the conduct which is an element of the crime or the result which is such an
element occurs within this State or has a territorial relationship to this
State."  Pursuant to subsection (4), conduct or a result has a territorial
relationship to the State:
if it is not possible to determine beyond a reasonable doubt that
it occurred inside or outside of this State, because a boundary
cannot be precisely located or the location of any person cannot
be precisely established in relation to a boundary, and if the
court determines that this State has a substantial interest in
prohibiting the conduct or result.

	[¶10]  The trial court reasoned that Maine had a substantial interest in
prohibiting Collin's conduct because the result of his conduct was to deprive
a Maine entity of its property and because Collin was an employee at Fraser's
Maine mill.  The court's application of the territorial relationship provision
of section 7(4) was not appropriate here because there was no dispute about
the location of a boundary or where Collin's acts occurred.  The state's
substantial interest in prohibiting the conduct is not sufficient by itself to
support a finding of a territorial relationship; there must also be a reasonable
doubt about the location of a boundary or the location of a person in relation
to a boundary for section 7(4) to come into play.  Because there was no such
dispute here, the court was incorrect when it concluded that jurisdiction
over the theft by receiving stolen property charge was based on a territorial
relationship. 
	[¶11]  The State argues that the trial court could have properly found
territorial jurisdiction based on section 7(1)(A).  Although the court
concluded that the ultimate result of the theft was to deprive a Maine
company of property, that result is not an element of the receiving stolen
property charge.  The "result" of the crime may be relevant to territorial
jurisdiction only when the result is an element of the offense.  17-A M.R.S.A.
§ 32 (1983) defines an "element of the crime" to be "the forbidden
conduct; the attendant circumstances specified in the definition of the
crime; the intention, knowledge, recklessness or negligence as may be
required; and any required result." (Emphasis added.) The definition of
theft by receiving stolen property provided in 17-A M.R.S.A. § 359, however,
does not require a result as an element of the offense.  It provides:  "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."  17-A
M.R.S.A. § 359(1) (1983).  Because the elements of theft by receiving stolen
property provided in section 359 do not include a required result, the fact
that Collin's conduct may have resulted in a loss to a Maine entity is
irrelevant for purposes of establishing territorial jurisdiction pursuant to
17­p;A M.R.S.A. § 7(1)(A).  In addition, because Collin received the stolen
pump in Canada, dismantled it there, and disposed of it in Quebec, none of
Collin's conduct that would be an element of theft by receiving stolen
property occurred in Maine.{3}  Because no conduct or result that is an
element of theft by receiving stolen property occurred in Maine, there is no
basis for territorial jurisdiction over the theft by receiving charge.
	[¶12]  When evidence presented at trial does not raise the possibility
that the defendant committed the elements of a charged offense, instruction
on those elements is erroneous if it creates the potential for "jury confusion
and a verdict based on impermissible criteria."  State v. McKinney, 588 A.2d
310, 312 (Me. 1991) (citation omitted).  Here, the jury may have based its
conviction on the charge of theft by receiving or on the charge of theft by
unauthorized taking.  Because the jury may have based its guilty verdict on a
charge over which the Superior Court lacked subject matter jurisdiction, we
must vacate the judgment and remand for a new trial on the charge of theft
by unauthorized taking.
	  The entry is:
Judgment vacated.  Remanded to the
Superior Court for further proceedings
consistent with the opinion herein.

                           

Attorney for the State:					Attorney for defendant:

John M. Pluto, Dep. Dist. Atty. (orally)		William J. Smith, Esq.(orally)
240 Sweden Street									55 Main Street
Caribou, ME 04736-2353							Van Buren, ME 04785

FOOTNOTES******************************** {1}. 17-A M.R.S.A. § 351 (1983) provides in pertinent part: An accusation of theft may be proved by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the information or indictment, subject only to the power of the court to ensure a fair trial by granting a continuance or other appropriate relief if the conduct of the defense would be prejudiced by lack of fair notice or by surprise. . . . {2}. 17-A M.R.S.A. § 7 (1983) provides in pertinent part: 1. Except as otherwise provided in this section, a person may be convicted under the laws of this State for any crime committed by his own conduct or by the conduct of another for which he is legally accountable only if: A. Either the conduct which is an element of the crime or the result which is such an element occurs within this State or has a territorial relationship to this State . . . . . . . 4. Conduct or a result has a territorial relationship to this State if it is not possible to determine beyond a reasonable doubt that it occurred inside or outside of this State, because a boundary cannot be precisely located or the location of any person cannot be precisely established in relation to a boundary, and if the court determines that this State has a substantial interest in prohibiting the conduct or result. . . . 5. The existence of territorial jurisdiction must be proved beyond a reasonable doubt. {3}. The plain language of section 359 contains no requirement that the property received by the defendant be stolen in fact.