State of Maine v. Jody B. Flynn , 2015 Me. LEXIS 161 ( 2015 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 149
Docket: Cum-14-442
Argued: September 16, 2015
Decided: November 19, 2015
Panel: ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
STATE OF MAINE
v.
JODY B. FLYNN
ALEXANDER, J.
[¶1] Jody B. Flynn appeals from a judgment of the trial court (Cumberland
County, Wheeler, J.) convicting her of theft by unauthorized taking or transfer,
(Class B), 17-A M.R.S. § 353(1)(B)(1) (2014), following a jury trial. On appeal,
Flynn contends that the record contains insufficient evidence to support her
conviction. Flynn also asserts that the trial court erred in (1) admitting in evidence
several emails between Flynn and representatives of the named victims;
(2) shifting to Flynn the burden of proof when giving an advice-of-counsel
instruction; (3) denying Flynn’s motion to require the State to provide a bill of
particulars, U.C.D.R.P.–Cumberland County 16(c)(1); M.R. Crim. P. 16(c)(1),1 to
assist in preparation of her defense; and (4) proceeding on a duplicitous
1
The Maine Rules of Unified Criminal Procedure (effective Jan. 1, 2015) were not in effect at the
time of these proceedings. See M.R.U. Crim. P. 1.
2
single-count indictment that did not require the jury to separately determine the
extent of the theft, if any, from each of the three corporate victims named in the
indictment.
[¶2] After review of the record and the arguments of counsel, we determine
that the evidence is sufficient to support the Class B theft conviction, and we
discern no error in the points argued by Flynn that would justify vacating the
conviction. Accordingly, we affirm the judgment of conviction.
I. CASE HISTORY
[¶3] On February 9, 2012, Jody B. Flynn was indicted for Class B theft by
unauthorized taking or transfer, 17-A M.R.S. § 353(1)(B)(1). Because the terms of
the indictment are important to our discussion of principal issues on appeal, we
quote from it at the outset of the case history. The indictment stated:
From on or about December 7, 2009, through on or about January 27,
2010, . . . Flynn did commit theft pursuant to one scheme or course of
conduct by obtaining or exercising unauthorized control over the
property of Greentree Renewable Energy, Inc.,[2] Guangzhou Dinson
Engineering & Trading Limited, or Charmwell Holdings Limited,
such property consisting of money having a value in excess of
$10,000, with intent to deprive the owners thereof.
[¶4] Viewing the evidence in the light most favorable to the State, the
following facts were established beyond a reasonable doubt at trial. See State v.
Reed, 2013 ME 5, ¶ 9, 58 A.3d 1130.
2
It appears from the record that the company’s name was Green Tree Renewable Energy, LLC,
although it is sometimes misstated in the record.
3
[¶5] At some time in 2009, Flynn and Bert Martin formed Green Tree
Renewable Energy, LLC. The purpose of creating the business was to obtain
financing and facilitate the purchase of a pulp and paper mill in Baileyville3 owned
by a company called Domtar. Flynn’s role was to “look[] after the finance[s].”
Bert Martin’s role was to do “everything else,” including seeking a buyer.
Eventually, Bert Martin located a potential buyer: initially, it was a company called
Grosford Point Limited, located in Singapore. Mike Martin, who has no apparent
relation to Bert Martin, represented Grosford as its attorney in fact.
[¶6] Mike Martin, Bert Martin, and Flynn executed a written agreement
dated October 8, 2009, for Grosford to buy the mill. The agreement stated that
Grosford would “advance to [Green Tree] all sums necessary to fund any deposits
required by Domtar and all due diligence and legal costs in connection with the
Acquisition,” and that “[a]ny unused funds and returns of deposits . . . shall be
returned by [Green Tree] to Grosford promptly upon receipt by [Green Tree].”
[¶7] After the agreement was signed, Mike Martin notified Bert Martin that
a company called Dinson would be purchasing the mill instead of Grosford.
Domtar required a $500,000 exclusivity or good-faith deposit for the purchase.
Bert Martin testified that the “$500,000 was supposed to be put in a bank account
and was supposed to be transferred [to Domtar] the day [the parties] agreed that the
3
Baileyville is the town where the pulp and paper mill is located. In the trial court proceedings, the
mill was referred to as both the “Woodland mill” and the “Baileyville mill.”
4
sale was happening.” On November 24, 2009, Christine Yu, a Dinson
representative, emailed Flynn, stating:
1) Exclusivity deposit
A fund transfer of $500,000 is coming your way tomorrow
(24 November) from Asia. This is for the Exclusivity deposit for
Domtar that is to be paid on Friday 27 November.
The next day, Green Tree’s Bank of America account received the $500,000 from
Charmwell Holdings, Dinson’s holding company.
[¶8] Nine days later, on December 4, 2009, Flynn and Bert Martin learned
that Domtar was backing out of the sale. On December 7, 2009, Mike Martin
directed Flynn to return the $500,000 to Charmwell and stated that he would
transfer funds to Green Tree to cover pending bills. Flynn responded by email on
December 9, 2009, stating that she was “assembling our payables.” Despite
receiving emails from Mike Martin and Yu, Flynn did not email either of them
again until December 18, 2009. On that date, Flynn emailed that she would “cover
accounts payable with present funds and . . . send the remaining balance.” Yu and
Mike Martin continued to email Flynn with questions, but she did not respond to
their emails or send Charmwell or Dinson any of the funds.
[¶9] On December 28, 2009, Bert Martin called Flynn regarding the delayed
repayment. Flynn assured Bert Martin that “all the bills would be paid and the
fund would be returned the next day.” On January 3 and 4, 2010, Flynn sent
emails to Mike Martin, Bert Martin, and Yu alleging that the bank was struggling
5
to complete the transfer of the funds and stating that she would “stay at the bank
until they get this done.” In response to more emails, she also cited holiday delays,
family gatherings, and her busy schedule as preventing her return of the funds.
[¶10] On January 8, 2010, Flynn told Yu that the “balance” after accounts
payable was $264,604.14. Yu, Mike Martin, and Bert Martin continued to email
and call Flynn seeking more information about the accounts payable and the
transfer of the funds. Eventually though, Flynn stopped responding to their emails
and phone calls.
[¶11] Despite acknowledging an obligation to return at least $264,604.14 to
the prospective purchasers, during December of 2009 and January of 2010, Flynn
transferred most of the $500,000 exclusivity deposit from the Green Tree Bank of
America account to her personal accounts, including an account Flynn shared with
her college-age child and an account for her other business.
[¶12] Following the cessation of communications between Flynn and
representatives of Charmwell and Dinson regarding return of the exclusivity
deposit money, the record is unclear as to exactly what occurred. It appears,
however, that Bert Martin repaid the sums due from Green Tree to Charmwell
and/or Dinson.4 Thereafter, sometime in 2010, Bert Martin brought a civil action
against Flynn to recover the sums due. In the course of the civil action, Bert
4
Counsel at oral argument indicated that such a payment had been made. In addition, after
conviction, Flynn was ordered to pay restitution to Bert Martin.
6
Martin deposed Flynn twice regarding the same events. At the second deposition,
Bert Martin confronted Flynn with her bank records—presumably the same bank
records introduced as exhibits in this action. The pleadings and related exhibits
from the civil case were part of the discovery provided to Flynn by the State in this
case.
[¶13] At some point, the matter was reported to the State as a crime. Flynn
was indicted for Class B theft in February 2012. On March 29, 2012, Flynn
pleaded not guilty to the charge. On August 1, 2013, Flynn filed a motion seeking
to compel the State to produce a bill of particulars. After a hearing, the court
(Cole, J.) denied the motion.
[¶14] From August 11, 2014, to August 15, 2014, the court (Wheeler, J.)
held a jury trial. Before the start of trial, the State filed a motion in limine seeking
admission of certain email exhibits, mainly consisting of messages between Flynn
and various representatives of Dinson arranging for a funds transfer. In its motion,
the State argued that the statements were not hearsay because they would be
offered for the fact that the statements were made and not the content of the
statements themselves. In a hearing directly before trial, the court addressed
State’s exhibit 3, which consisted of a chain of emails, and the court stated that it
would admit the exhibit “not for the truth of the matter.” The court did not address
the other email exhibits. When the court admitted State’s exhibit 3 later that day, it
7
advised the jury that “it is not admitted to prove the truth of the matters asserted
here, it is simply to explain the understanding that each of the respective
participants in the conversation have about the issues they were discussing.” With
regard to the other email exhibits, the court simply admitted the exhibits without
providing a limiting instruction.
[¶15] Also during trial, Flynn presented testimony from an attorney with
whom Flynn had consulted and who had provided Flynn with legal advice about
the status of the exclusivity deposit.
[¶16] On August 15, 2014, the jury found Flynn guilty of Class B theft by
unauthorized taking or transfer, 17-A M.R.S. § 353(1)(B)(1).
On August 25, 2014,
Flynn filed a motion for judgment of acquittal, which the State opposed. The court
denied the motion on September 29, 2014. The court then sentenced Flynn to four
years in prison, with all but nine months suspended, to be followed by three years
of probation. Flynn then brought this appeal.
II. LEGAL ANALYSIS
[¶17] With this history, we proceed to address the issues on appeal.
A. Sufficiency of the Evidence
[¶18] To support the jury’s verdict of guilty of theft by unauthorized taking
or transfer, the record must support a finding that Flynn “(1) obtained or exercised
unauthorized control (2) over the property of another (3) with the intent to deprive
8
the owner of that property.” State v. Cook, 2010 ME 85, ¶ 10, 2 A.3d 333;
see also 17-A M.R.S. § 353(1)(A) (2014). To enhance the theft to a Class B
offense, the State had to prove that Flynn had exercised unauthorized control over
property having a value of at least $10,000. See 17-A M.R.S. § 353(1)(B)(1).
There appears no serious dispute that Flynn applied to her own use at least $10,000
in funds originally supplied to Green Tree by Dinson and Charmwell. The issue is
whether this use of funds constituted a theft.
[¶19] We addressed another example of a misapplication of funds in State v.
Schmidt, 2008 ME 151, ¶¶ 20-21, 957 A.2d 80. There, we concluded that there
was sufficient evidence to prove theft by unauthorized taking or transfer when the
defendant “misused the money from the loan fund for personal purposes” because,
despite the fact that “the checks to [the defendant] were made out to the
Foundation, the State established that [the defendant] was the only person who had
the right to draw funds on the account in which loan funds were deposited . . .
[and] that [the defendant] did not use the money for the purposes intended.” Id.
¶ 21.
[¶20] Here, the State presented sufficient evidence that the funds were
“[p]roperty of another,” see 17-A M.R.S. § 352(4) (2014) (defining “[p]roperty of
another” as including “property in which any person . . . other than the actor has an
interest that the actor is not privileged to infringe, regardless of the fact that the
9
actor also has an interest in the property”), and that Flynn, knowing that the funds
belonged to “another,” intentionally converted those funds entrusted to her
corporation to her own use, see 17-A M.R.S. § 353(2) (2014) (defining “exercises
unauthorized control” as including conversion).
[¶21] First, the State presented the agreement between Green Tree and
Grosford, Dinson’s predecessor, which, anticipating the exclusivity deposit,
specified that “Grosford shall advance to [Green Tree] all sums necessary” and
“[a]ny unused funds” were to be “returned by [Green Tree] to Grosford promptly
upon receipt by [Green Tree].” Second, the State presented and the court admitted
in evidence numerous emails in which Flynn acknowledged that the funds were
Dinson’s. Further, the State presented portions of Flynn’s depositions where Flynn
first claimed that she loaned herself money from the Green Tree account, and later
stated that she was protecting the money. Finally, the State presented bank records
showing that Flynn transferred Dinson’s funds from the Green Tree account to her
own personal and business accounts. This evidence was more than sufficient to
support Flynn’s conviction.
B. Use of the Emails
[¶22] The emails at issue principally consist of messages between Flynn and
various representatives of Dinson arranging for the funds transfer and statements
by Flynn herself, acknowledging an obligation to return the funds and stating that
10
she would return the funds once bank and wire transfer technicalities were
resolved. Flynn’s own email statements or email communications, like other
statements by criminal defendants, were not hearsay and were properly admitted
pursuant to M.R. Evid. 801(d)(2) (Tower 2014).5 The emails to Flynn from Mike
Martin, Bert Martin, and Yu were not offered for the truth of the matters asserted
therein but instead showed the context of Flynn’s statements. See M.R.
Evid. 801(c) (Tower 2014).6 Because the emails were admissible pursuant to
Rule 801(c) and (d)(2), and because the court properly instructed the jury to limit
the scope of its consideration of the additional emails, the court did not abuse its
discretion in admitting the emails.
C. Advice-of-Counsel Instruction
[¶23] Flynn argues that she was entitled to a jury instruction on the defense
of “advice of counsel,” see United States v. Powers, 702 F.3d 1, 8-10
(1st Cir. 2012), but that the instruction given improperly shifted to her the burden
of proof. We have not had occasion to address an advice-of-counsel defense or
instruction. In federal courts, to establish an affirmative defense of advice of
5
M.R. Evid. 801(d)(2) (Tower 2014), applicable when this case was tried, has since been replaced
(effective Jan. 1, 2015) with restyled language that does not affect its application in this case. See M.R.
Evid. 801(d)(2).
6
M.R. Evid. 801(c) (Tower 2014) has since been replaced (effective Jan. 1, 2015) with restyled
language that does not affect its application in this case. See M.R. Evid. 801(c).
11
counsel, the “defendant has a burden of production to establish a prima facie
defense of advice of counsel,” and must establish that:
(1) before taking action, (2) he in good faith sought the advice of an
attorney whom he considered competent, (3) for the purpose of
securing advice on the lawfulness of his possible future conduct,
(4) and made a full and accurate report to his attorney of all material
facts which the defendant knew, (5) and acted strictly in accordance
with the advice of his attorney who had been given a full report.
United States v. Gorski, 36 F. Supp. 3d 256, 267 (D. Mass. 2014); see also Powers,
702 F.3d at 10 (“In light of the evidence that [the] attorney . . . was not told needed
information and was given false information, the instruction was unavailable.”);
United States v. Gonzales, 58 F.3d 506, 512 (10th Cir. 1995) (“Reliance upon
advice of counsel is a defense that the defendant must establish. Reliance upon
advice of a lawyer does not negate willfulness unless the defendant completely
disclosed all material fact[s].” (citation omitted)). Once the defendant makes a
prima facie case, “[t]he defendant [is] then . . . entitled to the requested instruction,
and the [prosecution’s] burden to prove every element of the offense beyond a
reasonable doubt, including the necessary mens rea, would encompass the burden
to prove that [the] defendant did not reasonably rely on counsel’s advice.” Gorski,
36 F. Supp. 3d at 267.
[¶24] An attorney called by Flynn at trial testified that Flynn had consulted
with him about holding the funds until the dispute about the money could be
resolved. The attorney also testified that (1) he was not aware of who had
12
provided the money that was placed in the Green Tree account; (2) he had not
reviewed the agreement or agreements between Dinson and Green Tree; (3) “as far
as [he] could see” from what was disclosed to him, the money “was not escrow
money”; (4) Flynn had not told him that she had agreed to return the money, with a
list of payables, to the investor; and (5) he had not been consulted about
transferring funds from the Green Tree account to other accounts under Flynn’s
personal control. The attorney also testified that intentionally taking money from
the business for personal use without authorization to do so is “a problem.”
[¶25] With this record, it is evident that Flynn did not establish that she had
“made a full and accurate report to [her] attorney of all material facts [that she]
knew . . . and acted strictly in accordance with the advice of [her] attorney who had
been given a full report.” Gorski, 36 F. Supp. 3d at 267. Accordingly, the
advice-of-counsel defense was not generated, and no instruction regarding advice
of counsel should have been given. See id.; Powers, 702 F.3d at 10.
[¶26] The question remains as to whether the court committed reversible
error when it instructed the jury that Flynn had to prove by a preponderance of the
evidence that she “fully disclosed all material facts to her attorney” and “actually
relied on counsel’s advice,” but indicated that the ultimate burden of proof rested
with the State to prove all elements of theft, including intent, beyond a reasonable
doubt. Because Flynn was not entitled to an instruction on the advice-of-counsel
13
defense in the first place, any error in the instruction itself was harmless.
See U.C.D.R.P.–Cumberland County 52(a); M.R. Crim. P. 52(a).
D. Bill of Particulars
[¶27] Flynn argues that the court erred in denying her motion for a bill of
particulars. See U.C.D.R.P.–Cumberland County 16(c)(1); M.R. Crim. P. 16(c)(1).
We review the denial of a motion for a bill of particulars for an abuse of discretion.
State v. Ardolino, 1997 ME 141, ¶ 5, 697 A.2d 73. “The purpose of a bill of
particulars is to enable the defendant to prepare an adequate defense, to avoid
prejudicial surprise at trial, and to establish a record upon which to plead double
jeopardy if necessary.” Id.
[¶28] In order to evaluate whether a defendant was prejudiced, we “examine
the record to determine what facts were known to the defendant prior to the trial.”
Id.; see also State v. Larrabee, 377 A.2d 463, 465 (Me. 1977); State v. Wedge,
322 A.2d 328, 330-32 (Me. 1974). A court may decline to order a bill of
particulars if the information requested is available through some other means.
See Larrabee, 377 A.2d at 466.
[¶29] Here, Flynn had ample information about the basis for the charge
against her. Her emails demonstrate her knowledge of the sources of the money
that came into the Green Tree account, the obligation to return that money upon
failure of the sale, and the lack of authority to convert the money to her own
14
personal uses. In addition, before she was indicted, Bert Martin had maintained an
action against Flynn arising from the same events and deposed her twice. The
materials from the civil case were part of the discovery provided to Flynn by the
State. Flynn had more than enough information about the nature of the charge
against her. There was no good basis to pursue a bill of particulars. The motion
for a bill of particulars was properly denied.
E. Duplicitous Indictment
[¶30] As part of her bill of particulars argument, Flynn asserts uncertainty
about the identity of the victim, claiming that the indictment was duplicitous
because it “alleged three thefts from three different [victims].” As noted earlier,
the single count indictment identified three victims in the disjunctive: “Flynn did
commit theft pursuant to one scheme or course of conduct by obtaining or
exercising unauthorized control over the property of Greentree Renewable Energy,
Inc., Guangzhou Dinson Engineering & Trading Limited, or Charmwell Holdings
Limited.”
[¶31] The record reflects that (1) Charmwell is the holding company for
Dinson; (2) Charmwell, on Dinson’s behalf, paid the $500,000 to Green Tree, to be
held as an exclusivity payment to support Dinson’s commitment to purchase the
Domtar mill; and (3) Bert Martin, on behalf of Green Tree, ultimately repaid to
Dinson the funds Flynn had misappropriated from Green Tree’s account. The theft
15
was thus from all three named victims, with Bert Martin, on behalf of Green Tree,
ultimately taking financial responsibility for the loss and becoming entitled to
restitution.
[¶32] Since 1849, our precedents have established that a defendant may be
convicted, in a single count of an indictment, of a theft from multiple victims.
Rejecting an argument that a theft from several victims could not be charged in a
single count, we held: “[I]n indictments for larcenies, where the goods of several
persons are taken at the same time, so that the transaction is the same, one count
may embrace the whole. No reason is apparent why the same rule, should not
prevail for receiving stolen goods, as for larcenies.” State v. Nelson, 29 Me. 329,
335 (1849) (citation omitted).
[¶33] One hundred and thirty years later, speaking through Justice Harry
Glassman, we comprehensively addressed this issue in State v. Myers,
407 A.2d 307 (Me. 1979). In Myers, the towns of Mapleton, Castle Hill, and
Chapman, located in Aroostook County, shared an office where the cash receipts
for the three towns were comingled and placed in a single cash box. Id. at 308-09.
The defendant was originally charged with four separate counts of theft7 for his
theft of money and receipts from the single cash box. Id.
7
The Town of Chapman was named as the victim in two counts, and Mapleton and Castle Hill were
named in one count each. State v. Myers, 407 A.2d 307, 308 (Me. 1979).
16
[¶34] The defendant moved to dismiss the indictment, alleging that the four
counts were duplicitous “and the facts of the case would reveal that all counts were
but one transaction; one event at one time.” Id. at 308. The trial court denied
Myers’s motion. Id. It then granted the State’s subsequent motion to combine the
four counts into a single count for trial. Id. Following a nonjury trial on the
combined count of theft, the defendant was convicted, and he appealed. Id.
[¶35] In affirming the conviction and the combination of the charges of
theft against three victims into a single count, we recognized “a fundamental
principle: ‘The stealing of property from different owners at the same time and at
the same place constitutes but one larceny.’” Id. at 309 (quoting 2 Wharton’s
Criminal Law and Procedure § 451 (Anderson ed. 1957)).
[¶36] We then observed that the original four-count indictment
actually charged but one crime. This did not render the indictment
duplicitous as alleged in the defendant’s motion to dismiss.
“‘Duplicity’ is the joining in a single count of two or more distinct
and separate offenses. ‘Multiplicity’ is the charging of a single
offense in several counts.” The indictment in the instant case suffered
from multiplicity. The presiding Justice was correct in not granting
the defendant’s motion to dismiss not only because the defect did not
appear on the face of the indictment but also because dismissal is not
the appropriate remedy for multiplicity.[8]
Id. (citation omitted) (quoting 1 C. Wright, Federal Practice and Procedure § 142
(1969)).
8
For an example of a case when we ordered convictions on multiple theft counts aggregated into a
single count without referencing the term “multiplicity,” see State v. Fournier, 617 A.2d 998, 999-1000
(Me. 1992).
17
[¶37] Accordingly, we affirmed the combination of four theft counts,
naming three different victims, into a single count. Id. at 310. In another context,
we have approved aggregating thefts from different sources into a single count of
an indictment, pursuant to 17-A M.R.S. § 352(5)(E) (2014), to enhance the value
of goods stolen as part of a common scheme or plan. State v. Lavigne,
588 A.2d 741, 742-43 (Me. 1991).
[¶38] Myers establishes that the indictment here was not duplicitous and
was properly charged, naming the three entities with an interest in the single sum
of money in a single count. Further, contrary to Flynn’s contentions, it was not
necessary for the court to inquire of the jury as to which named victim it found
owned the funds. Not only did Flynn fail to request such an inquiry, but even if
she had, such inquiry would not appear appropriate in light of the precedent
discussed above.9
[¶39] The State was not required to prove a single theory of the case.
See State v. St. Pierre, 1997 ME 107, ¶¶ 5-7, 693 A.2d 1137. To prove that the
money was the property of another pursuant to 17-A M.R.S. § 352(4), the State
was only required to prove that the money was “property in which any person or
government other than the actor has an interest that the actor is not privileged to
9
We do not decide whether some special circumstances in a different case might warrant inquiry into
the jury’s specific findings. Here, there is no question that such inquiry was not warranted. Cf. State v.
Stratton, 591 A.2d 246, 246-47 (Me. 1991).
18
infringe, regardless of the fact that the actor also has an interest in the property,”
which the State proved here.
The entry is:
Judgment affirmed.
On the briefs:
Thomas F. Hallett, Esq., Hallett, Zerillo & Whipple, P.A., Portland, for
appellant Jody B. Flynn
Janet T. Mills, Attorney General, and Leanne Robbin, Asst. Atty. Gen.,
Office of the Attorney General, Augusta, for appellee State of Maine
At oral argument:
Thomas F. Hallett, Esq., for appellant Jody B. Flynn
Leanne Robbin, Asst. Atty. Gen., for appellee State of Maine
Cumberland County Unified Criminal Docket docket number CR-2012-925
FOR CLERK REFERENCE ONLY