MAINE SUPREME JUDICIAL COURT                                                  Reporter of Decisions
Decision: 2020 ME 49
Docket:   Pen-19-185
Argued:   March 5, 2020
Decided:  April 16, 2020

Panel:       GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.*



                                      STATE OF MAINE

                                                v.

                                  ROBERT K. LINDELL JR.


JABAR, J.

         [¶1] Robert K. Lindell Jr. appeals from a judgment of conviction of theft

by unauthorized taking, theft by deception, securities violations, tax evasion,

and failure to pay state income tax entered by the trial court (Penobscot County,

Anderson, J.) following a jury trial. Lindell contends that the court abused its

discretion by admitting in evidence certain checks with their memo lines

unredacted and a manual of employment procedures. He also contends that the

court erred by declining to instruct the jury on the definition of the word

“conduct,” by declining to instruct the jury on methods for calculating income

taxes, and by failing to provide the jury with relevant statutes. Finally, Lindell



   * Although Chief Justice Saufley participated in the appeal, she resigned before this opinion was
certified.
2

argues that the court erred by admitting evidence regarding conduct that

occurred while Lindell was allegedly in California. We affirm the judgment.

                                            I. BACKGROUND

           [¶2] Viewing the evidence in the light most favorable to the State, the

jury could have found the following facts beyond a reasonable doubt. See State

v. Nobles, 2018 ME 26, ¶ 2, 179 A.3d 910. Lindell was licensed in Maine as a

securities broker-dealer agent from approximately 1997 to 2017. As part of his

business, he arranged for his clients to purchase investments through affiliated

broker-dealers. Between 2010 and 2017, he conducted his business under the

auspices of a Maine limited liability company (LLC), RK Lindell & Co., LLC,

affiliating himself with Revere Securities, LLC.

           [¶3] Lindell met his first victim (Victim 1) in 1997, while soliciting clients

in the Belfast area. Victim 1 was a seventy-seven-year-old widow. The two

developed a business relationship, and by the early 2000s Lindell was meeting

weekly with Victim 1 at her home to discuss her finances. In 2004, Victim 1

executed a power of attorney (POA), appointing Lindell and a close family

friend of the victim as agents. At the same time, Victim 1 established a trust

(2004 Trust) to provide for her adult son.1 The family friend was never made


    1   Victim 1’s son is a disabled veteran, unable to live on his own or manage his own financial affairs.
                                                                                 3

aware of either the POA or the 2004 Trust. Victim 1 executed a will in 2005,

appointing the family friend and Lindell as co-personal representatives.

Neither the family friend nor Lindell was a devisee named in the will.

A.    Thefts During Victim 1’s Lifetime

      [¶4] Beginning in 2010, Victim 1 wrote thirty-one checks, all payable to

Lindell’s company, for the purpose of purchasing various securities. These

checks listed the name of the security in the memo line and the checks totaled

approximately $595,000. Lindell deposited the checks into his business bank

account, but did not use them to purchase the securities. In eleven instances,

he used other funds from Victim 1’s brokerage account, totaling $298,000, to

buy the securities. In twenty of the thirty-one instances, Lindell did not buy the

securities at all. In early 2012, Victim 1’s health began to decline, such that she

could no longer physically write checks. Lindell used the POA given to him by

Victim 1 to write checks totaling $67,850 to himself or his business from

Victim 1’s personal checking account.

B.    Thefts from the Estate of Victim 1

      [¶5] Victim 1 died in June 2012. Her estate was valued at nearly

$6.7 million, and the estate account was set up at a Maine bank. Her will set

forth a testamentary plan by which one-third of her estate was to be placed in
4

a second trust for her son’s benefit (Supplemental Trust). Among Victim 1’s

assets that passed outside of probate were an annuity (the Midland Annuity)

and a life insurance policy (the Hartford Policy), together worth more than

$1.1 million. These two policies each named the 2004 Trust as the beneficiary.

         [¶6] In his capacity as personal representative of the estate, Lindell

wrote checks totaling more than $500,000 to himself and to his business. He

also transferred approximately $268,000 from the estate to the 2004 Trust.

C.       Thefts from the 2004 Trust

         [¶7] Shortly after Victim 1 died, Lindell opened three bank accounts in

the name of the 2004 Trust, including two at branches located in Maine. Lindell

transferred into these accounts approximately $275,000 from the Hartford

Policy, approximately $823,000 from the Midland Annuity,2 and approximately

$167,000 from liquidated securities once held in the son’s name. In total,

Lindell directed more than $1.7 million to accounts held by the 2004 Trust,

accounts over which he had sole control. Between 2012 and 2017, Lindell spent

almost all of these funds. The bulk of the money, more than $900,000 total, was


     When Midland declined to forward the funds as Lindell requested, citing a conflict of interest on
     2

Lindell’s part, Lindell prepared paperwork showing that he had stepped down as trustee of the 2004
Trust, installing the family friend in his stead. He directed the family friend to have Midland release
the funds to him, which she did, believing that the money would go to the Supplemental Trust (she
had no knowledge of the 2004 Trust). Lindell then deposited the money in a bank account opened in
the name of the 2004 Trust.
                                                                                                    5

used to purchase and renovate a home in California for his family.3 The rest

was largely used to pay Lindell’s credit card bills and other personal expenses.

D.       Thefts from Victim 2

         [¶8] Lindell also managed the finances for a second woman (Victim 2),

who was a longtime family friend of Lindell. Lindell managed several Maine

bank accounts held in the name of a trust (GLQD Trust). Victim 2, who lived in

France, was the beneficiary of the trust, and had very limited control and

oversight of the accounts.             Between 2010 and 2017, without Victim 2’s

knowledge or permission, Lindell used more than $300,000 from GLQD Trust

bank accounts to pay personal expenses, to pay his company, and to fund

Victim 1’s 2004 Trust.4 In total, Lindell misappropriated more than $3.5 million

from his two victims.




     Lindell spent much of his time from 2014 on in California, living with his family at this home.
     3

Lindell used the property as collateral to obtain a loan of $450,000, much of which he also spent on
credit card bills, or simply withdrew as cash.

     Lindell did not report as income any of the funds from the Estate of Victim 1, the 2004 Trust, or
     4

the GLQD Trust that were expended for his personal benefit for tax years 2011-2015. The State
argued at trial that these funds should all have properly been characterized as gross income, upon
which state income tax should have been paid. The State offered testimony that, in each of those five
tax years, Lindell had knowingly evaded paying more than $2,000 in Maine income tax, forming the
basis for Counts 6-10 of the indictment.
6

E.    Procedure

      [¶9] Lindell was indicted by a grand jury on March 1, 2017, and charged

with one count of theft by unauthorized taking (Class B), 17-A M.R.S. § 353

(2018), and one count of knowing or intentional securities violation (Class C),

32 M.R.S. § 16508 (2018). Two superseding indictments were returned on

July 26, 2017, and April 25, 2018, adding an additional count of theft by

unauthorized taking (Class B), two counts of theft by deception (Class C),

17-A M.R.S. § 354 (2018), five counts of intentional evasion of income tax

(Class C), 36 M.R.S. § 184-A (2018), and five counts of failure to pay Maine state

income tax (Class D), 36 M.R.S. § 5332(1)(A) (2018). Lindell pleaded not guilty

to all counts.

      [¶10] On October 23, 2018, Lindell moved in limine for the court to

exclude from evidence the memo lines on the checks that Victim 1 wrote to him,

arguing that they were inadmissible hearsay. He also argued that all evidence

of his use and control of money located in Maine that occurred after he moved

to California was outside the jurisdiction of the court, and thus inadmissible,

either to prove a theft or for any other reason. The court denied Lindell’s

motion as to the hearsay issue and held that Lindell’s conduct while in

California was admissible to show “intent, state of mind, scheme, and plan.” The
                                                                                                   7

court deferred its ruling regarding whether Lindell’s California conduct was

admissible as substantive evidence of theft, but ultimately declined to give such

a limiting instruction to the jury.

       [¶11] Following a seven-day trial in October and November 2018, the

jury found Lindell guilty on all counts. The court entered a judgment of

conviction and sentenced Lindell to seventeen years’ imprisonment with all but

ten years suspended, and three years’ probation.5 Lindell timely appealed the

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

                                        II. DISCUSSION

       [¶12] Lindell argues on appeal that the trial court erred or abused its

discretion in several ways.            First, he contends that the court abused its

discretion by admitting in evidence a manual of employee procedures

published by Revere and certain checks with their memo lines unredacted.

Second, he argues that the trial court erred by declining to instruct the jury on

the definition of the word “conduct,” by declining to instruct the jury on

methods for calculating income taxes, and by failing to provide the jury with




   5 The Sentencing Review Panel rejected Lindell’s application for leave to appeal his sentence. See
M.R. App. P. 20; State v. Lindell, No. SRP-19-307 (Me. Sent. Rev. Panel Sept. 5, 2019).
8

relevant statutes. Finally, he contends that the court erred by admitting

evidence of his conduct that occurred while Lindell was allegedly in California.

A.    Admission of Check Memos in Evidence

      [¶13] Lindell contends that the trial court abused its discretion by

admitting in evidence checks issued by Victim 1 to Lindell without redacting

information contained on the memo lines of the checks. Lindell argues that the

memo lines contained inadmissible hearsay. See M.R. Evid. 802. “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. Fox, 2017 ME 52, ¶ 29, 157 A.3d 778 (quotation marks omitted). “The

trial court has broad discretion in determining the admissibility of evidence

. . . .” Id. (quotation marks omitted).

      [¶14] Contrary to Lindell’s arguments, the words in the check memos

had independent significance as terms of an agreement or contract between

Victim 1 and Lindell to purchase securities and as evidence of Lindell’s

knowledge of those terms, and thus were offered for a purpose other than the

truth of the matter asserted. See M.R. Evid. 801(c)(2). Lindell concedes that the

checks themselves are not hearsay, as they are documents of independent legal
                                                                                                    9

significance.6      See Williams v. United States, 458 U.S. 279, 284 (1982)

(“[T]echnically speaking, a check is not a factual assertion at all, and therefore

cannot be characterized as ‘true’ or ‘false.’”); M.R. Evid. 801. Lindell fails to

explain how information contained in the memos is conceptually distinct from

the other information contained in the check—amount to be drawn, payor,

payee, financial institution—that he concedes has independent legal

significance.

       [¶15] When the court denied the motion, holding that the check memos

were subject to different interpretations and thus proper considerations for the

jury, Lindell did not request that the court deliver a limiting instruction to the

jury, which might have restricted their consideration to purposes other than

the truth of the matter asserted. See, e.g., State v. Nason, 383 A.2d 35, 37

(Me. 1978) (noting that trial courts may issue contemporaneous instructions to

the jury limiting the purposes for which specific evidence may be considered).

Given the paucity of case law on the subject, the varied purposes for which the

evidence might have been considered, and the broad discretion of the trial

court in evidentiary matters, Fox, 2017 ME 52, ¶ 29, 157 A.3d 778, the court did


   6 Even if the check memos were deemed hearsay, they could have been admitted as evidence of
the checkwriter’s intent or plan for the use of the funds transferred by means of the checks. See M.R.
Evid. 803(3).
10

not abuse its discretion in admitting the checks in unredacted form without a

limiting instruction.

B.         Employee Procedure Manuals

           [¶16] Lindell also argues that the trial court abused its discretion by

admitting in evidence copies of procedural manuals produced by Revere for its

contractors and signed by Lindell, which contained procedures that arguably

prohibited the conduct that gave rise to Count 3 of the indictment, a knowing

or intentional securities violation. Lindell objected to their admission at trial,

arguing that they were inadmissible propensity evidence and likely to mislead

the jury, but the trial court overruled the objection and admitted the manuals,

accompanied by a limiting instruction.7 Lindell did not object to the language

of the instruction, and therefore we review the instruction for obvious error.

State v. Pratt, 2015 ME 167, ¶ 18, 130 A.3d 381. The court’s instruction

correctly stated the law and relevant procedural posture in a thorough and



     7   The trial court instructed the jury as follows regarding the purpose of admitting the manuals:

           Now, I want to make sure that you understand as jurors that it is not a criminal
           violation or against the law per se to violate some employment procedure. . . . And
           there’s no charge in the indictment that says he violated this procedure; therefore,
           that’s a crime. That’s not at play here. However, I am admitting the exhibit for
           whatever consideration you want to give it in deciding the issues that you do have to
           decide, which are the charges in the indictment itself. So I just want to make sure you
           understand . . . a violation of an employment procedure is not a crime. It’s not charged.
           That’s not why this is being admitted. But it is generally for your consideration.
                                                                              11

clear manner. The record does not reveal any error in the instruction, obvious

or otherwise. See id. Nor does the record demonstrate that the court abused

its discretion in admitting the manuals for limited purposes, given the court’s

broad discretion, Fox, 2017 ME 52, ¶ 29, 157 A.3d 778, and the obvious

relevance of the evidence. See M.R. Evid. 401, 402.

C.    Jury Instructions

      [¶17] Lindell contends that the trial court erred by not instructing the

jury on the definition of the word “conduct” and by declining to provide the jury

with certain statutes related to the calculation of income tax. “We review jury

instructions as a whole for prejudicial error, and to ensure that they informed

the jury correctly and fairly in all necessary respects of the governing law.”

State v. Hofland, 2012 ME 129, ¶ 18, 58 A.3d 1023 (quotation marks omitted).

“When the claimed error is the omission of a particular instruction, we will

vacate the judgment only if the record contains evidence that could rationally

lead to a contrary finding with respect to the omitted element.” Id. (alteration

omitted) (quotation marks omitted). We have previously applied a five-part

test to review denied requests for jury instructions:

      We will vacate a judgment based on a denied request for a jury
      instruction if the appellant demonstrates that the requested
      instruction (1) stated the law correctly; (2) was generated by the
      evidence; (3) was not misleading or confusing; and (4) was not
12

           sufficiently covered in the instructions the court gave. In addition,
           the court's refusal to give the requested instruction must have been
           prejudicial to the requesting party.

State v. Hanaman, 2012 ME 40, ¶ 16, 38 A.3d 1278 (citation omitted).

           1.      Lindell’s Definition of “Conduct”

           [¶18] First, Lindell argues that the court erred by declining to instruct

the jury on his proffered definition of the word “conduct,” which, in turn, he

argues was relevant for determining whether the court had proper

jurisdiction.8 With regard to the preamble to the court’s count-by-count

instructions, Lindell asked that the court instruct the jury that “conduct” means

“voluntary bodily movement,” analogous to “act,” as defined in 17-A M.R.S.

§ 2(1) (2018). The court declined to so instruct the jury, concluding that the

two words did not share a common definition. Instead, the court instructed as

follows: “Concerning all of these offenses, a person may be convicted under the

laws of this State for any crime committed by the person’s own conduct when

the State proves beyond a reasonable doubt that the conduct that is an element

of the offense occurs within this State.”

           [¶19] Lindell has failed to demonstrate that his requested instruction

was an accurate statement of the law, was not misleading, and was not covered


     8   See infra ¶¶ 23-25.
                                                                                 13

by the court’s given instructions. Hanaman, 2012 ME 40, ¶ 16, 38 A.3d 1278.

“Conduct” is not defined in the Maine criminal code, see generally 17-A M.R.S.

§ 2, and Lindell failed to cite any law or other type of authority in support of his

position. Without any authority supporting his claim that “conduct” was a term

of art, the jury was entitled to interpret the word within its common meaning.

State v. Hall, 2019 ME 126, ¶ 28, 214 A.3d 19 (“[W]hen a term is not defined in

a statute, a jury can generally determine the meaning of the term by common

sense.”) He has not shown that the narrow definition he proposed was an

accurate statement of the law (prong one) or was not misleading (prong three).

Further, his proposed definition could reasonably be encompassed in the jury’s

commonsense interpretation (prong four). See, e.g., id.; Conduct, Black’s Law

Dictionary (11th ed. 2019). Thus, the court did not err by declining to instruct

the jury as to Lindell’s proposed definition of “conduct.”

      2.    Section 5111 and Tax Calculation

      [¶20] Next, Lindell argues that the court erred by declining to (1) instruct

the jury on how to calculate income tax or (2) provide statutes relevant to such

calculations. Counts six through ten of the indictment allege that Lindell “did

intentionally attempt to defeat or evade the Maine Income Tax law imposed by

36 M.R.S.A § 5111 . . . by underreporting his income and/or gross receipts,
14

thereby reducing his taxable income” and that the amount evaded was more

than $2,000.    Lindell contends that, without the tax tables contained in

36 M.R.S.A § 5111 (2018), the jury could not have determined beyond a

reasonable doubt the amount of tax evaded in each tax year. The trial court

declined to provide the jury with a copy of section 5111.

      [¶21] Contrary to Lindell’s contention, the trial court did not err by

declining to provide the jury with the text of 36 M.R.S. § 5111. Although such

an instruction accompanied by the statutory text would have reflected an

accurate statement of the law and was properly generated by evidence

presented at trial, Lindell fails to demonstrate that he was prejudiced by the

court’s decision or that the law was not sufficiently incorporated by the court’s

given instructions. Hanaman, 2012 ME 40, ¶ 16, 38 A.3d 1278.

      [¶22] The court instructed the jury on the general framework of the

Maine income tax and its method of calculation. The State presented evidence

from a securities investigator and expert in state and federal taxation on the

particulars of Lindell’s finances, and the court admitted in evidence Lindell’s tax

returns and documentation of the money that allegedly went unreported. The

State offered testimony that demonstrated that the calculation of income tax

liability involves more than merely applying a tax rate to a gross income figure.
                                                                             15

Providing the jury with the text of the statute would have been an incomplete

statement of the law governing income taxation. See State v. Martin, 2007 ME

23, ¶ 6, 916 A.2d 961 (“A trial court has wide discretion in formulating its

instructions to the jury so long as it accurately and coherently reflects the

applicable law.” (quotation marks omitted)).        Thus, Lindell has failed to

demonstrate that the court erred in declining to instruct the jury in the manner

requested. Hanaman, 2012 ME 40, ¶ 16, 38 A.3d 1278; see also State v. Knox,

2003 ME 39, ¶ 9, 819 A.2d 1011 (holding that we “look at the charge as a whole

in determining whether a particular instruction” was prejudicial error).

D.    Territorial Applicability

      [¶23] Lindell argues that the trial court did not have jurisdiction to

consider conduct in which he allegedly engaged while in California and

therefore erred by admitting evidence of that conduct related to the theft and

tax evasion charges. He contends that, because conviction of a crime in a Maine

state court requires that the conduct that is an element of the crime occur in

Maine, and he did not engage in any “conduct” in Maine with regard to certain

counts, he cannot be convicted on those particular counts as a matter of law.

He raised this defense with regard to Counts 1 and 2 (theft by unauthorized

taking), and Counts 8, 9, and 10 (intentional evasion of tax).
16

      [¶24] Criminal convictions in Maine state courts are limited, in part, by a

statutory territorial applicability provision, 17-A M.R.S. § 7 (2018).      This

provision states, “[A] person may be convicted under the laws of this State for

any crime committed by the person’s own conduct . . . only if . . . the conduct

that is an element of the crime or the result that is such an element occurs

within this State.” 17-A M.R.S. §§ 7(1); see State v. Collin, 1997 ME 6, ¶ 9, 687

A.2d 962. Theft by unauthorized taking or transfer has three elements: the

person (1) obtains or exercises unauthorized control; (2) over the property of

another; (3) with intent to deprive the other person of the property. 17-A M.R.S.

§ 353(1)(A); State v. Nelson, 1998 ME 183, ¶ 5, 714 A.2d 832. Intentional

evasion of tax is prohibited by 36 M.R.S. § 184-A, and occurs when “[a] person

. . . intentionally attempts in any manner to evade or defeat any tax.”

      [¶25] Lindell is legally accountable for his conduct if “[e]ither the

conduct that is an element of the crime or the result that is such an element

occurs within this State or has a territorial relationship to this State.”

17-A M.R.S. § 7(1)(A). With regard to the theft charges and the tax evasion

charges, the evidence establishes that Lindell engaged in conduct that

constituted an element of the crime, and that conduct occurred in Maine, or the

result of the conduct that was an element of the crime occurred in Maine or had
                                                                            17

a territorial relationship with Maine. Lindell misappropriated money from

Maine bank accounts while acting as trustee of a trust established under Maine

law and while acting as the co-personal representative of an estate submitted

for probate under Maine law. Lindell transmitted falsified tax returns to the

Maine Revenue Service, located in Maine, evading income tax that he was

legally required to pay in the State of Maine. The trial court did not err in

concluding that Lindell’s conduct satisfied the territorial applicability

requirement of Maine law.

                              III. CONCLUSION

      [¶26]    Because Lindell’s arguments regarding the jurisdictional

provisions of the Maine Criminal Code are unpersuasive, because the trial court

did not commit prejudicial error with regard to any of the challenged jury

instructions, and because it did not abuse its discretion in admitting the

manuals or unredacted checks in evidence, we affirm the judgment.

      The entry is:

                  Judgment affirmed.
18

Marina L. Sideris, Esq. (orally), Camden, for appellant Robert K. Lindell Jr.

Aaron M. Frey, Attorney General, and Gregg D. Bernstein, Asst. Atty. Gen.
(orally), Office of the Maine Attorney General, Augusta, for appellee State of
Maine


Penobscot County Unified Criminal Docket docket number CR-2017-707
FOR CLERK REFERENCE ONLY
