State v. Rushton

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 21
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
DAVID M. RUSHTON,
Petitioner.
No. 20150737
Filed April 7, 2017
On Certiorari to the Court of Appeals
Third District, Salt Lake
The Honorable Robin W. Reese
No. 111903029
Attorneys:
Sean D. Reyes, Att‘y Gen., Marian Decker, Asst. Att‘y Gen.,
Salt Lake City, for respondent
Joanna E. Landau, Salt Lake City, for petitioner
JUSTICE HIMONAS authored the opinion of the Court,
in which JUSTICE DURHAM and JUSTICE PEARCE joined.
ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion,
in which CHIEF JUSTICE DURRANT joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 This case clarifies the interpretation of the phrase ―single
criminal objective‖ in the context of the mandatory joinder statute,
UTAH CODE § 76-1-401, which prohibits the State from prosecuting a
defendant in separate actions for ―conduct [that] may establish separate
offenses under a single criminal episode,‖ id. § 76-1-402(2). A ―single
criminal episode‖ is defined as ―all conduct which is closely related in
STATE v. RUSHTON
Opinion of the Court
time and is incident to an attempt or an accomplishment of a single
criminal objective.‖ Id. § 76-1-401 (emphasis added).
¶ 2 The Petitioner, David Rushton, argues that the State violated
the mandatory joinder statute by prosecuting him from 2011 to 2012 for
wage crimes after having prosecuted and convicted him in 2009 and
2010 for tax crimes. Interpreting the phrase ―single criminal objective‖
broadly, Mr. Rushton asserts that the conduct underlying both
prosecutions was part of a single criminal episode because it was
―closely related in time and . . . incident to an attempt or an
accomplishment of [the] single criminal objective‖ of misappropriation
of money in his business setting. Id. Therefore, Mr. Rushton argues, the
court of appeals erred when it affirmed the district court‘s denial of his
motion to dismiss the wage crimes prosecution as barred by the
mandatory joinder statute. He appealed that denial, and we granted
certiorari to consider the merits of his position.
¶ 3 We affirm the decision of the court of appeals, albeit along a
somewhat different line of reasoning. If we were to read the phrase
―single criminal objective‖ as broadly as Mr. Rushton urges us to, the
permissive joinder statute, Utah Code section 77-8a-1, would be
rendered inoperative. Instead, we consider the totality of the
circumstances that bear on whether conduct aims at a single criminal
objective, focusing in particular on the location where the crimes were
committed, the nature of the offenses (both the similarity in conduct
and, as suggested by the concurrence, the extent to which one offense
advances the accomplishment of another), whether the crimes involved
different victims, and whether the defendant had the opportunity to
deliberately engage in the next-in-time offense. We determine that
Mr. Rushton‘s conduct did not have a single criminal objective and thus
did not constitute a single criminal episode.1 Therefore, the mandatory
joinder statute did not require the State to charge the tax crimes and
wage crimes in a single prosecution, and the court of appeals correctly
concluded that dismissal of the wage case based on the mandatory
joinder statute was not warranted.
1 Because there was no single criminal objective, we need not and
do not reach the issue regarding whether the conduct was ―closely
related in time.‖ UTAH CODE § 76-1-401. The lack of a single criminal
objective alone is dispositive of whether the conduct constituted a
single criminal episode for purposes of the mandatory joinder statute.
2
Cite as: 2017 UT 21
Opinion of the Court
BACKGROUND
¶ 4 Mr. Rushton started Fooptube LLC, a computer
programming and design company in 2005. A few years later, the Utah
State Tax Commission began investigating him due to allegations that
he had withheld personal and corporate taxes while serving as an
owner and officer of Fooptube. On April 14, 2009, the State charged
Mr. Rushton with six tax crimes committed between 2005 and 2008.2
Mr. Rushton was arraigned for the tax crimes on December 14, 2009. In
June 2010, pursuant to a plea agreement, Mr. Rushton pleaded guilty to
counts five and six, and the remaining counts were dismissed.
¶ 5 In May 2009, several former Fooptube employees approached
the prosecutor and informed him of the wage claims they had against
Mr. Rushton. The State then launched an investigation into these
crimes. During that investigation, the investigator was contacted by the
Utah Labor Commission, which informed him that Mr. Rushton had
failed to pay wages to approximately eighty-four former Fooptube
employees between October 2008 and October 2009. By 2011, ninety-
five employees had reported unpaid wages for services provided to
Fooptube. The claims for unpaid wages totaled $1,170,164.07. The
investigator also learned that the United States Department of Labor‘s
Employee Benefits Security Administration was investigating
allegations that Mr. Rushton had failed to remit Fooptube employees‘
contributions to retirement funds in the amount of $107,000.00.
¶ 6 On April 20, 2011, the State filed the wage case against
Mr. Rushton, charging him with seven second-degree felonies. The
State amended its charges against Mr. Rushton on November 3, 2011, to
include thirteen charges of class A misdemeanors as possible
2 The State charged Mr. Rushton with failing to file Fooptube‘s
quarterly tax returns for 2007 and the first two quarters of 2008
(count 1); co-mingling funds or creating false documents with the intent
to evade tax withholding obligations for 2007 through 2008 (count 2);
failing to remit employee taxes for 2007 and the first two quarters of
2008 (count 3); issuing fraudulent W-2 forms and withholding tax
statements from employees in 2008 (count 4); failing to ―file personal
income tax returns for the tax year(s) 2005, 2006 and/or 2007‖ (count 5);
and, based on the foregoing predicate offenses, engaging in a pattern of
unlawful activity in violation of Utah Code section 76-10-1603 (count 6).
3
STATE v. RUSHTON
Opinion of the Court
alternatives to two of the previously charged felonies.3 Mr. Rushton
moved to dismiss the wage case, arguing that under the mandatory
joinder statute, his wage crimes and tax crimes were part of a single
criminal episode, and that because the tax case had already resulted in
a conviction when he entered his guilty plea, he could not be
prosecuted for the wage crimes.
¶ 7 The district court concluded that the conduct at issue in the
tax case and in the wage case did not constitute a single criminal
episode under the mandatory joinder statute. While the district court
found that Mr. Rushton‘s conduct at issue in both cases was closely
related in time, it concluded that the conduct at issue in the wage case
was not committed in furtherance of the same criminal objective as the
conduct at issue in the wage case. According to the district court,
although the cases are factually similar, they involve different victims,
issues, laws, and jury instructions. As a result, the district court held
that the conduct did not constitute a single criminal episode.
¶ 8 After the court denied Mr. Rushton‘s motion to dismiss,
Mr. Rushton entered a conditional guilty plea to count 3 (amended to a
third-degree felony of attempted unlawful dealing with property),
count 7, and count 20. Mr. Rushton then appealed the district court‘s
decision, and the court of appeals affirmed the district court‘s ruling,
holding that Mr. Rushton‘s tax crimes and his wage crimes did not
constitute a single criminal episode under the mandatory joinder
statute. State v. Rushton, 2015 UT App 170, ¶¶ 5–6, 354 P.3d 223.
Mr. Rushton then petitioned for a writ of certiorari asking that we
review the court of appeals‘ decision against him. We granted the writ
and, therefore, exercise jurisdiction under Utah Code section 78A-3-
102(3)(a).
3 The State charged Mr. Rushton with the following twenty counts,
all of which are allegedly related to Fooptube employee compensation
or retirement arrangements and based on conduct that took place in
2008 or 2009: communications fraud (counts 1 and 2); unlawful dealing
of property by a fiduciary (counts 3 and 4); theft of services (counts 5
and 6); failure to pay wages (counts 7 through 19, as alternatives to
counts 5 and 6); and engaging in a pattern of unlawful activity, in
violation of Utah Code section 76-10-1603 (count 20).
4
Cite as: 2017 UT 21
Opinion of the Court
STANDARDS OF REVIEW
¶ 9 ―On certiorari, we review the court of appeals‘ decision for
correctness, focusing on whether that court correctly reviewed the trial
court‘s decision under the appropriate standard of review.‖ Hansen v.
Eyre, 2005 UT 29, ¶ 8, 116 P.3d 290 (internal quotation marks omitted).
A trial court‘s denial of a motion to dismiss presents a question of law,
which is also reviewed for correctness. See State v. Arave, 2011 UT 84,
¶ 25, 268 P.3d 163.
ANALYSIS
¶ 10 We affirm the court of appeals‘ denial of Mr. Rushton‘s
motion to dismiss. In so doing, we clarify the interpretation of the
phrase ―single criminal objective‖ in the context of the mandatory
joinder statute. Under the mandatory joinder statute, the State is
prohibited from prosecuting a defendant in separate actions for
conduct that ―is closely related in time and is incident to an attempt or
an accomplishment of a single criminal objective.‖ UTAH CODE § 76-1-
401, 402(2).4
¶ 11 When we tackle questions of statutory construction, our
overarching goal is to implement the intent of the legislature. Marion
Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (―It is
well settled that when faced with a question of statutory interpretation,
‗our primary goal is to evince the true intent and purpose of the
Legislature.‘‖ (citation omitted)). Our first undertaking in this regard is
to assess the language and structure of the statute. Id. (―The best
evidence of the legislature‘s intent is ‗the plain language of the statute
itself.‘‖ (citation omitted)); In re Reinhart, 2012 UT 82, ¶ 17, 291 P.3d 228
(reviewing a ―statute‘s plain language and structure‖). “Often,
statutory text may not be plain when read in isolation, but may become
so in light of its linguistic, structural, and statutory context.‖ Id. The
reverse is equally true: words or phrases may appear unambiguous
4 For the mandatory joinder statute to operate as a bar, the offenses
must also be ―within the jurisdiction of a single court . . . and . . . known
to the prosecuting attorney at the time the defendant is arraigned on
the first information or indictment.‖ UTAH CODE § 76-1-402(2). In
addition, the trial court retains the authority to order separate trials ―to
promote justice.‖ Id. These circumstances are not at issue here and we
therefore do not discuss them further.
5
STATE v. RUSHTON
Opinion of the Court
when read in isolation, but become ambiguous when read in context.
This is why
we read the plain language of the statute as a whole, and
interpret its provisions in harmony with other statutes in
the same chapter and related chapters[,] . . . avoid[ing]
any interpretation which renders parts or words in a
statute inoperative or superfluous in order to give effect
to every word in the statute.
Monarrez v. Utah Dep’t of Transp., 2016 UT 10, ¶ 11, 368 P.3d 846
(internal quotation marks omitted). Indeed, ―it is a ‗fundamental
principle of statutory construction (and, indeed, of language itself) that
the meaning of a word cannot be determined in isolation, but must be
drawn from the context in which it is used.‘” Reno v. Koray, 515 U.S. 50,
56 (1995) (citation omitted). This is why we look to context when, as
here, ―both sides offer conceivable constructions of the language in
question.‖ Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465.
¶ 12 With this legal backdrop in mind, we turn first to
Mr. Rushton‘s argument that the phrase ―single criminal objective‖ is
broad enough to encompass an objective as broad as misappropriation
of any money he had power over through Fooptube. We conclude that
such a broad interpretation of the phrase ―single criminal objective‖
would render the permissive joinder statute inoperative, which would
violate our principles of statutory interpretation. Rather, we consider
the totality of the circumstances, focusing in particular on the location
where the crimes were committed, the nature of the offenses, whether
the crimes involved different victims, and whether the defendant had
the opportunity to deliberately engage in the next-in-time offense.
Based on our analysis of those factors, we determine that Mr. Rushton‘s
conduct at issue in the tax case and in the wage case did not have a
single criminal objective and thus was not part of a single criminal
episode mandating joinder of the charges against him in a single
prosecution.
I. MR. RUSHTON‘S INTERPRETATION OF
SINGLE CRIMINAL OBJECTIVE
¶ 13 Mr. Rushton argues that under a plain language analysis
―single criminal objective‖ means all conduct that is ―connected by a
single criminal purpose, goal, or target[] that the defendant‘s conduct is
intended to attain.‖ He further argues that misappropriating ―money in
6
Cite as: 2017 UT 21
Opinion of the Court
the context of Fooptube,‖ no matter how or from whom, satisfies this
definition.
¶ 14 We reject Mr. Rushton‘s claim that his misappropriation
qualifies as a single criminal objective for purposes of the mandatory
joinder statute. Under our plain language principles of statutory
construction, it is necessary to consider both the permissive joinder
statute and the mandatory joinder statute when interpreting the phrase
―single criminal objective.‖ We conclude that Mr. Rushton‘s
characterization of his behavior as a single criminal objective of
misappropriation is too broad and would render the permissive joinder
statute inoperative.
¶ 15 As the State correctly points out, when interpreting the
phrase ―single criminal objective,‖ we must consider both the
permissive joinder statute and the mandatory joinder statute in order to
ensure that our interpretation does not render the permissive joinder
statute inoperative. See State, in re J.M.S., 2011 UT 75, ¶ 22, 280 P.3d 410
(stating that we interpret statutory provisions ―in harmony with other
statutes in the same and related chapters‖ (citation omitted)).
¶ 16 The relevant statutory provisions are as follows: The
permissive joinder statute states that offenses ―may be charged in the
same indictment or information‖ if the offenses are ―based on the same
conduct or are otherwise connected together in their commission . . . or
. . . alleged to have been part of a common scheme or plan.‖ UTAH CODE
§ 77-8a-1(1). The mandatory joinder statute states that ―[w]henever
conduct may establish separate offenses under a single criminal
episode . . . a defendant shall not be subject to separate trials for
multiple offenses.‖ Id. § 76-1-402(2). The phrase ―single criminal
episode‖ in the mandatory joinder statute is statutorily defined as ―all
conduct which is closely related in time and is incident to an attempt or
an accomplishment of a single criminal objective.‖ Id. § 76-1-401. Based
on our principles of statutory construction, we cannot interpret the
language ―single criminal objective‖ under the mandatory joinder
statute to simply mean the same thing as conduct that is ―connected
together [with other conduct] in its commission‖ or ―alleged to have
been part of a common scheme or plan‖ under the permissive joinder
statute. Id. § 77-8a-1(1); see also State v. Martinez, 2002 UT 80, ¶ 8, 52 P.3d
1276 (―When examining the statutory language . . . . we avoid
interpretations that will render portions of a statute superfluous or
inoperative.‖ (internal quotation marks omitted)).
7
STATE v. RUSHTON
Opinion of the Court
¶ 17 Mr. Rushton‘s characterization of misappropriation as his
single criminal objective conflates offenses that are ―connected together
in their commission‖ or are ―part of a common scheme or plan‖ with
offenses that are ―closely related in time‖ and have a ―single criminal
objective.‖ UTAH CODE §§ 76-1-401, 77-8a-1(1). For example,5 if we were
to apply Mr. Rushton‘s interpretation of misappropriation as a single
criminal objective6 to a situation where a bank robber robs multiple
banks in a single day, the State would be required to join all the bank
robbery charges in a single prosecution. Joinder would be mandatory
despite the crimes having been committed in different locations,
despite the crimes involving different victims, despite none of the
crimes having been committed in order to advance the accomplishment
of any of the others, and despite the robber likely having the
opportunity to make conscious and knowing decisions between the
commission of each of the different robberies—all of which are factors
in the single criminal objective analysis we lay out below. In the case at
hand, ―the facts adequately support the trial court‘s determination that
. . . separate and distinct offenses were committed. To adopt
[Mr. Rushton‘s] interpretation of the statute would serve only to torture
its clear wording to afford him the advantage of a single . . .
conviction.‖ State v. Ireland, 570 P.2d 1206, 1207 (Utah 1977).7 Thus, we
5For the purposes of this hypothetical example, we assume that the
offenses meet the ―closely related in time‖ factor, another necessary
component for concluding that conduct was part of a single criminal
episode. See UTAH CODE § 76-1-401.
6 Mr. Rushton quotes the definition of ―misappropriation‖ from
Black’s Law Dictionary as ―[t]he application of another‘s property or
money dishonestly to one‘s own use.‖ Alternatively, he states that
misappropriation is ―steal[ing] money to which [a person] was not
entitled.‖
7 See also People v. Perez, 591 P.2d 63, 68 (Cal. 1979) (en banc)
(―Assertion of a sole intent and objective to achieve sexual gratification
is akin to an assertion of a desire for wealth as the sole intent and
objective in committing a series of separate thefts. To accept such a
broad, overriding intent and objective to preclude punishment for
otherwise clearly separate offenses would violate the statute‘s purpose
to insure that a defendant‘s punishment will be commensurate with his
culpability. It would reward the defendant who has the greater
(cont.)
8
Cite as: 2017 UT 21
Opinion of the Court
cannot read the phrase ―single criminal objective‖ under the mandatory
joinder statute so broadly without rendering the permissive joinder
statute inoperative.
¶ 18 In addition, we reject the following arguments Mr. Rushton
makes about the interpretation of statutes, and, in particular, the
interpretation of the mandatory joinder statute. First, Mr. Rushton
argues that interpreting statutes ―in harmony with other statutes in the
same chapter and related chapters‖ is a secondary rule of statutory
interpretation, rather than part of a court‘s plain language
interpretation. State v. Harker, 2010 UT 56, ¶ 12, 240 P.3d 780 (citation
omitted). As a result, he argues, since ―the state has not suggested any
debate about the plain meaning of the language,‖ we do not need to
rely on ―other interpretative tools,‖ like the so-called secondary rule of
interpreting statutes in harmony with related chapters. We strongly
disagree with Mr. Rushton on this point. Interpreting a statute ―in
harmony with other statutes in the same chapter and related chapters‖
is part of our plain language analysis. See id. (―[W]e read the plain
language of [a] statute as a whole and interpret its provisions in
harmony with other statutes in the same chapter and related chapters.‖
(second alteration in original) (citation omitted)). Consequently,
reading the ―single criminal objective‖ language under the mandatory
joinder statute in harmony with the permissive joinder statute
constitutes a plain language interpretation of the mandatory joinder
statute.
¶ 19 Mr. Rushton also argues that the permissive joinder statute is
not a related chapter to the mandatory joinder statute. Therefore, he
argues, the mandatory joinder statute does not need to be read in
harmony with the permissive joinder statute. He bases this argument
on the fact that the mandatory joinder statute, which is found under
title 76, is not under the same title as the permissive joinder statute,
which is found under title 77. We reject this argument. There is no
requirement that related chapters, which must be interpreted in
harmony with one another, be found under the same title of the Utah
criminal ambition with a lesser punishment.‖ (citation omitted)); State
v. Bauer, 792 N.W.2d 825, 830 (Minn. 2011) (―Our case law recognizes
that ‗the criminal plan of obtaining as much money as possible is too
broad an objective to constitute a single criminal goal . . . .‘‖ (citation
omitted)).
9
STATE v. RUSHTON
Opinion of the Court
Code. Mr. Rushton himself points out nine different statutes in the
Utah Code that use the same definition of single criminal episode,
many of which are found under different titles. Using his logic, we
would have to declare those statutes that use the same definition of
single criminal episode not related. This would be a real stretch. As a
result, we conclude that even though the mandatory and permissive
joinder statutes ―do not share a common statutory title,‖ they are
related chapters and must be interpreted in harmony with one another.
¶ 20 Finally, we disagree with Mr. Rushton‘s assertion that the
legislature wanted us to interpret the mandatory and permissive
joinder statutes separately or in isolation from one another. We read the
language in Utah Code section 76-1-401 that ―[n]othing in this part shall
be construed to limit or modify the effect of Section 77-8a-1‖ differently
than Mr. Rushton. He reads this language as prohibiting a narrow
interpretation of the mandatory joinder statute. We, on the other hand,
read this language to support our conclusion that we may not read the
mandatory joinder statute so broadly as to render the permissive
joinder statute inoperative. We may not construe or limit the effect of
the permissive joinder statute, rendering it a nullity, by interpreting the
―single criminal objective‖ language as broadly as Mr. Rushton wishes
us to do. As a result, we reject the idea that Utah Code section 76-1-401
somehow prevents us from considering the permissive joinder statute
in our plain language analysis of what ―single criminal objective‖
means under the mandatory joinder statute.
¶ 21 We must interpret the mandatory joinder statute in harmony
with the permissive joinder statute. Using a plain language analysis, we
determine that Mr. Rushton‘s interpretation of single criminal objective
is overly broad and would render the permissive joinder statute
inoperative. This result is contrary to our rules of statutory
interpretation and thus we reject Mr. Rushton‘s characterization of his
single criminal objective.
II. THE CONCURRENCE‘S INTERPRETATION OF
THE MANDATORY JOINDER STATUTE
¶ 22 We also disagree with the interpretation of ―incident to an
attempt or accomplishment of a single criminal objective‖ proffered by
the concurring opinion. The concurrence equates a ―single criminal
episode‖ with a single ―crime.‖ Infra ¶ 59. The concurrence accordingly
reads this language to cover only conduct that is ―directly and
immediately relat[ed] to . . . an attempt or accomplishment‖ of another
10
Cite as: 2017 UT 21
Opinion of the Court
offense. Infra ¶ 62. The concurrence prefers its interpretation to a
totality of the circumstances test for two reasons: (1) because it better
respects the ―operative language‖ of the statutory text and (2) because
it is more predictable than a test requiring a district court to weigh
multiple factors in deciding whether joinder is required. Infra ¶¶ 48–49.
We disagree.
¶ 23 First, we do not believe that the concurrence‘s test comports
with the plain meaning of the statutory text. See Olsen v. Eagle Mountain
City, 2011 UT 10, ¶ 12, 248 P.3d 465 (in interpreting the plain meaning
of statutory text ―[o]ur task . . . is to determine the meaning of the text
given the relevant context of the statute (including, particularly, the
structure and language of the statutory scheme)‖ (citation omitted)). In
interpreting statutes, ―[w]e presume the Legislature uses each word
advisedly.‖ Meza v. State, 2015 UT 70, ¶ 18, 359 P.3d 592. Thus, we
presume that if the legislature had intended the reading that the
concurrence prefers, it would have defined a ―single criminal episode‖
as ―all conduct which is . . . incident to an attempt or an
accomplishment of a single offense‖—using a term that it specifically
defined in the Utah Criminal Code. Cf. UTAH CODE § 76-1-601(7)
(―‗Offense‘ means a violation of any penal statute of this state.‖).
Instead, the legislature used the term ―single criminal objective‖—a
term that connotes the goal or purpose of the offender‘s criminal
conduct, not merely another offense.8 Id. § 76-1-401.
¶ 24 We are also doubtful that the concurrence‘s proposed test is
any more predictable than the totality of the circumstances test that we
8 The concurrence maintains that we ―misstate[] [its] standard‖
because, on its interpretation of the mandatory joinder statute, ―[t]he
use of the term ‗objective‘ has significance that is not as clearly
conveyed by the term ‗offense.‘‖ Infra ¶ 53 n.1. Specifically, the word is
supposed to convey that ―[t]he conduct at issue must be incident to the
acts undertaken in attempting or accomplishing the relevant ‗objective‘
crime.‖ Id. We fail to see how the phrase ―the relevant ‗objective‘ crime‖
is meaningfully different, or any different, from the term ―offense.‖
Indeed, the concurrence appears to agree with us, noting elsewhere
that, under its test, ―[e]ither of two crimes could be the ‗objective.‘‖
Infra ¶ 61 n.8. In any event, the plain meaning of a ―single criminal
objective‖ connotes a criminal aim or purpose that is broader than a
single criminal offense.
11
STATE v. RUSHTON
Opinion of the Court
adopt—indeed, it may well be less predictable. The concurrence would
have courts focus on whether one offense was ―incident‖ to another,
where ―incident‖ is defined as ―dependent on or appertaining to
another thing: directly and immediately relating to or involved in
something else though not an essential part of it.‖ Infra ¶ 60 n.6. But
consider, for example, how this test would apply to a case where a
defendant writes a computer program that in quick succession steals
$30,000 from ten separate accounts belonging to ten separate clients of
the same bank.
¶ 25 To make the hypothetical even more vivid, imagine that this
defendant keeps a diary in which he specifically states that his objective
was to steal $30,000 in small enough increments that (in his view) they
were less likely to immediately trigger the bank‘s anti-fraud measures
and more likely to go undetected.
¶ 26 This should be an easy case. The state should not be allowed
to bring serial prosecutions against a bank robber who has written a
single computer program to steal from multiple bank accounts, and
who admittedly has a single criminal purpose underlying each almost
identical crime. (This example is not farfetched, and it can be
multiplied. Imagine a hacker who simultaneously acquires
unauthorized access to one million computers. The concurrence‘s logic
would in theory allow one million trials. We would not.)
¶ 27 But under the concurrence‘s test it is not easy to predict
whether each act of theft need be joined in the same trial. On the one
hand, each act is a ―choate crime‖ and each is logically independent of
the other. This militates in favor of finding that each act need not be
joined under the mandatory joinder statute. And the concurrence
appears to believe that, under its test, the separate crimes need not be
joined. See infra ¶¶ 67–69. But this is not obvious from the language of
the concurrence‘s test. Instead, it is arguable that each act of theft was
―directly and immediately relat[ed]‖ to the others (though not
―essential‖ to them); after all, the bank robber admitted as much. Or
imagine that the evidence conclusively shows (or the indictment
pleads) that the bank robber pursued any of the individual robberies
only because he could pursue them all simultaneously (perhaps
because if he had not been able to pursue them all he would have
decided that the reward was not worth the risk). Under this
hypothetical, it seems perfectly possible for a reasonable court to
conclude that each robbery was not only ―directly and immediately
relat[ed]‖ to the others, but, arguably, even ―depend[ent]‖ on them, too.
12
Cite as: 2017 UT 21
Opinion of the Court
Infra ¶ 60 n.6. But it is equally possible for a reasonable court applying
the concurrence‘s test to conclude that the robberies still were not
―incident to‖ each other.
¶ 28 This is doubly troubling. As we have explained, the bank-
robber hypothetical should be an easy case. But the concurrence‘s test is
challenged by it. Even worse, its outcome is unpredictable. And this
unpredictability is not just going to arise at the periphery; it is a core
feature of a test that requires a court to assess the degree to which one
offense is ―relat[ed]‖ to another. As a practical matter, we cannot see
how courts can do this without ultimately considering a variety of
factors that bear on the tightness of the nexus between the offenses. The
ironic upshot, then, is that in seeking to promote predictability by
eschewing a multi-factor test, the concurrence has articulated a
standard that courts cannot implement without considering a
multiplicity of factors—but, unlike the majority, the concurrence leaves
courts without any guidance on what those factors should be.
¶ 29 The concurrence also faults our test for yielding ―problematic
results‖ in a solicitation case. It offers as an example ―a bank robbery
preceded by solicitation of an accomplice,‖ and it suggests that the
totality of the circumstances test that we adopt might not require
joinder of the solicitation and the bank robbery if, for example, the
defendant and accomplice reside in different states. For then ―the
offenses could be said to arise in a ‗different geographic location[],‘ . . .
the solicitation offense is ‗substantively different‘ in ‗nature‘ from bank
robbery, . . . and the defendant,‖ we may imagine, ―had ‗the
opportunity to make a conscious and knowing decision to engage in
the next-in-time offense.‘‖ Infra ¶ 65.
¶ 30 We are not as troubled by the possibility that the mandatory
joinder statute might not require the solicitation to be joined with the
bank robbery in this case, although we think that in many cases it
will—especially given that, absent significant differences in the
evidence that a prosecutor would otherwise introduce, a solicitation
will often be similar in nature, and bound up with, the crime being
solicited.
¶ 31 Moreover, it is not clear that the concurrence‘s proposed test
fares particularly well under this example either. Consider a variant on
the concurrence‘s solicitation example. A would-be bank robber draws
up plans to rob a bank, which include the assistance of an accomplice.
He solicits one of his friends to help him. Then, after further thought,
13
STATE v. RUSHTON
Opinion of the Court
the bank robber decides he will go it alone. He dismisses his friend and
replans the bank robbery as a one-man job. Was the solicitation
―incident to‖ the bank robbery under the concurrence‘s test? Not
obviously. It is far from clear that the solicitation ―directly and
immediately relat[ed] to‖ the bank robbery; after all, the bank robber
changed his plans after the solicitation and decided to pursue the bank
robbery alone. This is yet another example where the concurrence‘s test
fails to live up to its promise of predictability.
¶ 32 A final problem with the concurrence‘s reading is that, in
circumstances where it does clearly yield a single outcome, it reaches
the wrong result. Consider this example:
Defendant was stopped by a highway patrolman in
Beaver County for speeding. He pulled a gun, threatened
the patrolman, relieved him of his revolver, locked him in
the trunk of the patrol vehicle, shot holes in its two front
tires, and left the scene in his own vehicle. He
subsequently picked up two hitchhikers, showed them
the revolver, and advised them of his having taken it from
the patrolman. He further advised them that they need
not stay in the car with him.
Defendant proceeded on to the adjoining County of
Sevier, stopped to purchase fuel, and shortly thereafter
police began following him at which time he informed the
hitchhikers they were his hostages and held a gun on
them. He was ultimately apprehended at a roadblock,
tried and convicted in Sevier County for aggravated
kidnapping of the hitchhikers, and was subsequently
convicted in Beaver County of this offense of aggravated
robbery for the taking of the patrolman‘s revolver.
State v. Ireland, 570 P.2d 1206, 1206 (Utah 1977).
¶ 33 Under the concurrence‘s logic, the aggravated kidnapping
was plainly incident to the objective of successfully accomplishing the
aggravated robbery and, therefore, the mandatory joinder statute
required that the two offenses be joined. Yet we rightly held otherwise.
Id. at 1207 (―In this case there was a distinct difference in time [and]
location . . . and the criminal objective of robbery was entirely different
than that of kidnapping which was totally disconnected in time, place
or purpose.‖); see State v. Germonto, 868 P.2d 50, 60 (Utah 1993) (―We . . .
[take] care to avoid a rigid rule mandating joinder whenever a
14
Cite as: 2017 UT 21
Opinion of the Court
defendant commits a crime to avoid arrest for prior criminal activity
. . .‖ (citation omitted)); State v. Cornish, 571 P.2d 577, 578 (Utah 1977)
(per curiam) (declining to hold that a failure to stop and an automobile
theft were part of a single criminal episode because ―[t]o treat them as a
single criminal episode would mean that any crime a defendant
commits to avoid arrest for prior criminal activity would be part of the
same criminal episode‖).
¶ 34 As we explain below, we believe there is a place for the
concurrence‘s test in the mandatory joinder analysis. But, for the
foregoing reasons, we do not believe it should be the exclusive focus.
III. TOTALITY OF THE CIRCUMSTANCES
¶ 35 We have concluded that neither Mr. Rushton‘s nor the
concurrence‘s interpretation respects the plain language of the joinder
statutes. Mr. Rushton‘s assertion that ―single criminal objective‖ is so
broad as to encompass the objective of misappropriation does violence
to the statutory scheme by rendering the permissive joinder statute
inoperative, and the concurrence‘s contention that a ―single criminal
objective‖ is nothing more than a criminal ―offense‖ assumes that the
legislature chose to use a term it has not defined to mean a term it
specifically defined in the criminal code. We therefore consider the
totality of the circumstances, focusing on factors from our case law,9 to
determine whether Mr. Rushton‘s conduct at issue in the tax case and
in the wage case had a single criminal objective.10 See State v. Selzer,
9 Many of the cases that we cite in the following footnotes discuss a
previous version of our mandatory joinder statute. UTAH CODE § 76-1-
402 (1978). That statute used the same statutory definition of single
criminal episode as the current mandatory joinder statute, including
the ―single criminal objective‖ language. See UTAH CODE § 76-1-401.
10 The concurrence faults us for failing ―to connect [our] multi-
factored test with the language of the statute.‖ Infra ¶ 53 n.1. It is true
that our test does not merely mirror the language of the statute. But it is
nonetheless more faithful to the text and structure of the statute than
the alternatives; it harmonizes the structure of the mandatory and
permissive joinder statutes without assuming that the legislature chose
to use a unique phrase to mean the same thing as a single term that it
had already defined. And it is faithful to longstanding precedent in a
way the concurrence‘s test is not. See, e.g., supra ¶¶ 32–33.
(cont.)
15
STATE v. RUSHTON
Opinion of the Court
2013 UT App 3, ¶ 26, 294 P.3d 617 (―Whether or not there is a single
criminal objective depends on the specific facts of the case viewed
under . . . the totality of the circumstances.‖ (alteration in original)
(internal quotation marks omitted)). In making this determination, we
consider, among other things, the location where the crimes were
committed, the nature of the offenses (both the similarity in conduct
and the extent to which one offense advances the accomplishment of
another), whether the crimes involved different victims, and whether
the defendant had the opportunity to deliberately engage in the next-
in-time offense.11 While they are certainly not the only factors relevant
to the mandatory joinder analysis, these factors are well-suited to
The concurrence also worries that the test we announce today will
be misapplied in the same way as the test this court announced in State
v. Shickles, 760 P.2d 291, 295–96 (Utah 1988), where we identified factors
courts should consider in evaluating the admissibility of evidence
under rule 403 of the Utah Rules of Evidence. Infra ¶ 53 n.2. But the
problem with the test we announced in Shickles is that it was partially
inconsistent with the language of rule 403 and purported to replace rule
403‘s own balancing test with a different test. By contrast, the test we
announce today is not inconsistent with the mandatory joinder statute
nor does it replace a statutory test with another test of our own making.
Instead, it gives the trial courts guidance on how to determine whether
two offenses are ―incident to an attempt or an accomplishment of a
single criminal objective.‖ UTAH CODE § 76-1-401.
11 Other jurisdictions also consider these same factors in
confronting similar issues. See, e.g., State v. Bauer, 792 N.W.2d 825, 828
(Minn. 2011) (considering the ―different locations‖ of the crimes in
determining whether conduct constituted a single behavioral incident);
State v. Condo, 182 P.3d 57, 61 (Mont. 2008) (considering the substantive
nature of a negligent vehicular homicide charge and a DUI charge in
determining the crimes ―[did] not share the same purpose, motivation,
and criminal objective‖); State v. Stevens, 900 N.E.2d 1037, 1040–41
(Ohio Ct. App. 2008) (considering the presence of ―multiple victims‖ in
determining whether a robbery of several people in a single home
constituted a single objective); State v. Nguyen, 771 P.2d 279, 281 (Or. Ct.
App. 1989) (rejecting the argument that a defendant‘s acts constituted a
single criminal episode because ―[a]lthough the charges were identical,
they did not arise from ‗continuous and uninterrupted‘ conduct‖).
16
Cite as: 2017 UT 21
Opinion of the Court
advancing the twin purposes of the mandatory joinder statute: ―(1) to
protect a defendant from the governmental harassment of being
subjected to successive trials for offenses stemming from the same
criminal episode; and (2) to ensure finality without unduly burdening
the judicial process by repetitious litigation.‖ Selzer, 2013 UT App 3,
¶ 22 (citation omitted). Applying our totality of the circumstances test,
we conclude that Mr. Rushton‘s conduct did not have a single criminal
objective and we therefore affirm the court of appeals‘ decision.
¶ 36 First, we consider ―whether the offenses arose in different
geographic locations.‖ United States v. Letterlough, 63 F.3d 332, 335 (4th
Cir. 1995).12 Unfortunately, there is insufficient evidence in the record
to determine where Mr. Rushton‘s tax crimes and wage crimes
occurred. Mr. Rushton‘s conduct may have occurred within the four
walls of the business or where the payments were due. Regardless, this
factor is not dispositive. Courts in other jurisdictions have found
offenses to constitute separate offenses based on the defendant‘s having
had time between the offenses and the opportunity to make a
conscious, knowing decision to commit each offense, despite the
offenses having been committed in the same location. See, e.g., United
States v. Thomas, 381 F. App‘x 495, 505–08 (6th Cir. 2010). We agree. So
even if we assume that Mr. Rushton committed both his tax crimes and
his wage crimes at the same location, that factor is not dispositive.
Therefore, we turn to the other factors to make our ultimate decision.
¶ 37 Second, we consider ―whether the nature of the offenses was
substantively different.‖ Letterlough, 63 F.3d at 335–36.13 The tax crimes
12 See, e.g., State v. Ireland, 570 P.2d 1206, 1207 (Utah 1977) (―In this
case there was a distinct difference in . . . location, (two separate
counties) and the . . . kidnapping . . . was totally disconnected in . . .
place.‖).
13 See, e.g., State v. Germonto, 868 P.2d 50, 60–61 (Utah 1993) (holding
that ―the offenses [of murder, robbery, and forgery] were similar in
nature [and] design‖ as ―part of an effort to acquire [the victim‘s]
property‖); State v. McGrath, 749 P.2d 631, 633 (Utah 1988) (noting a
―similarity of the offenses charged‖ and concluding joinder was
proper); Hupp v. Johnson, 606 P.2d 253, 254 (Utah 1980) (holding that the
―separate, independent offenses . . . were entirely unrelated to each
other‖ and thus ―were not committed to accomplish a ‗single criminal
objective‘‖); State v. Cornish, 571 P.2d 577, 578 (Utah 1977) (concluding
(cont.)
17
STATE v. RUSHTON
Opinion of the Court
and the wage crimes were plainly different in nature. Each set of
offenses involved different financial concepts and bodies of proof. For
example, the tax offenses involved issues such as whether Mr. Rushton
had improperly ―co-mingle[d] funds,‖ whether he had prepared
fraudulent tax returns, and whether he failed to file his personal
income taxes. By contrast, the wage offenses involved whether
Mr. Rushton had kept wages and retirement benefits he owed to his
employees for himself. Similarly, Mr. Rushton‘s tax crime charges arose
out of an investigation by the Utah State Tax Commission, and
Mr. Rushton‘s wage crimes were independently under investigation by
the Utah Labor Commission and the United States Department of
Labor. Moreover, the prosecutor in Mr. Rushton‘s tax case was
apparently unaware of the wage crimes until after Mr. Rushton pleaded
guilty to the tax offenses. And while there was some overlap in the
statutes under which Mr. Rushton was charged in the wage and tax
cases, the same statute may cover substantively different kinds of
conduct.14 For example, in State v. Gibson, 2009 UT App 108, 208 P.3d
543 and State v. Winward, 907 P.2d 1188 (Utah Ct. App. 1995), the
defendants were both charged under Utah Code section 76-6-513, but
their conduct was very different. In Gibson, the defendant was charged
for opening fraudulent credit card accounts in her grandmother‘s
name, 2009 UT App 108, ¶ 2, while in Winward, the defendant was
charged for writing a fraudulent offer on a home, 907 P.2d at 1189–90.
Thus, the fact that two charges are based on a single statute is not
necessarily indicative of conduct of a similar nature. Given such
differences in conduct, we are not troubled by the minor overlap in the
statutory charges between the cases and do not see it as evidence of
that ―although the testimony given may overlap, the offenses are
different and . . . distinct‖ and that ―the proof requirements are
different‖); Ireland, 570 P.2d at 1207 (holding that ―[the] robbery was
entirely different than . . . [the] kidnapping which was totally
disconnected in . . . purpose‖).
14 The tax crimes Mr. Rushton was charged with fall under Utah
Code sections 76-8-1101, 76-6-513, 76-10-1801, and 76-10-1603. The wage
crimes Mr. Rushton was charged with fall under Utah Code sections
76-10-1801, 76-10-1603, 76-2-202, 76-6-513, 76-6-409, and 34-28-12.
18
Cite as: 2017 UT 21
Opinion of the Court
conduct constituting a single criminal objective.15 We conclude that
Mr. Rushton‘s wage crimes are substantively different from
Mr. Rushton‘s tax crimes.
¶ 38 Third, we consider whether each offense involved ―different
victims.‖ Letterlough, 63 F.3d at 336.16 Mr. Rushton‘s tax crimes and
Mr. Rushton‘s wage crimes clearly involved different victims. The
victim of Mr. Rushton‘s tax crimes was the government of the state of
Utah, and the victims of Mr. Rushton‘s wage crimes were the former
employees of Fooptube. Because the victims in the two cases are
completely different, this factor weighs strongly in favor of a finding
that Mr. Rushton‘s conduct did not have a single criminal objective.
¶ 39 The final factor we consider is whether Mr. Rushton had ―the
opportunity to make a conscious and knowing decision to engage in‖
the next-in-time offense.17 Id. at 337. There is some overlap in the time
15We agree with the concurrence that whether one offense furthers
the accomplishment of another is one, but not the only, important
factor in the mandatory joinder analysis. Cf. infra ¶¶ 58, 60, 64
(explaining how to assess whether one offense advances the
accomplishment of another). Here, because the wage offenses were not
undertaken in furtherance of the tax offenses, nor vice versa, neither
advanced the accomplishment of the other.
16 See, e.g., Germonto, 868 P.2d at 60 (finding a single criminal
objective when the separate offenses ―involved the same victim‖).
17 The concurrence contends that this factor ―double-count[s] the
timing element.‖ Infra ¶ 65 n.9 (noting that the statute defines a ―single
criminal episode‖ as comprising two components: the offenses must be
―closely related in time‖ and they must be ―incident to an attempt or an
accomplishment of a single criminal objective‖ (quoting UTAH CODE
§ 76-1-401)). We disagree. The threshold requirement that the offense be
―closely related in time‖ must be satisfied even if application of the
totality of the circumstances test otherwise indicates that the offenses
are incident to an attempt or accomplishment of a single criminal
objective. The ―closely related in time‖ element serves one purpose:
preventing the mandatory joinder of any offenses, no matter how
otherwise related they are, that occurred too far apart. The factor we
discuss here—whether the defendant had the opportunity to deliberate
on whether to engage in the next-in-time offense—on the other hand,
(cont.)
19
STATE v. RUSHTON
Opinion of the Court
Mr. Rushton committed his tax crimes and the time he committed his
wage crimes.18 However, taxes are paid quarterly, and the paychecks
for Fooptube employees were due monthly. See UTAH CODE § 34-28-
3(1)(a) (―An employer shall pay the wages earned by an employee at
regular intervals, but in periods no longer than semimonthly on days to
be designated in advance by the employer as the regular payday.‖).
Thus, each crime would have been committed at a different point in
time, and, therefore, Mr. Rushton would have had ―the opportunity to
make a conscious and knowing decision to engage in‖ the next-in-time
offense, even if he committed some of his tax crimes in the same month
as some of his wage crimes. Letterlough, 63 F.3d at 337. We conclude
that the periods of time between Mr. Rushton‘s quarterly commission
of his tax crimes and Mr. Rushton‘s commission of his wage crimes
gave Mr. Rushton adequate opportunity to ―make a conscious and
knowing decision to engage in‖ the next-in-time offense. Id.
¶ 40 Having conducted this fact-intensive analysis, we determine,
based on the totality of the circumstances, that Mr. Rushton‘s tax crimes
and wage crimes did not have a single criminal objective. Id. at 336
(―Courts have applied these factors independently, or in conjunction, to
decide that a defendant‘s similar offenses are actually separate and
distinct from one another. In essence, if any one of the factors has a
helps the court determine whether the two offenses have the same
criminal objective. While there will no doubt often be overlap between
the ―closely related in time‖ analysis and this factor, a degree of overlap
is not the same thing as double-counting. Indeed, overlap is often a
feature of legal tests. See, e.g., Doggett v. United States, 505 U.S. 647, 651–
52 (1992) (describing the ―delay before trial‖ element of the test for
whether a defendant‘s constitutional right to a speedy trial has been
violated as ―a double enquiry‖: ―[s]imply to trigger a speedy trial
analysis, an accused must allege that the interval between accusation
and trial has crossed the threshold dividing ordinary from
‗presumptively prejudicial‘ delay. . . . If the accused makes this
showing, the court must then consider, as one factor among several, the
extent to which the delay stretches beyond the bare minimum needed
to trigger judicial examination of the claim.‖ (citing Barker v. Wingo, 407
U.S. 514, 530–34 (1972))).
18Mr. Rushton‘s tax crimes took place from 2005 to 2008, and
Mr. Rushton‘s wage crimes took place during 2008 and 2009.
20
Cite as: 2017 UT 21
Opinion of the Court
strong presence, it can dispositively segregate an extended criminal
enterprise into a series of separate and distinct episodes.‖ (footnote
omitted)). Three of the four factors weigh against a finding of a single
criminal objective, and the only other factor (the location where the
crimes were committed) is not dispositive. See supra ¶ 36. Moreover, no
other considerations argue in favor of finding a single criminal
objective in this case. We accordingly hold that Mr. Rushton‘s conduct
at issue in the tax case and in the wage case did not have a single
criminal objective and that the State therefore was not required to join
the charges for Mr. Rushton‘s tax crimes and the charges for his wage
crimes in a single prosecution.
¶ 41 We close with a note on the appropriateness of a totality of
the circumstances test in this case. For policy reasons, the concurrence
takes us to task for adopting a totality of the circumstances test in the
mandatory joinder context. Infra ¶¶ 71–73. It points out that multi-
factor tests are not as predictable as bright-line legal rules, and it notes
that the policy consequences of a misapplication of our multi-factor test
could potentially be ―drastic‖— if a prosecutor fails to join a count that
was subject to mandatory joinder, the result will be ―the preclusion of a
criminal claim without any consideration of the merits.‖ Infra ¶¶ 71–72.
¶ 42 While we are hesitant to conclude that predictability is the
overriding value in law—other important values are fidelity to text and
ensuring that the law does not purchase precision at the cost of
anomalous or unjust results—we agree with the concurrence that courts
must always be attuned to the risk that a test might prove difficult to
apply. But we think the risk of unpredictability is low here. Many other
jurisdictions use multi-factor tests to determine whether mandatory
joinder is required, see supra ¶ 35 n.11, and we have been given no
reason to think that the law in those jurisdictions is unpredictable.
Moreover, as we have explained, it is not clear that the concurrence‘s
test would be any more predictable than ours—indeed, it could well be
less predictable. See supra ¶ 24.
¶ 43 As for the concurrence‘s concern about the ―drastic
consequence[]‖ of criminal claim preclusion due to a prosecutor‘s
failure to join counts, infra ¶ 72, it is fair as far as it goes, but the
analysis is fatally incomplete. The policy question in this case is not
simply whether we should make it harder or easier for prosecutors to
prosecute all the offenses that a defendant might fairly be charged with.
Instead, the policy question is comparative: whether it is more
important to prevent the ―drastic consequence[]‖ of criminal claim
21
STATE v. RUSHTON
Opinion of the Court
preclusion due to the prosecutor‘s failure to join counts or to prevent
the ―drastic consequence[]‖ of serial prosecutions when claims
otherwise ought to have been joined. While this consideration is
secondary to the textual and doctrinal factors that have persuaded us to
adopt the test we announce, we think that it will generally be less costly
for a prosecutor to over-join counts than it is for a defendant to defend
against serial prosecutions.
¶ 44 As a final note, litigants in a criminal case—both prosecutor
and defendant—may always move the district court to join counts that
the law does not require be joined and to sever counts that are
otherwise subject to mandatory joinder. See UTAH R. CRIM. P. 34
(allowing motions to consolidate criminal cases); UTAH R. CRIM. P.
9.5(1)(b) (allowing separation of offenses otherwise required to be
joined ―for good cause shown‖). Thus, neither the concurrence‘s nor
our test is liable to change the ultimate joinder determination in the
vast majority of criminal cases. We agree with the concurrence that ―the
practical effect of [its] test is not . . . sweeping.‖ Infra ¶ 69. Nor, for that
matter, is the practical effect of ours. But, at the margin, the test for
mandatory joinder that we adopt today will yield results that are not
only more faithful to text and structure, but fairer and more rational as
well.
CONCLUSION
¶ 45 In conclusion, we reject Mr. Rushton‘s characterization of
misappropriation as his single criminal objective because such a
definition is too broad and would render the permissive joinder statute
inoperative. Instead, we consider the totality of the circumstances to
determine whether Mr. Rushton‘s conduct had a single criminal
objective. Because Mr. Rushton‘s tax crimes and wage crimes were
substantively different and involved different victims, and because
Mr. Rushton had the ―opportunity to make a conscious and knowing
decision to engage‖ in the next-in-time offense, we conclude that
Mr. Rushton‘s criminal conduct did not have a single criminal
objective. See United States v. Letterlough, 63 F.3d 332, 337 (4th Cir. 1995).
Because Mr. Rushton‘s conduct did not have a single criminal objective,
it was not a single criminal episode under the mandatory joinder
statute. Therefore, we hold that the mandatory joinder statute did not
require joinder of Mr. Rushton‘s tax crimes and wage crimes in a single
prosecution, and we affirm the court of appeals‘ decision upholding the
denial of Mr. Rushton‘s motion to dismiss.
22
Cite as: 2017 UT 21
LEE, A.C.J., concurring in the judgment
ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment:
¶ 46 Utah Code section 76-1-403 prescribes a rule of criminal claim
preclusion. It states that the prosecution of ―one or more offenses
arising out of a single criminal episode‖ may bar the ―subsequent
prosecution for the same or a different offense arising out of the same
criminal episode‖ if certain conditions are met. UTAH CODE § 76-1-
403(1).
¶ 47 Here we are asked to define the scope of a ―single criminal
episode.‖ The majority does so by articulating a ―totality of the
circumstances‖ test turning on at least four factors—―the location
where the crimes were committed, the nature of the offenses, whether
the crimes involved different victims, and whether the defendant had
the opportunity to deliberately engage in the next-in-time offense.‖
Supra ¶ 12. Applying this test, the court concludes that a prior
prosecution of David Rushton on criminal tax charges does not
foreclose the present prosecution on charges arising out of his failure to
pay earned wages to employees. Because ―[t]hree of the four factors‖
identified by the court ―weigh against a finding of a single criminal
objective,‖ the majority holds ―that Mr. Rushton‘s tax crimes and wage
crimes did not have a single criminal objective.‖ Supra ¶ 40. And it
therefore affirms the court of appeals‘ decision allowing the
prosecution on the wage offenses to move forward.
¶ 48 I agree with the judgment of the court—its affirmance of the
court of appeals‘ decision allowing the wage case to move forward. But
I disagree with the majority‘s analysis. I would not define the statutory
terms by reference to a multi-factored balancing test. Instead, I would
articulate a test based on the operative terms of the controlling statute.
The operative language precludes subsequent prosecution for criminal
―conduct‖ that is ―closely related in time‖ and ―incident to an attempt
or an accomplishment of a single criminal objective.‖ UTAH CODE
§ 76-1-401. The phrase ―incident to an attempt or an accomplishment of
a single criminal objective‖ is controlling here. I would affirm on the
ground that Rushton‘s wage offenses were not incident to the attempt or
accomplishment of the earlier-charged tax offenses. Accordingly, I
would hold that the statute does not preclude prosecution for the wage
offenses.
¶ 49 In the paragraphs below I first present the textual basis for
the operative test as I see it. Next I identify a significant shortcoming of
the majority‘s ―totality‖ test—the fact that it will not cover some
23
STATE v. RUSHTON
LEE, A.C.J., concurring in the judgment
conduct that is clearly ―incident to an attempt or accomplishment‖ of a
principal ―criminal objective.‖ Last I close with some observations
about the appropriate domain of balancing tests and the importance of
predictability in a field like claim preclusion.
I
¶ 50 The majority rejects Rushton‘s formulation of ―single
criminal episode.‖ It says that the wage offenses and tax offenses
cannot be deemed to stem from a ―single criminal objective‖ simply
because they advance a nefarious ―objective‖ framed at a high level of
generality. Supra ¶ 16. Quite right. If the identification of an overarching
bad purpose were enough to sweep in all charges deemed to advance it,
the single criminal episode provision would be all-encompassing. Or at
least it could potentially be so for a defendant whose lawyers are
creative enough to formulate a nefarious purpose at a high level of
generality. And that is not hard to do.
¶ 51 In this case, Rushton asserts that the relevant ―single criminal
objective‖ is to prop up his business through general
―misappropriation.‖ That is certainly a nefarious objective; and it
would encompass both the wage offenses and the tax offenses in this
case. But why stop at this level of generality? An alternative
formulation would be the purpose of advancing Rushton‘s interests by
engaging in criminal activity. And that criminal objective would sweep
in all conceivable crimes—even crimes as diverse as a sexual assault
committed on one day and a count of securities fraud committed three
weeks later.
¶ 52 All of this tells us that ―single criminal objective‖ cannot be
defined in the abstract. If it were, the preclusive effect of section 76-1-
402 would be all-encompassing. And, as the majority notes, this
approach would eviscerate the permissive joinder statute, Utah Code
section 77-8a-1(1), which permits joinder for offenses that are ―based on
the same conduct or are otherwise connected together in their
commission‖ or ―alleged to have been part of a common scheme or
plan.‖ See supra ¶ 16. If all crimes said to advance a general purpose of
criminality must be charged jointly because they are part of a single
criminal episode, then joinder would never be permissive. That cannot
be if we are to preserve meaning for the permissive joinder provision.
¶ 53 And that means that we must embrace a narrower notion of
―single criminal objective.‖ The majority does so by considering the
―totality of the circumstances,‖ meaning the series of considerations
24
Cite as: 2017 UT 21
LEE, A.C.J., concurring in the judgment
that the court deems relevant to this inquiry—the location of the two
crimes, the nature of the offenses, the identity of the victims, and the
opportunity to ―deliberately engage in the next-in-time offense.‖ Supra
¶ 12. Yet the court proffers no linkage between the factors it includes in
its balancing test and the operative terms of the statute.1 Instead, the
1
The majority professes general obeisance to the ―plain meaning‖
of the statutory text. See supra ¶ 23. But, tellingly, the court nowhere
seeks to connect its multi-factored test with the language of the statute.
That test is weaved of whole cloth having nothing to do with the terms
of section 76-1-401. So the majority is in no position to claim the high
ground of ―plain meaning‖ textualism.
The majority‘s criticism, moreover, is rooted in a faulty premise. It
says that ―if the legislature had intended‖ the standard I propose, it
―would have‖ done so explicitly. Supra ¶ 23. But we have rejected such
syllogisms repeatedly. We have noted that ―the legislature‘s failure to
speak more clearly tells us little or nothing about its intent in using
terms that are less clear.‖ Irving Place Assocs. v. 628 Park Ave., LLC, 2015
UT 91, ¶ 16, 362 P.3d 1241. And we have observed that ―[i]n any matter
of statutory construction of any consequence, it will almost always be
true that the legislature could have more clearly repudiated one party‘s
preferred construction.‖ Id. (quoting Hill v. Nakai (In re Estate of
Hannifin), 2013 UT 46, ¶ 25, 311 P.3d 1016). We have also explained that
―‗the converse is almost always true as well.‘‖ Id. (alteration in original)
(citation omitted). For that reason, we have said that ―‗[t]he legislature‘s
failure to speak more clearly‘ yields no basis for interpreting the
ambiguous terms it voted into law.‖ Id.; see also Craig v. Provo City, 2016
UT 40, ¶ 38, 389 P.3d 423 (―It is usually quite beside the point that the
legislature ‗knows how‘ to speak more explicitly. That is another way
of saying that the legislature could have spoken more clearly. And
typically that gets us nowhere.‖ (footnote omitted)). That is all the
majority is saying here. And in any event the legislature‘s failure to
adopt a clearer standard does not mean that it preferred the multi-
factored balancing approach favored by the majority. Again, nothing in
the text supports the factors articulated by the court.
The court‘s argument also misstates my standard. I am not simply
―equat[ing] a ‗single criminal episode‘ with a single ‗crime.‘‖ Supra
¶ 22. The use of the term ―objective‖ has significance that is not as
clearly conveyed by the term ―offense.‖ The word ―objective‖ identifies
(cont.)
25
STATE v. RUSHTON
LEE, A.C.J., concurring in the judgment
court imports a test set forth in a federal court of appeals decision
under a federal statute that bears little resemblance to the operative
Utah provisions. See supra ¶¶ 36–39.2
¶ 54 The cited federal case is United States v. Letterlough, 63 F.3d
332 (4th Cir. 1995). Letterlough is a case arising under the federal Armed
Career Criminal Act, 18 U.S.C. § 924(e)(1). The cited statute provides for
a sentencing enhancement—a mandatory minimum of fifteen years to
life—for a person convicted of unlawful possession of a firearm under
18 U.S.C. § 922(g) who ―has three previous convictions . . . for a violent
felony or serious drug offense, or both, committed on occasions
different from one another.‖ 18 U.S.C. § 924(e)(1). The Letterlough court
articulated factors of relevance to the determination whether past
crimes were ―committed on occasions different from one another.‖ Id.
Citing cases from other circuits, the Letterlough court held that ―a
multiplicity of factors‖ help to indicate ―when more than one
conviction constitutes a separate and distinct criminal episode.‖ 63 F.3d
at 335. And the cited factors include those embraced by the majority in
the reference point for a court‘s ―incident to‖ analysis. The conduct at
issue must be incident to the acts undertaken in attempting or
accomplishing the relevant ―objective‖ crime. The term ―objective‖ thus
aids—rather than hinders—a proper understanding of the analysis
required by the statute.
2 I see a parallel between the majority opinion here and that in State
v. Shickles, 760 P.2d 291, 295 (Utah 1988). Shickles identified factors to
guide decisions weighing evidence under rule 403 of the Utah Rules of
Evidence. Id. at 295–96. Yet the Shickles factors were not rooted in the
text of the operative rule; they were ―drawn from‖ the McCormick on
Evidence treatise. State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841. And in
time we were forced to repudiate the Shickles factors—identifying
unforeseen consequences arising from an attempt to formulate factors
not rooted in the text of the governing law, and backing away from the
Shickles factors and pointing the courts back to rule 403. Id.
I foresee a similar path ahead under the single criminal objective
statute. The Rushton factors seem destined to be applied in unforeseen
ways in future cases, leading to results that cannot be squared with the
operative text of the statute. When that happens we will be forced to
formulate a test more tied to the terms of the statute.
26
Cite as: 2017 UT 21
LEE, A.C.J., concurring in the judgment
this case—―whether the offenses arose in different geographic
locations; whether the nature of the offenses was substantively
different; and whether the offenses involved multiple victims or
multiple criminal objectives.‖ Id. at 335–36 (footnote omitted). In
addition, the Letterlough court also considered whether the defendant
had ―the opportunity to make a conscious and knowing decision to
engage in [the next-in-time offense.]‖ Id. at 337.
¶ 55 These factors may well be appropriate in assessing whether a
series of crimes were ―committed on occasions different from one
another.‖ But the quoted language comes from 18 U.S.C. § 924(e)(1).
And those terms appear nowhere in the operative Utah provision, Utah
Code section 76-1-401.
¶ 56 The question under section 401 is not whether a later-charged
crime was committed on an occasion different from that of an earlier-
charged offense. It is whether the two sets of offenses are ―closely
related in time‖ and are ―incident to an attempt or an accomplishment
of a single criminal objective.‖ UTAH CODE § 76-1-401. Thus, so long as
the time-relatedness element is met,3 subsequent prosecution is barred
only if it arises out of conduct that is ―incident to an attempt or an
accomplishment of a single criminal objective.‖ Id.
¶ 57 The statutory phrase ―incident to‖ modifies or extends to
both ―an attempt . . . of a single criminal objective‖ and ―an
accomplishment of a single criminal objective.‖ It accordingly defines
the scope of ―conduct‖ that comprises a ―single criminal episode.‖
Conduct that is not ―incident to‖ an ―attempt‖ or ―accomplishment‖ of
a ―single criminal objective‖ may be charged separately because it does
not comprise a ―single criminal episode‖ under the statute.
¶ 58 The words ―attempt‖ and ―accomplishment‖ have well-
defined meanings in the criminal law. An ―attempt‖ is itself a crime
involving conduct that is a ―substantial step toward commission of [a
specified] crime‖ wherein the defendant ―intend[ed] to commit the
3 I would consider the time-relatedness factor separately. That is an
independent element of a ―single criminal episode.‖ And it confuses
the matter—and double-counts the time element—to consider time as a
factor of relevance to the requirement of a ―single criminal objective.‖
See infra ¶ 65 n.9.
27
STATE v. RUSHTON
LEE, A.C.J., concurring in the judgment
[specified] crime.‖ UTAH CODE § 76-4-101(1).4 And the term
―accomplishment‖ or ―accomplish‖ refers to the completion of all the
elements of a crime identified in the criminal code.5 Because this statute
appears in the criminal code, speaks in terms of a criminal objective, and
identifies timing requirements for criminal prosecutions, I would give
these terms their criminal law meanings. See In re Adoption of Baby E.Z.,
2011 UT 38, ¶ 109, 266 P.3d 702 (Lee, J., concurring) (―‗Words of art
bring their art with them,‘ and courts have commonly assumed that
‗where [a legislature] borrows terms of art . . . , it presumably knows
and adopts the cluster of ideas that were attached to each borrowed
word in the body of learning from which it was taken and the meaning
its use will convey to the judicial mind unless otherwise instructed.‘‖
(second alteration in original) (footnote and citations omitted)).
¶ 59 In their criminal law senses, both attempt and
accomplishment are used in relationship to an identifiable offense in
the criminal code. They refer, in other words, to a specific crime that
was attempted or accomplished. Accordingly, in the context of the
statutory definition of ―single criminal episode,‖ these terms have
reference to the ―objective‖ of either attempting or accomplishing a
specific offense. So the ―objective‖ referenced in the statute is not, as
4 See also BLACK‘S LAW DICTIONARY 146 (10th ed. 2014) (defining
―attempt‖ as ―1. The act or an instance of making an effort to
accomplish something, esp. without success. 2. Criminal law. An overt
act that is done with the intent to commit a crime but that falls short of
completing the crime.‖).
5 See, e.g., State v. Castonguay, 663 P.2d 1323, 1326 (Utah 1983)
(stating in an attempted murder case that ―it must be borne in mind
that an attempt transcends intent, yet fails to culminate in its planned
accomplishment‖); State v. Musser, 175 P.2d 724, 731 (Utah 1946)
(stating that ―a criminal conspiracy . . . consists of an unlawful
agreement plus some overt act or acts done to further or to accomplish
the object of such an agreement‖; also noting that ―[a]n act done in
furtherance of an agreement need not succeed in accomplishing its
objective in order to fulfill the requirements of the statute‖) (emphases
added), vacated and remanded on other grounds in Musser v. Utah, 333 U.S.
95 (1948); State v. Mortensen, 83 P.2d 261, 262–63 (Utah 1938) (reversing
attempted rape conviction on the ground that there was ―no act which
can be said to be designed to accomplish the act of intercourse‖).
28
Cite as: 2017 UT 21
LEE, A.C.J., concurring in the judgment
Rushton asserts, some hazy nefarious purpose. Nor is it an unlawful
purpose defined vaguely by a totality of the circumstances. It has
reference, rather, to a particular crime—a ―single‖ ―objective‖ crime
that the defendant either ―attempt[ed]‖ or ―accomplish[ed].‖ See UTAH
CODE § 76-1-401. Thus, for the prosecution of a crime to be barred by
the statute, the conduct underlying that crime must have been ―incident
to‖ the attempt or accomplishment of the identified objective crime.
¶ 60 The ―incident to‖ element is the language of connection or
causation.6 One event or act is ―incident to‖ another if it arises out of it
or is otherwise connected to it—as in a risk ―incident to‖ employment
or a search ―incident to‖ an arrest. I would interpret the statutory
reference to an offense ―incident to an attempt or an accomplishment‖
of the objective crime in this sense. I would require proof of some
connection or relationship between the two offenses.7
6 See BLACK‘S LAW DICTIONARY 146 (10th ed. 2014) (defining
―incident‖ as ―[d]ependent on, subordinate to, arising out of, or
otherwise connected with (something else, usu. of greater importance)
‖);
WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 1142 (3d ed. 2002)
(setting forth the ―law‖ definition of the word ―incident‖ when used as
an adjective: ―dependent on or appertaining to another thing: directly
and immediately relating to or involved in something else though not
an essential part of it.‖).
7 Perhaps this inquiry will introduce some uncertainty. That is one
of the majority‘s complaints about my approach. See supra ¶ 24. But the
―incident to‖ element is an explicit component of the statutory test. If
we are concerned about the fuzziness of the inquiry then we should do
our best to bring clarity to the analysis; we are in no position to write it
out of the law (as the majority does in its test). See supra ¶ 45 (―Because
Mr. Rushton‘s conduct did not have a single criminal objective, it was not a
single criminal episode under the mandatory joinder statute.‖
(emphasis added)). I would bring clarity to ―incident to‖ by drawing
upon analogies in other areas of the law, which treat ―incident to‖ as
the language of connection or causation. Our cases can iron out any
wrinkles in this formulation in due time.
The majority, moreover, is in no position to make the plea for
certainty. Its ―totality of the circumstances‖ test requires uncertainty
(cont.)
29
STATE v. RUSHTON
LEE, A.C.J., concurring in the judgment
¶ 61 The statutory test accordingly consists of two steps. First, the
court must identify the ―single criminal objective‖—the objective
crime—at issue.8 Second, the court must determine whether the
defendant‘s other criminal conduct was incident to the attempt or
accomplishment of the objective crime.
¶ 62 Because the statute prohibits successive ―prosecution‖ for
offenses that are part of a single criminal episode, see UTAH CODE
§ 76-1-403, I would conduct this analysis by reference to the documents
setting forth the basis for the prosecution (the criminal information or
indictment). And I would hold that Rushton‘s wage offenses were not
incident to an attempt or accomplishment of his tax offenses. Rushton
made no effort to show any relationship between the conduct
underlying his tax offenses and the conduct underlying his wage
offenses—let alone one that could be described as ―incident to,‖ under
the statute. He argued only that both the tax offenses and the wage
offenses fall under the same general objective of misappropriating
funds. That is plainly insufficient. To fall within the preclusive sweep of
the statute, Rushton‘s tax offenses would have to be shown to be
incident to—or directly and immediately relating to—an attempt or
accomplishment of his wage offenses. No such showing was made
here, and Rushton‘s argument should fail on that basis.
II
¶ 63 The majority takes a completely different tack. It adopts
instead a multi-factored balancing test. But that test is completely
disconnected from the operative statutory language. And it will also
lead to problematic results.
¶ 64 An inchoate offense, in my view, is clearly ―incident to an
attempt or an accomplishment of a single criminal objective.‖ UTAH
CODE § 76-1-401. Surely a conspiracy to commit bank robbery, for
example, is ―incident to an attempt or an accomplishment‖ of the bank
robbery. So if such offense is ―closely related in time‖ to the principal
from case to case. See infra ¶¶ 71–72 (noting further concerns about the
unpredictability of the majority‘s test).
8 Either of two crimes could be the ―objective.‖ The analysis would
turn on whether the conduct underlying one of the crimes at issue was
incident to the attempt or accomplishment of another crime.
30
Cite as: 2017 UT 21
LEE, A.C.J., concurring in the judgment
offense it is aimed at facilitating, it must necessarily be barred if not
included in the prosecution of the principal offense.
¶ 65 Yet the majority‘s multi-factored balancing test could easily
lead to the opposite conclusion. Consider a case involving a bank
robbery preceded by solicitation of an accomplice. The act of
solicitation is undoubtedly ―incident to‖ the ―accomplishment‖ of the
―criminal objective‖ of bank robbery. So the crime of solicitation should
be foreclosed if closely related in time and not charged in connection
with an initial prosecution for the bank robbery. But that crime may not
be barred under the majority‘s test. If, for example, the accomplice
resides in a different state, the majority‘s factors could easily weigh
against a requirement of joinder in the initial bank robbery case, since
the offenses could be said to arise in a ―different geographic location[],‖
supra ¶ 36; the solicitation offense is ―substantively different‖ in
―nature‖ from bank robbery, supra ¶ 37; and the defendant ―had ‗the
opportunity to make a conscious and knowing decision to engage in‘
the next-in-time offense,‖ supra ¶ 39.9 That makes three of four factors
9 The majority‘s test also seems problematic for an additional
reason: Even if we assume the propriety of a multi-factored test, the
majority‘s standard seems to double-count the timing element. The
operative statute tells us that time-relatedness is an inquiry distinct
from the ―single criminal objective‖ element. See UTAH CODE § 76-1-401
(defining ―single criminal episode‖ as one involving two sets of
offenses that are ―closely related in time‖ and ―incident to an attempt
or an accomplishment of a single criminal objective‖). So the
assessment of ―opportunity to make a conscious and knowing
decision‖ seems to amount to double-counting.
I have no quarrel with the notion that ―overlap is often a feature of
legal tests.‖ Supra ¶ 39 n.17. But my point is not to raise a general
objection to ―overlap‖ in all circumstances; it is to suggest that the
separate existence of a ―closely related in time‖ test calls into question
the statutory basis for a time component of the ―single criminal
objective‖ test. Thus, the existence of overlap in legal tests formulated
in other areas of the law tells us nothing about the appropriate standard
for analyzing a ―single criminal objective.‖ And the separate nature of
the ―closely related in time‖ standard undermines the existence of a
time component for assessing ―single criminal objective.‖
31
STATE v. RUSHTON
LEE, A.C.J., concurring in the judgment
that cut against the conclusion that these offenses are ―incident to‖ the
―accomplishment‖ of the ―criminal objective‖ of bank robbery.
¶ 66 This is troubling. If the factors we identify fail to sweep in
classic crimes ―incident to an attempt or accomplishment of a single
criminal objective,‖ then it‘s time to go back to the drawing board. I
would do so by giving the terms attempt, accomplishment, and
criminal objective the meaning those terms have in the criminal law.
And I would hold that Rushton‘s wage offenses are not precluded here
because he has made no effort to identify any relationship between the
conduct underlying the two distinct sets of crimes.
¶ 67 The majority objects to my test as underinclusive, citing an
example of a series of thefts ―from ten separate accounts belonging to
ten separate clients of the same bank,‖ brought about by a ―computer
program‖ written by a defendant who admits to a goal of stealing
―small enough increments that (in his view) were less likely to
immediately trigger the bank‘s anti-fraud measures.‖ Supra ¶¶ 24–25.
In the court‘s view, these offenses ―ha[ve] a single criminal purpose
underlying‖ them, as witnessed by the defendant‘s contemporaneous
admission of his intent. Id. ¶ 26. And because my test would allow
―serial prosecutions‖ of these multiple choate offenses, the majority
insists that my approach must be dismissed as underinclusive. Id.
¶ 68 I disagree for several reasons. For one thing, the court‘s
conclusions are premised on its own take-our-word-for-it sense of the
scope of ―single criminal episode.‖ It confidently announces its belief
that ―[t]he state should not be allowed to bring serial prosecutions
against‖ a defendant in these circumstances. Id. But it offers no basis in
the words of the statute for that conclusion. So the court‘s criticism (of
the underinclusiveness of my test) is entirely circular. In my view, it is
the majority‘s test that is under- and overinclusive—or at least
potentially so, in that the multi-factored balancing test makes it
impossible to predict with any certainty which crimes will be deemed
to be encompassed within a ―single criminal episode.‖
¶ 69 Second, the practical effect of my test is not nearly as
sweeping as the court imagines. ―[S]erial prosecutions‖ will ensue only
if the prosecution chooses to exercise its discretion to charge these
crimes separately. And a rational prosecutor seems highly likely to
charge these hypothetical crimes together for a range of practical
reasons. Even if related cases are charged separately, moreover—as
with the court‘s secondary example of ―a hacker who simultaneously
32
Cite as: 2017 UT 21
LEE, A.C.J., concurring in the judgment
acquires unauthorized access to one million computers,‖ id.—there is
no reason to expect ―one million trials.‖ Id. Cases can be charged
separately but ultimately consolidated for trial. UTAH R. CRIM. P. 34. So
the majority overstates the practical concern implicated by my test.
¶ 70 Finally, the majority‘s concerns about underinclusiveness are
not necessarily alleviated by its test. The virtue of a ―totality of the
circumstances‖ test is its flexibility. But that is also its principal vice.
And I cannot see how a prosecutor could predict how the multiple
bank theft or computer hacking counts would fare under the majority‘s
test. In both cases there are some factors pointing in favor of mandatory
joinder (location, similar conduct) and others pointing the other way
(different victims, neither offense is incident to the attempt or
accomplishment of the other). The majority, moreover, goes out of its
way to say that the listed considerations ―are certainly not the only
factors relevant to the mandatory joinder analysis.‖ Supra ¶ 35. So it
seems impossible to anticipate with any certainty how the court‘s own
hypotheticals would come out under its test. It is entirely possible that
the examples it lists would come out the same under both tests.
III
¶ 71 A totality-of-the-circumstances test is a tempting response to
a complex legal problem. And such a test may have a place in the law—
in a field, for example, where precision is untenable (or unimportant)
and flexibility is at a premium.10 But this is not such a field.11 The
10 See United States v. Mead Corp., 533 U.S. 218, 241 (2001) (Scalia, J.,
dissenting) (deriding ―th‘ol‘ ‗totality of the circumstances‘‖ as ―that test
most beloved by a court unwilling to be held to rules (and most feared
by litigants who want to know what to expect)‖).
11 There is a rich literature on the virtues and vices of objective
rules and subjective standards. Nearly everyone agrees that there is a
place in the law for both. But even the pro-standards crowd
acknowledges that balancing tests are problematic in fields in which
predictability is at a premium. Compare Antonin Scalia, The Rule of Law
As a Law of Rules, 56 U. CHI. L. REV. 1175, 1182 (1989) (stating that
―predictability is destroyed‖ when courts adopt tests based on the
―totality of the circumstances‖ or ―a balancing of all the factors
involved‖) with Cass R. Sunstein, Must Formalism Be Defended
Empirically?, 66 U. CHI. L. REV. 636, 654 (1999) (acknowledging that
(cont.)
33
STATE v. RUSHTON
LEE, A.C.J., concurring in the judgment
flipside of flexibility is unpredictability. And predictability is at a
premium in the field of claim preclusion.
¶ 72 A prosecutor faced with the question of how widely to frame
an information or indictment must anticipate the preclusive effect of
such a decision.12 A misjudgment in this field will produce drastic
consequences—the preclusion of a criminal claim without any
consideration of the merits. Such a consequence should be the
predictable result of a reasoned decision. And we thwart that
possibility when we do no more than articulate a series of ―factors‖ to
be balanced in some unspecified way.
¶ 73 I would avoid that problem here. I would do so by rejecting
the majority‘s ―totality‖ test in favor of a more objective rule rooted in
the operative terms of the governing statute. And I would affirm under
that test.
although the ―issue[] [is] hard to resolve in the abstract,‖ ―[w]here
predictability is especially important—such as in areas involving
commercial and criminal law—formalism [which seeks to limit judicial
discretion] might be favored.‖).
12 Surely this is an additional ―purpose of the mandatory joinder
statute.‖ See supra ¶ 35 (listing other purposes). We should not assume
that a statute like this one is aimed at accomplishing only a limited set
of objectives on one side of the scale. We should recognize the reality
that this statute, like most all others, is aimed at balancing competing
objectives, including that of the prosecution in the exercise of its
discretion. See Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 23 n.6, 248
P.3d 465 (―[M]ost statutes represent a compromise of purposes
advanced by competing interest groups, not an unmitigated attempt to
stamp out a particular evil.‖).
34