State v. Thistle

312 A.3d 1273

2024 ME 6

STATE of Maine

v.Dale F. THISTLE

Docket: Pen-22-225

Supreme Judicial Court of Maine.

Argued: October 4, 2023

Decided: January 25, 2024

Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant Dale F. Thistle

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

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

JABAR, J.

[¶1] Dale Thistle appeals from a judgment of conviction of theft by misapplication of property (Class B), 17-A M.R.S. § 358(1)(A), (B)(1) (2023), entered by the trial court (Penobscot County, Anderson, J.) after a jury trial. Thistle argues that we must vacate his conviction because (1) the trial court erred by not granting his motion for acquittal when the evidence established a statute of limitations defense; (2) the trial court erred in its instructions to the jury on the Maine Rules of Professional Conduct; (3) the State committed prosecutorial error; and (4) the evidence was insufficient to convict him. We affirm Thistle’s conviction.

I. BACKGROUND

[¶2] "When [the evidence is] viewed in the light most favorable to the State, the jury could have rationally found the following facts." State v. Fay, 2015 ME 160, ¶ 2, 130 A.3d 364. Dale Thistle was an attorney in Newport. As part of his practice, he drafted a will for Gilman Friend in 2008. The will nominated Donna Friend, Gilman’s ex-wife, as the estate’s personal representative and devised a substantial portion of Gilman’s estate to her. The will devised the remainder of the estate to Gilman’s four adult children.

[¶3] In December 2010, Gilman fell at his home. Emergency responders treated Gilman for cuts and abrasions and then left Gilman at home with Donna. Donna found Gilman dead the next morning. As personal representative of Gilman’s estate, Donna hired Thistle to explore the possibility of a wrongful death suit against the emergency responders’ employer. Thistle ultimately negotiated a settlement on Donna’s behalf, and on July 2, 2012, he received a check for $390,000 payable to "Donna Friend Personal Representative of the [Estate of] Gilman Friend and Dale F. Thistle Esq." Thistle deposited the check into his IOLTA¹ (client trust) account on July 13, 2012.

[¶4] On August 2, 2012, Thistle consulted an attorney about whether the proceeds of the wrongful death settlement should go to Donna or to Gilman’s children.² The attorney advised that, under both the will and 18-A M.R.S. § 2-804 (2009), the funds were statutorily required to go to Gilman’s children, but Donna was entitled to recover her expenses in pursuing the action on behalf of the estate. From the IOLTA account, Thistle then reimbursed Donna her expenses and paid the consulting attorney. Accounting for these expenses, and the approximately $96,300 Thistle was entitled to receive as an attorney fee for the wrongful death claim, approximately $290,000 remained of the settlement funds for Gilman’s children.

[¶5] At the end of July 2012, Thistle’s IOLTA account balance was $379,703.20. By the end of November 2012, the balance was $280,703.28. And by the end of January 2013, the account balance was $249,236.59. The balance never increased after January 2013. As of March 2014, the account balance was only $21,958.62.

[¶6] Thistle made frequent withdrawals from the IOLTA account for personal expenses, such as tax delinquency payments, payments to his son and ex-wife, utility payments, home repair payments, and payments to himself. Between July 2013 and March 2014, Thistle withdrew over $300,000 from the IOLTA account, far more than the sum of Donna’s expenses, expenses of the consulting attorney, and Thistle’s attorney fees in the settlement action.

[¶7] In May 2014, a receiver appointed to close Thistle’s practice liquidated and closed the IOLTA account. When the receiver was appointed, the account contained $15,445.92—not enough to pay Gilman’s children their roughly $290,000 share of the settlement funds. Between Thistle’s receipt of the settlement funds in July 2012 and the closure of his IOLTA account, Thistle never paid Donna or Gilman’s children or notified the children that the settlement award existed. Gilman’s children learned of the settlement award only after Donna’s death in 2014. When they finally learned of the award, they contacted the Board of Overseers of the Bar.

[¶8] On September 25, 2019, the State indicted Thistle for one count of theft by misapplication of property (Class B), 17-A M.R.S. § 358(1)(A), (B)(1).³ When Thistle failed to appear in court on November 7, 2019, the court issued a warrant for his arrest. Thistle, who was then living in Quebec, Canada, was taken into custody by Canadian authorities and extradited. At his arraignment on November 22, 2019, the court asked Thistle’s attorney how long Thistle had been in Canada, to which Thistle himself responded, "Two and a half years."

[¶9] The court held a three-day jury trial on June 15-17, 2022. The State presented evidence that Thistle was aware that Gilman’s children were entitled to the settlement funds; that Donna did not wish to distribute the settlement to them despite that entitlement; that Thistle understood that professional and ethical rules prohibited him from using client funds to pay his personal expenses; and that Thistle made extensive withdrawals for personal expenses from his IOLTA account after depositing the settlement funds. Thistle’s attorney advanced two arguments in defense: first, that a head injury prevented him from forming the requisite state of mind for theft by misapplication of property, and second, that the State failed to produce sufficient evidence to satisfy the elements of the crime charged because Thistle did not owe a known legal obligation to Gilman’s children to distribute the settlement funds. On the second day of trial, Thistle moved for a judgment of acquittal, and the trial court denied the motion.

[¶10] In its closing argument, the State argued that Thistle’s attorney had made "evidence-free assertions" regarding Donna’s role in the crime, as there was no evidence that Donna had prevented Thistle from distributing the settlement funds to Gilman’s children, and incorrectly characterized Thistle’s closing argument as suggesting that Donna had been Thistle’s accomplice to the theft.

[¶11] Following closing arguments, the trial court instructed the jury on Maine Rules of Professional Conduct 1.15(a), (d), and (e), which govern a lawyer’s handling of client funds.⁴ The court further instructed the jury on the State’s burden of proof, Thistle’s lack of burden, that closing arguments are not evidence, and that it was for the jury to determine what the evidence in the case was and what it demonstrated. On June 17, 2022, the jury returned a verdict finding Thistle guilty of theft by misapplication of property. See 17-A M.R.S. § 358(1)(A), (B)(1). The court later sentenced Thistle to a term of imprisonment of six years, with all but two years suspended, followed by three years of probation. Thistle timely appealed. M.R. App. P. 2B(b).

II. DISCUSSION

[¶12] Thistle argues that the trial court erred by denying his motion for a judgment of acquittal because the evidence established a statute of limitations defense, the State committed prosecutorial error warranting vacatur, and the evidence was insufficient to convict him.⁵

A. Statute of Limitations

[¶13] Thistle argues that the trial court erred when it denied his motion for a judgment of acquittal at the end of the State’s case-in-chief because there was sufficient evidence in the record to generate a statute of limitations defense that the State did not disprove beyond a reasonable doubt. The State responds that Thistle waived that defense by raising it for the first time on appeal, having never explicitly asserted it at trial.

[¶14] Title 17-A M.R.S. § 8(1) (2023) provides that "[i]t is a defense that prosecution was commenced after the expiration of the applicable period of limitations.’’ The limitations period to prosecute a Class B crime is six years. Id. § 8(2). The statutory period is tolled, however, if "the accused is absent from the State," and the tolled period does not extend the limitations period by more than five years. Id. § 8(3)(A).

[1] [¶15] Although the State generally has the burden to disprove a statutory defense that is generated by the evidence, 17-A M.R.S. § 101(1) (2023); State v. Lacourse, 2017 ME 75, ¶ 11, 159 A.3d 847, we conclude that in the unique facts presented by this case, Thistle waived the statute of limitations defense he raises on appeal. The State filed the indictment on September 5, 2019, and alleged that Thistle committed the offense on July 13, 2012, seven years prior.⁶ As discussed above, Thistle admitted—on the record—during pretrial proceedings that, prior to being extradited in 2019 when the State filed the indictment, he had been in Canada for two and a half years—a period sufficient to toll the limitations period such that it expired after the date of the indictment. 17-A M.R.S. § 8(3)(A).

[¶16] Having admitted in front of the State and the trial judge to facts that tolled the limitations period, Thistle cannot now be heard to complain that the State failed to present sufficient evidence to prove beyond a reasonable doubt on this issue to the jury. The conduct of the parties following his admission, including the State’s decision not to present evidence of tolling and Thistle’s decision not to renew his motion for a judgment of acquittal or request a jury instruction on the statute of limitations defense, demonstrates that the parties effectively treated this defense as waived. Under these narrow circumstances, we deem the defense waived and affirm the trial court’s denial of Thistle’s motion for judgment of acquittal.

B. Improper Prosecutorial Argument

[2–5] [¶17] Thistle contends that the State erred during its...