MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	82

Docket: Cum-19-259

Argued: March	2,	2020

Decided: June	4,	2020

Panel: MEAD,	GORMAN,	JABAR,	HUMPHREY,	HORTON,	and	CONNORS,	JJ.*

STATE	OF	MAINE

v.

GREGORY	P.	MCLAUGHLIN

HUMPHREY,	J.

[¶1]		Gregory	P.	McLaughlin	appeals	from	a	judgment	of	conviction	of	one	

count	of	Class	B	theft	by	deception,	17-A	M.R.S.	§	354(1)(B)(1)	(2020),	and	one	

count	of	Class	C	theft	by	deception,	17-A	M.R.S.	§	354(1)(B)(6)	(2020), entered	

by	 the	 court	 (Cumberland	 County,	Warren,	J.)	 after	 a	 jury	 trial.	 	 McLaughlin	

contends	 that	 the	 court	 erred	 in	 failing	 to	 include	 a	 “nexus”	 element	 in	 its	

instruction	 to	 the	jury	on	 the	charge of	 theft	by	deception.		He	also	contends	

that	the	evidence	was	insufficient	to	convict	him	of	theft	by	deception,	and	that	

his	actions	constituted	a	breach	of	contract,	not	a	criminal	offense.		We	affirm	

the	judgment.

 *		Although	Chief	Justice	Saufley	participated	in	this	appeal,	she	resigned	before	this	opinion	was	

certified.
2

[¶2]	 	 The	 State	 purports	 to	 cross-appeal,	 challenging	 the	 trial	 court’s	

merger	of	the	two	charges	of	theft	by	deception	for	sentencing	purposes	and	

the	 legality	 of	 the	 sentence	 that	 it	 imposed.	 	 We	 do	 not	 reach	 the	 State’s	

challenges	 because	 the	 State	 failed	 to	 file	 a	 notice	 of	 appeal	 and	 provide	 a	

written	authorization	of	the	Attorney	General.		See	State	v.	Mullen,	2020	ME	56,	

¶ 25, --- A.3d ---;	 see	 also 15	 M.R.S.	 §	 2115-A(3),	 (5)	 (2020);	 M.R.	

App. P. 2A(f)(2),	21(a)-(c).

I.		BACKGROUND

[¶3]		Viewing	 the	evidence	in	 the	light	most	 favorable	to	 the	State,	 the	

jury	rationally	could	have	found	the	following	facts	beyond	a	reasonable	doubt.		

See	State	v.	Ouellette,	2019	ME	75,	¶	2,	208	A.3d	399.

[¶4]		The	 victims,	a	married	couple,	 sought	 to	convert	a	 finished	camp	

property	 on	 Sebago	 Lake	into	their	 full-time	 residence.	 	 In	 August	 2016,	 the	

victims	met	McLaughlin,	described	their	plans	for	renovating	the	Sebago	Lake	

property, and	told	him	that	they	had	not	yet	found	a	contractor	for	their	project.		

McLaughlin	represented	himself	as	a	general	contractor,	agreed	to	take	a	look	

at	their	plans,	and	said	that	he	would	be	available	in	a	few	weeks.		During	later	

conversations	about	the	project,	McLaughlin	held	himself	out	as	having	twenty	

years	 of	 building	 experience,	 a	 team	 of	 four	 to	 five	 carpenters	 who	 were	
3

available	 to	 work	 at	 the	 job	 site	 every	 day,	 and	 the	 ability	 to	 procure	 the	

services	of	electricians,	plumbers,	and	excavators.		

[¶5]		In	early	December	2016,	satisfied	that	McLaughlin	would	be	able	to	

renovate the	property	in	their	desired	timeframe, the	victims	contracted	with	

McLaughlin	to	do	various	construction	and	installation	work	on	their	property	

with	 a	 completion	 date	 of	 June	 15,	 2017.	 	 The	 contract	 called	 for	 an	 initial	

payment	of	$10,600,	followed	by	payments	of	$4,040	on	the	first	and	fifteenth	

of	each	month,	and	a	final	payment	of	$4,040	upon	completion.		

[¶6]	 	 Initially,	 McLaughlin	 worked	 full	 days	 at	 the	 victims’	 property	

nearly	every	business	day.		Over	time,	McLaughlin’s	appearance	at	the	work	site	

became	inconsistent	and	he worked	fewer	and	fewer	hours.		In	late	January	or	

early	 February	 2017,	 the	 victims	 and	 McLaughlin	 entered	 into	 a	 revised	

contract	with	a	new	completion	date	of	 July	1,	2017, because	 the	work	could	

not	be	completed	by	June	15.1		In	March,	it	became	clear	that	McLaughlin	would	

not	be	able	 to	meet	 the	 July	1	deadline.		On	March	15,	2017,	 the victims	and	

McLaughlin agreed	 on	a	new	 schedule,	with a	completion	date	 of	August	20,	

2017, and	more	specific	timelines for	completing	various	phases of	the	project.		

 1		The	revised	contract	also	contained	adjustments	to	labor	costs,	allowances,	and	the	payment	

schedule	based	on	the	later	completion	date	and	to	reflect	amounts	already	paid	under	the	contract,	

but	the	substance	of	the	work	McLaughlin	was	to	perform	remained	the	same.		
4

McLaughlin’s	 hours	 continued	 to	 decline, first	 to	 approximately	 three	 days,	

totaling twenty-five	hours, per	week,	then	to	two	days	per	week,	and,	finally,	to	

just	a	few	hours	on	a	single	day	each	week.		At	no	point	did	McLaughlin	procure	

the	work	crew	or	subcontractors	that	he	had	represented	would	be	available	to	

work	on	the	project.		

[¶7]		The	victims	fired	McLaughlin	on	June	27,	2017.		By	that	time,	he	had	

completed,	at	most,	about	 twenty	percent	of	 the	project,	and	 the	victims	had	

paid	 him	 approximately	 $80,000 for	 labor	 and	 materials.	 	 Of	 that	 sum,	 the	

victims	 paid	 McLaughlin $10,631	 for	 certain materials,	 including	 rough	

plumbing	materials,	trusses,	a	joist,	and	other	general	building	materials,	which

he	never	delivered.		The	work	that	McLaughlin	did	complete	was	inconsistent	

with	 the	 original	 building	 plan, was	 not	 structurally	 sound,	 violated	 local	

building	codes,	and	would	not	have	passed	a	building	inspection.		As	a	result,	

the	victims	had	to	remove	all	of	McLaughlin’s	work	and	restart	the	project	from	

scratch.

[¶8]	 	 McLaughlin	 was	 initially	 charged	 by	 indictment	 on	 February	 9,	

2018,	 with	 one	 count	 of	 theft	 by	 unauthorized	 taking	 (Class	 B),	 17-A	 M.R.S.	

§ 353(1)(B)(1)	(2020),	one	count	of	home	repair	fraud	(Class	D),	17-A	M.R.S.	
5

§ 908(1)(D)	(2020),	and	one	count	of	aggravated	criminal	mischief	(Class	C),	

17-A	M.R.S.	§	805(1)(A)	(2020).		

[¶9]		A	superseding	indictment	was	 filed	on	August	10,	2018,	charging	

McLaughlin	 with	 one	 count	 of	 theft	 by	 deception	 (Class	 B),	

17-A M.R.S. § 354(1)(B)(1),	 one	 count	 of	 theft	 by	 deception	 (Class	 C),	

17-A M.R.S. § 354(1)(B)(6),	 and	 one	 count	 of	 home	 repair	 fraud	 (Class	 D),	

17-A M.R.S. § 908(1)(D).		McLaughlin	entered	a	plea	of	not	guilty	to	each	charge

at	his	arraignment,	and	the	case	proceeded	to	trial	in	March	2019.		

[¶10]	 	 At	 the	 close	 of	 the	 State’s	 evidence,	 McLaughlin	 moved	 for	 a	

judgment	 of	 acquittal	 on	 the	 two	 theft	 by	 deception	 counts.	 	 See	 M.R.U.

Crim. P. 29(a).		McLaughlin	argued	that	the	State	did	not	prove	that	he	had	the	

requisite	 “intent	 to	 deprive”	 the	 victims	 of	 their	 property	 at	 the	 time	 of	 the	

initial	deception.		See	17-A	M.R.S.	§	354(1)(B)(1).		The	court	denied	the	motion.		

[¶11]		The	court	then	provided	the	jurors	with instructions	concerning

the	 offenses	 of	 theft	 by	 deception	 and	 home	 construction	 or	 repair	 fraud.		

McLaughlin	did	not	object	to	these jury	instructions	or	request	any	additional	

instructions.		
6

[¶12]		McLaughlin	was	found	guilty of	both	counts	of	theft	by	deception.

2		

On	the	Class	D	home	repair	fraud	charge,	the	court	declared	a	mistrial	because	

the	jury	was	unable	to	reach	a	verdict.		

[¶13]	 	 McLaughlin	 filed	 a	 motion	 for	 a	 new	 trial,	 M.R.U. Crim.	 P.	 33,	

arguing	 that	 “[t]he	 court	 erred	 in	 declining	 to	 provide	[an] additional	[jury]

instruction	regarding	nexus	between	intent	to	deceive	and	intent	to	deprive.”		

Prior	 to	 sentencing,	 the	 court	 held	 a	 hearing	 on	 McLaughlin’s	 motion.		

McLaughlin	 conceded	 that	 “there	was	 no	 specific	 request	 for	 an	instruction”	

regarding	 a	 “nexus”	 between	 the	 between	 the	 deception	 and	 the	 intent	 to	

deprive	the	victims	of	their	property.		The	court	denied	McLaughlin’s	motion.		

[¶14]		For	sentencing purposes,	the	court	merged	the	two	counts	of	theft	

by	 deception	 over	 the	 State’s	 objection	 and	 entered	 judgment	 against	

McLaughlin.		McLaughlin	received	a	sentence	of	seven	years’ imprisonment,	all	

but	two	years	suspended,	and	three	years	of	probation.		He	was	also	ordered	to	

 2		With	respect	to	the	Class	B	count,	the	jury	found	beyond	a	reasonable	doubt	that	the	State	proved	

the	basic	elements	of	theft	by	deception	and	that	the	value	of	the	amount	obtained	was	over	$10,000.		

17-A	M.R.S.	§	354(1)(B)(1)	(2020).		The	Class	C	charge	was	based	on	the	same	underlying	conduct	as	

the	 Class	 B	 charge	 but,	 rather	 than	 requiring	 proof	 that	 the	 amount	 obtained	was	 over	 $10,000,	

instead	 required	 the	 State	 to	 prove	 that	 McLaughlin	 had	 two	 or	 more	 prior	 convictions	 for	 an	

enumerated	offense	or	offenses.		Id.	§	354(1)(B)(6)	(2020).		Before	trial,	McLaughlin	stipulated	that	

he	had	two	or	more	previous	convictions	for	theft	and	forgery.		See	id.		Because	the	jury	found	that	

the	State	proved	the	basic	elements	of	theft	by	deception	beyond	a	reasonable	doubt	and	McLaughlin	

stipulated	that	he	had	at	least	two	prior	convictions	for	theft	and	forgery,	the	court	found	McLaughlin	

guilty	on	the	Class	C	count.		Id.		
7

pay	 $10,000	 restitution	 to	 the	 victims	and	 $35	 to	 the	Victims’	Compensation	

Fund,	see	5	M.R.S.	§	3360-I	(2020).		

[¶15]		McLaughlin	timely	appealed	from	the	court’s	judgment.3		

II.		DISCUSSION

A. Merger of	the	Theft	by	Deception	Counts	at	Sentencing

[¶16]		The	State	argues	that	it	was	improper	for	the	trial	court	to	merge

the	 two	 theft	 by	 deception	 charges	 for	 sentencing	 purposes	 and	 that	 the	

sentence	 imposed	 with	 respect	 to	 the	 Class	 C	 theft	 by	 deception	 count	 was	

unlawful.		The	State	acknowledges	that	it	did	not	appeal	from	the	judgment	but	

contends	that	it	was	not	required	to	do	so.		See	15	M.R.S.	§ 2115-A	(2020).		The	

State	 is	 correct;	 it	 is	 not	 required	 to	 appeal	 when	 the	 defendant	 appeals.		

However,	if	it	does	not	appeal, the	State	is	limited	to	arguing	that	error	“harmful	

to	it” occurred	prior	to	trial	or	during	trial.		15	M.R.S.	§	2115-A(3);	see	Ouellette,	

2019	ME	75,	¶	16,	208	A.3d	399.

[¶17]	 	 Because	 the	 State’s	 arguments	 relate	 to	 alleged	 post-trial	

sentencing	errors,	the	State	was	required	to	appeal	to	raise	them.4		Ouellette,	

 3		McLaughlin	also	applied	for	leave	to	appeal	his	sentence,	but	the	Sentence	Review	Panel	denied	

his	application.		See	State	v.	McLaughlin,	No.	SRP-19-274	(Me.	Sent.	Rev.	Panel	Aug.	7,	2019);	see	also	

15	M.R.S.	§	2151	(2020);	M.R.	App.	P.	20.		

4		The	State	also	did	not	file	a	motion	for	correction	or	reduction	of	sentence	pursuant	to	M.R.U.	

Crim.	P.	35.		See	15	M.R.S.	§	2115(2-B)	(2020).		Thus,	even	if	the	State	had	properly	filed	a	notice	of	
8

2019	ME	75,	¶	16,	208	A.3d	399.		It	 failed	 to	do	so,	and	we	 therefore	do	not	

reach	the	State’s	claims	of	error	related	to	sentencing.		See	Mullen,	2020	ME	56,	

¶¶	23-25,	--- A.3d	---;	see	also 15	M.R.S.	§	2115-A(3),	(5);	M.R.	App.	P.	2A(f)(2),	

21(a)-(c).		

B. Sufficiency	of	the	Evidence

[¶18]		McLaughlin	argues	that	the	evidence	was	insufficient	for	the	jury	

to	 find beyond	 a	 reasonable	 doubt	 that	 he	 committed	 theft	 by	 deception	

because	 the	 State	 did	 not	 establish	 that	 the	 statutorily	 required	 elements	 of	

deception	and	an	intent	to	deprive	the	victims	of	their	money	or	property,	see	

17-A	M.R.S.	§	354	(2020),	existed	at	the	same	time.		McLaughlin	refers	to	this	as	

the	“nexus”	requirement.		

[¶19]		When	a	defendant	challenges	the	sufficiency	of	the	evidence	upon	

conviction	after	a	jury	trial,	we	examine	the	evidence	in	the	light	most	favorable	

to	the	State	to determine	whether	the	jury	could	rationally	find	every	element	

of	the	offense	beyond	a	reasonable	doubt.		See	State	v.	Hayward,	2017	ME	33,	

¶ 10,	156	A.3d	734.		The	jury	is	free	to	“draw	all	reasonable	inferences	from	the	

evidence,	and	exclusively	decides the	weight	to	be	given	to	the	evidence	and	the	

 

appeal	and	obtained	the	Attorney	General’s	approval,	id.	§	2115(5),	it	is	not	clear	that	the	State	would	

have	had	any	statutory	basis	for	an	appeal	of	the	sentence.
9

credibility	to	be	afforded	to	the	witnesses.”		Id.	(alteration	omitted)	(quotation	

marks	omitted);	see	also	State	v.	Hall,	2019	ME	126,	¶	16,	214	A.3d	19.		“[I]ntent	

is	 seldom	 capable	 of	 direct	 proof.	 	 It	 is	 usually	 inferred	 from	 the	 proven	

surrounding	circumstances.”		State	v.	Berube,	185	A.2d	900,	902	(Me.	1962);	see	

also	 Alexander,	 Maine	 Jury	 Instruction	 Manual	 §	 6-39	 at	 6-77	 (2019-20	 ed.	

2019).

[¶20]		The	crime	of	theft	by	deception	occurs	when	a	“person	obtains	or	

exercises	control	 over	 property	 of	another	as	a	 result	 of	deception	 and	with	

intent	to	deprive	the	other	person	of	the	property.”		17-A	M.R.S.	§	354(1)(A).		

“[D]eception	occurs	when	a	person	intentionally	.	.	.	[c]reates	or	reinforces	an	

impression	 that	 is	 false	 and	 that	 the	 person	 does	 not	 believe	 to	 be	 true,	

including	.	.	.	false	impressions	as	to .	.	. knowledge,	opinion,	intention	or	other	

state	of	mind.”		Id.	§	354(2)(A).		But	“an	intention	not	to	perform	a	promise,	or	

knowledge	that	a	promise	will	not	be	performed,	may	not	be	inferred	from	the	

fact	 alone that	 the	 promise	 was	 not	 performed.”	 	 Id.	 (emphasis	 added).

Deception	 also	 occurs	 “when	 a	 person	 intentionally	 .	 .	 .	 [f]ails	 to	 correct	 an	

impression	that	is	false	and	that	the	person	does	not	believe	to	be	true	and	that	

.	 .	 .	 [t]he	 person	 had	 previously	 created	 or	 reinforced.”	 	 Id.	 §	 354(2)(B).		
10

“Whether	a	 theft	by	deception	 occurred	in	 a	particular	case	is	a	 fact-specific	

question.”		State	v.	Degennaro,	2012	ME	68,	¶	14,	46	A.3d	1147.

[¶21]		The	jury	rationally	could have	found	beyond	a	reasonable	doubt	

each	element	of	theft	by	deception	based	on	the	testimonial	and	documentary	

evidence	presented	at	 trial	and	 reasonable	inferences	drawn	therefrom.		See	

Hayward,	2017	ME	33,	¶	10,	156	A.3d	734.		The	victims	testified	that

• McLaughlin	held	himself	out	as	a	highly	experienced	contractor	who	

had	a	team	of	laborers	at	his	disposal	and	 the	ability	 to	secure	various	

subcontractors	 to	assist	in	completing	 the	project,	and	 that	 they	would	

not	have	hired	him	but	for	these	representations;

• They	never	observed	any	work	crew	at	the	site	and	McLaughlin never	

hired	any	subcontractors;		

• Although	McLaughlin’s work	was	satisfactory	at	 first,	 the	number	of	

hours	he	spent	at	the	work	site	progressively	decreased	over	a	period	of	

several	 months	 until,	 by	 the	 time	 he	 was	 fired	 in	 June	 2017,	 he	 was	

working	only	three	or	four	hours	per	week;

• The	 contract	 was	 renegotiated	 twice	 because	 McLaughlin was	 not	

making	adequate	progress	and	could	not	complete	the	work	on	time;		

• When	pressed	about	 the	lack	of	progress	or	 the	quality	of	his	work,	

McLaughlin	brushed	off	the victims’ concerns	and	made	excuses;		

• When	McLaughlin was	fired	at	the	end	of	June	2017,	they	had	paid	him

roughly	 $37,000 for	 his	 labor, but he	 had	 completed,	 at	 most,	 twenty	

percent	of	the	work;	and		

• They	paid McLaughlin $10,631	for	various	materials that	they	never	

received,	including	rough	plumbing	materials,	trusses,	a	joist,	and	other	

general	building	materials.
11

Other	 witnesses	 for	 the	 State,	 including	 the	 Town	 of	 Standish’s	 code	

enforcement	officer, testified	that	the	work	McLaughlin	did	complete	was	not	

only	 inconsistent	 with	 the	 original	 building	 plan,	 but	 had	 to	 be	 torn	 down	

because	it	was	not	structurally	sound	and	violated	local	building	codes.5		

[¶22]	 	 Contrary	 to	 McLaughlin’s	 argument,	 the	 record	 evidence	 is	

sufficient	 for	 the	 jury	 to	 have	 found	 that	 McLaughlin’s	 deception	 was	

contemporaneous	with	the	intent	to	deprive	at	some	point.		On	this	evidence,	

the	 jury	 rationally could	 have	 inferred that	 McLaughlin	 both	 deceived	 the	

victims	 about	 his intent	 to	 perform	 and	 intended	 to	 deprive	 them	 of	 their	

money	all	along.

6		See	17-A	M.R.S. §	354(2)(A);	Degennaro,	2012	ME	68,	¶¶	11,	

13-14,	46	A.3d	1147.		Alternatively,	the	jury	could	have	found	that	McLaughlin

deceived	the	victims	with	respect	to	his	ability	to	perform	the	work—i.e.,	his	

knowledge	of	home	construction,	the	existence	of	his	team	of	laborers,	and	his	

ability	to	retain	subcontractors—to	secure	the	contract,	and,	although	he	may	

have	initially	intended to	do	the	work,	he developed	the	intent	to	deprive later,

 5		Many	photos	of	the	work	site	were	admitted	in	evidence	for	the	jury’s	consideration.		

6		McLaughlin	contends	that	the	jury	could	not	rationally	have	found	that	he deceived	the	victims	

at	the	time	they	entered	into	the	December	2016	contract	because	that	was	an	element	of	the	home	

construction	or	repair	fraud	charge	on	which	the	jury	was	unable	to	reach	a	verdict.		See	17-A	M.R.S.	

§	908(1)(D)	 (2020).		However,	inconsistent	 verdicts	on	separate	counts	of	an	indictment	will	not	

invalidate	 a	 guilty	 verdict.	 	 See	 State	 v.	 Lowe,	 2015	 ME	 124,	 ¶¶	 28-30,	 124	 A.3d	 156; State	 v.	

Finnemore,	1997	ME	44,	¶¶	7-9,	690	A.2d	979.		
12

showing	up	at	the	work	site	periodically	as	part	of	a	ruse designed	to	ensure	

that	the	 victims	 continued	 to	 pay	 him.	 	 See	17-A	M.R.S. §	 354(2)(B);	 State	 v.	

Brasslett,	451	A.2d	890,	895	(Me.	1982).		Or	the	jury	could	have	simply	inferred	

that	he	deceived	 the	 victims	with	respect	 to	 those	materials	 that	were	never	

delivered	and	accepted	the	payments	for	those	materials,	totaling $10,631, with	

the	 intent	 not	 to purchase	 or	 deliver	 the	 materials, but	 to instead	 keep	 the	

money.7		See	Degennaro,	2012	ME	68,	¶¶ 11,	13-14,	46	A.3d	1147.		We	need	not	

determine	 which	 inferences	 the	 jury	 drew	 or	 whether	 it	 could	 have	 drawn	

others;	 we	 are	 concerned	 only	 with	 whether	 the	 verdict	 was	 supported	 by	

sufficient	evidence.		See	State	v.	Manion,	112	A.3d	506,	521	 (Md.	 2015).		We	

conclude	that	it	was.

[¶23]	 	 McLaughlin’s	 final contention	 on	 this	 issue	 is that	 his	 actions	

constituted a	 mere	 breach	 of	 contract,	 not	 a	 criminal	 theft	 by	 deception.	 	 A	

similar	argument	was	raised	in	Degennaro,	2012	ME	68,	¶	10,	46	A.3d	1147,	

and	our	holding	in	that	case	forecloses	any	argument	that	a	theft	by	deception	

cannot	occur	where	there	is	a	contract	between	the	parties,	see	id.	¶	14.		Even	

 7		Although	we	conduct	our	own	review	of	the	sufficiency	of	the	evidence,	McLaughlin	conceded	

at	the	hearing	on	his	motion	 for	a	new	 trial	 that	the	jury	 could	have	 found	him	guilty	of	 theft	by	

deception	on	the	evidence	presented.		He	also	conceded	that	the	jury	could	have	found	him	guilty	of	

theft	by	unauthorized	taking.		See	17-A	M.R.S.	§	351	(2020).		
13

if	 we	 assume	 that	 McLaughlin’s	 initial	 representations	 about	 his	 ability	 to	

complete	the	work	were	mere	“puffery,”	exaggerating	or	overselling	his	ability	

to	convince	 the	 victims	 to	hire	him,	see,	e.g.,	United	Concrete	&	Constr.,	 Inc.	v.	

Red-D-Mix	Concrete,	Inc.,	836	N.W.2d	807,	815-16	(Wis.	2013),	the	evidence	in	

the	record	is	sufficient	to	support	the	jury’s	verdict.8		

C. Jury	Instructions

[¶24]	 	 McLaughlin	 contends	 that	 he	 requested	 a jury	 instruction	

regarding	the	nexus	between	the	deception	and	the	intent	to	deprive, and	that	

the	court’s	failure	to	give	such	an instruction	constitutes	prejudicial	error.		

[¶25]		McLaughlin	neither	requested	a	jury	instruction	on	this	issue nor	

objected	to	the	jury	instructions	that	were	given,	even	though	he	had	multiple	

opportunities	 to	 do	 so.9	 	 McLaughlin	 affirmatively	 agreed	 to the	 jury	

 8	 	 Of	 course,	 the	 jury	 could	 have	 found	 that	 McLaughlin’s	 initial	 representations	 of	 his	

qualifications	 and	 knowledge	 of	 home	 construction	 were	 not	 puffery	 and	 rose	 to	 the	 level	 of	

deception.		See	17-A	M.R.S.	§	354(2)(A)	(2020).		

9		At	the	hearing	on	his	motion	for	a	new	trial, McLaughlin	conceded	that	“there	was	no	specific	

request	for	an	instruction.”		However,	McLaughlin	also	contends	that	he	requested	this	instruction	at	

some	point	during	a	discussion	in	chambers	 that	 took	place	off	 the	 record.		Both	cannot	be	 true.		

Either	he	requested	the	instruction	or	he	did	not.		When	this	issue	came	up	during	the	hearing	on	

McLaughlin’s	 motion	 for	 a	 new	 trial,	 neither	 the	 court	 nor	 the	 attorney	 for	 the	 State	 had	 any	

recollection	of	a	 request	 for	 this	instruction	having	been	made	off	 the	 record.	 	We	are	limited	 to	

reviewing	the	record	in	front	of	us,	and	we	decline	to	assume	that	the	issue	was	preserved	in	the	face	

of	McLaughlin’s	on-the-record	admission	that	he	did	not	request	the	instruction	and	in	the	absence	

of	any	indication	elsewhere	in	the	record	that	he	requested	it.		See State	v.	King,	2015	ME	41,	¶	4,	114	

A.3d	664;	Alexander,	Maine	Appellate	Practice	§	5.2	at	96	(5th	ed.	2018).
14

instructions,	 thereby	 waiving	 his	 ability	 to	 challenge	 them	 on	 appeal.10		

See State	v.	Miller,	2018	ME	112,	¶	14	n.6,	191	A.3d	356;	see	also	17-A	M.R.S.	

§ 101(1)	(2020);	M.R.U.	Crim.	P.	51;	State	v.	Nobles,	2018	ME	26,	¶¶	34-35,	179	

A.3d	910;	State	v.	Ford,	2013	ME	96,	¶	15,	82	A.3d	75;	State	v.	Cleaves,	2005	ME	

67,	¶¶	7-8,	15,	874	A.2d	872.		

The	entry	is:

Judgment	affirmed.	

Valerie	 A.	 Randall,	 Esq. (orally),	 Hanly	 Law,	 Portland,	 for	 appellant	 Gregory	

McLaughlin

Jonathan	Sahrbeck,	District	Attorney,	and	Carlos	Diaz,	Asst.	Dist.	Atty. (orally),	

Cumberland	 County	District	 Attorney’s Office,	 Portland,	 for	 appellee	 State	 of	

Maine

Cumberland	County	Unified	Criminal	Docket	docket	number	CR-2018-678

FOR	CLERK	REFERENCE	ONLY

 10		Having	reviewed	the	court’s	written	and	oral	instructions, we	are	satisfied	that	they	“fairly	and	

accurately	informed	the	jury	of	all	necessary	elements	of	the	governing	law.”		State	v.	Lajoie,	2017	ME	

8,	¶	18,	154	A.3d	132.