MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2019	ME 75 Docket: Aro

- 18

- 295 Submitted

On	Briefs: February	20,	2019 Decided: May	21,	2019 Panel: ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

STATE	OF	MAINE

v. BRUCE	OUELLETTE

HUMPHREY,	J. [¶1]	 	 Bruce	 Ouellette	 appeals	 from	 a	 judgment	 of	 conviction	 for aggravated	criminal	mischief	(Class	C),	17

- A	M.R.S.	§	805(1)(A)	(2018) , entered by	the	trial	court (Aroostook	County, Stewart,	J .) following	a	two

- day	jury	trial. The	State purpo rts	to cross - appeal	from	the	denial	of	its	motion	to	correct	the sentence	because	 the	court	did	not	order	restitution	pursuant	 to	17

- A	M.R.S. §§ 1323 (2) ,	1325	(2018).		M.R.U.	Crim.	P.	35(a),	(g).		We	affirm	the	judgment	of conviction	and do	not	reach	the S tate’s challenge	to	the	denial	of	its	motion	to correct	the	sentence because	the	State	failed to	file	a	notice	of	appeal	from	that order	and	failed	to	provide	the	written	authorization	of	the Attorney	General. 15	M.R.S.	§ 2115

- A(2

- B),	(5)	(2018);	M.R. App.	P.	2A(f)(2),	21( a )

- (c).2 I.		BACKGROUND [¶ 2 ]		Viewing	the	evidence	in	the	light	most	favorable	to	the	verdict,	the jury	rationally	could	have	found	the	following	facts	beyond	a	reasonable	doubt. State	v.	Perkins ,	2019	ME	6,	¶ 3,	199	A.	3d	1174. [¶ 3 ]		In	October	2016,	the	Town	of	Frenchville	began	preparing	a	rural section	of	Pelletier	Avenue	to	be	paved.		The	Town	graded	the	existing	gravel roadway,	laid	geotextile	fabric	on	the	graded	surface,	and	then	applied	a	base layer	of	gravel	(larger	stone) and	a	surface	l ayer of	gravel	(smaller	stone).		The next	step	would	have	been	the	installation	of	an	asphalt	surface. [¶ 4 ]		On	October	31,	2016,	Ouellette	drove	a	 tractor	along	a	 section	 of Pelletier	Avenue	using	a	harrow	that	tore	the	geotextile	fabric and	mixed	the two	sizes	of	gravel	together	with	dirt , rendering	that	section	of	Pelletier	Avenue unsuitable	 for	 paving.	 	 The	 cost	 to	 repair	 the	 damage	 was	 estimated	 to	 be approximately	$52,000. [¶ 5 ]	 	 Ouellette	 was	 charged	 by	 indictment	 with	 aggravated	 c riminal mischief, 1 pursuant	to	17

- A	M.R.S.	§	805(1)(A),	which	provides	that	“[a]	person

1 The	indictment	also	charged	Ouellette	with	reckless	conduct	with	a	dangerous	weapon	(Class C), 17

- A	M.R.S.	§	211(1),	1252(4)	(2018),	and	obstructing	government	administration	(Class	D),	17

- A M.R.S.	§	751(1)	(2018)

. A	judgment	of	acquittal was entered	by the	court	as	to	reckless	conduct	after the	 jury	 found	 Ouellette	 not	 guilty.	 	 Although	 the	 jury	 found	 Ouellette	 guilty	 of	 obstructing government	administration,	the	court	later	entered	a	judgment	of	acquittal	on	that	charge. See M.R.U. Crim.	P.	29(b).3 is	 guilty	 of	 aggravated	 criminal	 mischief	 if	 that	 person

. . . [i]ntentionally, knowingly	or	recklessly	damages	or	destroys	property	of	another	in	an	amount exceeding	 $ 2,000	 in	 value,	 having	 no	 reasonable	 ground	 to	 believe	 that	 the person	has	a	right	to	do	so.” [¶ 6 ]	 	 Prior	 to	 trial,	 the	 court	 granted	 Ouellette’s	 motion	 in	 limine	 to exclude	any	lay	witness	 testimony	about	 the	 “title	 or	 ownership”	 of	Pelletier
Avenue. 2 During	the	trial,	the	jury	heard	testimony	that	Ouellette	did	not	own any	land	along	th e stretch	of	Pelletier	Avenue that	he	damaged, that	Pelletier Avenue	was	posted	with	traffic	control	and	road	signage,	and that	the	road was maintained,	graded,	and	plow ed	by	the	Town.		Further, in	accordance	with	the parties’	stipulation, the	court	instructed	 the	jury	 that	“the	property	allegedly damaged	was	the	geotextile	fabric,	base	gravel,	and	surface	gravel	applied	by the	 Town

. . . upon	 Pelletier	 Avenue.”	 	 The	 jury found	 Ouellette	 guilty	 of aggravated	criminal	mischief. [¶ 7 ]		After	 the	jury’s	verdict,	Ouellette	 filed	a	motion	 for a	judgment	of acquittal 3 and	argued

— for	the	first	time

— that	the	geotextile	fabric	and	gravel

2 At	the	time	of	the	trial,	civil	litigation	was	pending	in	the	Superior	Court	that	sought	to	establish ownership	of	th e section	of	Pelletier	Avenue that	Ouellette	damaged.

3 Ouellette’s	 motion	 for	 acquittal	 was	 also	 directed	 to	 the	 jury’s	 guilty	 verdic t	 regarding Obstructing	Government	Administration. See	supra n.1.4 had	become	“fixtures”	of	the	real	property	of	Pelletier	Avenue	and,	because	the State	did	not	establish	who	owned	Pelletier	Avenue,	 the	State	 failed	 to	prove that	Ouellette	damaged	the	“property	of	another”	within	the	meaning	of	17

- A M.R.S.	 §	 805.	 	 The	 cou rt	 denied	 the	 motion,	 concluding	 that	 the	 parties’ stipulation	“sufficiently	defined”	for	the	jury	that	the	damaged	property	was	the geotextile	fabric	and	gravel;	that	it	was	“appropriate	for	the	jury	to	conclude” that	 ownership	 of	 the	 road	was	 still	in	 di spute;	and	 that	 the	jury	could	have concluded	that,	regardless	of	who	owned	the	road,	the	damaged	property

— the geotextile	 fabric	 and	 gravel,	 as	 defined	 by	 the	 parties’	 stipulation

— did	 not belong	to	Ouellette. [¶ 8 ]		The	court	sentenced	Ouellette	to	one	y ear	in	jail	with	all	but	ten	days suspended,	a	year	of	probation,	and	a	$3,000	fine.		The	court	declined	to	order Ouellette	to	pay	restitution,	stating	on	the	record	that	its	decision	was	based	on the	need	to	end	the	contentious	litigation	surrounding	the paving	of	Pelletier Avenue	 and	 that	 the	 Town’s	 decision	 to	 accept	 a	 deed	 of	 property	 from Ouellette	in	lieu	of	formal	restitution	constituted	a	“a	bargain[ed]	for	exchange” that	 sufficiently	 compensated	 the	 Town.	 	 Because	 the	 Town	 voluntarily declined rest itution,	the	State	sought	restitution	on	behalf	of	Aroostook	County pursuant	to	17

- A	M.R.S.	§	1324(2)	(2018).		The	court	denied	the	State’s	request.5 The	State	filed	a	motion	to	correct	the	sentence	pursuant	to	M.R.U.	Crim. P. 35, 4 arguing	 that	 the	 court	 f ailed	 to	 conduct	 a	 sufficient	 inquiry	 into	 the	 State’s request	for	restitution	as	required	by	17

- A	M.R.S.	§§	1323(2),	1325. [¶ 9 ]		Ouellette	appeals	the	judgment	of	conviction,	and ,	in	its	appellee’s brief, the	State	c hallenges the	court’s	denial	of	its	R ule	35	motion.
II.		DISCUSSION
A. Sufficiency	of	the	Evidence [¶1 0 ]		Ouellette	argues	that	the	evidence	was	insufficient	to	support	his conviction	and	renews	on	appeal	the	argument	he	first	made	in	support	of	his post
- trial motion	for	acquittal	that,	bec ause	the	geotextile	fabric	and	gravel	had become	“fixtures”	of	the	roadway	and	ownership	of	the	roadway	was	in	dispute, the	 State	 had	 failed	 to	 prove	 a	 critical	 element	 of	 aggravated	 criminal

4 In	relevant	part,	M.R.U.	Crim.	P.	35	provides: (a)	Correction	of	Sentence. On	motion	of	the	defendant	or	the	attorney	for the	 State,	 or	 on	 the	 court’s	 own	motion,	made	within	 one	 year after	a	 sentence	is imposed,	the	justice	or	judge	who	imposed	sentence	may	correct	an	illegal	sentence or	a	sentence	imposed	in	an	illegal	manner.

.	.	.	. (g)	 Appeal	 by	 State. The	 Maine	 Rules	 of	 Appellate	 Procedure	 govern	 the procedure	for	an	appeal	b y	the	State	to	the	Law	Court	from	an	adverse	ruling	of	the court	relative	to	a	State

- initiated	motion	made	under	subdivision	(a)	or	(c).6 mischief

— that	 Ouellette	 had	 damaged	 the	 “property	 of	 another.” See 17

- A
M.R.S. § § 805(1)(A),	(1

- A),	352(4)	(2018). [¶1 1 ]	 	 When	 a	 defendant	 argues	 that	 the	 evidence	 is	 insufficient	 to support	his	conviction,	“we	view	the	evidence	in	the	light	most	favorable	to	the State	to	determine	whether	the	fact

- finder	could	rati onally	find	every	element of	the	offense	beyond	a	reasonable	doubt.” State	v.	Woodard ,	2013	ME	36,	¶	19, 68	A.3d	1250	 (quotation	marks	 omitted). The	jury	may	draw	all	 reasonable inferences	 from	 the	evidence,	and	we	will	vacate	a	judgment	“only	where	no trier	of	fact	rationally	could	find	proof	of	guilt	beyond	a	reasonable	doubt.” Id. (quotation	marks	omitted). [¶1 2 ] An	 argument	is	waived	 when	 t he	 facts	 underlying	 it	 have	 been stipulated. See State	v.	Lockhart ,	2003	ME	108,	¶¶	34

- 36,	830	A.2d	433. When a	stipulation	is	entered,	we	“must	make	our	determination	on	the	facts	to	which the	parties	have	stipulated	.	.	.	.” Gov’t	Emps.	Ins.	Co.	v.	Co ncord	Gen.	Mut

. Ins.	Co ., 458	A.2d	1205,	1211 (Me.	1983). Where	a	defendant	stipulates	to	an	element of	the	crime,	the	State	“is	relieved	of	the	burden	of	introducing	evidence	other than	the	stipulation	itself	to	prove	that	element.” Commonwealth	v.	Orti z ,	995 N.E.2d	1100,	1 1 05	(Mass.	2013); see	also Commonwealth	v.	Triplett ,	500	N.E.2d 262,	 267	 (Mass.	 1986) (stating	 that	 facts	 agreed	 to	 by	 stipulation	 are	 “no7 longer

. . . at	issue	and	must	be	accepted	by	the	fact	finder”).		Arguments	waived by	 stipulation	 are	 unpreserved,	 and	we	 review	 them	 only	 for	 obvious	 error. Lockhart ,	2003	ME	108,	¶¶	34

- 35,	830	A.2d	433. 5 [¶1 3 ] Because the parties stipulated at trial to the identity of the “damaged property ,” Ouellette waived	the	argument	he	now	makes

— that	the geotextile	 fabric	 and	 gravel	 had	 become	 a	 fixture	 of	 the	 real	 property underlying	 Pelletier	 Avenue

— and we “must	make	 our	 determination	 on	 the facts	 to	 which	 the	 parties	 have	 stipulated	 .	 .	 .	 .” Concord	 Gen.	 Mut.	 Ins.	 Co., 458 A.2d	at	1211

. [¶1 4 ]	 	 On	 this	 record,	 when	 viewed	 in	 the	 light	 most	 favorable	 to	 the State,	 the	evidence	was	sufficient	 for	 the	jury	 to rationally	 find	and	conclude that	 the	 State	 proved	 each	 element	 of	 the	 offense	 of	 aggravated	 criminal mischief	 beyond	 a	 reasonable	 doubt for	 several	 reasons .	 	 17

- A	 M.R.S. § 805(1)(A).		First,	Ouellette	stipulated	 that	 the	“damaged	property”	was	 the geotext ile	fabric	and	the	gravel	applied	to	the	road	by	the	Town.		Second,	the jury	heard	uncontroverted	testimony	that	the	Town	owned	the	fabric	and	the gravel	and	that	Ouellette	damaged	it.		Finally,	based	on	evidence	of	the	manner

5 Obvious	error	“ is (1) an error, (2) that is plain, and (3) that affects substantial rights [,]

. . . [and] we will se t aside a jury’s verdict only if we conclude that (4) the error seriously affects the fairness and integrity or public reputation of judicial proceedings.” State v. Dolloff , 2012 ME 130, ¶ 35, 58 A.3d 1032 (citations and quotation marks omitted).8 in	which	Ouellette	 operated	 t he	 tractor	 and	 the	 estimated	 cost	 to	 repair	 the damage,	 the	 jury	 rationally	 could	 have	 inferred	 that	 Ouellette	 intentionally, knowingly,	or	recklessly	caused	damage	to	the	fabric	and	gravel,	and	that	the damage	was	in	excess	of	$2,000. Because	we	conclude there	was	no	error,	much less	obvious	error,	we	affirm	the	judgment.
B. Restitution [¶1 5 ] In	 its appellee’s brief	 responding	 to	 Ouellette’s	 appeal	 of	 the judgment	of	conviction,	the	State argues that	the	sentence	was	illegal	because the	 court	 failed	 to properly	 assess	 whether	 restitution	 should	 be	 ordered pursuant	to	17

- A M.R.S. §§	1323(2), 6 1325. [¶1 6 ] “In	 criminal	 matters, the	 State	 is	 limited	 to	 the	 appeal	 rights granted	by	the	plain	language	of	[15	M.R.S.	§ 2115

- A (2018) ],” State	v.	Blakesley , 20 10	 ME	 19,	 ¶	 11,	 989	 A.2d	 746 (quotation	 marks	 omitted). In	 addition	 to limiting	the	orders	and	errors	from	which	the	State	may	appeal ,	s ection	2115

- A identifies	the	circumstances	in	which the	State is	and	is	not	required to file	a notice	 of appeal and	 when	 it	 is	 required	 to obtain	 the	 Attorney	 General’s authorization to commence an appeal

. 15	M.R.S.	§	2115

- A (1)

- (3) , (5)	(2018)

. 7

6 Section	1323(2)	requires	that	“[i]n	any	case	where	the	court	determines	that	restitution	should not	be	imposed	in	accordance	with	the	criteria	set	forth	in	section	1325,	the	court	shall	state	in	open court	or	in	writing	the	reasons	for	not	imposing	resti tution.”

7 Title	15	M.R.S.	§	2115

- A	(2018)	provides,	in	relevant	part:9 Ordinarily,	the	State	need	not file	a	notice	of appeal or obtain	the	approval	of the	 Attorney	 General	 when	 the	 defendant	 appeals	 from	 a	 judgment	 of
conviction and the	State	alleges	that	an	error	“harmful	to	it	was	committed prior
to trial or	in	 the	 trial

. . . . ” 15 M.R.S. § 2115

- A(3) (emphasis	 added) ; see	 also State	 v.	 Taylor ,	 2011	 ME	 111,	 ¶	 2	 n.2,	 32	 A.3d	 440	 (challenging the court’s admission	 of	 defendant’s	 evidence	 concerning	 an	 alternative	 suspect	 during trial); State	v.	Rabon ,	2007	ME	113,	¶	12	&	n.4,	930	A.2d	268	(challenging	the court’s	pre

- trial determination	regarding	exigent	circumstances for	a	search ). As	we	have	held,	section	2115

- A(3) allows	the State to	claim	error	without	filing

2
- B.		Appeal	from	the	denial	of	a	Rule	35	motion. If	a	motion	for	correction or	reduction	of	a	sentence	brought	by	the	attorney	for	the	State	under	Rule	35	of	the Maine	Rules	of Unified	Criminal	Procedure	is	denied	in	whole	or	in	part,	an	appeal may	be	taken	by	the	State	from	the	adverse	order	to	the	Supreme	Judicial	Court	sitting as	the	Law	Court.
3. When	defendant	appeals. When	the	defendant	appeals	from	a	judgment of conviction,	it	is	not	necessary	for	the	State	to	appeal.	It	may	argue	that	error	in	the proceedings	at	trial	in	fact	supports	the	judgment.	The	State	may	also	establish	that error	 harmful	 to	 it	 was	 committed	 prior	 to	 trial	 or	 in	 the	 trial	 resulting	 in	 the conviction	from	which	the	defendant	has	appealed,	which	error	should	be	corrected in	 the	event	 that	 the	Law	Court	 reverses	 on	a	claim	 of	error	by	 the	defendant	and remands	 the	case	 for	a	new	trial.	 If	 the	case	is	so	reversed	and	remanded,	the	Law Court	sha ll	also	order	correction	of	the	error	established	by	the	State.

.	.	.	. 5.	 	 Approval	 of	 Attorney	 General. In	 any	 appeal	 taken	 pursuant	 to subsection	 1,	 2	 or	 2

- B,	 the	 written	 approval	 of	 the	 Attorney	 General	 is	 required; except	that	if	the	attorney	for the	State	filing	the	notice	of	appeal	states	in	the	notice that	 the	 Attorney	 General	 has	 orally	 stated	 that	 the	 approval	 will	 be	 granted,	 the written	approval	may	be	filed	at	a	later	date.10

an appeal	and	obtaining	written	approval	from	the	Attorney	General	only	when, on	an	appeal	initiated	by	the	defe ndant, the	State	seeks	to	assert	that	the	court committed	errors	prior	to	or	during	the	trial	proceedings	themselves. State	v.
Parsons ,	626	A.2d	348,	351

- 52	(Me.	1993).		For	the	State	to have	the	right	to
assert	errors	in post
- trial proceedings,	on	the	ot her	hand,	the	State	must	file	a notice	 of appeal	 and	 secure	 written	 approval	 from	 the	 Attorney	 General pursuant	 to	 section	 2115

- A(5),	 regardless	 of	 whether	 the	 defendant	 has appealed. See	id .; see	also 15	M.R.S.	§	2115

- A(2),	(2

- B) ,	(5). Therefore,	althou gh section	2115

- A(2

- B)	specifically	authorizes	 the	State	 to	appeal	 from	 the	 trial court’s	denial,	in	whole	or	in	part,	of its Rule	35	motion to	do	so , 8 the State must file	 a	 notice	 of	 appeal accompanied	 by a written	 approval	 by	 the	 Attorney

8 S ubs ection	2115

- A(2

- B)	was	enacted after we	issued	our	decision in State	v.	Parsons ,	626	A.2d 348	(Me.	1993). See P.L.	1995,	ch.	47,	§	1.		That	amendment to	section	2115

- A ,	however,	did	not change	the	scope	of	section	2115

- A,	so	our	holding	in Parsons ,	that	the	State	must file	an appeal	and obtain	 the	 written	 approval of	 the	 Attorney	 General	 to	 appeal	 from	 post

- trial	 orders,	 remains undisturbed. Parsons ,	626	A.2d	at	352. We	also	note	that	section	2115

- A(6)	requires	the	statute	to	be	construed	“liberally	.	.	.	to	effectuate its	purposes.” 15	M.R.S.	§	2115

- A(6). An earlier	version	of	section	2115

- A	states	that	the	purpose s of	the	statute	were	to	ensure	“that	the	State	is	able	to	proceed	to	trial	with	all	the	evidence	it	is	legally entitled	to	introduce,	in	view	of	the	limited	ability	of the State	to have error	review ed	a fter trial. ” P.L. 1979 , ch.	 343,	 §	 2.	 	 Curiously,	 in	 1980,	 the	 Legislature	 amended	 this	 provision	 to	 remove	 any articulation	of	the	purposes	of	section	2115

- A.		P.L.	1979,	ch.	701,	§	14.		 If	the	purpose	of	section 2115

- A	was	unchanged	despite	the deletion of	its	state d purpose,	it	would	no t benefit	the	State	here. If,	on	the	other hand,	the	deletion	of	that	stated	purpose	meant	that	there	is	no w a	different	purpose for	the	statute,	the	Legislature	has	not	stated	what	it	is.		Nonetheless,	when	we	i ssued	our	decision	in Parsons ,	section	2115

- A	had	the	same	self

- contained	 rule	 requiring	a	 “liberal[]”	construction	as	it does	now,	so	the	approach	we	must	take	in	construing	and	applying	the	statute	remains	governed	by Parsons

.11 General.	 	 15 M.R.S.	 §	 2115

- A(2

- B),	 (5) ; M.R.U.	 Crim. P.	 35(a),	 (g); see	 also Alexander, Maine	 Appellate	 Practice §	 21.4	 at	 231	 (5th	 ed.	 2018)	 ( “W ritten approval	of	the	Attorney	General	is	required	for	all	State	appeals	of	.	.	.	post

- trial rulings	.	.	.	.”). [¶1 7 ] He re,	 t he	 State	 did	 not	 file	 a	 notice	 of	 appeal	 that	 cited	 any statutory	 basis	 for	 its challenge; its	 brief	 alleges	 that	 the	 “sentencing	 court err[ed]	in	not	ordering	restitution	as	part	of	[its]	sentence.”		Because	the	State appeals	from	an	alleged post
- tri al sentencing	error,	the	State	was	required	to file	an	appeal	and obtain	the written approval	of	the	Attorney	General to appeal the	 court’s decision	 on	 its	 Rule	 35	 motion,	 15 M.R.S. §	 2115

- A(2

- B), (5),	 but failed	 to	do either .		We therefore	do	not	reach the State’s claim	of	error. See M.R.	App.	P.	21( a )

- (c). The	entry	is: Judgment	affirmed.

Toby	D.	Jandreau,	Esq.,	Fort	Kent,	for	appellant	Bruce	Ouellette James	 Mitchell,	 Asst.	 Dist.	 Atty.,	 Prosecutorial	 District	 No.	 8,	 Ca ribou,	 for appellee	State	of	Maine

Aroostook	County	Unified	Criminal	Docket	docket	number	CR

- 2017

- 20046 F OR C LERK R EFERENCE O NLY