State v. Raymond
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1999 ME 126
Docket:		Cum-98-681
Submitted
On Briefs:		June 17, 1999
Decided:	         August 2, 1999

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

STATE OF MAINE

v.

DAVID RAYMOND

CLIFFORD, J.
	[¶1]  David Raymond appeals from the judgments entered in the
Superior Court (Cumberland County, Crowley, J.) following a jury trial in
which he was found guilty of burglary of a motor vehicle (Class C) in violation
of 17-A M.R.S.A. § 405 (Supp. 1998), theft by unauthorized use of a motor
vehicle (Class D) in violation of 17-A M.R.S.A. § 360(1)(A) (1983), and
violation of a protective order (Class D) in violation of 5 M.R.S.A. § 4659(1)
(Pamph. 1998).  Raymond contends that the trial court erred by instructing
the jury that proof of a defendant's intent to commit a theft by unauthorized
use of a motor vehicle is sufficient to establish intent to commit a crime for
purposes of the crime of burglary of a motor vehicle, and erred in denying
his motion for a judgment of acquittal on the same grounds.  Finding no
error, we affirm. 
	[¶2]  On April 12, 1998, after spending the evening with friends in
Portland, Kris Leavitt returned to the Key Bank parking lot on Commercial
Street, where she had parked her car, and discovered that her car was
missing.  The next morning, after learning that her car had not been towed,
Leavitt reported the car stolen to the police.  Leavitt contacted her former
boyfriend, David Raymond, and informed him that her car had been stolen,
Raymond told her that if she was "nice to him," he would show her where
her car was parked.  Raymond admitted to Leavitt that he took her car, then
drove Leavitt to the Maine Medical Center parking garage where her car was
located.  Leavitt noticed that the driver's seat of the car and the mirrors had
been adjusted.  She also observed that a copy of her protection from abuse
order,{1} a gold necklace, and approximately $160 in cash and food stamps
had been removed from her car.  
	[¶3]  Raymond was charged with, and convicted of, burglary of a
motor vehicle and theft by unauthorized use of a motor vehicle, both charges
stemming from the taking of Leavitt's vehicle and some of its contents, and
the later parking of the vehicle at a different lot.{2}  This appeal followed.
	[¶4]  Title 17-A M.R.S.A. § 405(1) provides:

A person is guilty of burglary of a motor vehicle if the actor
enters a motor vehicle, knowing that the actor is not licensed
or privileged to do so, with the intent to commit a crime
therein.

 
	[¶5]  Title 17-A M.R.S.A. § 360(1)(A) provides:  

A person is guilty of theft if . . . [k]nowing that he does not have
the consent of the owner, he takes, operates or exercises
control over a vehicle, or, knowing that a vehicle has been so
wrongfully obtained, he rides in such vehicle[.]

A violation of section 405 is a Class C crime, see 17-A M.R.S.A. § 405(2),
while a violation of section 360(1)(A) is a Class D crime, see
17-A M.R.S.A. § 362(4) (Supp. 1998).  The trial court proceeded on the
theory that a person can be guilty of burglary of a motor vehicle if the State
can prove that the person entered the motor vehicle, knowing that he or
she was not licensed to do so, with the intent to act in violation of section
360(1)(A), that is, with the intent to commit theft of the vehicle.  In his
motion to dismiss the charge of burglary of a motor vehicle, his objection to
the jury instructions, his later motion for a judgment of acquittal as to the
charge of burglary of a motor vehicle, and now on appeal, Raymond contends
that the Legislature did not intend to permit the State to prove the offense
of burglary of a motor vehicle by proving an intent to commit the joyriding
activity described in section 360(1)(A), otherwise, he argues, a defendant
could be charged with a Class C crime and a Class D crime based on the
same activity.  
	[¶6]  The interpretation of a statute is a question of law subject to de
novo review.  See Koch Refining Co. v. State Tax Assessor, 1999 ME 35, ¶ 4,
724 A.2d 1251, 1252-53.  To construe the language of a statute, we look to
the plain meaning of the language to give effect to legislative intent.  See id. 
In so doing, we "consider the whole statutory scheme for which the section
at issue forms a part so that a harmonious result, presumably the intent of
the Legislature, may be achieved."  Id. (quoting Estate of Whittier,
681 A.2d 1, 2 (Me. 1996)).  There is nothing in the language of section 405
to limit theft by unauthorized use of the motor vehicle from being
considered a crime committed within the vehicle for purposes of the crime
of burglary of a motor vehicle.  The section refers broadly to crime, without
limiting its application to specific crimes.  The legislative history of section
405 supports this conclusion.
	[¶7]  Section 405 was enacted in 1989 and resulted from of a
Committee Amendment to proposed legislation.  The proposed legislation,
to add subsection D to subsection 3 of section 362, which defines thefts that
constitute Class C crimes, and provided:

D. The theft is from a locked vehicle and the value of the
property does not exceed $5,000.
	(1) It shall be prima facie evidence that a vehicle was
locked at the time of the theft if the vehicle is damaged in a
manner consistent with a forced entry.
	(2) "Vehicle" for purposes of this subsection has the same
meaning as in Title 29, section 1, subsection 20.
	(3) All other thefts from motor vehicles shall be classified
according to the value of the property involved.

L.D. 688 (114th Legis. 1989).  The Committee Amendment to the bill struck
this proposal and included the current language of section 405.{3}  See Comm.
Amend. A to L.D. 688, No. H-267 (114th Legis. 1989).  The Statement of
Fact accompanying the Committee Amendment states, 

This amendment, rather than defining the crime as theft from
a motor vehicle, creates the crime of burglary of a motor
vehicle.  A person commits the crime of burglary of a motor
vehicle by illegally entering a motor vehicle with the intent to
commit a crime in the motor vehicle.  The intended crime can
be any crime, but probably the most common crimes will be
various theft offenses.

Comm. Amend. A to L.D. 688, No. H-267, Statement of Fact (114th Legis.
1989) (emphasis added).  This Statement of Fact, particularly the phrase
stating that "[t]he intended crime can be any crime," suggests that a
violation of section 360(1)(A) can be used as a basis of proving burglary of a
motor vehicle.  
	[¶8]  Furthermore, section 13 of the criminal statutes contemplates
that there may be more than one crime with which a defendant could be
charged arising out of the same activity.  See 17-A M.R.S.A. § 13(1) (1983). 
Section 13 provides, 

The existence of a crime other than the one charged, but
based on the same conduct or arising from the same criminal
episode, for which a person may be prosecuted, whether that
crime is a lesser or greater crime as to elements or sentencing
classification, shall not preclude prosecution for the offense
charged unless a contrary legislative intent plainly appears. 

No contrary legislative intent is apparent here.
 
	[¶9]  Raymond contends that despite this legislative history, the
Legislature could not have intended to make theft by unauthorized use of a 
motor vehicle a basis for proving burglary of a motor vehicle because every
violation of section 360(1)(A) would necessarily result in a violation of
section 405, creating a redundancy within the criminal statutes.  We
disagree.  A violation of section 360(1)(A) does not necessarily result in a
violation of section 405.  A person can enter a vehicle with the owner's
consent, but then take the vehicle for an extended drive that the owner did
not authorize and violate section 360(1)(A), while not violating section 405. 
Although a violation of section 360(1)(A) will often follow a violation of
section 405, that will not always be the case.  If a criminal activity does
violate both sections, however, the statutes do not prohibit the State from
charging the accused with both crimes arising from the same activity.   See
17- A M.R.S.A. §§ 13, 405.  The decision to prosecute an accused for one or
both crimes lies within the discretion of the prosecutor.  
	The entry is:

Judgments affirmed.

Attorneys for the State:

Stephanie Anderson, District Attorney
Julia A. Sheridan, Asst. Dist. Atty.
Cumberland County Courthouse
142 Federal St.
Portland, Maine 04l0l

Attorney for the defendant:

Arthur A. Stilphen, Esq.
64 Alfred St.
Biddeford, Maine 04005

FOOTNOTES******************************** {1} . Raymond and Leavitt had a four and a half year relationship, during which they had a child. Not long after the relationship ended, Raymond went to Leavitt's house and took their daughter without permission, returning her three days later. This event prompted Leavitt to seek and receive a protective order against Raymond from the District Court. {2} . The trial court sentenced Raymond to six months in jail, with all but fourteen days suspended, and placed him on a one year probation period. The sentence is concurrent as to all three charges. {3} . Section 360(1)(A), as it currently reads, was enacted in 1975 and thus existed when section 405 was enacted. See P.L. 1975, ch. 499, § 1; ch. 740, §§ 56, 57. Furthermore, section 362(4)(A), which specifically refers to a violation of section 360(1)(A) as a Class D crime, also existed when the original bill inserting an additional subsection into section 362 was proposed.