State v. Jack , 414 P.3d 1063 ( 2018 )

2018 UT App 18THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JORDAN JEFFERY JACK,
Appellant.
Opinion
No. 20150901-CA
Filed February 1, 2018
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 141902101
Rudy J. Bautista and Kelly Ann Booth, Attorneys
for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
GREGORY K. ORME and RYAN M. HARRIS concurred.
HAGEN, Judge:
¶1 Defendant Jordan Jeffery Jack was convicted of seven
counts of exploitation of a vulnerable adult, third degree
felonies, see Utah Code Ann. § 76-5-111 (LexisNexis 2012), and
one count of communications fraud, a second degree felony, see
id. § 76-10-1801. 1 Jack appeals, arguing that the trial court should
have merged his communications fraud conviction into his
exploitation of a vulnerable adult convictions under Utah Code
1. Jack was also convicted of one count of theft by deception, a
class B misdemeanor, see Utah Code Ann. § 76-6-405 (LexisNexis
2012), which is unchallenged on appeal.
State v. Jack
section 76-1-402(3) and the double jeopardy clauses of the United
States and Utah constitutions. See U.S. Const. amend. V; Utah
Const. art. I, § 12. We affirm.
BACKGROUND 2
¶2 Jack worked as an associate director for Chrysalis, a
business that provides residential services for individuals with
traumatic brain injuries and other intellectual, cognitive, and
developmental impairments that cause the individuals “to
function at levels comparable to those of teenagers, small
children and even in some cases infants.” To be eligible to
receive Chrysalis’s residential services, clients must be
diagnosed with an intellectual disability, and they must meet the
poverty guidelines for Medicaid.
¶3 Residential services consist of group homes—each
housing three or four clients—that are staffed twenty-four hours
per day. The staff teaches clients “adaptive and habilitative
skills” and assists them with daily living activities, such as
eating, bathing, dressing, toileting, and ambulating.
¶4 Chrysalis also provides financial support, which includes
helping clients apply for Social Security benefits. Because
Chrysalis is the representative payee for approximately “90 plus
percent” of the clients it serves, the company’s representative
payee supervisor manages the Social Security funds upon
receipt. Initially, clients’ funds are deposited into a collective
bank account, which the supervisor uses to pay for clients’ rent,
2. On appeal from a bench trial, we view and recite the evidence
in the light most favorable to the trial court’s findings; we
present additional evidence only as necessary to understand the
issues on appeal. See, e.g., State v. Finlayson, 2014 UT App 282,
¶ 2 n.4, 362 P.3d 926.
20150901-CA 2 2018 UT App 18State v. Jack
utilities, and personal needs. If there is a remaining balance,
those funds are transferred to a pay card that Chrysalis’s
associate directors may use to pay for the clients’ additional
expenses, such as groceries, clothing, and entertainment.
¶5 As an associate director, Jack was “heavily involved” in
managing finances for clients who resided in the eight to ten
group homes that he oversaw. Jack’s duties included, among
other things, purchasing items, requesting funds, allocating
expenses, and reviewing monthly statements for clients.
¶6 Each month, Jack would send receipts and a ledger to the
area director and the supervisor. The ledger listed the items that
he had purchased and allocated those items to the corresponding
client. The supervisor then prepared statements to maintain a
monthly accounting of each client’s balance. Once finalized, the
statements were returned to Jack for review. Typically, if there
was an error, associate directors notified the area director who,
in turn, asked the supervisor to correct the charge and adjust the
client’s balance. Finalized statements were then distributed to
the house managers and the clients’ legal guardians.
¶7 In January 2014, Jack asked an administrative assistant to
send the original statements to him to fix before sending the
statements to the house managers and the clients’ legal
guardians. Believing that “something was off” when Jack sent
the administrative assistant “corrected” statements, she
contacted the area director. After learning that Jack had
circumvented Chrysalis’s procedure for rectifying errors in
statements on several prior occasions, the area director became
concerned. He reviewed Jack’s new statements, identified
several discrepancies, and subsequently notified Chrysalis’s
CEO. During a joint review, the area director and CEO found
multiple discrepancies between the statements that the
supervisor had produced and the statements that were sent to
the house managers of the group homes that Jack oversaw and
to the clients’ legal guardians.
20150901-CA 3 2018 UT App 18State v. Jack
¶8 When confronted with the allegations, Jack eventually
admitted that he had submitted altered receipts and changed
statements to conceal the fact that he had used client funds for
his own personal expenses. Among other things, his unlawful
purchases included a trip to Las Vegas, concert tickets, multiple
televisions, jewelry, and expensive shoes. Jack was charged with
seven counts of exploitation of a vulnerable adult, one count of
communications fraud, and one count of theft by deception.
¶9 Prior to trial, Jack filed a motion to merge the
communications fraud charge into the exploitation of a
vulnerable adult charges under Utah Code section 76-1-402(3)
and the double jeopardy clauses of the United States and Utah
constitutions. The trial court denied the motion, reasoning that
there were “elements unique to each of the crimes charged.”
Specifically, exploitation of a vulnerable adult requires two
elements that communications fraud does not—(1) a victim that
is “a vulnerable adult based on age and impairment” and (2) a
“defendant who is in a position of trust or similar relationship.”
The trial court also found that Jack’s charged conduct did not
“constitute a single criminal episode.”
¶10 After a bench trial, the trial court found Jack guilty of one
count of communications fraud and seven counts of exploitation
of a vulnerable adult. Jack again moved to merge his
communications fraud conviction into his exploitation of a
vulnerable adult convictions, arguing that “communications
fraud was the modus operandi by which each exploitation
offense was perpetrated.” At the sentencing hearing, the trial
court denied Jack’s motion, noting that it was “critical” that
although there were fourteen victims, “the State chose to charge
only seven on the exploitation, but all 14 were covered in the
communications fraud.”
¶11 Jack now appeals the trial court’s denial of the motion to
merge his convictions.
20150901-CA 4 2018 UT App 18State v. Jack
ISSUE AND STANDARD OF REVIEW
¶12 The only issue on appeal is whether the trial court erred
in denying the motion to merge Jack’s convictions for
communications fraud and exploitation of a vulnerable adult.
“Merger is a question of law, which we review for correctness.”
State v. Sanchez, 2015 UT App 27, ¶ 5, 344 P.3d 191.
ANALYSIS
¶13 In arguing that his convictions should have merged at
sentencing, Jack refers to both the lesser included offense
analysis codified in Utah Code section 76-1-402(3) and to the
common law merger doctrine. Although both doctrines flow
from the double jeopardy clauses of the state and federal
constitutions and “may indeed overlap in certain circumstances,
they are analytically distinct.” State v. Kerr, 2010 UT App 50, ¶ 2
n.1, 228 P.3d 1255.
¶14 On one hand, “where the two crimes are such that the
greater cannot be committed without necessarily having
committed the lesser, then as a matter of law they stand in the
relationship of greater and lesser offenses, and the defendant
cannot be convicted or punished for both.” State v. Smith, 2005
UT 57, ¶ 8, 122 P.3d 615 (citation and internal quotation marks
omitted). This analysis “turns on the statutorily defined elements
of the two crimes.” State v. Finlayson, 2000 UT 10, ¶ 16, 994 P.2d
1243. Because the law barring punishment for both a greater
and lesser included offenses is codified in Utah Code section
76-1-402(3), we refer to it as statutory merger.
¶15 The Utah Supreme Court has recognized “another
conceptually distinct basis for finding that one set of facts may
give rise to a merger of two or more separate crimes, despite
each crime’s unique statutory elements, so as to preclude
multiple convictions for essentially the same conduct.” State v.
20150901-CA 5 2018 UT App 18State v. Jack
Mecham, 2000 UT App 247, ¶ 30, 9 P.3d 777 (citation and internal
quotation marks omitted). Under this common law merger
doctrine, the facts establishing one offense must not be
“incidental to” or “inherent in” the other offense and must have
“some significance independent of the other crime.” Finlayson,
2000 UT 10, ¶ 19 (citation and internal quotation marks omitted).
¶16 We conclude that Jack’s conviction for communications
fraud does not merge into his convictions for exploitation of a
vulnerable adult under either statutory or common law merger.
We analyze each doctrine in turn.
I. Statutory Merger
¶17 Jack contends that, under the Utah merger statute, his
conviction for communications fraud must merge with his
convictions for exploitation of a vulnerable adult because “both
offenses are triggered by the same facts and established by the
same proof at trial.” In response, the State contends that the
statutes’ “unique elements” preclude the conclusion that either
statute is a lesser included offense of the other. We agree with
the State that because the two crimes have distinct statutory
elements, neither crime is a lesser included offense of the other.
¶18 “A defendant may be convicted of an offense included in
the offense charged but may not be convicted of both the offense
charged and the included offense.” Utah Code Ann. § 76-1-402(3)
(LexisNexis 2012). The statute lists several circumstances in
which an offense will be deemed to be a lesser included offense, 3
3. Under Utah Code section 76-1-402(3)(b), an offense may also
be included when “[i]t constitutes an attempt, solicitation,
conspiracy, or form of preparation to commit the offense
charged.” Although Jack contends that communications fraud is
a “form of” exploitation of a vulnerable adult, he inadequately
briefs this issue. See Utah R. App. P. 24(a)(8). “[A]n issue is
(continued…)
20150901-CA 6 2018 UT App 18State v. Jack
including when an offense “is established by proof of the same
or less than all the facts required to establish the commission of
the offense charged.” Id. § 76-1-402(3)(a). But “[t]he Utah Supreme
Court has made it abundantly clear . . . that section 76-1-402
never applies to merge crimes that have distinct statutory
elements.” State v. Mecham, 2000 UT App 247, ¶ 29, 9 P.3d 777;
see also State v. Finlayson, 2000 UT 10, ¶ 16, 994 P.2d 1243(“[W]hether one crime is a lesser included offense of a greater
crime under section 76-1-402, turns on the statutorily defined
elements of the two crimes.”). Accordingly, we begin our
analysis by comparing the statutory elements of communications
fraud and exploitation of a vulnerable adult.
¶19 To convict Jack of felony communications fraud, the State
had to prove beyond a reasonable doubt that Jack
[1] devised any scheme or artifice to defraud
another or to obtain from another money, property,
or anything of value [2] by means of false or
fraudulent pretenses, representations, promises, or
material omissions, and . . . [3] communicate[d]
directly or indirectly with any person [4] by any
means for the purpose of executing or concealing
the scheme or artifice.
(…continued)
inadequately briefed when the overall analysis of the issue is so
lacking as to shift the burden of research and argument to the
reviewing court.” See State v. MacNeill, 2017 UT App 48, ¶ 83, 397
P.3d 626 (citation and internal quotation marks omitted).
Because Jack fails to provide any reasoned analysis explaining
how communications fraud is a form of preparation to commit
the crime of exploitation of a vulnerable adult, we decline to
further address this issue.
20150901-CA 7 2018 UT App 18State v. Jack
Utah Code Ann. § 76-10-1801(1). Further, communications fraud
is a second degree felony “when the value of the property,
money, or thing obtained or sought to be obtained is or exceeds
$5,000.” Id. § 76-10-1801(1)(d).
¶20 On the other hand, a person is guilty of exploitation of a
vulnerable adult when that person
[1] is in a position of trust and confidence, or has a
business relationship, with the vulnerable adult or
has undue influence over the vulnerable adult and
[2] knowingly, [3] by deception or intimidation,
[4] obtains or uses, or endeavors to obtain or use,
[5] the vulnerable adult’s funds, credit, assets, or
other property [6] with the intent to temporarily or
permanently deprive the vulnerable adult of the
use, benefit, or possession of the adult’s property,
[7] for the benefit of someone other than the
vulnerable adult.[ 4]
Id. § 76-5-111(4)(a)(i).
¶21 Jack concedes that exploitation of a vulnerable adult
cannot be construed as a lesser included offense of
communications fraud, because it requires at least two
additional statutory elements that communications fraud does
4. Because the State charged only one variant of exploitation of a
vulnerable adult, it is unnecessary for us to look beyond the
statutory elements to the facts to determine which variation was
proved at trial. See State v. Ross, 951 P.2d 236, 241 (Utah Ct. App.
1997) (“[W]here the two crimes have multiple variations, we
must look beyond the statutory elements and consider the
evidence to determine whether the greater-lesser relationship
exists between the specific variations of the crimes actually
proved at trial.” (citation and internal quotation marks omitted)).
20150901-CA 8 2018 UT App 18State v. Jack
not: (1) that the property must belong to a vulnerable adult and
(2) that the defendant must be in a position of trust and
confidence or in a business relationship. Instead, Jack contends
that communications fraud is a lesser included offense of
exploitation of a vulnerable adult. Even assuming that a more
serious offense can merge into a lesser offense, 5 the crimes in the
present case do not merge because communications fraud
contains at least two distinct statutory elements beyond what is
required for exploitation of a vulnerable adult. Unlike
exploitation of a vulnerable adult, communications fraud
requires a scheme or artifice to defraud and a direct or indirect
communication with any person for the purpose of executing or
concealing the scheme or artifice. Thus, because exploitation of a
vulnerable adult can be committed without necessarily having
committed communications fraud, the two crimes do not stand
in a relationship of greater and lesser offenses and therefore do
not merge under Utah Code section 76-1-402(3). See State v.
Smith, 2005 UT 57, ¶ 8, 122 P.3d 615.
II. Common Law Merger
¶22 Even if statutory merger does not apply, Jack contends
that the common law merger doctrine requires merger of his
5. Jack alleges that merging the greater offense, a second degree
felony, with the lesser offenses, third degree felonies, would not
be “without precedent.” He cites State v. Lopez, 2004 UT App 410,
103 P.3d 153, where we noted that the trial court presumably
would have merged the greater offense into the lesser offense—a
departure from the general application of the merger doctrine. Id.
¶ 9 n.1. Because the case was remanded, however, the court did
not address whether that would be a permissible application of
Utah Code section 76-1-402(3). Likewise, because we can resolve
the present case on other grounds, it is unnecessary for us to
reach that issue here.
20150901-CA 9 2018 UT App 18State v. Jack
convictions for communications fraud and exploitation of a
vulnerable adult. Specifically, Jack alleges that because “the
commission of communications fraud was inherent in each and
every commission of exploitation of a vulnerable adult,” we
would be punishing him multiple times for the same conduct.
We disagree.
¶23 “The motivating principle behind the [common law]
merger doctrine is to prevent violations of constitutional double
jeopardy protection,” State v. Calvert, 2017 UT App 212, ¶ 24, 407
P.3d 1098 (citation and internal quotation marks omitted), and to
avoid convicting and punishing defendants multiple times for
essentially the same conduct, State v. Sanchez, 2015 UT App 27,
¶ 8, 344 P.3d 191. This doctrine “is most commonly applied to
situations involving a defendant who has been charged with
committing both a violent crime, in which a detention is
inherent, and the crime of kidnaping based solely on the
detention necessary to the commission of the companion crime.”
State v. Kerr, 2010 UT App 50, ¶ 2 n.1., 228 P.3d 1255 (citation and
internal quotation marks omitted).
¶24 To address such factual scenarios, the Utah Supreme
Court adopted a three-part test, which states:
[I]f a taking or confinement is alleged to have been
done to facilitate the commission of another crime,
to be kidnaping[,] the resulting movement or
confinement:
(a) Must not be slight, inconsequential and
merely incidental to the other crime;
(b) Must not be of the kind inherent in the
nature of the other crime; and
(c) Must have some significance independent
of the other crime in that it makes the other
20150901-CA 10 2018 UT App 18State v. Jack
crime substantially easier of commission or
substantially lessens the risk of detection.
State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243 (alteration in
original) (citation and internal quotation marks omitted).
¶25 Relying on State v. Zaragoza, 2012 UT App 268, 287 P.3d
510, Jack contends that “the commission of communications
fraud was inherent in each and every commission of exploitation
of a vulnerable adult, and is not ‘independent of and not merely
incidental to’ the exploitation offenses.” (Quoting id. ¶ 6). But he
makes no attempt to explicitly lay out the three-part test and has
not identified any cases that apply the Finlayson factors to
charges other than kidnapping, rape, aggravated assault, and
aggravated robbery, all of which focus on the extent of the
victim’s detention.
¶26 Even assuming that the Finlayson factors are applicable to
communications fraud and exploitation of a vulnerable adult, we
nevertheless remain unconvinced that Jack’s convictions should
merge under this doctrine. Jack’s convictions for exploitation of a
vulnerable adult were supported by evidence that he made
various unauthorized purchases for himself. On the other hand,
his conviction for communications fraud was supported by
evidence that Jack had altered numerous receipts and
statements. Because Jack could have made the unauthorized
purchases—thereby satisfying the elements of exploitation of a
vulnerable adult—without concealing the unauthorized
purchases through communications fraud, the conduct required
to commit the two crimes was distinct. Creating false receipts
and statements was not inherent in the crime of exploitation of a
vulnerable adult. The false communications had independent
significance in that those communications made it easier for him
to continue exploiting the vulnerable adults without detection.
See State v. Lee, 2006 UT 5, ¶ 34, 128 P.3d 1179 (reasoning that
aggravated kidnapping carried significance independent of
20150901-CA 11 2018 UT App 18State v. Jack
aggravated assault where dragging the victim into an alley
substantially lessened the risk of detection).
¶27 Even if we accept Jack’s argument that the concealment
was inherent in exploitation of a vulnerable adult, the
communications fraud conviction remains supported by
independent evidence. Jack was charged with and convicted of
exploiting only seven of the fourteen vulnerable adults.
However, the State included all fourteen vulnerable adults in the
one count of communications fraud. At trial, the State presented
separate evidence relating to the additional seven victims that
independently supported Jack’s conviction for communications
fraud. Because there was some significant factual independence
between communications fraud and exploitation of a vulnerable
adult, the trial court did not err in denying Jack’s motion to
merge offenses.
CONCLUSION
¶28 We conclude that communications fraud is not a lesser
included offense of exploitation of a vulnerable adult under
statutory merger because both offenses contain unique statutory
elements. Additionally, the common law merger doctrine does
not apply in this case because Jack’s conduct in concealing the
crime of exploitation of a vulnerable adult by forging receipts
and altering statements independently supported the
communications fraud conviction. Furthermore, the
communications fraud conviction encompassed conduct toward
seven additional victims that separately support the
communications fraud charge.
¶29 Affirmed.
20150901-CA 12 2018 UT App 18