State of Maine v. Franco A. Flores-Montecinos

2017 ME 120, 164 A.3d 958, 2017 WL 2590022, 2017 Me. LEXIS 125

• Court: Supreme Judicial Court of Maine
• Decided: June 15, 2017
• Docket: Docket: Pen-16-359
• Status: Published

Opinion

PER CURIAM

[¶ 1] Franco A. Flores-Montecinos appeals from a judgment convicting him of theft by unauthorized taking or transfer (Class E), 17-A M.R.S. § 353(1)(A) (2016), entered by the trial court (Penobscot County, A. Murray, J.) after a jury trial. For the first time in this case, Flores-Montecinos challenges the constitutionality of 17-A M.R.S. § 361-A(2) (2016), which, in pertinent part, creates a permissible inference, see M.R. Evid. 303, that a defendant engaged in the conduct that constitutes the crime of theft by unauthorized taking or transfer if the State proves beyond a reasonable doubt that the defendant “concealed unpurchased property stored, offered or exposed for sale while the defendant was still on the premises of the place where it was stored, offered or exposed.” We affirm.

[¶2] Contrary to Flores-Montecinos’s argument, section 361-A(2) is sufficiently clear to give an ordinary person adequate notice of the type of conduct that gives rise to the permissible inference of the specified elements of theft. 1 See State v. Reckards, 2015 ME 31, ¶¶ 4-5, 113 A.3d 589; see also State v. Preston, 2011 ME 98, ¶ 7, 26 A.3d 850 (stating that an unpreserved vagueness challenge to a statute is reviewed only for obvious error).

[¶ 3] Flores-Montecinos’s remaining contention that section 361-A(2) is subject to, and fails to survive, strict scrutiny is not persuasive. See United States v. Jenkins, 909 F.Supp.2d 758, 776 (E.D. Ky. 2012) (“[Cjriminal statutes are not per se subject to strict scrutiny.”); see also Chapman v. United States, 500 U.S. 453, 464-65, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) (reflecting the general principle that the constitutional protections inherent in criminal process are sufficient to protect a defendant’s liberty interest, and so, unless a criminal statute implicates some other fundamental right, only rational basis reviéw is required).

The entry is:

Judgment affirmed.

1 . Although Flores-Montecinos attempts to make an argument that because of the alleged vagueness in 17-A M.R.S. § 361-A(2) (2016), his arrest, prosecution, or conviction may have been ethnically motivated, there is nothing in the record to support that contention. We caution that in the future, if a party has concerns about improper conduct motivated by race, ethnicity, or some other protected status, that • party should develop a proper record and raise those concerns during the trial court proceedings.