State v. Daniel E. Doyle, Jr.

• Court: Supreme Court of Rhode Island
• Decided: July 8, 2020
• Docket: 17-312
• Status: Published

Opinion

July 8, 2020 July 8, 2020

Supreme Court

No. 2017-312-C.A. (W1/13-193A)

State :

v. :

Daniel E. Doyle, Jr. :

NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email: opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Justice Goldberg, for the Court. This case came before the Supreme Court on

January 22, 2020, on appeal by the defendant, Daniel Doyle, from a judgment of conviction

following jury verdicts of guilty on eighteen counts of financial fraud crimes under the Rhode

Island General Laws. The trial justice sentenced the defendant to a total of seven years to serve

in prison, with the balance of the eighteen concurrent sentences suspended, with probation. The

defendant timely appealed. For the reasons set forth in this opinion, we affirm the judgment of

the Superior Court.

Facts and Travel

The criminal prosecution giving rise to this appeal arose from defendant’s long-term

tenure as executive director of the Institute for International Sport (the Institute), a Rhode Island

nonprofit corporation formed in 1987. Essentially, allegations of defendant’s decades-long

abuse of power and larcenous behavior as director of the Institute eventually spawned a grand

jury investigation and these convictions.

-1- The Institute was founded in May 1987, with the laudatory goal of “expanding the

opportunities for young people around the world to participate in sports activities in order to

improve and develop their capabilities[.]” Initially, the Institute was housed in Adams Hall, a

building owned by the University of Rhode Island (URI or the University) and located on URI’s

Kingston campus. The Institute was well known for conducting the “World Scholar-Athlete

Games” every four years, from 1993 until 2011, during which young students from countries

across the world traveled to Rhode Island to participate in team-based activities, meet students

from other countries, and learn about topics such as ethics.1

The Institute’s by-laws specified that any financial commitment or other significant

decision must be approved by a vote of the Institute’s board of directors. The board also was

charged with oversight of the executive director, who—for virtually all of the Institute’s

existence—was defendant. As the trial record established, while there may have been some

semblance of corporate governance in place when the Institute was incorporated in May 1987,

over time, any pretense of legitimate corporate governance completely disappeared. The absence

of corporate governance—and the brazen manner in which defendant took advantage of the lack

of oversight—led to the criminal acts for which he was convicted.

The fact that meaningful oversight from the board of directors was, at best, de minimis

throughout the Institute’s history is mirrored in defendant’s statement that the board members

were mere “figureheads,” and in testimony at trial establishing that the purported members of the

1 Alan Hassenfeld, a former chairman and CEO of Hasbro, Inc., and one of the victims of defendant’s financial fraud, testified at trial. Mr. Hassenfeld provided detail about the World Scholar-Athlete Games. It was clear from his testimony that he became involved with the Institute because he believed in the World Scholar-Athlete Games and the vision of the Institute. Mr. Hassenfeld was offered and accepted the position of chairperson of the World Scholar- Athlete Games. Crucially, he also began using the Hassenfeld Family Foundation (the Hassenfeld Foundation)—the philanthropic group he led—to provide financial support for the Institute. -2- board of directors never held board meetings. For over two decades, defendant ran the day-to-

day affairs of the Institute, exercising rigid control over the employees and all of the Institute’s

projects. In its infancy, however, the Institute was not without some accountability. For

example, when the Institute’s office was in Adams Hall, the University required proper

documentation of the expenses that it had agreed to pay on the Institute’s behalf, with the

expectation of reimbursement. Moreover, David Florence, an accountant who prepared reports

and budgets and handled accounts payable, from roughly 1992 to 2004, also provided some

degree of fiscal control. Once Florence left the Institute in 2004, however, there was scant fiscal

control. From that point forward, employees who attempted to create order in the Institute’s

finances were either abruptly removed by defendant or resigned in frustration.

The evidence demonstrated that the offenses for which defendant eventually was

convicted arose out of his activities during this period of exiguous accountability, beginning in

the early 2000s. After several years in Adams Hall, the Institute relocated its offices to the “Hall

of Fame Building,” a recognizable campus structure located on Kingstown Road in Kingston.

One building was not enough. At some point, defendant decided that the Institute needed a

second building, which would be called the “Leadership Building.” He proceeded to solicit

funds from several sources, including—but not limited to—Alan Hassenfeld, a former chairman

and CEO of Hasbro, Inc., and Alan Shawn Feinstein, a well-known Rhode Island philanthropist.

Funds were also secured from the State of Rhode Island in 2007, in two grants from the General

Assembly’s Joint Committee on Legislative Services (JCLS), which totaled $575,000. The

evidence disclosed that these grants were sufficient to pay the cost of construction of the

Leadership Building.

-3- Although work commenced on this project, the building was never completed. Ms.

Marisa White—a hero in this saga—was the director of JCLS during that period. According to

White, she drove by URI’s campus in 2009—well after the disbursement of the grant money—

and discovered that the Leadership Building was still under construction even though it should

have long been completed. She contacted the Speaker of the House of Representatives to notify

him that the construction was not completed. In 2011, she again notified the Speaker that the

building remained unfinished. This call prompted an investigation by JCLS, which was referred

to the office of the state Auditor General, Dennis Hoyle.

The Auditor General issued a report on his findings in February 2012, and a grand jury

investigation into defendant and the Institute ensued. The grand jury investigation resulted in an

eighteen-count indictment, charging defendant with seven counts of embezzlement in violation

of G.L. 1956 § 11-41-3, one count of obtaining money under false pretenses under §§ 11-41-4

and 11-41-5, five counts of forgery in violation of G.L. 1956 § 11-17-1, and five counts of giving

false documents to an agent, employee, or public official in violation of G.L. 1956 § 11-18-1.

The defendant filed motions to dismiss the indictment, and to suppress all of the evidence

obtained as a result of the search of any place or the seizure of any thing of his or that of the

Institute.2 The trial justice denied both motions. The defendant filed a pretrial motion in limine

2 In his motion to suppress, defendant purported that:

“Specifically, the State violated the Defendant’s rights against unreasonable search and seizure by: “1. Seizing via ‘consent’ the Thumb Drive from [WITNESS #1] (containing stolen IIS documents purportedly dictated by the Defendant in 2011); “2. Seizing the attorney-client privileged documents from the IIS office computer of [WITNESS #2]; and “3. Seizing via ‘consent’ the box of stolen IIS documents from [WITNESS #3].” (Brackets in original.) -4- to exclude various pieces of evidence and the testimony of witnesses on the basis of Rules 403

and 404 of the Rhode Island Rules of Evidence. The motion in limine also was denied, and is

discussed in greater detail infra.

Trial commenced on September 19, 2016, and lasted twelve weeks, with over sixty-five

witnesses and hundreds of exhibits. On December 5, 2016, the jury returned guilty verdicts on

all eighteen counts. The defendant subsequently moved for a new trial, as well as a motion in

arrest of judgment pursuant to Rule 34 of the Superior Court Rules of Criminal Procedure.3

In a lengthy and comprehensive decision, the trial justice denied defendant’s motion for a

new trial and his motion in arrest of judgment. The trial justice thoroughly reviewed the facts of

the case and concluded that the evidence at trial established beyond any doubt that the board of

directors “was a chimerical product of the [d]efendant’s incessant and far-flung chicanery.” The

trial justice’s review of each count and the denial of the motion for a new trial as to each count

highlighted the pertinent facts established at trial. For example, as to count one, embezzlement

arising out of defendant’s unauthorized second salary from the Institute, the trial justice stated

that the testimony at trial irrefutably established that defendant had taken an unauthorized salary

from 2005 through 2011 totaling $501,538.52. As to count two, embezzlement arising out of

unauthorized loan repayments and bonuses taken by defendant, defendant withdrew $251,157.92

from the Institute, payable to himself. Several of the other counts for embezzlement and the

evidence offered to prove them established that defendant helped himself to $117,274.41 of the

Institute’s resources to support summer programs he organized independently from the Institute,

3 In support of his motion for new trial, defendant advanced several arguments that became the basis for the arguments he now raises on appeal. In support of his motion in arrest of judgment, defendant argued that events that occurred before and during the grand jury proceedings in this case substantially and illegally influenced the decision to indict him, thereby denying him due process as guaranteed under the constitutions of the United States and of the State of Rhode Island. This argument is not pressed on appeal. -5- and to fund his for-profit publishing company. The remaining embezzlement counts arose out of

unauthorized payments on an American Express card in the amount of $145,332.36;

unauthorized tuition payments to his daughter’s private high school and college totaling

$98,947.97; and unauthorized donations in his name to defendant’s alma mater, Bates College, in

the amount of $22,300.

Turning to count eight, obtaining money under false pretenses, the trial justice found that

defendant duped Alan Hassenfeld, finding that “[t]he ever-altruistic Mr. Hassenfeld, unsparing in

his financial and moral support of the [d]efendant’s vision, had been betrayed[,]” after defendant

diverted almost $550,000 of the money that Mr. Hassenfeld pledged for the Leadership Building

for his personal benefit. As to counts nine through eighteen, the trial justice also reviewed the

evidence and found that the credible testimonial evidence and the documents presented

established unequivocally that the offenses had been proven beyond a reasonable doubt; she

denied the motion for a new trial as to those counts as well. Finally, in denying defendant’s

motion for arrest of judgment, the trial justice found that there were neither infirmities in the

indictment nor any defects in jurisdiction.4

The defendant was sentenced on August 10, 2017, to seven concurrent terms of fifteen

years, with seven years to serve, and six terms of ten years, with five years to serve, with the

remainder of those terms suspended with probation; five terms of one year, suspended with

probation; and restitution. All terms were to run concurrently. A judgment of conviction and

commitment was entered on that same date. The defendant appealed to this Court on August 11,

4 In arriving at her decision, the trial justice reiterated her conclusion that there was no attorney- client privilege in existence at any time between attorney William J. Lynch and defendant. The issue of attorney-client privilege is discussed in greater detail infra. The trial justice also found that there was no e-mail or privileged communication capable of forming a basis for defendant’s motion, and she deemed groundless defendant’s assertion that the function of the grand jury was “thwarted” and that the indictment was defective. -6- 2017. He also moved for release on bail pending appeal, and that motion was denied on

September 7, 2017. We address each of defendant’s appellate contentions separately, and we

shall provide additional facts and procedural history as necessary.

Issues on Appeal

Before this Court, defendant raises eight issues on appeal: (1) the trial justice improperly

allowed the use of prejudicial evidence in violation of Rule 404(b); (2) the trial justice

improperly permitted a Rhode Island State Police detective to provide expert opinion testimony

as a lay witness; (3) the trial justice erroneously allowed an improper waiver of the attorney-

client privilege; (4) the State of Rhode Island knowingly or recklessly presented false evidence at

trial; (5) the trial justice erred when she denied defendant’s motion to suppress evidence he

claimed was illegally obtained by state action; (6) the trial justice erred when she failed to grant a

mistrial after a prosecutor made an improper remark in the courtroom; (7) the embezzlement

convictions contravene the weight of the evidence; and (8) the evidence is insufficient to support

the charges of embezzlement and larceny by false pretenses. None of these arguments have

merit. Although most of defendant’s contentions were not properly preserved for appellate

review, we shall address them nonetheless.

Rule 404(b) Evidence

The defendant’s first argument on appeal is that the trial justice erred in permitting

evidence, which spanned two weeks of trial testimony, that, he contends, solely related to his bad

character and thus was inadmissible under Rule 404(b) of the Rhode Island Rules of Evidence.

The defendant’s argument consists of a broad-based attack against a significant amount of the

state’s evidence and a host of prosecution witnesses. The defendant assigns error to the evidence

surrounding the JCLS grant for the construction of the Leadership Building, the Institute’s

-7- financial transactions (and indebtedness) to the University, and events occurring in “the 1990s

and early 2000s[.]”

On September 19, 2016, defendant filed a motion in limine to preclude the state from

introducing evidence that he contended was inadmissible under Rules 403 and 404 as “bad

character evidence.” After a hearing on the motion, the trial justice denied relief, stating that,

facially, the state’s planned evidence appeared relevant, and not in contravention of Rule 404(b).

Like all decisions on motions in limine, this was a preliminary ruling. The trial justice stated that

she would decide, during trial, whether evidence should be admitted in accordance with Rule

404(b). She also stated that it would be “impossible and inequitable” for the court to rule on the

motion “in a vacuum without having heard a word of testimony[,]” and that the court would not

completely exclude a witness from appearing at trial. The defendant made no further argument,

and trial commenced.

Standard of Review

When an issue concerning the admission or exclusion of trial evidence is properly

preserved for appellate review, this Court employs an abuse of discretion standard of review.

State v. Clements, 83 A.3d 553, 561 (R.I. 2014). “Accordingly, ‘we will reverse a trial justice’s

ruling on the admissibility of evidence only where it constitutes a clear abuse of discretion.’” Id.

(brackets omitted) (quoting State v. Pona, 66 A.3d 454, 465 (R.I. 2013) (Pona II)).

However, the raise-or-waive rule is a fundamental principle in this state that is “staunchly

adhered to” by this Court. Cusick v. Cusick, 210 A.3d 1199, 1203 (R.I. 2019) (quoting Rohena v.

City of Providence, 154 A.3d 935, 938 (R.I. 2017)). “[I]t is well settled that a litigant cannot

raise an objection or advance a new theory on appeal if it was not raised before the trial court.”

Id. (quoting Rohena, 154 A.3d at 938). However, “[w]e have recognized that an exception to the

-8- raise-or-waive rule arises when basic constitutional rights are involved[.]” Id. at 1204 (quoting In

re Miguel A., 990 A.2d 1216, 1223 (R.I. 2010)). For the exception to apply, “the alleged error

must be more than harmless, and the exception must implicate an issue of constitutional

dimension derived from a novel rule of law that could not reasonably have been known to

counsel at the time of trial.” Id. (quoting In re Miguel A., 990 A.2d at 1223); see State v. Burke,

522 A.2d 725, 731 (R.I. 1987) (providing that the exception may apply, for example, “when an

intervening decision of this [C]ourt or of the Supreme Court of the United States establishes a

novel constitutional doctrine” during the course of a trial).

Analysis

On appeal, defendant points to this Court’s recent decision in State v. Rainey, 175 A.3d

1169 (R.I. 2018), and argues that before “allowing the introduction of bad character evidence,

the trial court must conduct an analysis to determine not only the relevancy and materiality of the

proffered evidence but whether it falls into an exception under Rule 404(b) and, if so, whether

the prejudicial nature of the evidence outweighs its probative value.” The defendant argues that

the trial justice erred in failing to perform this analysis and in failing to provide a limiting

instruction to the jury.

The state responds that defendant’s arguments suffer from several legal misconceptions,

that the issue of Rule 404(b) was not properly preserved at trial, and, alternatively, that

defendant’s arguments fail on the merits. The state contends that the trial justice appropriately

made clear that her pretrial in limine decision was subject to the presentation of evidence, and

that defendant failed to create an appropriate appellate record by way of objections with respect

to the Rule 404(b) issues as they arose at trial. The state argues that a purported continuing

objection by defendant before trial, to evidence concerning the JCLS grant, was not satisfactory

-9- to develop a reviewable record. The state also argues that any challenged evidence was properly

admitted, and alternatively that, were the Court to assume that some evidence of defendant’s

prior misconduct should have been excluded under Rule 403 or Rule 404(b), any such error was

harmless.

After a careful review of the voluminous record, we are constrained to conclude that

these issues were not preserved for appellate review and are therefore not properly before the

Court. We note at the outset that the use of a continuing objection during a criminal trial based

on the admissibility of testimony on a question-by-question basis is of little utility. These defects

are magnified when the objection concerns the wholesale exclusion of a series of witnesses

simply because there is not a corresponding count in the indictment that relates to the witness’s

testimony. The basis of defendant’s shotgun challenge rests on his contention that the testimony

of several of the state’s witnesses concerning the JCLS grant “related solely to Rule 404(b) bad

character evidence” and, on appeal, defendant suggests that evidence was improperly admitted

not only during the state’s case-in-chief, but also throughout the entire twelve week trial,

generally. We disagree.

Rule 51 of the Superior Court Rules of Criminal Procedure governs the use of continuing

objections and, notably, the rule has been amended since defendant’s trial was concluded.

Although the amendment is not controlling in the context of our review of the case at bar, it

clearly illustrates the limited viability of defendant’s continuing objection. At the time of trial,

the text of Rule 51 provided:

“Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which the party desires the court to take or his or her objection to the action of the court and his or her grounds

- 10 - therefor if requested; and if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party. With the consent of the court a party may object to an entire line of testimony, or to the entire testimony of a witness, or to testimony on a single subject matter, and if such objection shall be overruled, it shall not be necessary for the party to repeat his or her objection thereafter, but every part of such testimony thereafter introduced shall be deemed to have been duly objected to and the objection overruled.” Super. R. Crim. P. 51 (2016) (emphasis added).

When Rule 51 was amended in 2017, the emphasized language was eliminated. This

Court has never declared that a continuing objection is available to challenge the denial of a

motion in limine. Unquestionably, there can be no valid continuing objection to evidence, the

admission or exclusion of which has not yet been decided. Although defendant was procedurally

permitted to make a continuing objection, which the trial justice graciously granted, we cannot

overlook the fact that the trial justice had yet to rule on this evidence at trial. There must be an

adequate trial record for appellate review, particularly in the context of a lengthy criminal trial

or, as here, when the reach of the motion in limine was so expansive. We do not recognize a

wholesale challenge to the introduction of evidence in the absence of specific grounds for its

exclusion. Because trial justices are required to engage in balancing relevance against potential

prejudice under Rule 403, there must be a cogent Rule 404(b) argument in the context of a given

piece of so-called “bad acts” evidence. See State v. Franklin, 103 R.I. 715, 728, 241 A.2d 219,

227 (1968) (holding that the contemporaneous objection rule “is designed both to alert the trial

justice’s attention to the issue raised and to insure a record on appeal which will focus on precise

questions” and that “[i]t provides an orderly means for adjudicating criminal matters”).

It is well settled that, under this Court’s raise-or-waive rule, “if an issue was not

preserved by specific objection at trial, then it may not be considered on appeal.” Pona II, 66

A.3d at 468 (quoting State v. McManus, 990 A.2d 1229, 1237 (R.I. 2010)). In fact, “[w]e require

- 11 - a specific objection so that the allegation of error can be brought to the attention of the trial

justice, who will then have an opportunity to rule on it.” Id. A specific objection at trial is also

beneficial to the extent it creates an adequate record for appeal to this Court. In the case at bar,

defendant failed to proffer specific objections, and instead merely set forth a blanket objection to

entire lines of witness testimony, before any evidence was offered at trial.

However, defendant has pointed to seven instances of alleged error and suggests the issue

of Rule 404(b) was adequately raised, beyond his continuing objection. After a careful review of

these contentions, and the trial transcript, we are of the opinion that defendant’s objections were

insufficient to preserve the issue for appellate review.

For example, defendant identifies the following exchange that took place on September

28, 2016, the sixth day of trial, after several witnesses had appeared and testified, or had not yet

been called to the witness stand; defendant reminded the court that he sought the wholesale

exclusion of a bevy of witnesses:

“[DEFENSE COUNSEL]: Out of an abundance of caution, Your Honor, understanding the Motion in Limine with respect to the introduction of the evidence and the, that’s, we’ve gone through with respect to the building grant, which is uncharged.

“THE COURT: Right.

“[DEFENSE COUNSEL]: I won’t belabor the issue, and I’m sure [the prosecutor] will agree that we’ve talked about this at length, but I just wanted to ensure that the record was being preserved, Your Honor, with respect to the testimony after Mr. Hoyle * * *.

“***

“[DEFENSE COUNSEL]: -- and the following witnesses, Mr. Revens, Mr. Montalbano, Mr. Falcone, Ms. Amerantes, and * * *.

- 12 - “[DEFENSE COUNSEL]: [Mr.] Falcone * * *. With respect to a standing and running objection with respect to the nature and substance matter, their testimony, as well as any exhibits introduced with respect to their testimony.

“THE COURT: And, once again, [defense counsel] earlier graciously allowed the Court to preserve the objection and defer argument so we could accommodate the time of the witnesses and the Jury.” (Emphasis added.)

Our careful review of the record demonstrates that defendant’s contentions do not align

with the requirements of Rule 404(b) because defendant sought to preclude a list of witnesses

from testifying ab initio.

Nonetheless, we shall address defendant’s arguments in order to make clear that, were the

issue properly before the Court, it is without merit. The defendant first argues that the evidence

was improperly admitted under a “reasonably necessary” standard, contending that Rule 404(b)

evidence should be used sparingly and only when reasonably necessary. The defendant relies on

this Court’s decisions in State v. Jalette, 119 R.I. 614, 382 A.2d 526 (1978), and Rainey, cited

supra, to argue that the evidence was not reasonably necessary to the state’s case and was

improperly admitted by the trial justice, who also failed to conduct analyses under Rules 404(b)

and 403. This argument is incorrect.

Generally, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that the person acted in conformity therewith.” R.I. R.

Evid. 404(b). However, the same rule permits the introduction of evidence of other conduct,

including conduct of a criminal nature, for other purposes, such as to show a defendant’s

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or

accident[.]” Id. This Court has held that those purposes are but examples, “rather than a

complete enumeration, of permitted purposes.” State v. Ciresi, 45 A.3d 1201, 1213 (R.I. 2012)

- 13 - (quoting State v. Rodriguez, 996 A.2d 145, 150 (R.I. 2010)). Evidence of a defendant’s conduct

may also be admitted in order for the trier of fact to hear a complete and coherent set of events

that underlie the crimes on trial. Id. at 1214.

When a defendant is charged with a sexual offense, the “reasonable necessity” standard

for admission on which defendant relies is applicable: Evidence of uncharged sexual misconduct

may not be admitted unless it is relevant to proving the charge lodged against the defendant and

when “reasonably necessary.” Rainey, 175 A.3d at 1182 (quoting State v. Mohapatra, 880 A.2d

802, 806 (R.I. 2005)). This judge-made rule has no applicability in cases that do not involve

sexual assault. In non-sexual crimes, the state must demonstrate the evidence’s “independent

relevance[.]” Ciresi, 45 A.3d at 1213 (“[E]vidence of a separate crime may be admissible if it

has independent relevance in respect to the proof of an element material to the chain of proof of

the crime in issue.”) (quoting State v. Lemon, 497 A.2d 713, 721 (R.I. 1985)). Thus, defendant’s

appellate contentions are erroneous.

Applying the appropriate “independent relevance” standard to the introduction of this

evidence, we are satisfied that the trial justice was well within her discretion in admitting the

disputed testimony. The trial justice declared, and we agree, that the testimony elicited from the

state’s witnesses was independently relevant for a complete and coherent presentation of the

events underlying the numerous and complex crimes in this case. See Ciresi, 45 A.3d at 1214

(evidence of other crimes, wrongs, or acts is admissible when the conduct is interwoven with the

crime on trial or “in instances when introduction is necessary for a trier of fact to hear a complete

and, it is to be hoped, coherent story so as to make an accurate determination of guilt or

innocence”) (quoting State v. Pona, 948 A.2d 941, 950 (R.I. 2008) (Pona I)).

- 14 - Furthermore, although defendant characterizes all of the evidence as “uncharged bad

character evidence” under Rule 404(b) because, he contends, defendant was not charged “with

any improprieties regarding the state grant[,]” we do not agree with defendant’s hypothesis that

any testimony not specifically directed to the crime of embezzlement amounts to Rule 404(b)

bad character evidence. This is not a case in which defendant stole money directly from the

state. However, the JCLS grant money was paid to the Institute and the circumstances

surrounding the grant were highly relevant. The defendant stands convicted of embezzling a

whopping amount of money from the Institute, over several years, and engaging in a

monumental scheme to obfuscate inquiry into his charged misconduct. The evidence in this case

established that defendant lied to the Auditor General during the audit that was precipitated by

the JCLS; he submitted false and forged documents to the auditor and drafted phony

correspondence in the name of third parties without their knowledge or consent. This is evidence

of defendant’s intent and motive to prolong his “far-flung chicanery” and coverup, as well as his

consciousness of guilt. It is so interwoven with the charged misconduct as to be independently

relevant. The trial justice admitted this evidence at trial because the failure to complete the

Leadership Building, which led to the grant audit, resulted in the grand jury investigation and

this indictment. The defendant’s subterfuge during the audit was highly relevant on the crucial

element of defendant’s intent and constituted evidence that the incomplete building was not the

result of poor bookkeeping or mistake. In fact, defendant’s conduct can fairly be ascribed to the

entirety of the reasons that underlay Rule 404(b) as proof of defendant’s motive, intent, plan,

scheme, and opportunity.

A defendant in a criminal case is not entitled to a sanitized version of the facts. See State

v. Peltier, 116 A.3d 150, 156 (R.I. 2015). “[A] defendant has no right to be insulated from

- 15 - relevant truths even if such truths might lead the jury to draw less favorable inferences

concerning the defendant than if they were not exposed[,]” or if the facts lay bare the image the

defendant seeks to protect. Id. (brackets omitted) (quoting State v. Acquisto, 463 A.2d 122, 129

(R.I. 1983)). The trial justice properly exercised her discretion in allowing this evidence. The

mere fact that this evidence is prejudicial to a defendant does not compel its exclusion. See State

v. Brown, 900 A.2d 1155, 1164 (R.I. 2006).

The defendant also contends that the quantity of this other act evidence was so

voluminous that it overshadowed the state’s proof of the charges in the indictment, and that a

proper Rule 403 analysis would have led to its exclusion. We reject this contention. The trial

justice held that the JCLS evidence was the very foundation of the state’s case and that it was

“very very relevant to the course of conduct and the representations that were made by Mr.

Doyle.” In reaching this conclusion, the trial justice properly struck the balance between the

probative force of the evidence and its potential prejudice, as required by Rule 403. As that rule

dictates: “Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” R.I. R. Evid. 403.5

Lastly, based on the extensive record in this case and the overwhelming evidence

presented at trial, we are of the opinion that, even if there were evidentiary error, it was harmless

beyond a reasonable doubt. See Ciresi, 45 A.3d at 1215 (“Nevertheless, in light of the

overwhelming amount of evidence presented against [the defendant] in his trial, we are satisfied

5 In addition to the JCLS evidence, defendant has set forth additional Rule 404(b) claims concerning the Institute’s debt to URI and testimony by Lorna Prout, a witness discussed infra, about forged documents. These issues have no merit. - 16 - that this determination by the trial justice, even if error, was harmless beyond a reasonable

doubt.”); State v. Oliveira, 961 A.2d 299, 312 (R.I. 2008) (“Notwithstanding the finding of a

constitutional violation, this Court will not vacate a criminal conviction if the error was harmless

to a defendant.”).

Accordingly, we hold that this issue was not properly preserved for appellate review, but

that, even if it had been, the trial justice did not abuse her discretion in admitting the challenged

evidence.

Detective Elliott’s Opinion Testimony

The defendant’s second argument on appeal is that the trial justice committed reversible

error by allowing Detective Courtney Elliott of the Rhode Island State Police to provide opinion

testimony as a lay witness. Detective Elliott was the final witness to testify in the state’s case.

At the time of trial, Det. Elliott had been a member of the Rhode Island State Police for seven

years and had served for four years as a detective. She was a member of the Financial Crimes

Unit. Detective Elliott testified that she holds a bachelor’s degree in accounting, as well as a

master’s degree in criminal justice. She was also a certified fraud examiner, a certification she

earned on the basis of her education, experience, coursework related to the certification, and an

examination. Before joining the state police, Det. Elliott worked as an accountant for an

executive search firm in Chicago, performing bookkeeping and financial analysis for two of the

company’s offices, preparing financial reports, and auditing expense reports from some of the

firm’s consultants.

Detective Elliott testified that the state police inquiry into the Institute began in February

2012 and that she joined the investigation in June 2012. It was her responsibility to determine

which, if any, of defendant’s expenses from various accounts held by the Institute were personal

- 17 - and what expenses were legitimate business expenses chargeable to the Institute. The testimony

revealed that one major complication faced by the investigators was that defendant had several

bank accounts in his name, and Det. Elliott’s task was to determine how much of defendant’s

personal expenses were paid from the Institute’s coffers.

Detective Elliott provided extensive testimony about her efforts during the investigation.

Her first task was to analyze all of defendant’s American Express expenses, dating back to

August 2006. Within the five-and-a-half years of credit card statements, roughly 6,500

transactions were reviewed. Detective Elliott testified that her analysis went beyond simply

examining records; she went into the field and interviewed persons related to the transactions,

and also reviewed reports and recordings of interviews from other detectives. This analysis was

“a very big job” that took several months to complete. When asked about topics that she or

members of her unit were seeking to understand, Det. Elliott testified that: “We were trying to

find out what * * * financial expenditures that were made on behalf of the Institute were

legitimate. What transactions were appropriate and what were not. What, specifically, had been

authorized by the Board in terms of Mr. Doyle’s compensation package, and what hadn’t been

authorized.”

Throughout her lengthy testimony, Det. Elliott provided details about the information and

documents that were reviewed, as well as her personal interactions with vendors involved in the

numerous transactions. Another complication Det. Elliott encountered was that defendant did

not maintain expense reports that separated business expenditures from his personal charges.

Detective Elliott provided extensive testimony about how she reached her conclusions about

which expenses were personal expenses and which expenditures were business-related, and that,

- 18 - wherever possible, she adopted a conservative approach, according defendant the benefit of the

doubt that an expense was a business expense wherever there was uncertainty.

Ultimately, a summary of Det. Elliott’s findings as to which expenses were personal and

which were legitimate business expenses under various credit cards and other accounts was

admitted into evidence. Detective Elliott gave additional testimony concerning the summary of

her findings and the processes used to arrive at her conclusions. Her “very conservative”

estimate was that defendant had incurred $145,332.36 in personal expenditures on his personal

American Express card which was paid by the Institute.

When the issue is properly preserved, “[t]he decision to permit opinion testimony by a

lay witness is within the sound discretion of the trial court. Review of the trial court’s decision is

limited to determining whether the trial court abused its discretion.” In re Emilee K., 153 A.3d

487, 494 (R.I. 2017) (quoting State v. Mallett, 600 A.2d 273, 276 (R.I. 1991)).

However, as set out supra, “[a]ccording to our well settled ‘raise or waive’ rule, if an

issue was not preserved by specific objection at trial, then it may not be considered on appeal.”

Pona II, 66 A.3d at 468 (quoting McManus, 990 A.2d at 1237). Again, “[w]e require a specific

objection so that the allegation of error can be brought to the attention of the trial justice, who

will then have an opportunity to rule on it.” Id.

On appeal, defendant argues that the trial justice committed reversible error because Det.

Elliott was never qualified as an expert by the state and, as a lay witness, her testimony was

inadmissible. The state argues that—were the issue properly preserved—Rule 701 of the Rhode

- 19 - Island Rules of Evidence does not prohibit lay witness testimony that is based on specialized

knowledge or training that is coupled with personal observation.

We note from the outset that the vitality of this issue is encumbered by its own

preservation shortcomings. There were inconsistent and unclear objections during Det. Elliott’s

testimony, and defendant shifted back and forth between arguments under Rule 701 and Rule

702, which presents a significant issue on appeal.6

For the purposes of our own analysis, we shall assume that defendant’s objections were

properly preserved and confine our analysis to Rule 701, the testimony of a lay witness. We are

satisfied that the trial justice did not abuse her discretion by allowing Det. Elliott to offer an

opinion about the nature of defendant’s credit card charges. We are also satisfied that the trial

justice did not abuse her discretion in admitting exhibits that were challenged by defendant.

Rule 701 provides:

“If the witness is not testifying as an expert, the witness’ testimony in the form of opinions is limited to those opinions which are (A) rationally based on the perception of the witness and (B) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.”

Clearly, Det. Elliott’s opinion was rationally based on the perceptions derived from her

extensive review of thousands of defendant’s transactions and her follow-up interviews, calls,

and e-mail exchanges with parties involved in the transactions. As established at trial, there were

thousands of transactions that took place across several states. It would be impossible for Det.

Elliott to have witnessed these transactions firsthand when defendant made them, nor was she

required to do so, as defendant contends. The testimony established that Det. Elliott carefully

6 The confusion was clarified at oral arguments before this Court, and it was acknowledged by the defense that the issue before this Court is whether evidence was improperly admitted by the trial justice under Rule 701 of the Rhode Island Rules of Evidence, and not Rule 702, which is confined to the testimony of expert witnesses. - 20 - reviewed thousands of transactions, and went as far as contacting the vendors in order to

understand the nature of the expenditures.

Certainly, Det. Elliott’s rationale for concluding that certain credit card charges were

personal and not Institute-related was informed by her qualifications and experience, including a

bachelor’s degree in accounting and years of experience as an accountant in Chicago.7

Undoubtedly, Det. Elliott’s opinions were helpful to a clear understanding of her testimony and

the determination of facts at issue. This witness was available and subject to cross-examination.

The state was not required to introduce all of the voluminous evidence—upon which Det. Elliott

relied—in order for the jury to reach the same conclusion.

We also reject defendant’s contention that the trial justice erred in allowing Det. Elliott’s

testimony because the detective was never qualified as an expert witness. We are of the opinion

that Det. Elliott testified about her own firsthand observations and did not offer expert opinion

testimony because there was no need for her to do so. Rule 702 governs the use of expert

testimony, and states: “If scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education, may testify thereto in the form of fact or

opinion.”

7 We note that at trial, when asked about how she made determinations as to the nature of the charges she was reviewing, Det. Elliott stated, in part:

“So as I went through line by line keeping in mind the mission of the Institute and * * * my training and experience in auditing expense reports from Chicago, I kept that in mind and tried to use, you know, as much common sense as I could to what would be a business expense and what would not be.”

We also note that, with respect to these qualifications and Det. Elliott’s foundation for forming her opinions, defendant never objected to the testimony about Det. Elliott’s education and training. - 21 - Opinion testimony about the nature of charged expenses on one’s American Express card

is not the type of scientific, technical, or other specialized knowledge contemplated by Rule 702.

See, e.g., Owens v. Silvia, 838 A.2d 881, 891 (R.I. 2003) (“When a party seeks to introduce,

through expert testimony, novel scientific or complex technical evidence, it is proper for the trial

justice to exercise a gatekeeping function.”) (emphasis added). Expert testimony and its

admissibility can hinge on the scientific validity of theories and procedures used to arrive at the

opinion, for example. DiPetrillo v. Dow Chemical Company, 729 A.2d 677, 689 (R.I. 1999)

(providing examples of factors such as “whether the theory or technique has been subjected to

peer review and publication[,]” and “the known or potential rate of error”) (citing Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993)).

The testimony of a forensic accountant is not necessary to prove that drawing two

salaries, or paying for a child’s college tuition from Institute funds, or making a donation to

one’s college alma mater amounts to embezzlement. There is nothing scientifically novel or

complex about evidence that money for one’s personal expense was purloined from the company

till. Accordingly, we are satisfied that the trial justice did not abuse her discretion in allowing

the testimony of Det. Elliott, and we reject defendant’s contentions on these grounds.

Waiver of Defendant’s Attorney-Client Privilege

The defendant’s third argument on appeal is that the trial justice committed reversible

error when she permitted an improper waiver of the attorney-client privilege, and that the

introduction of the evidence violated his rights under the Sixth Amendment to the United States

Constitution and article 1, section 10 of the Rhode Island Constitution. The facts relevant to this

issue are as follows. On November 20, 2012, defendant executed a release on behalf of the

Institute, authorizing a waiver of the Institute’s attorney-client privilege so that attorney William

- 22 - J. Lynch could provide relevant documents to the Rhode Island State Police. The defendant was

the executive director and executed a waiver of the Institute’s attorney-client privilege. The

record established that attorney Lynch had, on occasion, provided legal representation to the

Institute and had represented defendant in his individual capacity on one occasion, in 2003, when

he wrote a letter to the company Amazon regarding a review on its website about one of

defendant’s published books. Attorney Lynch also testified before the grand jury as to matters

related to the Institute, in reliance on the 2012 release. He did not, however, testify as to his

limited representation of defendant individually.

On August 3, 2016, the Institute was placed into temporary receivership by a justice of

the Superior Court. Attorney Jonathan Savage was appointed temporary receiver. On

September 1, 2016, defendant moved to dismiss the indictment, arguing that the “events that

occurred prior to and during the Grand Jury proceedings * * * substantially and illegally

influenced the Grand Jury’s decision to indict” him. The defendant argued that dismissal of the

indictment was warranted because attorney Lynch testified before the grand jury, not only about

documents that had been disclosed to the grand jury in accordance with the release, but also to a

number of matters beyond the scope of the release.8

During a pretrial hearing, attorney Lynch testified about the scope of his representation of

the Institute and of defendant personally. Based on his testimony and other evidence presented

at the hearing, the trial justice concluded that, as between attorney Lynch and defendant, there

was “no evidence of the existence of a professional relationship and no evidence that any

8 In his memorandum in support of his motion to dismiss the indictment, defendant complained that attorney Lynch testified “[r]egarding [the Institutes]’s confidential financial information[,]” and that he reminded “the Grand [J]ury that he was not involved in his client’s legal matters.” The denial of the motion to dismiss the indictment is not before us, and none of the information provided in the memorandum is of moment to the waiver of the Institute’s attorney-client privilege. - 23 - confidentiality was breached by him.” The trial justice denied defendant’s motion to dismiss the

indictment on these grounds. Undaunted, defendant again sought the exclusion of the evidence

later at trial by attempting to withdraw the 2012 waiver on behalf of the Institute.

Trial commenced on September 21, 2016. It was anticipated that attorney Lynch would

appear as a witness for the state, along with attorney John J. Partridge, who had assisted in

incorporating the Institute in the 1980s. Attorney Savage, in his capacity as receiver, had issued

an authorization for attorney Partridge to testify. The defendant provided the state and the Rhode

Island State Police with written notice, purporting to withdraw and revoke the November 2012

waiver of attorney-client privilege as it related to attorney Lynch. However, based on her earlier

ruling that there was no attorney-client privilege between attorney Lynch and defendant

individually, and, based on the release provided by attorney Savage for attorney Partridge, the

trial justice held that both attorney Lynch and attorney Partridge could testify about matters

related to the Institute.

“It is well-established that the findings of fact of a trial justice, sitting without a jury, will

be given great weight and will not be disturbed absent a showing that the trial justice overlooked

or misconceived material evidence or was otherwise clearly wrong.” Haviland v. Simmons, 45

A.3d 1246, 1255-56 (R.I. 2012) (quoting Fleet National Bank v. 175 Post Road, LLC, 851 A.2d

267, 273 (R.I. 2004)). “[R]esolution of mixed questions of law and fact, as well as the inferences

and conclusions drawn from the testimony and evidence, are entitled to the same deference.”

Hawkins v. Town of Foster, 708 A.2d 178, 182 (R.I. 1998) (quoting Wickes Asset Management,

Inc. v. Dupuis, 679 A.2d 314, 317 (R.I. 1996)).

- 24 - Analysis

Before this Court, defendant argues that, as receiver, attorney Savage should not have

been permitted to waive the Institute’s attorney-client privilege, in order for the state to present

the testimony of attorneys Lynch and Partridge. Relying on SEC v. Ryan, 747 F. Supp. 2d 355

(N.D.N.Y. 2010), a trial court decision, defendant suggests that the authority to waive the

attorney-client privilege by a receiver arises only in circumstances where the receiver has been

granted broad and specific authority from the appointing court and that such authority was not

conferred in this case. The defendant also contends that the November 2012 waiver of attorney-

client privilege for the grand jury did not preclude his reassertion of the privilege at trial.

The state, on the other hand, points to the United States Supreme Court’s decision in

Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343 (1985), which declared

that “[b]ecause the attorney-client privilege is controlled, outside of bankruptcy, by a

corporation’s management, the actor whose duties most closely resemble those of management

should control the privilege in bankruptcy[.]” Weintraub, 471 U.S. at 351-52. In that case, the

Supreme Court held that the trustee in bankruptcy has wide-ranging management authority over

the debtor-business, including the power to waive the attorney-client privilege of a bankrupt

corporation with respect to pre-bankruptcy communications. Id. at 358. Applying the logic of

Weintraub to the case at bar, the state argues that, once the Institute entered receivership, the

receiver, rather than former management, stood in the shoes of management and was empowered

to waive the Institute’s attorney-client privilege. According to the state, at that point, defendant,

the Institute’s former director, no longer had the right to do so. Furthermore, the state contends,

in DEPCO v. Mapleroot Development Corporation, 710 A.2d 167 (R.I. 1998), this Court

referred to Weintraub as support for its argument that, under Rhode Island law, a receiver should

- 25 - be permitted to control a defunct corporation’s attorney-client privilege. See DEPCO, 710 A.2d

at 170.

“‘[T]o encourage full and frank communications between attorneys and their clients,’ we

have long recognized that ‘communications made by a client to his attorney for the purpose of

seeking professional advice, as well as the responses by the attorney to such inquiries, are

privileged communications not subject to disclosure.’” DeCurtis v. Visconti, Boren & Campbell,

Ltd., 152 A.3d 413, 423 (R.I. 2017) (quoting Mortgage Guarantee & Title Co. v. Cunha, 745

A.2d 156, 158-59 (R.I. 2000)). “Genuine attorney-client communications are afforded the

highest level of protection by our courts.” Id. “However, ‘the attorney-client privilege protects

from disclosure only the confidential communications between a client and his or her attorney.’”

Id. (brackets omitted) (quoting State v. von Bulow, 475 A.2d 995, 1004 (R.I. 1984)). “[T]he

privilege must be narrowly construed because it limits the full disclosure of the truth.” Id.

(quoting Callahan v. Nystedt, 641 A.2d 58, 61 (R.I. 1994)).

Although this Court has not had occasion to rule on the attorney-client privilege of a

corporation, it is well settled “that the attorney-client privilege attaches to corporations as well as

to individuals.” Weintraub, 471 U.S. at 348 (“Both for corporations and individuals, the attorney-

client privilege serves the function of promoting full and frank communications between

attorneys and their clients.”) (citing Upjohn Company v. United States, 449 U.S. 383 (1981)). In

this context, the power to waive the attorney-client privilege “rests with the corporation’s

management and is normally exercised by its officers and directors. The managers, of course,

must exercise the privilege in a manner consistent with their fiduciary duty to act in the best

interests of the corporation and not of themselves as individuals.” Id. at 348-49 (footnote

omitted) (citing Dodge v. Ford Motor Co., 170 N.W. 668, 684 (Mich. 1919)).

- 26 - Weintraub also stands for the principle that “when control of a corporation passes to new

management, the authority to assert and waive the corporation’s attorney-client privilege passes

as well.” Weintraub, 471 U.S. at 349. In this situation, “[n]ew managers installed as a result of a

takeover, merger, loss of confidence by shareholders, or simply normal succession, may waive

the attorney-client privilege with respect to communications made by former officers and

directors.” Id. Weintraub also held that: “Displaced managers may not assert the privilege over

the wishes of current managers, even as to statements that the former might have made to

counsel concerning matters within the scope of their corporate duties.” Id.

This Court looked to the logic of Weintraub in DEPCO, cited supra.9 Although DEPCO

was factually distinguishable from Weintraub, we applied its reasoning in that case. We do so

again today.

9 In DEPCO v. Mapleroot Development Corporation, 710 A.2d 167 (R.I. 1998), the Rhode Island Depositors Economic Protection Corporation (DEPCO) had acquired a loan from the receiver of the then-defunct Marquette Credit Union when DEPCO acquired substantially all of the assets of Marquette. DEPCO, 710 A.2d at 168. The loan at issue had been made from Marquette to the original borrower, Mapleroot Development Corporation. Id. Mapleroot and its shareholders were the respondents in the case, as they had been sued by DEPCO, which was seeking repayment of the loan it had acquired. Id. During the litigation, Mapleroot sought production of documents that related to the communications between (1) Marquette and its legal counsel and (2) Marquette’s receiver and the receiver’s legal counsel relative to the loan and its collection. Id. The Superior Court compelled DEPCO to produce the requested attorney-client documents to Mapleroot, and DEPCO petitioned this Court to quash the discovery order. Id.

On appeal, Mapleroot claimed that DEPCO lacked standing to assert an attorney-client privilege that belonged to Marquette or its receiver, and that DEPCO had no authority to acquire such a privilege when it purchased substantially all of Marquette’s assets, including the loan at issue. DEPCO, 710 A.2d at 168. We held that DEPCO was authorized to assert the attorney- client privilege because if DEPCO had acquired the same loans as a conservator or a receiver— as it was authorized to do by statute—DEPCO would have also been entitled to assert the attorney-client privilege with respect to any documents it received when Marquette transferred its loan portfolio, based on Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343 (1985). Id. at 170. - 27 - At the time of trial, defendant simply had no authority to assert the attorney-client

privilege on behalf of the Institute. By that point in time, he had been divested of any authority

to manage or to conduct the affairs of the corporation. This is so because he had been ousted

when a receiver was appointed. The record is abundantly clear that these witnesses were

expected to testify to matters that pertained to the Institute as a corporate client, and not about

defendant personally. What is equally apparent is that defendant was not seeking to protect the

Institute, but rather to insulate himself from the proof of his perfidy. When defendant executed

the November 2012 release authorizing the waiver of the Institute’s attorney-client privilege, he

had the authority to do so as its executive director. See Weintraub, 471 U.S. at 348 (“[F]or

solvent corporations, the power to waive the corporate attorney-client privilege rests with the

corporation’s management and is normally exercised by its officers and directors.”). However,

after the Institute was placed into receivership, defendant had no authority to act on its behalf,

including asserting an attorney-client privilege, even as to his own communications with

attorneys Lynch or Partridge that related to the Institute. See id. at 349 (“[W]hen control of a

corporation passes to new management, the authority to assert and waive the corporation’s

attorney-client privilege passes as well. New managers installed * * * may waive the attorney-

client privilege with respect to communications made by former officers and directors.”).

Echoing Weintraub’s reasoning, we are of the opinion that, once attorney Savage was appointed

as receiver, the issue of waiver of the attorney-client privilege rested with him.

The trial justice was not clearly wrong in allowing the testimony of attorneys Lynch and

Partridge. We reject defendant’s contentions concerning this issue.

- 28 - Presentation of False Evidence

The defendant’s fourth argument on appeal is that the state knowingly or recklessly

presented false evidence from one of its witnesses, Robert Zagrodny. At the time of trial,

Zagrodny had been a certified public accountant for thirty-five years, and his work included tax

and accounting matters as well as financial audits. Mr. Zagrodny testified that defendant first

reached out to him some time around 2006, on referral from attorney Lynch, to perform

accounting services for the Institute. He was retained in 2008 as an independent accountant, to

perform the Institute’s 2007 year-end accounting report. He resigned in 2011.

Mr. Zagrodny testified that, although he did not observe any explicit financial fraud, there

were several matters of concern, such as the Institute’s high debt level and low cash balances, as

well as poor bookkeeping. The witness detailed the Institute’s bookkeeping shortcomings and

how those shortcomings hindered his efforts to conduct meaningful reviews. For example,

Zagrodny testified that he was retained to conduct audits of the Institute in 2009, but that the

audit simply could not be completed because he was unable to obtain the necessary

documentation from defendant and the Institute. Mr. Zagrodny testified on direct-examination

that the proliferation of these issues led to his eventual resignation because he was uncomfortable

with the representations made by defendant.10

10 In his papers, defendant contends that:

“During the trial, an accountant, Robert Zagrodny, testified that he stopped working for Doyle after he concluded that Doyle forged the name of a donor onto a letter. The false evidence occurred during the redirect examination of Zagrodny who testified he concluded that Doyle had forged the signature of a donor named Howard Falk. His conclusion was incorrect.”

- 29 - The defendant’s efforts to impeach Zagrodny on cross-examination drew out even more

details about his resignation, and the events leading up to it. The defendant introduced Exhibit

PPP into evidence, which was an audit-related pledge document set forth on the Institute’s

letterhead. Generally, these pledge documents would be sent by Zagrodny’s office to potential

donors who would return the form verifying the amount of their planned donation, memorialized

with their signature. Exhibit PPP was a pledge form from a donor that was to be allocated as a

receivable. Although the form contained a signature, Zagrodny testified on cross-examination

that he believed the signature to be false—without actual knowledge of its falsity. According to

Zagrodny, the Institute’s in-house accountant, Paul Kelley, expressed his belief that the pledge

was false, and the donor had failed to honor the pledge for at least two years, further drawing the

authenticity of the document into question. Finally, defendant refused to allow Zagrodny to

contact the donor about his failure to honor the pledge.11 Significantly, Zagrodny’s testimony

established that in light of these concerns about defendant and the Institute—which he referred to

as “red flags”—it was his belief that the signature was not genuine. It was these red flags that

prompted his resignation. The evidence disclosed that the signature was in fact that of the donor,

but Zagrodny did not learn of that fact; he testified that he knew that the donor had been

contacted by the Rhode Island State Police during the grand jury investigation. On redirect-

examination, the state questioned Zagrodny about the “red-flags” he referenced during

defendant’s cross-examination. There was no objection to the admission of this testimony.

The defendant’s argument, however, is incorrect. As discussed in greater detail infra, it was Zagrodny’s belief that the signature was forged, among a multitude of other concerns he already had, that prompted his resignation from the Institute. 11 Mr. Zagrodny’s testimony established that defendant’s practice of prohibiting anyone other than defendant from reaching out to donors was not confined to this donor. Mr. Zagrodny testified that he and others were prohibited by defendant from reaching out to potential donors beyond sending the initial pledge form. - 30 - Standard of Review

“Our standard of review of a trial justice’s admission of evidence is for an abuse of

discretion.” State v. Reyes, 984 A.2d 606, 614-15 (R.I. 2009). However, we reiterate that,

“[a]ccording to our well settled ‘raise or waive’ rule, if an issue was not preserved by specific

objection at trial, then it may not be considered on appeal.” Pona II, 66 A.3d at 468 (quoting

McManus, 990 A.2d at 1237). “We require a specific objection so that the allegation of error can

be brought to the attention of the trial justice, who will then have an opportunity to rule on it.” Id.

It is defendant’s contention that the state presented false evidence when, on redirect-

examination, the state asked Zagrodny why he questioned the donor’s signature on the pledge

document, a matter that defendant had examined the witness about at length. Although this

testimony was admitted without objection, defendant argues that, procedurally, his request for a

mistrial was properly made and preserved for appellate review, and that the trial court erred

when it failed to rule on his motion for a mistrial related to this issue.

The state responds that this issue was not preserved for appellate review. The state also

argues that it was defense counsel who brought to light that Zagrodny was not aware of the

results of the state police investigation into the signature and that, once the door to this inquiry

was opened, the state was entitled to inquire about additional “red flags” regarding the signature

that made Zagrodny leery of performing further work for the Institute. The state argues that

there was no contemporaneous objection to this questioning, nor was there a request for a

mistrial. The record supports this assertion.

Again, our careful review of the record establishes that this issue is not properly before

the Court. This Court’s raise-or-waive rule once again controls; “if an issue was not preserved

- 31 - by specific objection at trial, then it may not be considered on appeal.” Pona II, 66 A.3d at 468

(quoting McManus, 990 A.2d at 1237).

The record discloses that, after the witness’s testimony was concluded, defendant made a

vague supposition that the questioning could warrant a mistrial, but he never asked to pass the

case. “Our long-standing rule is that a contemporaneous objection or at least a motion to strike

* * * are prerequisites to an appellate review.” Ciresi, 45 A.3d at 1212 (quoting State v. Garcia,

743 A.2d 1038, 1048-49 n.7 (R.I. 2000)).12

We reject defendant’s contention that his request for a mistrial was properly made and

preserved. The preservation issue here arises because it is not clear—whether from defendant’s

papers or our own review of the record—that defendant ever in fact asked the trial justice to

grant a mistrial. What is clear is that, at the conclusion of Zagrodny’s testimony, defendant

raised a different issue to the trial justice related to the prosecutor’s “Wow” remark (a separate

appellate issue discussed infra) that occurred during the previous trial day and that did not relate

to Zagrodny. The trial transcripts indicate that defendant suggested that the “Wow” remark,

taken with the presentation of allegedly false evidence during Zagrodny’s testimony, could

warrant a mistrial.

However, because defendant never objected to Zagrodny’s testimony or specifically

moved for a mistrial, the trial justice had no opportunity to rule on an issue that defendant now

argues constituted reversible error. The closest defendant came to moving for a mistrial was

when he pondered aloud to the trial justice: “And I believe those two issues combined should,

should give the Court concern as to whether or not a mistrial should be declared on this

12 The defendant objected twice during Zagrodny’s redirect-examination on the basis of a leading question and on the basis of a legal conclusion. Both objections were sustained, and neither related to the issue of the presentation of false evidence. - 32 - particular case, Your Honor.” (Emphasis added.) Beyond a mere statement of belief that the

court “should be concerned” about two discrete issues, there was no mistrial motion for the trial

justice to pass upon.

A mistrial in a criminal trial is an extreme remedy and should be granted only when there

is a fundamental defect in the proceeding that cannot be cured, such that the defendant will be

deprived of a fair trial. A trial justice may declare a mistrial only in circumstances the law

recognizes as manifest necessity. A classic example of manifest necessity is a deadlocked jury.

Renico v. Lett, 559 U.S. 766, 774-75 (2010) (citing Arizona v. Washington, 434 U.S. 497, 509,

510 (1978)). Notwithstanding, a criminal defendant has a valued right to have his or her trial

come to a conclusion by the tribunal before whom he or she appears. United States v. Jorn, 400

U.S. 470, 484 (1971) (citing Wade v. Hunter, 336 U.S. 684, 689 (1949)). Because the accused

has been placed in jeopardy, defendant has a “significant interest in the decision whether or not

to take the case from the jury” in the event that circumstances arise which necessitate a mistrial.

Id. at 485.

A motion by the defendant to pass the case seeks the immediate termination of the

proceeding and is serious business. It does not serve as an ace in the hole for appellate review.

The grounds for the motion should be clearly articulated and the state is entitled to an

opportunity to respond. This is critically important in the event the motion is granted and the

defendant seeks the remedy of dismissal. State v. McIntyre, 671 A.2d 806, 807 (R.I. 1996)

(mistrial request by the defendant does not bar retrial except where prosecution goads the

defendant into motion to pass) (citing Oregon v. Kennedy, 456 U.S. 667 (1982); State v. Diaz,

521 A.2d 129 (R.I. 1987)). When confronted with a motion for a mistrial, the trial justice is

charged with evaluating the basis for the motion, in order to determine whether a juror voir dire

- 33 - is warranted and, in the exercise of discretion, decide whether the potential prejudice can be

cured by an immediate cautionary instruction. State v. Footman, 196 A.3d 758, 765 (R.I. 2018).

“A mistrial is appropriate only when a timely cautionary instruction cannot cure the prejudice.”

Id.

None of these crucial considerations occurred with respect to Zagrodny’s testimony.

Thus, the trial justice did not fail to rule on a motion for a mistrial, as defendant argues, because

defendant never moved to pass the case and, significantly, the state was never called upon nor

given an opportunity to respond. The defendant has waived this issue for appeal.

Motion to Suppress Illegally Obtained Evidence

The defendant’s fifth argument on appeal is that the trial justice erred when she denied

his pretrial motion to suppress evidence which, he claims, was illegally obtained by the state.

The facts giving rise to this issue, as presented at a pretrial hearing, were derived from the

testimony of two witnesses from the state police: Gerard Ratigan, an investigator in the Financial

Crimes Unit at the time, and Lieutenant Robert Creamer, the lead investigator on this case.

As the investigation unfolded, Ratigan and Lt. Creamer spoke with former and current

employees of the Institute. One employee and two former employees provided the evidence at

issue. Laurie DeRuosi, a former employee, was interviewed by Ratigan and Lt. Creamer at her

home. The investigators testified that they were unaware that DeRuosi was in possession of any

documents from the Institute and that they had no expectation that she would provide them with

Institute materials. Rather, in the course of their conversation, DeRuosi voluntarily produced a

thumbdrive containing data she collected during her employ at the Institute. Ms. DeRuosi gave

the thumbdrive to the state police without being asked to do so.

- 34 - The second former employee, Lorna Prout, was interviewed at her home, and a similar

situation arose. Lieutenant Creamer testified that, at the time of his interview at Prout’s home,

he had no knowledge of the evidence or the materials that he eventually received. In the course

of the investigators’ conversation with Prout, she provided them with a shoebox containing

paperwork and microcassettes that she had saved from her time with the Institute. The

investigators did not direct Prout to retrieve the material, and she voluntarily provided it.

Finally, Ratigan and Lt. Creamer testified that they served a grand jury subpoena duces

tecum on Lee Anne McCullough, who, at that time, was an employee of the Institute, seeking

Institute-related documents for the grand jury. In response to the subpoena, McCullough

produced Institute work product that she had stored on her home computer.13 According to

Ratigan, it was McCullough who selected the documents from the computer and transferred them

onto a thumbdrive. No documents covered by the attorney-client privilege were included.

After considering the evidence and testimony submitted, the trial justice found no

prosecutorial misconduct in the case. As for the subpoena issued to McCullough, the trial justice

stated that “the subpoena authority of the Grand Jury was not contorted or misused or abused in

any way.” With respect to the materials produced by DeRuosi and Prout, the trial justice found

that they were private individuals who voluntarily provided the materials in their possession.

The trial justice held that there were no Fourth Amendment implications related to these

witnesses and, thus, no warrant was required. The trial justice concluded that the procedures

employed by Ratigan and Lt. Creamer were proper. Therefore, the trial justice denied

defendant’s motion to suppress the evidence.

13 When the subpoena was issued, the state police wanted to seize McCullough’s personal computer, but she was allowed to download the information to a thumbdrive because non- Institute-related material also was stored on that device. - 35 - Standard of Review

When reviewing a trial justice’s decision granting or denying a motion to suppress

evidence, “we defer to the factual findings of the trial justice, applying a clearly erroneous

standard.” State v. Barkmeyer, 949 A.2d 984, 995 (R.I. 2008) (quoting State v. Apalakis, 797

A.2d 440, 443 (R.I. 2002)). We conduct a de novo review, however, of “a trial justice’s

determination of the existence or nonexistence of probable cause or reasonable suspicion.” State

v. Foster, 842 A.2d 1047, 1050 (R.I. 2004) (quoting State v. Keohane, 814 A.2d 327, 329-30

(R.I. 2003)).

“With respect to questions of law and mixed questions of law and fact involving

constitutional issues, however, this Court engages in a de novo review in accordance with

Ornelas v. United States, 517 U.S. 690 (1996).” Apalakis, 797 A.2d at 443. “When called upon

to review a trial justice’s denial of a motion to suppress on Fourth Amendment grounds, our task

is to review the record to determine, based on the totality of the circumstances, whether the

evidence sought to be suppressed was obtained in violation of the constitutional prohibition

against warrantless searches and seizures.” Barkmeyer, 949 A.2d at 995 (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 227 (1973)).

On appeal, defendant argues that the subpoena issued by the grand jury and the

interviews with former Institute employees at their homes—and the information obtained from

them—constituted state action and warrantless searches that implicated the Fourth Amendment

to the United States Constitution and article 1, section 6 of the Rhode Island Constitution. The

defendant contends that, based on the United States Supreme Court’s decision in Wong Sun v.

United States, 371 U.S. 471 (1963), the trial court should have ordered the suppression of this

- 36 - evidence because, he argues, it was seized illegally, and all evidence derived from it was “the

fruit of the poisonous tree.” The state contends that the trial justice correctly concluded that, in

light of the absence of state action, the Fourth Amendment was not implicated in this case, either

when the state received the materials voluntarily from the witnesses or pursuant to a grand jury

subpoena. We agree.

“The Fourth Amendment to the United States Constitution, as applied to the states

through the Fourteenth Amendment, provides: ‘The right of the people to be secure in their

persons * * * against unreasonable searches and seizures, shall not be violated, and no warrants

shall issue, but upon probable cause * * *.’” State v. Flores, 996 A.2d 156, 160 (R.I. 2010)

(quoting U.S. Const. Amend. IV); see State v. Foster, 842 A.2d at 1050 n.3 (declaring that article

1, section 6 of the Rhode Island Constitution is “substantively the same” as the Fourth

Amendment to the United States Constitution). Searches conducted by private citizens do not

implicate the protections of the Fourth Amendment. See Barkmeyer, 949 A.2d at 996; see also

State v. Pailon, 590 A.2d 858, 861 (R.I. 1991) (“Because the exclusionary rule in respect to

Fourth Amendment violations is based upon the deterrence of illegal police or prosecutorial

actions, it is not triggered by the actions of private persons however egregious they may be.”).

“However, when deciding whether to admit the fruits of a private search, it is incumbent upon

the trial court to determine whether the law enforcement agency’s involvement ‘was not a

significant expansion of the prior private search.’” Barkmeyer, 949 A.2d at 995 (quoting von

Bulow, 475 A.2d at 1015).

In the case at bar, the Fourth Amendment is not implicated as to the material provided to

the state police by DeRuosi and Prout, because the materials were obtained by DeRousi and

Prout in their capacity as private citizens with no connection to law enforcement. The trial

- 37 - justice did not err in finding that there was no state action implicated in the production of this

evidence. Also, there was no significant expansion of a private search by the law enforcement

agency in this case. As established at trial, Ratigan and Lt. Creamer were unaware before

arriving at their homes that these former employees possessed the Institute’s materials, and the

materials were turned over to them voluntarily, without any direction from the state police.14

Finally, there has been no showing that this material belonged to defendant. We are satisfied that

the trial justice did not clearly err in any of her findings of fact in arriving at her decision to deny

the motion to suppress, and our de novo review of the record satisfies us that the evidence sought

to be suppressed was not obtained in violation of the constitutional prohibition against

warrantless searches and seizures.

As to the material obtained from McCullough, defendant’s contention that standing

alone, a grand jury subpoena for the production of documents implicates the Fourth Amendment

is simply wrong. Although a grand jury subpoena is not purely private action, grand juries are

also “less cabined by Fourth Amendment restrictions[.]” State v. Guido, 698 A.2d 729, 733 (R.I.

1997) (citing United States v. Mara, 410 U.S. 19 (1973); United States v. Dionisio, 410 U.S. 1

(1973)). In Guido, we held that a defendant had no legitimate Fourth Amendment expectation of

privacy in Rhode Island Hospital’s medical records relating to his emergency treatment

following a near-fatal automobile collision. Id. In arriving at our decision, we noted that, while

the Fourth Amendment protects against state intrusions into legitimate expectations of privacy,

the expectation must be one actually held by the defendant and one that society at large would

recognize as reasonable. Id. We noted the well-established principle that “[w]hen no reasonable

privacy interest has been unlawfully invaded, the introduction of evidence seized is not

14 The clear implication in this case is that the former employees were holding onto the materials to protect themselves as whistleblowers in the event of an investigation. - 38 - prevented.” Id. at 734 (quoting State v. Timms, 505 A.2d 1132, 1137 (R.I. 1986)). In Guido, we

held that the defendant had no legitimate expectation of privacy in the medical records at issue

because the records were prepared by medical personnel for their use, to provide medical

treatment to the defendant, and were not the defendant’s personal papers created or kept by him.

Id. We also noted that the defendant was unable to demonstrate either ownership or possession

over the documents. Id.

Similarly, in the case at bar, defendant had no legitimate expectation of privacy in the

documents that society at large would recognize as reasonable. The documents produced were

obtained by McCullough through her work as secretary of the Institute, and were not personal

papers kept or created by defendant. In fact, it was established at trial that McCullough selected

the files herself and did not turn over any privileged attorney-client material. Because defendant

did not have a legitimate expectation of privacy in the materials subpoenaed, the Fourth

Amendment was not implicated in this case.

Therefore, we are satisfied that the subpoena of records from McCullough was properly

issued and executed, and was not done in contravention of the warrant requirement. We are also

of the opinion that the documents obtained from DeRuosi, Prout, and McCullough were

voluntarily produced.

The Prosecutor’s “Wow” Remark

The defendant’s sixth argument on appeal is that the trial justice committed reversible

error when she failed to declare a mistrial after defendant declined to cross-examine a witness

and the prosecutor remarked, “Wow.” When the state concluded its direct examination of

Deborah Burch, the trial justice invited defendant to conduct cross-examination, and the

following exchange took place:

- 39 - “THE COURT: [Defense counsel], whenever you’re ready, sir.

“[DEFENSE COUNSEL]: Your Honor, I’m all set. No questions of this witness. We have other witnesses going to address the testimony of Ms. Burch --

“THE COURT: Very well.

“[DEFENSE COUNSEL]: -- at a later time.

“[PROSECUTOR]: Wow.

“THE COURT: Ms. Burch, you are released. Thank you for making the trip.”

The defendant did not raise a contemporaneous objection, and it is unclear whether the

defense team overheard the prosecutor’s comment, although the trial justice made clear later that

she did not hear it. In fact, it was not until after the next witness, Robert Zagrodny, testified on

the next trial day—one week later—that defendant raised this issue. After Mr. Zagrodny’s

testimony concluded, defense counsel brought up the “Wow” remark to the trial justice and

indicated that it was defendant, and not defense counsel, who heard the comment and, according

to counsel, defendant informed him “that at least several of the jurors visibly responded to that

particular comment. And we have great concern that, it, it has, will affect, potentially affect

whatever verdict they reach.” Defense counsel pointed to the close proximity between

defendant, the state, and the jurors in the courtroom, and “the concern that [the jurors] appear to

be listening in to conversations between counsel, and what effect, if at all, it may have on a jury.”

Defense counsel then stated: “The comment, after choosing not to question the witness, Your

Honor, I think is one that merits serious concern and consideration as to whether or not it’s

grounds for a mistrial.” (Emphasis added.)

The trial justice asked counsel if he wanted the court to inquire of the jurors to learn if

anyone had heard the comment. Defense counsel responded, “I don’t know, I don’t know how to

- 40 - deal with that,” and offered nothing further. The trial justice next gave defense counsel the

option of an immediate limiting instruction, but the offer was rejected over concerns about

drawing further attention to the remark. Instead, defendant asked for an instruction to be

included in the final charge to the jury. No motion to pass the case was made. The state did not

offer any comment or response, and trial proceeded.

When the final jury instructions were given, no limiting instruction on this specific issue

was included. Although defendant was given the opportunity to object to the proposed

instructions, he declined to do so.

“A trial justice’s decision to deny a motion for mistrial is accorded great weight and will

not be disturbed on appeal unless it is clearly wrong.” State v. Enos, 21 A.3d 326, 332 (R.I.

2011) (quoting State v. Higham, 865 A.2d 1040, 1044 (R.I. 2004)). However, again,

“[a]ccording to our well settled ‘raise or waive’ rule, if an issue was not preserved by specific

objection at trial, then it may not be considered on appeal.” Pona II, 66 A.3d at 468 (quoting

McManus, 990 A.2d at 1237). “We require a specific objection so that the allegation of error can

be brought to the attention of the trial justice, who will then have an opportunity to rule on it.” Id.

On appeal, defendant argues that the prosecutor’s comment violated defendant’s

constitutional right to decline cross-examination of a witness, and he also contends that the

remark “essentially vouched for” the witness by implying, through his remark, that her testimony

was powerful and harmful to the defense, thus necessitating a cross-examination. The defendant

contends that the objection he made on the next trial date, rather than when the comment was

made, was procedurally adequate. The defendant also argues that despite his request for a

- 41 - curative instruction, the trial justice ultimately failed to give one.

On the other hand, the state argues that no contemporaneous objection to the comment

was made. The state suggests that it was not until the next trial date, a week later, that defense

counsel “pondered out loud during a colloquy with the court whether the incident, when coupled

with the defense’s concern about Zagrodny’s redirect examination * * * justified a mistrial,” but

that defendant never actually moved for a mistrial. (Emphasis added.) Moreover, the state

contends that defendant never requested that the jury be polled or that the trial justice inquire of

individual jurors about what impact, if any, the prosecutor’s remark may have had. Rather,

defendant asked that a cautionary instruction be deferred to the end of trial, then failed to submit

a proposed instruction or object to the omission. As such, the state argues, this issue was waived

for appeal.

The resolution of this issue is controlled by this Court’s well-settled “raise-or-waive”

rule, as defendant did not properly preserve his contentions for appellate review. The defendant

did not contemporaneously and specifically object to the “Wow” remark. The defendant had

ample opportunity to bring the issue to the trial justice’s attention before the next trial date, and

defendant failed to do so. Furthermore, the state was not afforded an opportunity to respond, or

to explain what happened.

When the issue was finally brought to the attention of the trial justice, defendant did so in

a manner which can only be characterized as vague and uncertain. The defendant’s counsel

simply pondered aloud whether a mistrial could be warranted, rather than making a specific

motion to pass the case. See Super. R. Crim. P. 47 (“The motion shall state with particularity the

grounds upon which it is made and shall set forth the relief or order sought.”). The defendant

rejected the offer of an immediate cautionary instruction—which could have remedied any

- 42 - potential prejudice—and settled on a limiting instruction at the end of trial. The defendant again

failed to preserve the issue for appellate review. See State v. Brezinski, 731 A.2d 711, 714-15

(R.I. 1999) (holding that the defendant had waived the issue of whether the trial justice erred by

refusing to instruct the jury on a lesser-included offense where counsel for the defendant failed to

make a timely and specific objection—in accordance with Rule 30 of the Superior Court Rules

of Criminal Procedure—when the trial justice did not give a lesser-included instruction to the

jury); see also Super. R. Crim. P. 30 (“At the close of the evidence or at such earlier time during

the trial as the court reasonably directs, any party may file written requests that the court instruct

the jury on the law as set forth in the request. * * * No party may assign as error any portion of

the charge or omission therefrom unless the party objects thereto before the jury retires to

consider its verdict, stating distinctly the matter to which the party objects and the grounds of the

party’s objection.”) (emphasis added). This issue was not properly preserved for appellate

review, and we refuse to overturn defendant’s conviction on these grounds.

Motion for a New Trial Based on the Weight of the Evidence

The defendant’s seventh argument on appeal is that his convictions for embezzlement

contravene the weight of the trial evidence. On December 14, 2016, defendant filed a motion for

a new trial pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure. A

memorandum of law in support of the motion, spanning over forty pages, subsequently was filed;

it advanced over a dozen arguments. None of the arguments set forth in the motion raised the

issue of the elements essential to establish the crime of embezzlement. A hearing on the motion

was held on March 6, 2017. The defendant’s motion for a new trial was denied in a written

decision issued on April 11, 2017. This issue is not appropriately before the Court.

- 43 - Standard of Review

Review of a trial justice’s decision on a motion for a new trial based on the weight of the

evidence is normally deferential, and the decision will be given great weight and not be disturbed

“unless the trial justice overlooked or misconceived material evidence or otherwise was clearly

wrong.” State v. Lopez, 129 A.3d 77, 83-84 (R.I. 2016) (quoting State v. Garrett, 91 A.3d 793,

800 (R.I. 2014)). However, again, the raise-or-waive rule is a fundamental rule in this state that

is “staunchly adhered to” by this Court. Cusick, 210 A.3d at 1203 (quoting Rohena, 154 A.3d at

938). “It is well settled that a litigant cannot raise an objection or advance a new theory on

appeal if it was not raised before the trial court.” State v. Bido, 941 A.2d 822, 828-29 (R.I. 2008).

On appeal, defendant advances a novel legal theory that the crime of embezzlement

mandates proof of an element of secrecy. Relying on this Court’s decisions in State v. Ricci, 533

A.2d 844 (R.I. 1987), and State v. Davis, 37 R.I. 373, 92 A. 821 (1915), defendant contends that,

because he reported the allegedly embezzled monies on his personal income tax returns, as well

as the tax returns from the Institute and its audited financial statements, this lack of secrecy

renders the embezzlement convictions void as a matter of law. The state argues that defendant

never raised this issue before the lower court and that, therefore, it is waived. The state also

argues that, on the merits, defendant’s contention about an element of “secrecy” in an

embezzlement prosecution is an incorrect interpretation of relevant statutes and caselaw.

This issue is also easily resolved under this Court’s well-settled “raise-or-waive” rule, as

defendant did not properly preserve the issue for appeal. This Court has previously held that,

where a defendant argues that a trial justice erred in denying his or her motion for a new trial but

relies on issues raised for the first time on appeal, appellate review is waived. See State v.

- 44 - Bergevine, 942 A.2d 974, 980-82 (R.I. 2008) (affirming trial justice’s denial of a defendant’s

motion for a new trial where defendant, on appeal, contended that the trial justice failed to

acknowledge several “deficits” in one witness’s testimony, but had failed to alert the trial

justice). In the case at bar, defendant never brought his assertion that the crime of embezzlement

requires proof of an element of “secrecy” to the attention of the trial justice. The defendant’s

appellate argument on this issue has therefore been waived.

Motion for a New Trial Based on the Sufficiency of the Evidence

The defendant’s final argument on appeal is also based on the denial of his motion for a

new trial and is, simply put, another unique approach to our law. Broadly, defendant argues that

the trial justice erred in denying his motion for a new trial because the evidence was insufficient

to support his conviction under count eight of the indictment, obtaining money under false

pretenses.15

When reviewing the decision of a trial justice on a motion for a new trial challenging the

sufficiency of the evidence, “[t]his Court reviews the trial justice’s decision de novo; we examine

the evidence in the light most favorable to the verdict which has been returned by the jury.” State

v. Clark, 974 A.2d 558, 571 (R.I. 2009) (citing United States v. Paret-Ruiz, 567 F.3d 1, 5 (1st

15 Count eight of the indictment reads:

“That [defendant] * * * on or about diverse days and dates from May 21, 2007 through December 31, 2010, in the State of Rhode Island, did obtain money, being of a value of over Fifteen Hundred Dollars ($1500.00), to wit, The Hassenfeld Foundation donation to the [Institute] designated for use on the construction of the Hassenfeld-Hogg Center for Sports Leadership Building, from Alan Hassenfeld and/or The Hassenfeld Foundation, * * * in violation of § 11-41-4 and § 11-41-5 of the General Laws of Rhode Island, 1956, as amended (Reenactment of 2002).” (Emphasis added.) - 45 - Cir. 2009)). “We will not overturn a guilty verdict unless, viewing the evidence in the light most

favorable to the prosecution, no reasonable jury could have rendered it.” Id. (brackets omitted)

(quoting Paret-Ruiz, 567 F.3d at 5).

On appeal, defendant argues that, because he used some, but not all, of the money the

Institute obtained from Hassenfeld for construction of the Leadership Building and for “other

bills and projects relating to [the Institute,]” the evidence was insufficient to support his

convictions for larceny by embezzlement and obtaining money under false pretenses. The

defendant’s logic appears to be that because some funds directed to the Institute were expended

correctly, and not all of the money was purloined to support his lifestyle, the evidence was

insufficient to support his convictions. The state responds that this issue was also not properly

preserved and that, even if it were, defendant’s argument fails on the merits.

When a new trial motion challenges the sufficiency of the evidence, “it is incumbent

upon the trial justice to review the evidence and decide whether, as a matter of law, the evidence

legally is sufficient to support a verdict of guilty beyond a reasonable doubt.” Clark, 974 A.2d at

570. “The trial justice must examine the evidence in the light most favorable to the prosecution,

without assessing the weight of the evidence or the credibility of the witnesses, and draw all

reasonable inferences consistent with guilt, mindful that the jury likewise has done so.” Id.

(citing United States v. Jones, 418 F.3d 726, 729 (7th Cir. 2005)). “[I]f the trial justice

concludes that, based on the evidence, ‘any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt,’” then the trial justice must deny the

defendant’s motion for a new trial. Id. at 571 (quoting Jones, 418 F.3d at 729).

- 46 - We note from the outset that review of this issue is complicated by defendant’s

arguments. The first two sentences in his appellate brief relating to this issue appear to be

focused on the trial justice’s decision to deny his motion for a new trial with respect to his guilty

verdict under count eight of the indictment.16 However, in advancing his argument, defendant

relies on § 11-41-3, entitled “Embezzlement and fraudulent conversion[,]” a charge that was not

made under that count of the indictment. Further, this issue was not raised in defendant’s

memorandum in support of his motion for a new trial, but our review of the record indicates that

defendant raised the argument at the hearing.

Assuming that the issue was properly preserved and effectively advanced on appeal, we

are satisfied that the evidence was sufficient to support defendant’s guilty verdict under count

eight and that the trial justice properly denied defendant’s motion for a new trial. We assume, if

only for the sake of discussion, that defendant intended to challenge the sufficiency of the

evidence under § 11-41-4, as charged in the indictment.17

Section 11-41-4 provides that: “Every person who shall obtain from another designedly,

by any false pretense or pretenses, any money, goods, wares, or other property, with intent to

cheat or defraud * * * shall be deemed guilty of larceny.” “The essential elements of obtaining

16 The first two sentences of defendant’s brief on this issue reads:

“The grand jury indicted [defendant] for allegedly purloining from Mr. Hassenfeld $550,000 that he had earmarked for the construction of a second building and indicted him for converting the property entrusted to him as an officer of the Institute. Trial testimony, however, unequivocally indicated that Mr. Doyle used some portion of the allotted money on other bills and projects relating to [the Institute].”

We note that the indictment charged defendant with obtaining more than $1,500. 17 Although it was charged in the indictment, we omit discussion of § 11-41-5, as that statute merely covers the penalties for a violation of various statutes, including § 11-41-4. - 47 - property by false pretenses are that the accused (1) obtain property from another designedly, by

any false pretense or pretenses; and (2) with the intent to cheat or defraud.” State v. Letts, 986

A.2d 1006, 1011 (R.I. 2010) (brackets omitted) (quoting State v. Markarian, 551 A.2d 1178,

1180 (R.I. 1988)). “A promise to perform a future act” may constitute a false pretense. Id.

(“[T]he rule in this state is that a misrepresentation with regard to a future transaction, no less

than one relating to an existing fact, is a false pretense within the meaning of § 11-41-4.”)

(quoting State v. Aurgemma, 116 R.I. 425, 431, 358 A.2d 46, 50 (1976)). At trial, the jury heard

lengthy testimony, and received ample evidence, establishing that Alan Hassenfeld’s generous

donation of almost $550,000 through the Hassenfeld Foundation was to be applied to the

construction of the Leadership Building. The evidence included, but was not limited to, a

January 2007 letter from defendant to Mr. Hassenfeld, which read, in part: “Dear Alan: We are

honored that you are willing to lend your great name to what is one of the most important

initiatives in the history of the Institute for International Sport—the construction of the Center

for Sports Leadership Building on the URI campus.” The evidence also disclosed that funding

for the construction of the ill-fated Leadership Building had already been secured by the JCLS

grant.

In viewing the evidence in the light most favorable to the state, we are satisfied that this

evidence was sufficient for a jury reasonably to conclude that defendant’s promise to build the

Leadership Building—the construction of which was never completed—constituted a false

pretense, through which defendant obtained almost $550,000 from Hassenfeld.

In accordance with § 11-41-4, “[t]he crime is complete when the defendant intentionally

uses false pretenses to induce another to alter or terminate any of that person’s rights or powers

concerning the money or property with the intent to cheat or defraud that person.” Letts, 986

- 48 - A.2d at 1011 (quoting State v. Fiorenzano, 690 A.2d 857, 859 (R.I. 1997)). “This Court has

defined an intent to defraud as ‘an intention to deceive another person, and to induce such other

person, in reliance upon such deception, to assume, create, transfer, alter or terminate that other

person’s * * * right, obligation or power with reference to property.’” Id. at 1011-12 (brackets

omitted) (quoting Fiorenzano, 690 A.2d at 859). “Such intent can be inferred, and the only

relevant time period is when the victim is ‘induced to part with his money or property.’” Id. at

1012 (quoting Fiorenzano, 690 A.2d at 860).

In the case at bar, the jury received evidence and heard testimony establishing that the

defendant’s crime was complete when the Hassenfeld Foundation made its gift to the defendant,

under the false pretense that the gift would be used to construct the Leadership Building. At

trial, it was established that seven different transactions were made from the Hassenfeld

Foundation to the Institute into various Institute accounts, ranging in amounts from tens of

thousands of dollars up to hundreds of thousands of dollars. A substantial amount of these funds

was diverted for the defendant’s own personal benefit. In viewing the evidence in the light most

favorable to the state, as we are required to do, we are of the opinion that this evidence was more

than sufficient for the jury reasonably to conclude that the defendant intended to cheat and

defraud the Hassenfeld Foundation, among his other victims. We are satisfied that the trial

justice did not err in denying the defendant’s motion for a new trial on these grounds.

Conclusion

For the reasons set forth in this opinion, we affirm the judgment of conviction. The

record shall be remanded to the Superior Court.

Justice Indeglia participated in the decision but retired before its publication.

- 49 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903

OPINION COVER SHEET

Title of Case State v. Daniel E. Doyle, Jr.

No. 2017-312-C.A. Case Number (W1/13-193A)

Date Opinion Filed July 8, 2020

Suttell, C.J., Goldberg, Flaherty, Robinson, and Justices Indeglia, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Washington County Superior Court

Judicial Officer from Lower Court Associate Justice Melanie Wilk Thunberg

For State:

Lauren S. Zurier Christopher R. Bush Attorney(s) on Appeal Department of Attorney General For Defendant:

Gary G. Pelletier, Esq. David A. Levy, Esq.

SU-CMS-02A (revised June 2020)