State of Maine v. Franco A. Flores-Montecinos — 2017 ME 120

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2017 ME 120
Docket: 	Pen-16-359
Submitted
On Briefs: May 25, 2017
Decided: 	June 15, 2017
Panel: 	SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
FRANCO A. FLORES-MONTECINOS
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
[¶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) (“[C]riminal statutes
are not per se subject to strict scrutiny.”); see also Chapman v. United States,
500 	U.S. 	453, 	464-65 	(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 	review 	is
required).
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.

3
The entry is:
Judgment affirmed.
Rory A. McNamara, Esq., Drake Law, LLC, Berwick, for appellant Franco A.
Flores-Montecinos
R. Christopher Almy, District Attorney, and Tracy Collins, Asst. Dist. Atty.,
Prosecutorial District V, Bangor, for appellee State of Maine
Penobscot County Unified Criminal Docket docket number CR-2016-76
FOR CLERK REFERENCE ONLY