State v. Kelson , 2014 Utah LEXIS 166 ( 2014 )

This opinion is subject to revision before final
publication in the Pacific Reporter.
2014 UT 38
IN THE
SUPREME COURT OF THE STATE OF UTAH
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STATE OF UTAH,
Plaintiff and Petitioner,
v.
GRACE C. KELSON,
Defendant and Respondent.
———————
No. 20120843
Filed September 19, 2014
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Third District, Salt Lake
The Honorable Judith S.H. Atherton
No. 041901548
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On Certiorari to the Utah Court of Appeals
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Attorneys:
Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Att’y Gen.,
Salt Lake City, for petitioner
Alan S. Mouritsen, Nicole G. Farrell, Scott S. Bell,
Salt Lake City, for respondent
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JUSTICE LEE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, and JUSTICE PARRISH joined.
———————
JUSTICE LEE, opinion of the Court:
¶1 Grace Kelson was convicted of five securities law violations
and one count of maintaining a pattern of unlawful activity (rack-
eteering) related to an investment scheme. The court of appeals
overturned Kelson’s securities convictions on the basis of ineffec-
tive assistance of trial counsel in stipulating to a jury instruction
that purportedly relieved the State of its burden to prove each el-
ement of the charges beyond a reasonable doubt.
STATE v. KELSON
Opinion of the Court
¶2 We reverse. We conclude that the jury instruction in ques-
tion was an accurate statement of the underlying criminal law and
not a burden-shifting evidentiary presumption. We accordingly
reject Kelson’s claims of ineffective assistance of counsel and plain
error, and thus reinstate her five securities law convictions.
I
¶3 Kelson met Mark and Todd Mosher, owners of a mortgage
company, in 1999. At that time Kelson was working on two pur-
ported property developments—one in Heber City, Utah, and the
other in Brazil. She approached the Moshers about helping to se-
cure funding for the projects, and they agreed. Between 1999 and
2001, the Moshers met with 20 to 30 potential lenders but were ul-
timately unable to secure loans for the projects. Faced with insuf-
ficient funding, Kelson and the Moshers sought to obtain a letter
of credit to fund the Brazilian project. The letter of credit was to
serve as collateral for potential lenders, thereby making it easier to
find parties willing to fund the project. Kelson and the Moshers
needed approximately $125,000 to secure a $15 million letter of
credit.
¶4 To that end, they set about persuading friends and col-
leagues, and the families of their friends and colleagues, to pro-
vide funds for the letter of credit. The deal was pitched as a short-
term investment with little to no risk and the potential for very
high returns. In exchange for funding the letter of credit, the in-
vestors received promissory notes signed by Kelson for amounts
several times larger than the amounts they provided. Kelson and
the Moshers did not register the promissory notes as securities or
obtain licenses to sell them.
¶5 The promissory notes stated that they would be paid with-
in thirty days by S.D.C. Financial Services, a limited liability com-
pany of which Kelson was the registered agent. S.D.C. was creat-
ed and registered as a limited liability company on the date the
promissory notes were executed, and opened its first bank ac-
count that same day. Over the course of several days, the money
secured by the promissory notes was deposited in the S.D.C. bank
account. Most of it was then transferred to an account in the state
of Washington. Of the money that remained in the S.D.C. account,
$5,000 was used for legal fees, and Kelson withdrew another
$25,000 for her own personal use, which included clothing, gro-
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Opinion of the Court
ceries, personal care, trips to hair salons, furniture, and a down
payment on a condominium. Kelson did not inform the holders of
the promissory notes that their money would be used for her per-
sonal expenses.
¶6 Ultimately, Kelson failed to obtain the letter of credit and
S.D.C. defaulted on its obligations under the promissory notes.
When the S.D.C. bank account was closed a few months later, it
had a negative balance of approximately $9,000.
¶7 The State charged Kelson with three counts of securities
fraud; one count of offering or selling unregistered securities; one
count of sales by an unlicensed broker-dealer, agent, or invest-
ment advisor; and one count of engaging in a pattern of unlawful
activity. At trial, Kelson did not dispute that she had issued the
promissory notes. Her primary defense was that the promissory
notes did not constitute “securities” under Utah law.
¶8 The parties stipulated to jury instructions, one of which
outlined the process for the jury to determine whether the prom-
issory notes were securities. Instruction 25 stated:
You are instructed that a “note” is presumed to be
a security. However, certain notes have been clas-
sified as non-securities; these notes are:
1. the note delivered in consumer financing,
2. the note secured by a mortgage on a home,
3. the short-term note secured by a lien on a
small business or some of its assets,
4. the note evidencing a “character” loan to a
bank customer,
5. short term notes secured by an assignment of
accounts receivable, or
6. a note which simply formalizes an open-
account debt incurred in the ordinary course
of business particularly if, as in the case of a
customer of a broker, it is collateralized.
The instruction then explained that a class of notes that “resem-
bles one of these exceptions can be added to the list of non-
security notes if [it] meet[s] a four factor test.”
¶9 Instruction 25 then delineated a four-part test. Under that
test the jury was directed first to “examine the transaction” to de-
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STATE v. KELSON
Opinion of the Court
termine whether “the seller’s purpose [was] to raise money for the
general use of a business enterprise or to finance substantial in-
vestments,” in which case the note would likely be deemed a se-
curity. Alternatively, the jury was to consider whether the note
“facilitate[d] the purchase of a minor asset or consumer
good[,] . . . correct[ed] cash-flow difficulties[,] . . . [or] advanced
some other commercial or consumer purpose,” in which case the
note was “less sensibly described as a security.” Next the jury was
to determine whether the note was an instrument “in which there
is common trading for speculation and investment,” and “exam-
ine the reasonable expectations of the investing public.” And fi-
nally, the jury was to examine whether another factor such as “the
existence of another regulatory scheme” reduced the risk of the
instrument and “thereby render[ed] application of the Securities
Act unnecessary.”
¶10 Kelson was convicted on all six counts and appealed. The
court of appeals reversed Kelson’s five securities law convictions,
holding that her counsel rendered ineffective assistance by stipu-
lating to instruction 25 because that instruction (specifically, its
language establishing a presumption that a note is a security) im-
permissibly shifted the burden to Kelson and relieved the State of
its burden to prove each element of an offense beyond a reasona-
ble doubt. 1 See State v. Kelson, 2012 UT App 217, ¶ 49, 284 P.3d
695. The State filed a petition for certiorari, which we granted.
¶11 On certiorari, we review the decision of the court of ap-
peals, not the underlying decision of the trial court. The appellate
court’s decision merits no deference in our analysis, although the
correctness of the court of appeals’ decision may turn in part on
whether it accurately reviewed the trial court’s decision under an
appropriate standard of review. See State v. Verde, 2012 UT 60,
¶ 13, 296 P.3d 673.
II
¶12 The threshold question presented concerns the viability of
the jury instruction’s statement that “a ‘note’ is presumed to be a
security.” Kelson contends, and the court of appeals held, that this
1 The court of appeals also vacated Kelson’s conviction for pat-
tern of unlawful activity, see State v. Kelson, 2012 UT 217, ¶ 48, 284
P.3d 695, but the State does not challenge that part of the decision.
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Opinion of the Court
presumption effectively relieved the prosecution of its burden of
proof on an element of the securities crimes with which she was
charged, running afoul of the principles set forth in Francis v.
Franklin, 471 U.S. 307, 313 (1985), and In re Winship, 397 U.S. 358,
363 (1970). State v. Kelson, 2012 UT App 217, 284 P.3d 695. And in
light of this alleged defect in the instruction, the court of appeals
agreed with Kelson’s assertion that her counsel was ineffective in
failing to object to it.
¶13 The State’s response is twofold. It first defends the instruc-
tion as accurately reflecting a presumption prescribed by statute,
Utah Code section 61-1-13(24)(a)(i)(A) (2000)—a provision that in
the State’s view obviates the principles in Francis and Winship and
therefore excuses counsel’s failure to object to the instruction in
question. And second, the State defends counsel’s failure to object
on an alternative basis—that the instruction was actually more fa-
vorable to the defense than that prescribed by statute, in that the
instruction incorporated limiting principles from Reves v. Ernst &
Young, 494 U.S. 56 (1990), that are not set forth in the statute.
¶14 We uphold the instruction as an accurate statement of law
that does not implicate the burden-shifting concerns reflected in
Francis and Winship. On that basis we reverse the court of appeals’
determination of defense counsel’s ineffectiveness in failing to ob-
ject to instruction 25, and decline to address the State’s alternative
ground for defending counsel’s performance. Finally, we reject
Kelson’s plain error argument, as there was no plain error in the
adoption of this stipulated instruction.
A
¶15 Winship established the now-familiar principle that due
process requires proof beyond a reasonable doubt “of every fact
necessary to constitute the crime with which [one] is charged.”
397 U.S. at 364. Francis extended that “axiomatic and elemen-
tary . . . principle” to foreclose the operation of burden-shifting
evidentiary presumptions that have the effect of relieving the
prosecution of its burden of proof on an essential element of a
crime. 471 U.S. at 315–18.
¶16 The presumption at issue in Francis arose in the context of a
crime of “malice murder” (murder committed with “malice afore-
thought”). See Francis, 471 U.S. at 310 n.1. Although the underly-
ing substantive criminal law required not just proof of the actus
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STATE v. KELSON
Opinion of the Court
reus of homicide but the mens rea of intent, the jury instruction in
question had the effect of relieving the State of its burden of prov-
ing the latter. It did so by operation of a presumption that a per-
son is “presumed to intend the natural and probable consequenc-
es of his acts.” See id. at 315. 2
¶17 The Francis court found that presumption to run afoul of
due process. It held that due process “prohibits the State from us-
ing evidentiary presumptions in a jury charge that have the effect of
relieving the State of its burden of persuasion beyond a reasona-
ble doubt of every essential element of a crime.” Francis, 471 U.S.
at 313 (emphasis added). And it found that principle to be impli-
cated by the above-noted instruction, as it effectively eliminated
the requirement of proof of intent beyond a reasonable doubt—by
the presumption establishing the mens rea element upon proof of
the actus reus. See id. at 316 (explaining that the instruction runs
afoul of due process principles because it “directs the jury to pre-
sume an essential element of the offense—intent to kill—upon
proof of other elements of the offense—the act of slaying anoth-
er”).
¶18 The fatal flaw in the instruction in Francis was its distortion
of the substantive law of intentional homicide. That underlying
law set forth two independent elements—of actus reus and mens
rea—and left no room for a presumption collapsing the two. Thus,
2 The full jury instruction at issue in Francis read: “A crime is a
violation of a statute of this State in which there shall be a union
of joint operation of act or omission to act, and intention or crimi-
nal negligence. A person shall not be found guilty of any crime
committed by misfortune or accident where it satisfactorily ap-
pears there was no criminal scheme or undertaking or intention or
criminal negligence. The acts of a person of sound mind and dis-
cretion are presumed to be the product of the person's will, but
the presumption may be rebutted. A person of sound mind and
discretion is presumed to intend the natural and probable conse-
quences of his acts but the presumption may be rebutted. A per-
son will not be presumed to act with criminal intention but the
trier of facts, that is, the Jury, may find criminal intention upon a
consideration of the words, conduct, demeanor, motive and all
other circumstances connected with the act for which the accused
is prosecuted.” 471 U.S. at 311–12.
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Opinion of the Court
the defect in the Francis instruction was its creation of an eviden-
tiary presumption out of whole cloth—a presumption that had no
basis in the substantive criminal law and that therefore shifted the
burden of proof on an element assigned by the criminal law to the
prosecution.
¶19 The presumption at issue here did no such thing. It in no
way altered or undermined any element of the substantive law.
To the contrary, the presumption accurately reflected that law,
which defines a “security” to include “any note.” UTAH CODE
§ 61-1-13(24)(a)(i)(A) (2000). 3 The presumption in instruction 25
thus steered clear of the due process concern in Francis, as it in no
way shifted the burden of proof on an element assigned by the
criminal law to the prosecution.
¶20 The legislature has the discretion to define the elements of
a crime as it sees fit. In so doing, it is not at all foreclosed from
employing the terminology or concept of a presumption. The moral
of Francis is not that presumptions are generally suspect as ele-
ments of criminal jury instructions; it is that they must not be used
in a manner that shifts the burden of proof on an element as-
signed by the criminal law to the prosecution.4
3 The statute underwent subsequent amendments, which were
primarily stylistic. Kelson was charged under the 2000 version, so
we cite it here.
4 See People v. McCall, 82 P.3d 351 (Cal. 2004) (upholding jury in-
struction under statute criminalizing possession of certain chemi-
cals with intent to manufacture methamphetamine—which stated
that “possession of immediate precursors sufficient for the manu-
facture of [] hydriodic acid [] shall be deemed to be possession of
the derivative substance”—because that presumption in instruc-
tion was “nothing more than a definitional section that specified
[criminal] conduct,” and “lawmakers [have] broad power to select
the elements of crimes, and to define one thing in terms of anoth-
er”); People v. Pinkston, 112 Cal. App. 4th 387, 391–92 (2003) (up-
holding jury instruction under statute defining evasion of peace
officer as a felony where “pursued vehicle is driven in a willful or
wanton disregard for the safety of persons or property,” including
“driving while fleeing or attempting to elude a pursuing peace
officer during which time either three or more violations that are
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STATE v. KELSON
Opinion of the Court
¶21 Even in the law of murder, there is no general due process
ban on the invocation of a presumption. The law of felony murder
incorporates a presumption, and in so doing raises no due process
concern. Thus, although the state generally must prove intent to
sustain a conviction for murder, our law presumes intent where a
homicide is committed in the course of a felony. See UTAH CODE
§ 76-5-203(2)(d). The adoption of that presumption falls well with-
in the legislature’s judgment in defining the elements of a crime.
And for that reason a jury instruction reflecting it would be per-
fectly acceptable as a matter of due process.
¶22 The same conclusion holds for the securities crimes at issue
here. The governing statute is in the form of a presumption—in
defining “security” in terms of general rules and exceptions. See
UTAH CODE § 61-1-13(24)(a)&(b) (2000). And the instruction at is-
sue accurately reflected the statute in establishing a presumption
that a note is a security.
¶23 That conclusion foils Kelson’s claim for ineffective assis-
tance of counsel. Kelson’s counsel could reasonably have stipulat-
ed to instruction 25 as an accurate statement of law that in no way
shifted the burden of proof through an evidentiary presumption.
We reverse on that basis. See Nicholls v. State, 2009 UT 12, ¶ 37, 203
P.3d 976 (defendant has burden to show counsel’s performance
“fell below an objective standard of reasonableness” (citing Strick-
land v. Washington, 466 U.S. 688 (1984))).
B
¶24 In so doing, we decline to address the State’s alternative
basis for defending counsel’s effectiveness—its assertion that
counsel’s performance could be defended on the ground that in-
struction 25 was arguably more favorable to the defense than the
standard prescribed by statute, such that an objection to the in-
struction might have produced a clarification that would have
hurt Kelson’s cause. This alternative argument compared the stat-
utory text with the terms of the instruction. Whereas the statute
seems to categorically equate a “security” with a “note,” the State
assigned a traffic violation point count under [statute] occur, or
damage to property occurs”; concluding that definition estab-
lished a rule of law “rather than a presumption apportioning the
burden of persuasion” on an element of the crime).
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Opinion of the Court
noted that the instruction framed the matter in terms of a pre-
sumption subject to rebuttal—under exceptions and factors ap-
parently incorporating the federal definition of security set forth
in Reves v. Ernst & Young, 494 U.S. 56, 61–65 (1990). 5
5 Reves interpreted the federal definition of “security” in the 1934
Securities Act, 15 U.S.C. § 78c(a)(10). Although the statutory defi-
nition broadly defined “security” as “any note, stock, treasury
stock, bond, debenture, certificate of interest or participation in
any profit-sharing agreement,” the Reves court concluded that the
1934 Act did not establish a “broad federal remedy for all fraud,’”
but was aimed instead at fraud in connection with “investments.”
Reves, 494 U.S. at 61 (internal quotation marks omitted). Thus, the
Reves court held that the 1934 Act did not literally extend to all
transactions encompassing literally all “notes,” but rather left it to
the SEC and to the courts “to decide which of the myriad financial
transactions in our society come within the coverage of these stat-
utes.” Id. (internal quotation marks omitted).
Extending a body of caselaw followed in some of the lower
courts to have addressed this issue, the Reves court adopted a pre-
sumption that “every note is a security,” while allowing for rebut-
tal of the presumption by a showing that the note falls into one of
seven categories more closely resembling consumer or commer-
cial loans than investments. Reves, 494 U.S. at 64–65 (recognizing
exceptions for (1) a “note delivered in consumer financing;” (2) “a
note secured by a mortgage on a home;” (3) a “short-term note se-
cured by lien on a small business or some of its assets;” (4) a “note
evidencing a ‘character’ loan to a bank customer;” (5) a short-term
note “secured by an assignment of accounts receivable;” (6) “a
note which simply formalizes an open-account debt incurred in
the ordinary course of business;” and (7) a note “evidencing loans
by commercial banks for current operations”). In addition, the
Reves court identified four factors of relevance to determining
whether a note bears a “strong resemblance” to one of these cate-
gories. Id. at 66–67 (indicating that the relevant factors are (1) “the
motivations that would prompt a reasonable seller and buyer to
enter into [the transaction];” (2) “the plan of distribution of the in-
strument;” (3) “the reasonable expectations of the investing pub-
lic;” (4) “whether some factor such as the existence of another
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STATE v. KELSON
Opinion of the Court
¶25 The distinction between the statutory text and the terms of
the instruction may be more apparent than real. The Reves stand-
ard could be understood to represent a settled, term-of-art under-
standing of the definition of a security. And if so it might be pos-
sible to read the Utah statute as incorporating that established
understanding. See Maxfield v. Gary Herbert, 2012 UT 44, ¶ 31, 284
P.3d 647 (noting that when a word or phrase is transplanted from
another legal source, it may be interpreted to bring its “old soil
with it”); State v. Burkenshaw, 2010 UT App 245, ¶ 11 n.3, 239 P.3d
1052 (reviewing trial court’s application of the Reves test in a crim-
inal case, “without deciding whether Utah should adopt that
test” to determine whether a note is a security). But we need not
and do not resolve this question here. We rest our decision instead
on the conclusion that instruction 25 was not an evidentiary pre-
sumption unlawfully shifting the burden of proof to the defense
but an accurate statement of Utah law. 6
C
¶26 The above analysis of instruction 25 defeats Kelson’s plain
error claim as well. Because the instruction is not a burden-
shifting evidentiary presumption but a correct statement of Utah
law, there can be no error—much less plain error—in the district
court’s acceptance of the parties’ stipulated instruction. See State v.
Dunn, 850 P.2d 1201, 1208 (Utah 1993) (plain error “is not estab-
lished” unless error is “obvious”). We accordingly reject Kelson’s
assertion of plain error and therefore reinstate the securities con-
victions entered against her in the district court.
——————
regulatory scheme significantly reduces the risk of the instrument,
thereby rendering application of the Securities Act unnecessary”).
6 Our holding also obviates Kelson’s take on the Reves factors set
forth in the instruction—that those factors reinforced the burden-
shifting impact of the instruction’s presumption. She says they did
so by telling the jury “that it should infer notes are securities un-
less the defendant persuaded the jury that such an inference was
unwarranted.” That may be, but again that is not by operation of a
burden-shifting evidentiary presumption, but only as an accurate
statement of the substantive law.
10