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State v. Flynn

Supreme Court of Maine

November 19, 2015

STATE OF MAINE
v.
JODY B. FLYNN

Argued: September 16, 2015

Cumberland County Unified Criminal Docket docket number CR-2012-925

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

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 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.

[¶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 Baileyville[3] 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]."

[ΒΆ7] 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 ...


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