State v. Jones

                         2020 UT App 31



               THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                          Appellee,
                              v.
                      DAVID BRYCE JONES,
                         Appellant.

                             Opinion
                        No. 20170815-CA
                     Filed February 27, 2020

           Third District Court, Salt Lake Department
                The Honorable James T. Blanch
                          No. 151912839

           Deborah L. Bulkeley, Attorney for Appellant
            Sean D. Reyes, Nathan D. Anderson, and
            David A. Simpson, Attorneys for Appellee

    JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

HAGEN, Judge:

¶1     After gaining power of attorney over his elderly father,
David Bryce Jones “loaned” himself the entirety of his father’s
retirement income to pay expenses for two failed restaurants and
to cover his own personal expenses. At the same time, he
neglected to pay for any of his father’s basic living expenses,
causing his father to become a ward of the State. A jury
convicted Jones of abuse, neglect, or exploitation of a vulnerable
adult and of unlawful dealing with property by a fiduciary. On
appeal, Jones argues that he received ineffective assistance of
counsel, that Utah’s abuse of a vulnerable adult statute is
unconstitutionally vague, and that there was insufficient
evidence of intent to convict him of intentional conduct. We
disagree with each of these contentions and affirm.
                           State v. Jones


                        BACKGROUND 1

                 Jones’s Exploitation of His Father

¶2     After turning eighty-six years old in 2010, Jones’s father
granted Jones power of attorney, meaning that Jones obtained
control over his father’s finances and healthcare-related
decisions. Within two to three years, Jones knew that his father
suffered from “progressive dementia” and was “arguably . . .
incompetent.”

¶3     In 2013, Jones opened a restaurant called Brewhaha.
According to Jones, he and his father were “partners” in the
Brewhaha venture. Jones found a property to lease for the
restaurant, but the required lease had “harsh provisions” and
Jones thought that the landlord was a “horrible person.” Despite
concerns about the lease, the landlord, and his father’s
incompetence, Jones not only signed the lease but also had his
father sign as a co-tenant and personal guarantor.

¶4     Six months after signing the lease, Jones’s father became
dehydrated and needed to be hospitalized. Due to this incident,
Jones arranged for his father to move to an apartment at an
assisted living facility (the facility). On the facility’s admission
paperwork, Jones noted that his father suffered from
“progressive dementia” and agreed to pay $3,000 per month for
his father’s rent and care. The cost of rent did not include
personal expenses such as medications, haircuts, toothpaste, or
other personal hygiene items.



1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Ramirez, 2019 UT App 196, n.2,
355 P.3d 1082 (cleaned up).




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                           State v. Jones


¶5     Three weeks after placing his father in the facility, Jones
had his father sign a document authorizing Jones to loan himself
money from his father’s retirement income (the loan document).
Jones’s father received $6,500 per month in retirement income,
and the loan document placed “no limit” on how much Jones
could loan himself from that amount, so long as his father’s
physical and medical needs were met.

¶6     Relying on the authority of the loan document, Jones
began loaning himself the entirety of his father’s retirement
income. He used this money to cover Brewhaha’s renovation
and operation costs. Also, because Jones did not have any
income of his own, he lent himself money to pay for his living
expenses. In return for fronting all of Brewhaha’s and Jones’s
expenses, Jones’s father received no ownership interest in the
restaurant and was left with insufficient funds to cover his basic
expenses and care.

¶7     Because Jones was using all his father’s funds for his own
business and personal expenses, he stopped paying his father’s
rent at the facility. Further, Jones failed to pay for his father’s
prescription medications or basic hygiene items like a
toothbrush, a haircut, or bed pads. The facility sent monthly bills
and statements to Jones requesting payment for his father’s rent
and care. The staff also called, left voicemails, and spoke with
Jones in person about the need to pay for his father’s care.
Despite these efforts and Jones’s promises to pay, the facility
could not obtain the necessary payments and issued an eviction
notice to Jones requiring him to either pay the overdue balance
or have his father vacate the apartment within thirty days. Jones
ignored the notice, missed two more payments, and failed to
move his father out of the apartment.

¶8    Around the same time that the eviction notice was issued,
Brewhaha’s landlord filed suit against Jones and his father
because Brewhaha was more than $10,000 behind in rent and



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Jones had ignored the landlord’s request to vacate the property.
Jones filed a pro se motion to dismiss his father as a party,
arguing that his father had suffered from “progressive
dementia” since 2012 and “was not competent to sign either the
lease or the personal guarantee.” “Due to his condition,” Jones
said, his father had “no knowledge or comprehension of the
eviction . . . and ha[d] no competence to participate in th[e]
case.” The lawsuit resulted in a six-figure judgment against
Jones and signaled the end of Brewhaha as a viable business.

¶9     Undeterred by Brewhaha’s failure, Jones opened another
restaurant called Gusto. Jones again used his father’s retirement
income to fund Gusto’s expenses. Jones’s father was, again, not
listed as an owner of the restaurant. And again, Gusto failed
within months.

¶10 While this was happening, the father’s younger brother
learned about the eviction notice from the facility and became
concerned that Jones might be misusing his father’s funds. He
reported his concerns to the facility, which in turn contacted
Adult Protective Services (Protective Services). Protective
Services opened an investigation into the matter.

¶11 Protective Services interviewed Jones’s father as part of its
investigation. At that interview, the father was unable to
remember his age, birthday, siblings’ names, where he had
worked, where he had banked, how much money he made, or
how to call 911. When the father took a phone call during the
interview, he was unable to remember with whom he was
speaking as soon as he hung up. And when the interviewers
requested Jones’s phone number, the father gave them a
fingernail kit “as if a phone number was going to be in it.”

¶12 Protective Services also spoke to Jones, who admitted that
he had used his father’s retirement income but insisted that he
had his father’s blessing to use “whatever money he wanted to
try to run his restaurants.” When confronted with the facility’s


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unpaid bills, Jones told Protective Services that he had an
agreement with the facility whereby he could defer payments
until his restaurants were turning a profit. Based on these
conversations, Protective Services deduced that Jones’s father
had received $76,000 in retirement income during the relevant
period, but Jones had made only $12,000 in payments to the
facility. Jones’s father had no balance in his bank account,
indicating that Jones spent more than $60,000 either on the
restaurants or himself.

¶13 As a result of Protective Services’ investigation, the Office
of Public Guardian (the Public Guardian) took over as the
father’s guardian, meaning that the Public Guardian wrested
control of the father’s finances and healthcare from Jones. From
that point forward, the father’s expenses at the facility were paid
each month, and within a year, the Public Guardian paid off the
entire amount that Jones had neglected to pay when he had
power of attorney.

¶14 As Protective Services investigated and the Public
Guardian took over, Jones continued to accrue expenses in his
father’s name. He opened a new credit card in his father’s name.
He transferred a $5,000 balance from an old credit card to the
new card. Within three weeks of obtaining the new credit card,
Jones racked up $14,000 in expenses that included charges to ski
resorts, a dental office, the Division of Motor Vehicles, cable
television, and gas stations. Jones later called the Public
Guardian to inquire why it was not making payments on this
new credit card.

¶15 Shortly after the Public Guardian took over, the father
was administered the Montreal Cognitive Assessment (the
MoCA test), a screening tool for dementia. As the nurse
practitioner who administered the MoCA test entered the room,
the father was standing, holding a phone, and listening to the
dial tone. During the MoCA test, the father was unable to



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identify a lion or rhinoceros, repeat sentences or simple one- or
two-syllable words, perform basic math, or recognize letters in
the alphabet. When the MoCA test was over, Jones’s father
received the lowest possible score.

¶16 Ten days after administration of the MoCA test, Jones
sought to regain control of his father’s finances. He drafted three
documents (the financial control documents) and took them to
his father to sign. The financial control documents directed that
all the father’s retirement income be deposited into Jones’s
personal accounts, authorized Jones to manage the retirement
accounts and make loans to himself, and changed the accounts’
contact information from the father’s to Jones’s. Each document
concluded by stating that the father did not “recognize the
authority of any person, institution, or Agency that attempts to
change these directions.” At a Protective Services hearing a
month later, Jones testified that his father was “cogent” when he
signed the financial control documents and “definitely [had] the
capacity on a day-to-day basis to make decisions about who
controls his finance[s] and where his money goes.”

¶17 Jones eventually filed for personal bankruptcy, in which
all the “loans” he made to himself from his father’s retirement
income were discharged.

                         Legal Proceedings

¶18 Based on the foregoing facts, the State charged Jones with
exploitation of a vulnerable adult and with unlawful dealing
with property by a fiduciary.

¶19 Before trial, Jones’s attorney (trial counsel) moved to have
the exploitation of a vulnerable adult charge dismissed on the
basis that the exploitation statute was unconstitutionally vague.
The district court deferred ruling on that motion until after trial,
at which point it ruled that the statute was constitutional as
applied to Jones “under the facts and circumstances of this case.”


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¶20 In a separate pretrial motion, trial counsel moved to
exclude evidence that Jones “used [his father’s] credit cards” on
the basis that such evidence was subject to rule 404(b) of the
Utah Rules of Evidence and that the State had not provided
Jones notice of its intent to admit that evidence at trial. In ruling
on the matter, the district court said the following:

       Anything that was not turned over in discovery is
       not going to be admissible . . . . If it’s relevant to
       what’s charged in the information, then it’s
       admissible. If it is . . . evidence of other bad acts
       outside the scope of what’s charged in the
       information, then I will hear an argument that it’s
       not admissible because you didn’t give the 404(b)
       notice that you were required to do because the
       defense asked for it and they were entitled to it.

Afterward, at trial, the State presented two pieces of evidence
that Jones now argues were improperly admitted under the
district court’s rule 404(b) ruling: (1) evidence concerning the
Brewhaha lease, and (2) a ledger sheet entitled “Loans to David
Bryce Jones” that memorialized loans made from 1998 to 2000
but no payments (the ledger).

¶21 Also at trial, the State called one expert witness for whom
it had provided notice—a nurse practitioner. The State also
called two lay witnesses—the facility’s general manager (the
manager) and a Protective Services investigator (the
investigator)—who were not designated as experts. The expert
nurse practitioner had visited Jones’s father at the facility on
numerous occasions and was the same individual who
administered the MoCA test to the father. She testified that
Jones’s father received the lowest possible score on the MoCA
test and that, on his best day, may have scored two or three
points out of a possible thirty. She also testified that Jones’s
father would have been unable to read or understand the



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financial control documents at the time that he signed them and
that his memory was such that he would remember signing the
documents only for “[m]aybe five minutes.”

¶22 The manager testified about his interactions with Jones’s
father at the facility. He testified that the father was unable to
effectively communicate with others from the beginning of his
time at the facility. For example, the father was unable to
communicate to staff that he lost his wallet and could not
understand most questions beyond basic pleasantries. The
manager also said that the father was unable to take care of his
own basic needs, such as feeding himself and personal
grooming, without cues from others. He also testified that the
father could not make his own decisions “without direction from
other people.” On direct examination, the State asked the
manager, “Based upon your psychiatry degree,[2] based upon
your daily interaction with [Jones’s father], do you have an
opinion whether or not he could read [the loan document] and
comprehend it?” The manager responded, “[A]s I know [Jones’s
father] and the complexity of what is written [in the loan
document], I would say that it would be very difficult for him to
understand what . . . he would be signing.”

¶23 The investigator, who had a bachelor’s degree in
gerontology and a master’s degree in social work, also testified
to the father’s mental capacity. She was the individual who first
interviewed Jones’s father after Protective Services opened its
investigation, about ten months after the signing of the loan
document. See supra ¶ 11. Based on her observations during that
interview, she opined that Jones’s father (1) suffered from


2. Although this error went uncorrected during direct
examination, the manager did not have a degree in psychiatry.
Rather, the manager had a bachelor’s degree in psychology and
a master’s degree in counseling and psychology.




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“significant memory impairment,” (2) would have lacked
capacity to sign the loan document, and (3) would have lacked
capacity to sign the financial control documents four months
after the interview.

¶24 At the close of the prosecution’s case, trial counsel moved
for a directed verdict based on insufficient evidence. The district
court denied the motion.

¶25    The jury convicted Jones as charged. He now appeals.


            ISSUES AND STANDARDS OF REVIEW

¶26 Jones first argues that trial counsel was ineffective for
(1) not objecting to the State eliciting expert testimony from the
manager and investigator even though the State did not provide
notice or otherwise designate them as experts, (2) not objecting
to the State’s admission of the ledger and evidence concerning
the Brewhaha lease, (3) stipulating to an allegedly erroneous jury
instruction, and (4) not moving the district court to merge
Jones’s two convictions. “When a claim of ineffective assistance
of counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.” State v. Ramirez, 2019 UT App 196, ¶ 13, 455
P.3d 1082 (cleaned up).

¶27 Jones next argues that the district court erred when it
determined that the abuse of a vulnerable adult statute was not
unconstitutionally vague on its face or as applied to him.
“Whether a statute is unconstitutionally overbroad or vague is a
question of law reviewed for correctness.” State v. Mattinson,
2007 UT 7, ¶ 6, 152 P.3d 300 (cleaned up).

¶28 Lastly, Jones argues that the district court erred by
denying his motion for directed verdict based on insufficient



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evidence. On appeal, we review a district court’s “ruling on a
motion for directed verdict for correctness.” State v. Doyle, 2018
UT App 239, ¶ 11, 437 P.3d 1266 (cleaned up).


                           ANALYSIS

           I. Ineffective Assistance of Counsel Claims

¶29 To prevail on an ineffective assistance of counsel claim, a
defendant must satisfy the two-part Strickland test. First, the
defendant must establish that “counsel’s representation fell
below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 688 (1984). Second, the defendant must
show prejudice by demonstrating “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
Because the defendant is required to satisfy both parts of the
Strickland test, “it is not necessary for us to address both
components of the inquiry if we determine that a defendant has
made an insufficient showing on one.” Archuleta v. Galetka, 2011
UT 73, ¶ 41, 267 P.3d 232 (cleaned up).

A.    Failure to Object to Expert Testimony

¶30 Jones’s first ineffective assistance of counsel claim centers
on trial counsel’s failure to object to the State asking for expert
testimony from two lay witnesses: the manager and investigator.
The State did not give notice to the defense that it intended to
use either witness as an expert, and both witnesses were asked
to offer expert opinions on the father’s mental health and
capacity. Therefore, Jones argues, trial counsel was obliged to
object to the State’s questions calling for expert testimony.

¶31 To determine whether trial counsel was ineffective for
failing to object during the manager’s and investigator’s
testimony, it is first necessary to discuss the differences between



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                            State v. Jones


lay opinion and expert testimony. Lay opinion testimony is
described by rule 701 of the Utah Rules of Evidence:

       If a witness is not testifying as an expert, testimony
       in the form of an opinion is limited to one that is:
       (a) rationally based on the witness’s perception;
       (b) helpful to clearly understanding the witness’s
       testimony or to determining a fact in issue; and
       (c) not based on scientific, technical, or other
       specialized knowledge within the scope of Rule
       702.

¶32 In contrast, “if testimony, opinion or otherwise, is based
on scientific, technical, or other specialized knowledge, it is
within the scope of rule 702 of the Utah Rules of Evidence and
may not be admitted as lay fact testimony.” State v. Rothlisberger,
2006 UT 49, ¶ 20, 147 P.3d 1176 (cleaned up). If a party “intends
to call any expert to testify in a felony case at trial,” then it must
“give notice to the opposing party as soon as practicable but not
less than 30 days before trial.” Utah Code Ann. § 77-17-13(1)(a)
(LexisNexis 2017). If a party fails to provide notice that it intends
to call an expert witness, then “the opposing party shall, if
necessary to prevent substantial prejudice, be entitled to a
continuance of the trial . . . sufficient to allow preparation to
meet the testimony.” Id. § 77-17-13(4)(a). A court can impose
more serious sanctions if it determines that noncompliance with
the notice rule “is the result of bad faith,” but the “remedy of
exclusion of the expert’s testimony will only apply if the court
finds that a party deliberately violated” the notice rule. Id.
§ 77-17-13(4)(b).

¶33 With these differences in mind, we turn to the question of
whether trial counsel was ineffective for failing to object to the
State’s questions eliciting opinion testimony from the manager
and investigator even though the State had not provided the
defense notice of its intent to use them as experts. Regarding the



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manager, the State’s question called for expert testimony because
it asked him, “[b]ased on [his] psychiatry degree,” whether
Jones’s father would have understood the loan document when
he signed it. See Utah R. Evid. 702 (explaining that expert
testimony may be based on “[s]cientific, technical, or other
specialized knowledge” (emphasis added)). 3 Regarding the
investigator, the State both requested and received expert
testimony that could only have been based on her “scientific,
technical, or otherwise specialized knowledge.” Id. This is
particularly true with regard to the investigator’s testimony
concerning the father’s capacity to understand the loan
document; she could not have formed an opinion “based on
[her] perception,” see Utah R. Evid. 701(a), because she never
spoke to Jones’s father until ten months after the signing. But
although the State’s questions to the manager and investigator
were objectionable, Jones has not established that trial counsel’s
failure to object prejudiced his defense.

¶34 Before the manager and investigator testified, the State
had already introduced evidence of the father’s mental capacity
through the expert testimony of the nurse practitioner. Jones


3. Although the State’s question called for expert testimony, we
note that the manager’s response to the State’s question—that it
would be difficult for Jones’s father to understand the loan
document—was couched in terms of lay opinion testimony
based on his perceptions of and interactions with Jones’s father,
not his specialized training and experience. He specifically began
his answer not with reference to his formal training but by
referring to his familiarity with Jones’s father. It seems likely that
any “average bystander” who had personally witnessed the
father’s inability to communicate or remember important events
would be “able to provide the same testimony” that he would
struggle to understand the loan document. See State v.
Rothlisberger, 2006 UT 49, ¶ 34, 147 P.3d 1176.




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                           State v. Jones


contends that the testimony from the manager and investigator
prejudiced his defense because it improperly lent “credibility to
the State’s position that [Jones’s father] lacked capacity due to
progressive dementia.” This argument is flawed in at least two
respects.

¶35 First, the fact that the nurse practitioner, the State’s
designated expert, had already testified to the father’s mental
incapacity cuts against a finding of prejudice. If the challenged
testimony had been the only evidence that Jones’s father lacked
the capacity to sign the loan document, it might have been
highly prejudicial. Here, however, the testimony of both the
manager and investigator is merely cumulative of other properly
admitted evidence that goes to the same facts, including the
nurse practitioner’s testimony and the position taken by Jones
himself in the Brewhaha eviction proceeding. And where
testimony is merely cumulative, we are disinclined to find
prejudice even when the testimony was improperly admitted.
See State v. Thomas, 777 P.2d 445, 449–50 (Utah 1989) (declining to
find prejudice where improper hearsay testimony was
cumulative and unlikely to have changed the outcome of the
trial); State v. Collier, 736 P.2d 231, 233 (Utah 1987) (declining to
find prejudice where improper testimony “was only cumulative
of the evidence and testimony” of other witnesses); State v.
Jackson, 2010 UT App 328, ¶ 17, 243 P.3d 902 (declining to find
prejudice where “the alleged hearsay evidence was cumulative
because it reiterated the essence of testimony presented by the
victims or other eyewitnesses”), overruled on other grounds by
State v. DeJesus, 2017 UT 22, 395 P.3d 111.

¶36 Second, and perhaps more importantly, even if trial
counsel had objected to the State’s questioning of the manager
and investigator, it is unlikely that the testimony of either
witness would have been excluded. Both witnesses had
advanced degrees relevant to the subject matter to which they
testified, and so would likely have qualified as expert witnesses.



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See Utah R. Evid. 702(a) (stating that a witness can qualify as an
expert “by knowledge, skill, experience, training, or education”
(emphasis added)). And, absent bad faith, the statutory remedy
for eliciting expert testimony without prior notice is a
continuance, not exclusion of the expert testimony. Utah Code
Ann. § 77-17-13(4)(a). Jones could only hope to exclude the
testimony if he showed that the State “deliberately violated” the
notice rule, id. § 77-17-13(4)(b), and Jones points to no evidence
of deliberate impropriety on the part of the State. Therefore,
even if trial counsel had objected to the lack of notice, the best
that Jones could have hoped for was a continuance, and he has
not argued how such a continuance would have affected the
outcome of his trial.

¶37 For the foregoing reasons, Jones has not established that
he was prejudiced by trial counsel’s failure to object during the
testimony of the manager and investigator.

B.     Failure to Object to Rule 404(b) Evidence

¶38 Jones’s second ineffective assistance of counsel claim
centers on trial counsel’s failure to object to two pieces of
evidence that Jones believes should have been excluded under
the district court’s rule 404(b) ruling: (1) evidence concerning the
Brewhaha lease, and (2) the ledger. See supra ¶ 20. We address
each argument in turn.

¶39 Jones argues that the evidence that Jones had his father
sign the Brewhaha lease despite knowing about his father’s
infirmity constituted evidence of a “crime, wrong, or other
act,” see Utah R. Evid. 404(b)(1), to show that Jones “was
dishonest and to generally show his bad character.” However,
rule 404(b) applies only “to evidence that is extrinsic to the crime
charged.” State v. Lucero, 2014 UT 15, ¶ 14 n.7, 328 P.3d 841
(cleaned up), overruled on other grounds by State v. Thornton, 2017
UT 9, 391 P.3d 1016. Where “the evidence of prior acts is
inextricably intertwined with the crime that is charged, or if both


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the charged crime and the prior act are considered part of a
single criminal episode, then rule 404(b) [does] not apply.” Id.
(cleaned up).

¶40 Here, evidence concerning the Brewhaha lease was
not evidence of some prior act used to prove Jones’s general
bad character. Rather, it was offered as direct evidence of one
of the crimes for which Jones was charged: exploitation of
a vulnerable adult. Under the applicable Utah statute, a
vulnerable adult is “an elder adult” or any adult “who has
a mental or physical impairment which substantially affects
that person’s ability” to perform a number of basic tasks.
Utah Code Ann. § 76-5-111(1)(s) (LexisNexis 2012). And a
person is guilty of exploitation of a vulnerable adult if that
person “unjustly or improperly uses or manages the resources
of a vulnerable adult for the profit or advantage of someone
other than the vulnerable adult.” Id. § 76-5-111(4)(a)(iii). The
evidence presented regarding the prior Brewhaha lawsuit
included a statement in which Jones argued that his father
was incompetent when he signed the Brewhaha lease.
That admission supports the State’s contention that Jones
knew of his father’s incapacity before pressuring his father to
sign the loan and financial control documents, proving the mens
rea for acts relevant to the exploitation of a vulnerable adult
charge. Because this evidence was not extrinsic to the crime
charged, trial counsel did not perform deficiently by not
objecting to its admission because any objection would have
been futile. See State v. Karren, 2018 UT App 226, ¶ 31, 438 P.3d
18 (“[T]he failure of counsel to make motions or objections which
would be futile if raised does not constitute ineffective
assistance.” (cleaned up)).

¶41 Jones next argues that the ledger was improper
rule 404(b) evidence that “served only to portray [Jones]
as having a propensity to not pay back his loans” because
no payments were recorded on the ledger. But Jones’s



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defense theory at trial was that his father was a willing
participant and partner in the Brewhaha and Gusto ventures.
Therefore, trial counsel could have reasonably thought that
the ledger supported Jones’s defense theory inasmuch as it
demonstrated that Jones’s father willingly loaned Jones money
well before any dementia clouded his judgment. Because
there was a legitimate strategic reason for which trial counsel
could have chosen not to object to the ledger’s admission,
counsel’s failure to object cannot constitute deficient
performance. See State v. Vallejo, 2019 UT 38, ¶ 70, 449 P.3d 39
(finding no deficient performance where counsel did not object
to alleged hearsay because the testimony supported the
defendant’s strategy).

¶42 Accordingly, Jones has not shown that trial counsel
performed deficiently by not objecting to evidence of the
Brewhaha lease or the ledger.

C.     Stipulation to an Erroneous Jury Instruction

¶43 Jones’s third ineffective assistance of counsel claim
centers on trial counsel’s stipulation to an allegedly erroneous
jury instruction regarding the mens rea requirement necessary to
convict him of unlawful dealing with property by a fiduciary.
The jury instruction stated that to find Jones guilty of that crime,
the jury must find

       1.   That the defendant, David Bryce Jones,

       2.   Acting intentionally, knowingly, or recklessly
            with respect to each and every one of the
            following elements;

       3.   Dealt with property that had been entrusted to
            him as a fiduciary, in a manner which the
            defendant knew (beyond just recklessness) was
            a violation of the defendant’s duty;



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       4.   Which involved substantial risk of loss or
            detriment to the owner or to a person for
            whose benefit the property was entrusted; and

       5.   That the total value of the property is equal to
            or exceeds $5,000.

Jones contends that the jury instruction erroneously applied the
mens rea requirement of knowledge to the “violation of the
person’s duty” element but not to the “involves substantial risk
of loss” element. According to Jones, the instruction improperly
lowered the State’s burden of proof because it allowed the jury
to convict if it believed Jones was merely reckless as to the
involvement of a “substantial risk of loss.” Thus, Jones contends
that trial counsel performed deficiently by stipulating to the
instruction.

¶44 But “the proper measure of attorney performance [is]
simply reasonableness under prevailing professional norms,”
State v. Silva, 2019 UT 36, ¶ 20 (cleaned up), and Jones has not
demonstrated that trial counsel unreasonably read or interpreted
the law by stipulating to the challenged jury instruction. We
conclude that Jones’s reading of the statute—that the knowing
mens rea requirement applies to the substantial-risk-of-loss
element—is not dictated by its plain language and that Utah
caselaw does not settle the question. Therefore, trial counsel was
not deficient in stipulating to the jury instruction.

¶45 First, Jones’s interpretation of Utah Code section
76-6-513(2) is not dictated by the plain language of the statute. In
Utah, a person is guilty of unlawfully dealing with property by a
fiduciary if:

       the person deals with property that has been
       entrusted to him as a fiduciary, or property of a
       governmental entity, public money, or of a
       financial institution, in a manner which the person


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                           State v. Jones


       knows is a violation of the person’s duty and
       which involves substantial risk of loss or detriment
       to the owner or to a person for whose benefit the
       property was entrusted.

Utah Code Ann. § 76-6-513(2) (LexisNexis 2012). The relevant
question is whether the modifier “knows” applies only to the
violation-of-the-person’s-duty element or also applies to the
substantial-risk-of-loss element.

¶46 Based on the statute’s syntax, competent defense
attorneys could reasonably conclude that the knowing mens rea
requirement applies only to the violation-of-the-person’s-duty
element. The series-qualifier canon of statutory interpretation
provides that “[w]hen there is a straightforward, parallel
construction that involves all nouns or verbs in a series,
a prepositive or postpositive modifier normally applies to
the entire series.” Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 147 (2012). For example,
if the statute required proof that the person dealt with
property “in a manner which the person knows is a violation
of the person’s duty and involves substantial risk of loss,”
the qualifier “knows” would presumably apply to both
elements: the person must know that those dealings are a
violation of the person’s duty and the person must know
that those dealings involve a substantial risk of loss. But
“[t]he typical way in which syntax would suggest no
carryover modification is that a determiner (a, the, some, etc.)
will be repeated before the second element.” Id. at 148. 4 Here,


4. For example, in the phrase, “A solid wall or fence,” “solid” acts
as a modifier that applies to both “wall” and “fence”—both must
be solid. However, in the phrase, “A solid wall or a fence,” the “a”
is a determiner suggesting that the modifier does not apply to
“fence”—only the wall need be solid. See Antonin Scalia & Bryan
                                                     (continued…)


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                           State v. Jones


the legislature inserted a determiner, “which,” before the
substantial-risk-of-loss element, suggesting that the “knows”
modifier does not apply to that element. In other words,
the statute appears to require that the person deal with
property “in a manner [1] which the person knows is a
violation of the person’s duty and [2] which involves
substantial risk of loss.” Where the statute does not specify a
mens rea for a particular element, recklessness is sufficient
to establish criminal responsibility. Utah Code Ann. § 76-2-102.
Therefore, based on a fair reading of the statute, trial
counsel could reasonably conclude that the jury instructions
accurately reflected the applicable mental states for each
element. 5

¶47 Second, such a conclusion is particularly reasonable given
that no Utah appellate court has squarely addressed whether a
knowledge or recklessness mens rea requirement applies to the
substantial-risk-of-loss element. We recognize that defense
attorneys are not “categorically excused from failure to raise an
argument not supported by existing legal precedent.” Silva, 2019
UT 36, ¶ 19. But without such legal precedent and without a
clear basis in the statutory language, trial counsel’s stipulation to
the jury instruction did not fall below an objective standard of


(…continued)
A. Garner, Reading Law: The Interpretation of Legal Texts 148–
49 (2012).

5. Jones’s “challenge to the jury instruction[] is viewed through
the lens of ineffective assistance of counsel, and thus we need
not definitively resolve what the statute actually means.” See
State v. Squires, 2019 UT App 113, ¶ 32 n.7, 446 P.3d 581. We
decide only that trial counsel was not deficient in stipulating to
the jury instruction because knowledge is not plainly required as
to the substantial-risk-of-loss element.




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                           State v. Jones


reasonableness. See Squires, 2019 UT App 113, ¶¶ 30–36
(concluding that failure to object to allegedly incorrect jury
instructions was not deficient performance where statutory
language did not require a particular interpretation and the issue
was unsettled under Utah caselaw); cf. State v. Eyre, 2019 UT
App 162, ¶¶ 31–32, 452 P.3d 1197 (concluding that failure to
object was not deficient performance where Utah courts had not
addressed an issue and outside authorities reached conclusions
unfavorable to the defendant’s argument); State v. Brocksmith,
2018 UT App 76, ¶¶ 16–17, 424 P.3d 1122 (holding that counsel is
not ineffective for failing to raise a “truly novel” constitutional
challenge when the law at issue “is not clearly
unconstitutional”).

¶48 Accordingly, Jones has failed to establish deficient
performance because reasonable counsel could interpret Utah
Code section 76-6-513(2) in a manner consistent with the jury
instruction.

D.    Failure to Move for Merger of Jones’s Convictions

¶49 Jones’s fourth and final ineffective assistance of counsel
claim centers on trial counsel’s failure to move for merger of his
convictions for exploitation of a vulnerable adult and for
unlawful dealing with property by a fiduciary. “The merger
doctrine operates to protect criminal defendants from being
twice punished for committing a single act that may violate
more than one criminal statute.” State v. Bowden, 2019 UT App
167, ¶ 23, 452 P.3d 503 (cleaned up). “The motivation behind the
merger doctrine is to prevent violations of constitutional double
jeopardy protection.” Id. (cleaned up).

¶50 A defendant is entitled to merger of his or her offenses if
they can satisfy one of two statutorily defined merger tests:

      The first dictates that when the same act of a
      defendant under a single criminal episode shall


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                          State v. Jones


      establish offenses which may be punished in
      different ways under different provisions of this
      code, the act shall be punishable under only one
      such provision. The second dictates that when an
      offense is a lesser included offense of another
      charged offense, a defendant may not be convicted
      of both offenses.

Id. ¶ 24 (cleaned up); see also Utah Code Ann. § 76-1-402(1), (3)
(LexisNexis 2012). Jones argues that he was entitled to merger of
his convictions under either test.

¶51 Regarding the first test, Jones contends that “although
the two statutes under which [Jones] was convicted are
typically separate offenses, the State’s theory of the case
provided no factual distinction between the two charges.” This is
incorrect. The two counts against Jones were not based on “the
same act of a defendant,” see id. § 76-1-402(1), because the
charges concern, at least in part, different time periods. The
charge for unlawful dealing with property by a fiduciary could
relate only to Jones’s actions before the Public Guardian relieved
Jones of his fiduciary powers—i.e., having his father sign the
loan document and loaning himself all his father’s monthly
retirement income. The charge for exploitation of a vulnerable
adult, however, is based in part on Jones’s conduct after the
Public Guardian was appointed and relieved Jones of his
fiduciary powers—i.e., having his father sign the financial
control documents and racking up charges on a new credit card
that he opened in his father’s name. Therefore, because separate
criminal acts support each charge, Jones’s argument under the
first merger test fails.

¶52 Regarding the second test, Jones argues that “[a]lthough
the State charged [Jones] with violating both statutes, the
elements overlap, particularly under the only theory advanced
by the State—that [Jones] purportedly used his fiduciary



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                           State v. Jones


position to use his father’s money for a purpose other than
caring for his father.” Whether the “greater-lesser relationship”
required by the second test applies is “determined by
comparing the statutory elements of the crimes as a
theoretical matter and, where necessary, by reference to the
facts proved at trial.” State v. Hill, 674 P.2d 96, 97 (Utah 1983).
Here, the elements of the offenses do not overlap. The
exploitation charge required a showing that Jones’s father was
a vulnerable adult, which is not required by the unlawful
dealing with property by a fiduciary statute. And the unlawful
dealing with property by a fiduciary charge required a showing
that Jones was a fiduciary, which is not required by the
exploitation of a vulnerable adult statute. Compare Utah Code
Ann. § 76-5-111(4)(a)(iii), with id. § 76-6-513(2). Further, as
discussed above, supra ¶ 51, different facts were presented at
trial to support both charges. Therefore, Jones’s argument under
the second merger test fails as well.

¶53 Because neither test applies to this case, trial counsel did
not perform deficiently by not moving the district court to merge
Jones’s convictions. See State v. Farnworth, 2018 UT App 23, ¶ 53,
414 P.3d 1053 (finding no deficient performance for failure to
move for merger because “such a motion would have been
futile”). 6



6. Jones also makes a cumulative error argument under the
umbrella of ineffective assistance of counsel. However, “under
the cumulative error doctrine, we will reverse only if the
cumulative effect of the several errors undermines our
confidence that a fair trial was had. If the claims are found on
appeal to not constitute error, or the errors are found to be so
minor as to result in no harm, the doctrine will not be applied.”
State v. Alfatlawi, 2006 UT App 511, ¶ 52, 153 P.3d 804 (cleaned
up). Here, Jones has not established that any errors occurred or
                                                    (continued…)


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                             State v. Jones


                      II. Vagueness Challenge

¶54 Jones contends that Utah Code section 76-5-111, the
exploitation of a vulnerable adult statute, is unconstitutionally
vague on its face and as applied to his conduct. In relevant part,
the statute provides:

       A person commits the offense of exploitation of a
       vulnerable adult when the person . . . unjustly or
       improperly uses or manages the resources of a
       vulnerable adult for the profit or advantage of
       someone other than the vulnerable adult.

Utah Code Ann. § 76-5-111(4)(a)(iii) (LexisNexis 2012). Jones
argues that the “unjustly or improperly” language is
unconstitutionally vague because those are “subjective terms,
which . . . could lead to charges against virtually anyone who
uses a vulnerable adult’s resources for the use of anyone other
than the vulnerable adult.” We disagree.

¶55 “The United States Supreme Court has explained that
vagueness challenges to ‘statutes which do not involve First
Amendment freedoms must be examined in the light of the facts
of the case at hand.’” State v. Jones, 2018 UT App 110, ¶ 15, 427
P.3d 538 (quoting Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 495 (1982)). “It is well-established that a
defendant who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as
applied to the conduct of others.” Id. ¶ 16 (cleaned up). “A court
should therefore examine the defendant’s conduct before
analyzing other hypothetical applications of the law.” Id.
(cleaned up). “If the defendant’s conduct is clearly prohibited,

(…continued)
that any of the alleged errors resulted in prejudice. Therefore, the
cumulative error doctrine does not apply.




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                           State v. Jones


then he lacks standing to challenge the statute based on
another’s hypothetical conduct.” Id.

¶56 Despite any vagueness inherent in the language of the
exploitation of a vulnerable adult statute, Jones’s conduct in this
case was clearly proscribed. Although Jones offers examples of
less egregious conduct that might arguably fall within the scope
of the statute, this is not a case of “one child ask[ing] a
vulnerable adult for help with paying college tuition or
purchasing a home from a vulnerable adult where that child’s
sibling had received no such assistance.” Rather, this is a case
where a son “loaned” himself the entirety of his father’s
retirement income and neglected to pay for his father’s basic
living expenses until his father became a ward of the State.
Jones’s actions in this regard are “unjust” and “improper” under
any definition of those terms.

¶57 Because Jones’s conduct is clearly prohibited by law, “he
lacks standing to assert a vagueness claim and we need not
address the issue any further.” See id. ¶ 17.

                 III. Sufficiency of the Evidence

¶58 Jones’s final argument is that there was insufficient
evidence that he “knew he was breaching his duty or otherwise
improperly or unjustly managing his father’s finances.”
Evidence is sufficient when, viewed in the light most favorable
to the State, there exists “some evidence . . . from which a
reasonable jury could find that the elements of the crime had
been proven beyond a reasonable doubt.” See State v. Montoya,
2004 UT 5, ¶ 9, 84 P.3d 1183 (cleaned up). We conclude that both
convictions were supported by ample evidence.

¶59 Jones first challenges his conviction for exploitation of a
vulnerable adult, arguing that insufficient evidence supported
the jury’s finding that he acted “intentionally or knowingly,”
Utah Code Ann. § 76-5-111(4)(b)(i) (LexisNexis 2012), when he


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                           State v. Jones


“unjustly or improperly use[d] or manage[d]” his father’s
resources for his own benefit, see id. § 76-5-111(4)(a)(iii). We
disagree. The State produced evidence at trial that Jones knew
his father was incompetent due to progressive dementia when
Jones began using the father’s income to fund Jones’s business
ventures. Other evidence showed that Jones took the entirety of
his father’s retirement income, leaving no funds from which his
father’s rent and other basic living expenses could be paid.
Further, Jones undoubtedly became aware of the unjust or
improper nature of his actions when the Public Guardian
wrested away custody of his father, but Jones was undeterred
and continued to incur expenses by opening a new credit card in
his father’s name. This is sufficient evidence from which the
jury could conclude that Jones “intentionally or knowingly”
used his father’s resources in an unjust manner and for his own
benefit.

¶60 Jones also challenges his conviction for unlawful dealing
with property by a fiduciary. He argues that insufficient
evidence supported the criminal statute’s mens rea requirements
for the violation-of-a-person’s-duty and substantial-risk-of-loss
elements. See id. § 76-6-513(2). First, Jones contends that there
was insufficient evidence from which the jury could conclude
that he knowingly violated his fiduciary duty. But there is ample
evidence from which the jury could find that Jones knowingly
breached his duty “to act primarily for the benefit of” his father.
See Robinson v. Robinson, 2016 UT App 33, ¶ 43, 368 P.3d 105
(cleaned up). While Jones contends that his father was his
“business partner,” only Jones was listed as an owner of
Brewhaha and Gusto. Thus, despite fronting all the expenses, his
father had no ownership stake in either restaurant. Based on this
evidence, the jury could reasonably conclude that Jones was
using his father’s income primarily to benefit himself, not his
father. And a jury could also conclude that Jones knew he was
violating his fiduciary duties when he failed to pay his father’s
rent even as his ailing father faced the threat of eviction. This



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                           State v. Jones


evidence is more than sufficient to support the jury’s finding that
Jones knowingly violated his fiduciary duties.

¶61 Sufficient evidence also supported the jury’s finding with
regard to the substantial-risk-of-loss element. As already
discussed in connection with his ineffective assistance claim,
supra ¶¶ 43–48, Jones argues that the unlawful dealing statute
required the State to prove that the defendant knew that his
conduct created a substantial risk of loss. But, as applied here,
we see very little daylight between knowledge, i.e., the
defendant being “aware that his conduct [was] reasonably
certain to cause” a substantial risk of financial loss, and
recklessness, i.e., the defendant being “aware of but consciously
disregard[ing] a substantial and unjustifiable risk” of financial
loss. See generally Utah Code Ann. § 76-2-103 (LexisNexis 2012)
(defining “knowingly” and “recklessly”). Under either
formulation, the evidence of Jones’s conduct fully satisfied this
element. While Jones still had fiduciary power, he had his father
sign the Brewhaha lease as a co-tenant and guarantor despite
being aware of the “harsh” and “unfair” terms of the lease. And
even if Jones could argue reasonable ignorance of the risky
nature of the Brewhaha investment, he was undoubtedly aware
of the financial risks involved when he used his father’s money
to start Gusto in the immediate aftermath of Brewhaha’s failure.
This is sufficient evidence from which the jury could find that
Jones was aware that his conduct entailed a substantial risk of
loss to his father.


                         CONCLUSION

¶62 Jones’s claims for ineffective assistance of counsel fail
because he has not established deficient performance or
prejudice with regard to any of trial counsel’s challenged actions.
Jones also has not established that Utah’s exploitation of a
vulnerable adult statute is vague as applied to his criminal




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                         State v. Jones


conduct. And we reject Jones’s sufficiency of the evidence claim
because the jury’s findings were supported by ample evidence.

¶63   Affirmed.




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