State v. Tompkins , 431 A.2d 619 ( 1981 )

ROBERTS, Justice.

Richard Tompkins was convicted of escape, 17-A M.R.S.A. § 755, following a jury-waived trial in Superior Court, Knox County. On appeal, Tompkins contends that certain exhibits admitted into evidence were hearsay and that the evidence was insufficient to support his conviction. We affirm the judgment.

Tompkins has been an inmate of the Maine State Prison system since a 1967 conviction for manslaughter. He was eligible for parole in June 1980. In the spring of 1980, Tompkins was transferred to the Bolduc Minimum Security Unit in South Warren. While at Bolduc, Tompkins participated in the work release program, which allows prisoners near the end of their sentences to work outside the prison.

Tompkins’ work release plan was unusual. Tompkins worked on a fishing boat, which could be out for several days at a time. Therefore, rather than working the regular hours specified for other participants in the program, he was permitted to leave and return to the prison at whatever times his job required. The prison officials relied on the captain of Tompkins’ boat to inform them when he would be staying out past the program’s normal five o’clock return time.

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On June 7, 1980, Tompkins went to work as usual. Although the boat did not go out fishing, he spent the next two days working on board. Following work on June 8, rather than returning to Bolduc, Tompkins stayed and socialized with other members of the boat crew. Late that night, he left with his girlfriend in her car and headed north. He was arrested on June 10 in Ko-kadjo, Piscataquis County.

I

At trial, the defendant objected to the admission of State’s Exhibits two and three, contending that they were hearsay. Both exhibits were copies of standard prison forms signed by Tompkins. Exhibit Two was the standard escape form for prisoners transferred to the Bolduc Minimum Security Unit, attesting that the prisoner has been informed of the penalty for escape. Exhibit Three was a copy of Tompkins’ work release plan and contained the rules and conditions for his release.

The parties discuss whether the exhibits, fit within the hearsay exceptions contained in M.R.Evid. 803. We find it unnecessary to reach Rule 803. By signing the forms, Tompkins acknowledged his understanding and acceptance of the rules governing the work program. The trial court properly admitted these exhibits, therefore, because they were not hearsay. M.R.Evid. 801(d)(2).¹

II

Title 17-A, section 755(1), provides:

A person is guilty of escape if, without official permission, he intentionally leaves official custody, or intentionally fails to return to official custody following temporary leave granted for a specific purpose or a limited period.

Tompkins contends that the State failed to prove intent, lack of official permission, and failure to return within the allotted time.

Tompkins testified at trial that his employer gave him permission to go north to look for a job that he could take after his release on parole. The employer did not testify. The defendant concludes that the State therefore failed to prove that Tompkins lacked official permission to be absent.

We do not suggest any inference from either party’s failure to call the employer as a witness. See State v. Whitman, Me., 429 A.2d 203, 208-09 (1981) (concurring opinion); State v. Wing, Me., 426 A.2d 1375 (1981). The testimony of prison officials established that the employer did not have authority to permit Tompkins to remain away from the prison beyond the time required by his work. Whether Tompkins believed the employer had authority to give him permission to travel to Piscataquis County was a question for the fact finder. We cannot say that a finding against Tompkins would be erroneous. According to the defendant’s testimony, the employer offered to explain Tompkins’ absence by telling the prison officials that he was out fishing. Such a subterfuge would be unnecessary if they believed that the employer actually was authorized to give permission for a trip unrelated to the narrow purpose of the work release.

The defendant next contends that the State could not show failure to return because Tompkins’ work release plan did not specify a time when he had to return. The defendant reads the statute selectively. Section 755(1) makes illegal the intentional failure to return from leave granted for a specific purpose as well as for a limited time. Tompkins’ work release program specified that he could be absent from the prison only to work at his fishing job. The scope of the work release did not include trips to Piscataquis County.

The same reasoning undercuts Tompkins’ contention that the State could not prove intentional failure to return because he was arrested in Kokadjo before he was obligated to return. The criminal act occurred when he failed to return to the prison as soon as he finished work. This is not a situation where the statute punishes only failure to return within a specified period and the arrest occurred before the period elapsed. We therefore find the evidence to be sufficient to support Tompkins’ conviction.

The entry shall be:

Judgment of conviction affirmed.

All concurring.

1 . M.R.Evid. 801(d)(2) provides:

(d) Statements which are not hearsay. A statement is not hearsay if:

(2) Admission by party-opponent. The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity or (B) a statement of which he has manifested his adoption or belief in its truth ....