State of Maine v. Jody B. Flynn

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2026 ME 54
Docket: Cum-25-217
Argued: December 10, 2025
Decided: June 9, 2026

Panel: STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, and DOUGLAS, JJ.

STATE OF MAINE

v.

JODY B. FLYNN

CONNORS, J.

[¶1] Jody B. Flynn appeals from a judgment of conviction of theft by

deception (Class B), 17-A M.R.S. § 354(1)(B)(1) (2026), and intentional or

knowing securities fraud (Class C), 32 M.R.S. § 16501(2) (2026); 32 M.R.S.

§ 16508(1) (2013),1 entered by the trial court (Cumberland County, McKeon, J.)

after a combined bench trial on the charge of securities fraud and jury trial on

the charge of theft. Flynn contends that the evidence was insufficient to support

her convictions and that the court erred or abused its discretion by admitting

hearsay evidence and conditionally admitting Flynn’s prior indictment. We

affirm.

1 Section 16508(1) was amended during the course of criminal conduct, but the amendment does

not affect this appeal. See P.L. 2013, ch. 39, § 2 (effective October 9, 2013) (codified at 32 M.R.S.
§ 16508(1) (2026)).
2

I. BACKGROUND

A. Factual Background

[¶2] Viewing the evidence admitted at trial in the light most favorable to

the verdicts, the factfinders could have found the following beyond a

reasonable doubt. See State v. Quirion, 2025 ME 75, ¶ 2, 340 A.3d 662; State v.

Pelletier, 2023 ME 74, ¶ 2, 306 A.3d 614.

[¶3] Flynn created an entity named Icy Gulch Resources, LLC and raised

money from five investors who invested in Icy Gulch in the form of subscription

agreements and short-term loans, which are securities under Maine law. See

32 M.R.S. § 16102(28) (2026). She communicated false or misleading

information to the investors and omitted material information in order to

convince them to invest initially and to continue to invest.

[¶4] For example, Flynn told the investors that Icy Gulch had a stake in

three different ventures, including a project purporting to control the gum

arabic2 market in Sudan, but Icy Gulch never had a stake in any of these

ventures, and Flynn had no specific plan as to how these projects would result

in a financial benefit for the Icy Gulch investors.

Gum arabic is “a water-soluble gum obtained from several acacias . . . used particularly in the
2

manufacture of adhesives, inks, confectionery, in textile finishing, and in pharmacy.” Gum Arabic,
Webster’s Third New International Dictionary of the English Language Unabridged (2002).
3

[¶5] Flynn told the investors that certain wealthy and influential

individuals were involved in Icy Gulch’s deals, although Flynn knew that these

statements were false.

[¶6] Flynn also did not use the funds from the investors for their

intended purpose, comingling investor money with personal assets and using a

significant portion of that money for her personal expenditures.3 She never

told the investors that their investments would pay for her personal expenses,

nor did she receive their permission to use the investments for this purpose.

[¶7] In total, the five investors invested $786,000 in Icy Gulch and

$936,000 among all of Flynn’s projects. Flynn deposited $913,800 of the

$936,000 into bank accounts that she owned and controlled. None of the

investors recovered their initial investments, nor did they receive any return

on their investments.

B. Procedural History

[¶8] In May 2019, the State charged Flynn with one count of theft by

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

3 For example, Flynn spent investment funds at Cinemagic, the Common App for college
applications, dental providers, DirecTV, Duckfat, Hannaford, Home Goods, Nordstrom’s, Oasis Nails
& Spa, the Paint Pot, the Palms in Turks & Caicos, Portland Mattress Makers, Pottery Barn, Prime
Motor Cars, Saks Fifth Avenue Boston, Siano’s Pizza, the South Portland Veterinary Hospital, Suntan
City, Time Warner Cable, Whole Foods, and Yarmouth Auto Care.
4

intentional securities fraud (Class C), 32 M.R.S. §§ 16501, 16508(1). On the first

day of trial, October 28, 2024, Flynn waived her right to a jury with respect to

the securities fraud count, retaining the theft by deception count to be decided

by the jury.

1. Use of Flynn’s 2012 Indictment

[¶9] In February 2012, in a separate action around the time that Flynn

began soliciting funds from the Icy Gulch investors, Flynn was indicted for

Class B theft by unauthorized taking or transfer, 17-A M.R.S. § 353(1)(B)(1)

(2026). State v. Flynn, 2015 ME 149, ¶ 3, 127 A.3d 1239. That charge against

Flynn was based on her failure in late 2009 and early 2010 to return a $500,000

exclusivity or good faith deposit to the would-be buyer of a paper mill for which

Flynn was essentially acting as an escrow agent. Id. ¶¶ 5-12. “Despite

acknowledging an obligation to return at least $264,604.14 to the prospective

purchasers . . . Flynn transferred most of the $500,000 exclusivity deposit . . . to

her personal accounts, including an account Flynn shared with her college-age

child and an account for her other business.” Id. ¶ 11. Flynn was ultimately

convicted in that matter on August 15, 2014, and we affirmed her conviction in

November 2015. Id. ¶¶ 16, 39.
5

[¶10] Although Flynn began soliciting funds relating to the instant

charges in October 2011, prior to the 2012 indictment, nearly all of the

transactions in this case occurred after Flynn’s 2012 indictment but before her

conviction in that matter. Flynn failed to disclose the 2012 indictment to most

of the five investors involved in the instant transactions.

[¶11] Prior to trial, the State filed a motion in limine to introduce

evidence of Flynn’s 2012 indictment, arguing that it was probative of Flynn’s

knowledge of wrongdoing with respect to the transactions in the instant case.

The trial court did not allow that indictment to be admitted as part of the State’s

case in chief. Instead, it ruled that only if Flynn testified that she had not known

that using investor money for personal expenses was problematic would the

State be permitted to question Flynn regarding the fact that she was under

indictment for using investor money for personal expenses in the prior case at

the same time that she was using investor money for personal expenses in the

instant case.

[¶12] At trial, Flynn testified but did not deny knowing that she could not

use investor money for personal expenses, and so the 2012 indictment was

never introduced to the jury.
6

2. The Evidence at Trial

[¶13] At trial, the investors testified about their communications with

Flynn and her representations inducing them to invest. Each investor testified

that the investor did not authorize Flynn to spend the invested money on her

own personal expenses.

3. Conviction, Post-Trial Motions, Sentencing, and Appeal

[¶14] The jury found Flynn guilty on the theft by deception count on

November 4, 2024. Flynn filed motions for judgment of acquittal and a new

trial, and on January 16, 2025, the court issued a decision and order denying

those motions and finding Flynn guilty on the securities fraud count. The State

filed a motion for additional findings of fact and conclusions of law regarding

the securities fraud count, see M.R.U. Crim. P. 23(c), which the court granted in

part and denied in part. In April 2025, the court sentenced Flynn to three years’

imprisonment with all but nine months suspended for theft by deception and

nine months for securities fraud, to be served concurrently, and Flynn was

released on her own recognizance pending appeal. She timely appealed from

the judgment of conviction. See M.R. App. P. 2B(b)(1).
7

II. DISCUSSION

[¶15] Flynn raises three arguments on appeal: (1) the evidence was

insufficient to support the convictions; (2) the court improperly admitted

hearsay evidence; and (3) the court deprived Flynn of her right to testify by

ruling that the State could introduce the 2012 indictment if she testified that

she had not known that using investor money for personal expenses was

problematic.4 We address the three arguments seriatim.

A. The evidence was sufficient to support the convictions.

[¶16] “When a defendant challenges the sufficiency of the evidence

supporting a conviction, we determine, viewing the evidence in the light most

favorable to the State, whether a trier of fact rationally could find beyond a

reasonable doubt every element of the offense charged.” State v. MacKenzie,

2025 ME 79, ¶ 27, 345 A.3d 8 (quotation marks omitted). We “defer to all

credibility determinations and reasonable inferences drawn by the fact-finder,

even if those inferences are contradicted by parts of the direct evidence.” State

v. Edwards, 2024 ME 55, ¶ 17, 320 A.3d 387 (quotation marks omitted).

4Flynn additionally contends that the court erred in denying her post-judgment motions for
acquittal and for a new trial, but she does not provide any legal analysis explaining why the court
erred in denying these motions. These issues are thus waived. See Mehlhorn v. Derby, 2006 ME 110,
¶ 11, 905 A.2d 290 (“An issue that is barely mentioned in a brief is in the same category as an issue
not mentioned at all.”); Alexander, Maine Appellate Practice § 404 at 242 (6th ed. 2018) (“An issue
may be viewed as waived or forfeited for lack of appellate development if it is addressed in briefing
only in a perfunctory manner that does not demonstrate some effort to articulate the argument.”).
8

1. Theft By Deception

[¶17] “A person is guilty of theft if . . . [t]he 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). When the

value of the stolen property is more than $10,000, as is the case here, theft by

deception is a Class B crime. Id. § 354(1)(B)(1).

[¶18] The evidence admitted at trial amply supported Flynn’s theft by

deception conviction. Bank statements proved that the investors sent $936,000

to Flynn and Icy Gulch to invest in various ventures. Copious emails and

testimony from the investors illustrate that Flynn deceived the investors into

believing that they were investing in these ventures through Icy Gulch, yet

Flynn knew that Icy Gulch had no stake in those ventures. Flynn provided

positive updates regarding the investments, contrary to the facts known to her.

Financial records showed that, unbeknownst to the investors, Flynn diverted

hundreds of thousands of dollars of the investor money to herself personally

rather than to the ventures.

[¶19] The gravamen of Flynn’s argument is that the evidence was

insufficient to show that she had the necessary intent to deceive. But “[t]he

finding that a defendant possessed the requisite mens rea need not be proved
9

by direct evidence; rather, the fact-finder may look to the act itself, the

attendant circumstances, and any other evidence tending to prove the

defendant’s mental state, from which evidence . . . all reasonable inferences may

be drawn.” State v. Asaad, 2020 ME 11, ¶ 9, 224 A.3d 596 (citations and

quotation marks omitted). “The weight to be given to the evidence and the

determination of witness credibility are the exclusive province of the jury.”

State v. Marden, 673 A.2d 1304, 1312 (Me. 1996). Given the evidence

presented, the jury was free to conclude that Flynn’s diversion of funds was not

simply faulty bookkeeping.

2. Securities Act Violation

[¶20] Under the Maine Uniform Securities Act, “[i]t is unlawful for a

person, in connection with the offer, sale or purchase of a security, directly or

indirectly . . . [t]o make an untrue statement of a material fact or to omit to state

a material fact necessary in order to make the statements made, in light of the

circumstances under which they were made, not misleading.” 32 M.R.S.

§ 16501(2).

[¶21] The court found that two transactions, including one involving the

Sudanese gum arabic project described above, met the elements of this crime.

As to that transaction, Flynn emailed an investor that “we” have been assigned
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the rights to harvested and unharvested gum arabic in Sudan. She asked the

investor for an investment for “our part” of the “‘get it done’ costs,” writing, “We

. . . own this one and control the now and future,” although she knew that the

money was going to go to different purposes, including her personal expenses.

When the investor then wired a short-term loan of $20,000 to Icy Gulch to

invest in the pre-operating and development costs of the gum arabic project as

Flynn had represented it, Flynn did not use this $20,000 to develop the gum

arabic project. Instead, she used most of the $20,000 to pay her personal

expenses.

[¶22] As the court noted, had Flynn disclosed that the money was going

to be used to cover business and personal expenses incurred by her

involvement in the transactions ultimately “to bring some reward to the

investors, her use of the money [might] have been appropriate.” But she “did

not disclose that and she misled the investors to believe that their money was

to fund the projects. That is the type of disclosure compelled by § 16501. The

Legislature intended to impose a duty on the sellers of security not to mislead

their buyers by omitting facts necessary to make the statements that they make

not misleading.” The court’s interpretation of the statute is not challenged, and

its factfinding is supported by the evidence.
11

B. Flynn’s hearsay argument was waived, and she failed to identify any
improperly admitted hearsay evidence.

[¶23] We “review a trial court’s ruling to admit or exclude alleged

hearsay evidence for an abuse of discretion, and will find an abuse of discretion

if a party can demonstrate that the trial court exceeded the bounds of the

reasonable choices available to it.” State v. Lindell, 2020 ME 49, ¶ 13, 229 A.3d

791 (quotation marks omitted).

[¶24] In her principal brief, Flynn observes that she made “dozens” of

objections to evidence that was admitted over those objections. She fails,

however, to identify a single example of an improperly admitted piece of

hearsay evidence, stating that these “are too numerous to replicate in this

brief,” and “invit[ing] the court to review the record.”

[¶25] To adequately develop an argument on appeal, “[i]t is not enough

merely to mention a possible argument in the most skeletal way, leaving the

court to do counsel’s work, create the ossature for the argument, and put flesh

on its bones.” See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). The

only citation of any specific piece of evidence as to which Flynn complains was

improperly admitted is first identified in her reply brief. A reply brief comes

too late, however, to avoid waiver of an argument. See State v. Smith, 2024 ME

56, ¶ 20 n.6, 320 A.3d 405 (arguments not made in the principal brief are
12

waived); United States v. Freitas, 904 F.3d 11, 22 (1st Cir. 2018) (“[A]s a general

rule, one cannot use a reply brief to develop an argument cursorily made in an

opening brief.”).

[¶26] As provided in M.R. App. P. 7A(c), “Any reply brief filed by the

appellant must be strictly confined to replying to new facts asserted or

arguments raised in the brief of the appellee.” Among other things, failing to

adequately identify and develop an argument in an appellant’s principal brief

deprives the appellee of its ability to address the argument. See EIMSKIP v. Atl.

Fish Mkt., Inc., 417 F.3d 72, 78 (1st Cir. 2005). When Flynn alluded to rampant

improper use of hearsay evidence in her opening brief without identifying any

specific instance, this left the State in its brief only able to explain generally why

the evidence admitted over a six-day trial was admissible, and rendered it

unable to defend the admissibility of any of the specific pieces of evidence that

Flynn identified in her reply brief. We therefore rule that Flynn’s hearsay

argument was waived.

[¶27] We nonetheless note that Flynn’s argument lacks merit. Hearsay

“means a statement that (1) [t]he declarant does not make while testifying at

the current trial or hearing; and (2) [a] party offers in evidence to prove the

truth of the matter asserted in the statement.” M.R. Evid. 801(c). In her reply
13

brief, Flynn cites evidence such as testimony by the investors as to what Flynn

had told them and emails from Flynn to the investors. Flynn’s statements are

admissible pursuant to M.R. Evid. 801(d)(2)(A) as an opposing party’s

statements and, as the court explained repeatedly at trial and as the jury was

repeatedly instructed, the communications included in the exhibits were not

hearsay because the evidence was not being offered for the truth of the matter.

See Flynn, 2015 ME 149, ¶ 22, 127 A.3d 1239 (“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).”); United States v. McDonnel, 550 F.2d 1010, 1012 (5th Cir. 1977)

(“Appellant misses the point. The government introduced the statements not

to prove the truth of the matter asserted. On the contrary, the point was to

prove that the statements were made so as to establish a foundation for later

showing, through other admissible evidence, that they were false. The hearsay

rule does not apply.”); Merritt, Trial Handbook for Maine Lawyers § 28:2 (2026

ed.) (“[O]ut-of-court statements which are not hearsay are those which would

be hearsay if offered to prove that the statement is true but are admissible

because they are offered to prove something else.”).
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C. The court did not abuse its discretion regarding the conditional use
of the 2012 indictment.

[¶28] Flynn asserts that the court violated Rule 404(b) of the Maine

Rules of Evidence by allowing the State to introduce evidence of Flynn’s prior

indictment at the jury trial if Flynn first testified that she did not know that her

behavior was wrong, and that by so ruling, the court deprived Flynn of the

ability to defend herself.

[¶29] We review for clear error a court’s decision to admit evidence of

prior bad acts pursuant to M.R. Evid. 404(b). State v. Osborn, 2023 ME 19, ¶ 17,

290 A.3d 558. Rule 404(b) provides that “[e]vidence of a crime, wrong, or other

act is not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character.” M.R.

Evid. 404(b). Nevertheless, “evidence of prior bad acts may be admissible ‘for

any other permissible purpose, such as motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.’”

Osborn, 2023 ME 19, ¶ 17, 290 A.3d 558 (quoting State v. Pillsbury, 2017 ME 92,

¶ 22, 161 A.3d 690).

[¶30] As a threshold matter, no prior bad act evidence was admitted at

trial. The court did not err in ruling that the State could reference Flynn’s

2012 indictment under the limited circumstances it articulated because the
15

indictment was not evidence of a prior bad act but was evidence that Flynn

knew that her use of investor funds for personal expenses was wrong. Allowing

the 2012 indictment to be mentioned only if Flynn testified that she did not

know it was wrong was a proper balance of weighing the probative value of the

indictment versus unfair prejudice. See M.R. Evid. 403; Osborn, 2023 ME 19,

¶ 19, 290 A.3d 558 (stating that “[w]e review a trial court’s weighing of

probative value against the danger of unfair prejudice for an abuse of

discretion,” and concluding that prior bad act evidence in that matter was not

admissible).

[¶31] Flynn complains that the ruling hamstrung her from testifying that

her actions were innocent.5 But nothing prevented Flynn from attempting to

explain why she did not understand that the diversion of the funds for her

personal expenses was wrong. To the extent that Flynn is arguing that the

reference to the 2012 indictment—if it were introduced—would undermine

whatever explanation she otherwise intended to provide, “[i]t is well

5 Flynn argues:

To say that the prior indictment was “very prejudicial” is an understatement.
[Flynn’s] whole defense in this case relied on her ability to explain that, while she
engaged in poor book keeping and spent funds on personal expenditures, she did not
commit theft. The jury might or might not have accepted that explanation, but the
Court’s ruling on the devastatingly prejudicial prior indictment prevented the defense
from even attempting to explain [Flynn’s] behavior.
16

established that a criminal defendant’s right to testify does not include the right

to commit perjury.” State v. Grindle, 2008 ME 38, ¶ 17, 942 A.2d 673 (quoting

LaChance v. Erickson, 522 U.S. 262, 266 (1998)).

The entry is:

Judgment of convictions and order denying
post-trial motions affirmed.

James P. Howaniec, Esq. (orally), Lisbon, for appellant Jody Flynn

Aaron M. Frey, Attorney General, and Elizabeth T. Weyl, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee State of Maine

Cumberland County Unified Criminal Docket docket number CR-2019-2456
FOR CLERK REFERENCE ONLY