2016 UT App 9
State v. Hawkins
homes built would cost $2.5 million ‚but would sell for $3.5
million.‛
¶9 Based on the representations made to him, the victim
believed that he and Empire Homes ‚would work together in
building‛ the homes, and ‚were going to split the profits.‛ He
was also led to believe that Chapple and Hawkins ‚were going
to take care of all of the things that needed to be done.‛ The
victim described Hawkins as Chapple’s partner and a promoter
of the scheme:
Well, it’s just that he was a partner with *Chapple+
or a friend, you know, I took it that they were
partners because why else would he be there other
than to promote or be a part of this whole
thing? . . . [H]e was a promoter. [He said things
like,+ ‚She’s done a great job before; I’ve worked
with her before; she’s on top of this, she’s a great
general contractor; it’s all going to work out so
good; they’ve got such a good game plan, the way
we build our houses is like no other.‛
The victim also understood, from what he had been told about
how Empire Homes built houses, that ‚everything would be set
up from the digging to the teams coming in with the concrete . . .
everything, the plumbers, the electricians, [Chapple] knew lots
and lots of people that would come in and they would put these
houses up and they would get this whole project done.‛
¶10 In addition, the victim was told that Empire Homes was
‚going to pay *him+ $8,300 a month [to lease the property] so
they could start building and [the victim and Empire Homes]
could work together as a team to build a house that would go
into a rental pool or be sold and [they] would split the profits.‛
And Chapple represented to the victim that ‚if the house didn’t
sell for what they said it was worth,‛ that they had an
‚insurance policy [that] would make up the difference.‛ The
20130468-CA 5
2016 UT App 9
State v. Hawkins
victim’s brother-in-law testified that Hawkins made the same
representation about an insurance policy to him. The document
describing the supposed ‚insurance policy‛ proclaimed,
‚Imagine something so great, it makes all the ‘what if’s’ go
away!‛5
¶11 The victim decided to purchase two lots in the
development—lots 39 and 41—and executed a real estate
purchase contract for each. But before the victim signed the
contracts, Hawkins called the victim’s brother-in-law and
explained that if the victim could sign the contracts before April
15, ‚there would be some favorable tax implications to the
developer and that they would be willing to take [the victim] on
a Disney Cruise to the Mexican Riviera,‛ which ‚would be paid
for by the developer.‛ The victim signed the real estate purchase
contract for lot 39 on April 11, and signed the contract for lot 41
on April 30.
¶12 More than two weeks after the victim signed the contract
to purchase lot 39, and on the same day that he signed the
contract to purchase lot 41, Empire Homes had the victim sign a
‚risk disclosure statement.‛ This document provided, in relevant
part, that if Empire Homes sold one of the victim’s lots, ‚Empire
will pay you, out of the sale proceeds, the full price that you
originally paid for the Lot, and Empire will keep all profits‛; that
‚Empire cannot guarantee that you or Empire will be able to
obtain financing for your purchase‛ of the lots; that ‚Real estate
investments are not insured by the FDIC or any other
government agency‛; and that ‚Empire, its principals, and
associates do not guarantee the success of you[r] investment.‛
¶13 Hawkins took credit at trial for the creation of the risk
disclosure statement. He testified that he asked an attorney for
Empire Homes to draft something that ‚disclose*d+ everything
5. An expert witness testified that no insurance policies of this
sort exist in the State of Utah.
20130468-CA 6
2016 UT App 9
State v. Hawkins
that could possibly go wrong with this type of transaction.‛
Hawkins also testified that when the victim signed the
document, he ‚felt very comfortable because *he+ felt great relief
that now [the victim] was informed and knew everything that
[Hawkins] knew,‛ and it ‚brought [him] great solace when [the
victim] signed it.‛
¶14 In the end, the victim put approximately $423,000 down
on each lot. Even though each lot cost $1.1 million, the victim
understood that Chapple and Hawkins would secure the
funding for the balance owed on the property. The victim
testified, ‚It was Empire [that] was going to get the rest of the
money to pay for this‛; ‚they were coming in with the other
money.‛ Specifically, the victim testified that he ‚was always
told‛ the money would come from ‚a family trust,‛ that ‚a
family trust was going to come in and buy the whole lot, [and]
supply the money for the entire project.‛ Empire Homes
deposited the victim’s down payment into an account created by
Chapple and Bowen a few days later. The account consisted
solely of the victim’s investment; Chapple and/or Bowen
transferred funds from the account to the Empire Homes payroll
account and to their own personal accounts. In addition, the
victim’s investment paid for ten Disney Cruise Line
reservations—reservations that Hawkins represented the
developer would buy.
¶15 Nothing happened as the victim had been led to believe it
would. After some time elapsed and Empire Homes had yet to
obtain financing for the balance owed on the lots, Chapple asked
the victim to obtain a thirty-day bridge, or hard-money, loan for
the balance of the purchase price. ‚She said. . . that she would
pay the—or Empire Custom Homes would pay the one-month’s
rent, shall we say on the money, and then pay back the loan as
soon as they got financing, that this wasn’t going to go any
longer than 30 days.‛ Shortly after the victim completed the
thirty-day bridge loan he started receiving calls ‚that no
payments were being made on the hard money loans.‛
20130468-CA 7
2016 UT App 9
State v. Hawkins
¶16 The victim talked to both Chapple and Hawkins to
determine where the project’s financing stood and what was
going on. He received assurances from both Chapple and
Hawkins that the financing was almost squared away. Chapple
also told him that she had made payments on the hard money
loans, but the victim realized that Chapple had not made any
payments when the lenders began foreclosure proceedings. The
victim became desperate and reached out to Hawkins through
an email, pleading with Hawkins as ‚a man of God‛ to put him
in touch with the buyer Hawkins had represented might buy the
lots:
This letter is to inform you that I look at our
relationship as a friendship not a business
relationship. In these tough times you need the
help of good people. I respect you and consider
you a man of God. I need your help in contacting
the man you know who may be interested in
purchasing lots 39 and 41. I know you are not a
realtor or a loan originator just a friend who is
trying to help a situation. Please approach this man
and tell him I would be willing to part with the lots
at the cost of the hard money lenders.
Despite promises from Hawkins and Chapple that the funding
would come through, it did not; consequently, lenders
foreclosed on both lots. The victim lost the approximately
$852,000 he had put down.
¶17 In the wake of these events, Hawkins was charged with
three counts of communications fraud and one count of
engaging in a pattern of unlawful activity. After a preliminary
hearing he was bound over on only two counts of
communications fraud. Hawkins moved to quash the bindover
on the ground that the evidence was insufficient. The trial court
denied Hawkins’s motion and set a trial date of May 24, 2012.
On May 23, 2012, the State moved to continue trial on the basis
20130468-CA 8
2016 UT App 9
State v. Hawkins
that one of its material witnesses, who lived out of state, had
suffered complications from surgery and could not travel to
testify. The court granted the State’s motion. The court held a
scheduling conference in June and a pretrial conference in
December. Approximately ten days after the December pretrial
conference, Hawkins moved to dismiss for lack of a speedy trial.
The court denied his motion.
¶18 The matter proceeded to trial on January 11, 2013. The
same day, Hawkins moved the court to find him indigent and to
appoint his current counsel; however, he stated that no matter
the court’s decision on the motion, his current counsel would
continue to represent him. The court did not rule on this motion
until after trial.
¶19 At the close of the State’s evidence, Hawkins moved for a
directed verdict. The court denied the motion, ruling that the
evidence was sufficient to submit the case to the jury.
¶20 The jury convicted Hawkins on one count of
communications fraud. After trial, the court denied Hawkins’s
indigency motion. Hawkins appeals his conviction and the
denial of his motion for a determination of indigency and
appointment of counsel.
ISSUES ON APPEAL
¶21 Hawkins raises five issues on appeal. First, Hawkins
contends that the trial court erred in refusing to quash the
bindover or direct a verdict of acquittal on the ground that
sufficient evidence did not establish that ‚he ‘devised’ the
alleged scheme.‛
¶22 Second, Hawkins contends that the trial court erred in
refusing to instruct the jury that before it could find him guilty
based on ‚material omissions,‛ it first had to find that he had a
duty to disclose.
20130468-CA 9
2016 UT App 9
State v. Hawkins
¶23 Third, Hawkins contends that he was denied his right to a
fair trial on the basis that one expert witness impermissibly
withheld testimony, another expert witness’s testimony
exceeded its permissible scope, the prosecutor engaged in
misconduct, and the jury was not properly instructed.
¶24 Fourth, Hawkins contends that the trial court denied his
constitutional right to a speedy trial.
¶25 Finally, Hawkins contends that the trial court erred in
denying his motion for appointed counsel.
ANALYSIS
I. Sufficient Evidence Established That Hawkins Devised a
Scheme to Defraud
¶26 Hawkins contends that the trial court erred in denying his
motion to quash the bindover and his motion for a directed
verdict. Both motions argued that the State presented no
evidence that Hawkins ‚devised‛ the scheme of which he was
convicted. Specifically, Hawkins argues that the trial court
wrongly interpreted ‚the communications fraud statute to apply
to anyone who had ‘participated’ in a scheme‛ as opposed to
interpreting the statute to apply to anyone who ‚devised‛ a
scheme.
A. The Motion to Quash
¶27 Hawkins contends that the trial court erred in denying his
motion to quash the bindover. The State responds that the jury’s
verdict of guilty beyond a reasonable doubt cured any error at
the preliminary hearing stage. We agree.
¶28 To bind a defendant over for trial, the State must at a
preliminary hearing ‚present sufficient evidence to establish that
the crime charged has been committed and that the defendant
has committed it.‛ State v. Pledger,
896 P.2d 1226, 1229 (Utah
20130468-CA 10
2016 UT App 9
State v. Hawkins
1995) (citation and internal quotation marks omitted). And ‚the
quantum of evidence necessary to support a bindover is less
than that necessary to survive a directed verdict motion‛ and is
the same as the probable cause standard necessary to support an
arrest warrant. State v. Clark,
2001 UT 9, ¶ 16,
20 P.3d 300. ‚The
bindover standard is intended to leave the principal fact finding
to the jury.‛ State v. Virgin,
2006 UT 29, ¶ 21,
137 P.3d 787.
¶29 ‚The determination of guilt beyond a reasonable doubt
rests with the fact-finder at trial.‛ State v. Aleh,
2015 UT App 195,
¶ 15,
357 P.3d 12 (citing Virgin,
2006 UT 29, ¶ 21). Accordingly,
‚an error at the preliminary stage is cured if the defendant is
later convicted beyond a reasonable doubt.‛ Thomas v. State,
2002
UT 128, ¶ 7,
63 P.3d 672 (citation and internal quotation marks
omitted); see also, e.g., State v. Hernandez,
2011 UT 70, ¶ 29 n.3,
268
P.3d 822; State v. Rhinehart,
2007 UT 61, ¶ 20,
167 P.3d 1046; State
v. Winfield,
2006 UT 4, ¶ 26,
128 P.3d 1171; State v. Quas,
837 P.2d
565, 566 (Utah Ct. App. 1992).
¶30 We agree with the State. Hawkins was convicted beyond
a reasonable doubt of devising a scheme to defraud; this
conviction cures any insufficiency of evidence at the preliminary
hearing. The question then becomes whether that conviction can
withstand appellate review.
B. The Directed Verdict Motion
¶31 Hawkins contends that the trial court erred in denying his
motion for a directed verdict. We understand Hawkins to assert
two arguments in support of this contention. First, Hawkins
argues that the trial court erred in its interpretation of what it
means to devise a scheme within the meaning of Utah Code
section 76-10-1801. We construe this as a statutory interpretation
argument. ‚We review questions of statutory interpretation for
correctness . . . .‛ Marion Energy, Inc. v. KFJ Ranch P’ship,
2011 UT
50, ¶ 12,
267 P.3d 863 (citation and internal quotation marks
omitted).
20130468-CA 11
2016 UT App 9
State v. Hawkins
¶32 Second, Hawkins argues that, in light of the trial court’s
erroneous interpretation of the statutory term devise, the trial
court erred in concluding that sufficient evidence existed to
submit the case to the jury. When an appellant challenges the
denial of a motion for a directed verdict based on the sufficiency
of the evidence, ‚[t]he applicable standard of review is . . . highly
deferential.‛ State v. Nielsen,
2014 UT 10, ¶ 30,
326 P.3d 645. ‚A
defendant must overcome a substantial burden on appeal to
show that the trial court erred in denying a motion for directed
verdict.‛ State v. Gonzales,
2015 UT 10, ¶ 27,
345 P.3d 1168. ‚We
will uphold a trial court’s denial of a motion for directed verdict
based on a claim of insufficiency of the evidence if, when viewed
in the light most favorable to the State, some evidence exists
from which a reasonable jury could find that the elements of the
crime had been proven beyond a reasonable doubt.‛
Id. (citation
and internal quotation marks omitted).
¶33 We conclude, for the reasons discussed below, that any
error the trial court may have made in interpreting what it
means to devise a scheme under the communications fraud
statute does not require reversal. ‚Even if the [trial] court did err,
we will not reverse if that error was harmless.‛ State v. Perea,
2013 UT 68, ¶ 97,
322 P.3d 624.
¶34 ‚Under our rules of statutory construction, we look first
to the statute’s plain language to determine its meaning.‛ Sindt
v. Retirement Bd.,
2007 UT 16, ¶ 8,
157 P.3d 797 (citation and
internal quotation marks omitted). Utah’s communications fraud
statute states that, to be guilty of communications fraud, an actor
must both devise a scheme to defraud and communicate for the
purpose of executing or concealing that scheme:
Any person who [1] has devised any scheme or
artifice to defraud another or to obtain from
another money, property, or anything of value by
means of false or fraudulent pretenses,
representations, promises, or material omissions,
and who [2] communicates directly or indirectly
20130468-CA 12
2016 UT App 9
State v. Hawkins
with any person by any means for the purpose of
executing or concealing the scheme or artifice is
guilty of [communications fraud] . . . .
Utah Code Ann. § 76-10-1801(1) (LexisNexis 2008) (emphases
added).
¶35 Because the statute does not define the term devise and
because it ‚does not appear to be a technical term of art, we
construe it to partake of the ordinary meaning the word would
have to a reasonable person familiar with the usage and context
of the language in question.‛ See Hi-Country Prop. Rights Group v.
Emmer,
2013 UT 33, ¶ 18,
304 P.3d 851 (citation and internal
quotation marks omitted). ‚The starting point for discerning
such meaning is the dictionary. A dictionary is useful in
cataloging a range of possible meanings that a statutory term
may bear.‛ Id. ¶ 19. However, dictionaries ‚will often fail to
dictate what meaning a word must bear in a particular context.
That question will often require further refinement—of selecting
the best meaning among a range of options, based on other
indicators of meaning evident in the context of the statute . . . .‛
Id. (citations and internal quotation marks omitted); see also, e.g.,
State v. Rasabout,
2015 UT 72, ¶ 10,
356 P.3d 1258 (‚*W+hile the
ordinary meaning of a word is powerful evidence in
understanding statutory text, it is not the only consideration
because it is simply inclusive as to the meaning intended in a
particular context.‛).
¶36 The dictionary defines devise to mean ‚to form in the
mind by new combinations of ideas, new applications of
principles, or new arrangement of parts; . . . to plan to obtain or
bring about.‛ Webster’s Third New Int’l Dictionary 619 (1966);
see also Garner’s Dictionary of Legal Usage 273 (3d ed. 2011)
(‚*t+he general nonlegal sense of devise ([i.e.,] to plan or invent) is
also used in legal contexts‛ as opposed to the term-of-art
definition of devise, which means to bequeath or give).
Accordingly, given the ordinary meaning of devise, and given the
20130468-CA 13
2016 UT App 9
State v. Hawkins
context of the communications fraud statute, we conclude that
the statute requires that the actor form, plan, or invent a ‚scheme
or artifice to defraud another.‛ See
Utah Code Ann. § 76-10-
1801(1).
¶37 Hawkins contends that the trial court misread this aspect
of the statute. In support of his claim, he cites several statements
and rulings of the trial court concerning the meaning of the
statutory term devise. But these statements were all made outside
the presence of the jury. The jury heard only the jury
instructions. And Hawkins advances no challenge to those jury
instructions, nor does he identify any incidental harm he may
have suffered based on the trial court’s statements.
¶38 Instruction 29 directed the jury that before it could convict
Hawkins of communications fraud, it had to find, among other
requirements and beyond a reasonable doubt, that he ‚devised a
scheme or artifice to obtain from another money, property, or
anything of value by means of false or fraudulent pretenses,
representations, promises, or material omissions.‛ Instruction 30
explained to the jury that ‚‘Devise’ means to contrive, plan, or
elaborate.‛ Though Instruction 30 does not perfectly conform to
the dictionary definitions of devise discussed above, it conforms
to ‚the ordinary meaning the word would have to a reasonable
person.‛ See Hi-Country Prop. Rights Group,
2013 UT 33, ¶ 18
(citation and internal quotation marks omitted). Hawkins does
not contend otherwise.
¶39 Accordingly, because Hawkins does not challenge the
jury instructions on this point, and claims no incidental harm
flowing from his discussions with the trial court, any error in the
trial court’s oral ruling on what it means to devise under the
communications fraud statute was harmless. We next consider
whether sufficient evidence supported the jury’s finding, in
support of Hawkins’s conviction, that he devised the scheme to
defraud.
20130468-CA 14
2016 UT App 9
State v. Hawkins
¶40 Hawkins argues that the trial court erred in denying his
motion for a directed verdict because the State ‚never
introduced evidence of how *Hawkins+ ‘devised,’ ‘formed,’ or
‘planned,’ the alleged scheme.‛ When reviewing ‚a claim of
insufficiency of the evidence, we review the evidence and all
inferences which may reasonably be drawn from it in the light
most favorable to the verdict of the jury.‛ State v. Nielsen,
2014
UT 10, ¶ 30,
326 P.3d 645 (citation and internal quotation marks
omitted). Viewing the evidence in this light, ‚*w+e will uphold
the trial court’s decision if . . . we conclude that some evidence
exists from which a reasonable jury could find that the elements
of the crime had been proven beyond a reasonable doubt.‛ State
v. Montoya,
2004 UT 5, ¶ 29,
84 P.3d 1183 (alteration in original)
(citation and internal quotation marks omitted).
¶41 In addition, a defendant ‚cannot complain of the
insufficiency of the evidence to sustain the verdict, though the
[S]tate failed to make a case, if he himself proved one for it.‛
State v. Stockton,
310 P.2d 398, 400 (Utah 1957) (citation and
internal quotation marks omitted); see also State v. McCallie,
2016
UT App 4, ¶ 44 (same);
id. ¶ 42 n.8 (observing that all federal
circuits and most states follow this ‚waiver rule‛). Thus, in
examining a challenge to the sufficiency of the evidence, we
review the record as a whole.
¶42 The evidence that Hawkins had a role in devising this
fraudulent scheme was largely circumstantial. But ‚it is a well-
settled rule that circumstantial evidence alone may be sufficient
to establish the guilt of the accused.‛ State v. Nickles,
728 P.2d
123, 126 (Utah 1986). And ‚*f+raud may be proved by
circumstantial evidence. Indeed, from its nature it is difficult to
prove by direct evidence, and it is seldom that it can be so
proved. Hence it is more often shown by circumstances than in
any other way.‛ Austin v. Wilkerson, Inc.,
519 P.2d 899, 904 (Okla.
1974) (citation and internal quotation marks omitted).
‚However, jury verdicts decided on the basis of ‘remote or
speculative possibilities of guilt’ are invalid.‛ Salt Lake City v.
Carrera,
2015 UT 73, ¶ 11,
358 P.3d 1067 (quoting State v.
20130468-CA 15
2016 UT App 9
State v. Hawkins
Workman,
852 P.2d 981, 985 (Utah 1993)). We do not agree with
Hawkins that the jury’s finding that he devised as well as
executed this fraudulent scheme rested on remote or speculative
possibilities of guilt.
¶43 Here, the trial evidence showed that Hawkins devised a
scheme to entice the victim to buy property based on a promise
that Empire Homes would take care of everything. In
furtherance of that scheme, Hawkins affirmatively represented
that ‚utilities were not a problem,‛ despite the fact that DPC had
not completed the infrastructure necessary for utilities and that
completion of the utility infrastructure hinged on Empire
Homes’ closing on a certain number of lots in a certain amount
of time. Hawkins also represented to DPC that funding would
not present an issue—and the victim had the same
understanding—because Hawkins had access to millions of
dollars held in a private trust. Hawkins represented to the
victim’s brother-in-law that Empire Homes had an insurance
policy that would cover any loss should the home they built sell
for less than promised. And to ensure the victim signed the real
estate purchase contracts with due haste, Hawkins affirmatively
represented that the developer would treat the victim and his
family to a cruise when in fact the cruise was paid for by money
supplied by the victim. Finally, after the victim had already
purchased one of the lots, Empire Homes had the victim sign a
risk disclosure statement that effectively repudiated every
promise Hawkins and Chapple had made. And not only did
Hawkins take credit for the risk disclosure statement’s creation,
he testified that it ‚brought [him] great solace‛ when the victim
signed it.
¶44 All of this evidence supports the jury’s verdict that
Hawkins ‚communicate*d+ directly or indirectly with any
person by any means for the purpose of executing . . . the
scheme‛ to defraud. See
Utah Code Ann. § 76-10-1801(1)
(LexisNexis 2008). The question though, is whether this evidence
constitutes sufficient evidence to establish that Hawkins
‚devised‛ the scheme to defraud. Viewing the evidence and the
20130468-CA 16
2016 UT App 9
State v. Hawkins
reasonable inferences drawn from it in the light most favorable
to the jury’s verdict, as we must, we conclude that it does. See
Montoya,
2004 UT 5, ¶ 29.
¶45 From the evidence, the jury could reasonably conclude
that Hawkins knew that no private trust existed to fund the Deer
Canyon Development but that he nevertheless affirmatively
represented the existence of such a trust; that Hawkins knew
that utilities presented a problem, but affirmatively represented
they did not; that Hawkins knew that the developer would not
pay for a Disney cruise, but represented that it would; that
Hawkins knew that no insurance policy guaranteed the sale
price of the homes; and that Hawkins knew the falsity of
everything he promised, but promised it all anyway and then
conceived a risk disclosure statement repudiating his promises
in an effort to shield himself from liability. Moreover, from
evidence of Hawkins’s role in every stage of the scheme, the jury
could reasonably conclude that he not only acted to execute
someone else’s scheme, but that he also had a hand in devising
it.
¶46 Notwithstanding all of the evidence presented to the jury,
Hawkins maintains it does not support his conviction, because
the victim ‚received everything he bargained for.‛ However, our
review of the record indicates that the victim testified that he did
not receive what he bargained for, and for that he blamed
Hawkins:
*Hawkins’s Counsel:+ So yes or no, do you blame
[Hawkins]?
[Victim:] Yes.
*Hawkins’s Counsel:+ Did you get anything that
you didn’t bargain for?
*Victim:+ I didn’t get the end result that was
guaranteed.
....
20130468-CA 17
2016 UT App 9
State v. Hawkins
*Hawkins’s Counsel:+ So your testimony today is
the only thing that you didn’t receive is a
guarantee.
*Victim:+ I didn’t receive the promise or the
guarantee of what was to take place, yes.
*Hawkins’s Counsel+: And that was the guarantee
that was going to come from building the home
and then splitting the profits?
[Victim:] Yes.
¶47 In spite of this exchange, Hawkins argues that the
‚alleged ‘guarantee’ was inconsistent with the *real estate
purchase] agreements and the [risk disclosure statement+.‛ But
Hawkins fails to support this argument with citations to any
legal authority. Accordingly, with respect to this argument,
Hawkins has failed to carry his burden of persuasion on appeal.
See State v. Alzaga,
2015 UT App 133, ¶ 42,
352 P.3d 107 (citing
State v. Thomas,
961 P.2d 299, 305 (Utah 1998)).
¶48 The present case bears some resemblance to State v. Smith,
2003 UT App 425U. There, the defendant ‚argue*d+ that the
evidence was insufficient to establish that he devised the
fraudulent scheme and communicated it to the victim.‛
Id. para.
4. However, the jury heard evidence that he ‚had knowledge of
the investment scheme‛; ‚directly told the victim that he was
running the investment‛; ‚told the victim that the investment
was ‘a sure thing’‛; directed that $50,000 of the victim’s
investment be deposited into the defendant’s personal bank
account without telling the victim; and ‚spoke with the victim
five or six times by telephone concerning payment on the
victim’s investment.‛
Id. We affirmed the conviction against a
sufficiency challenge.
Id. para. 6.
¶49 Similarly, after reviewing the evidence presented against
Hawkins, ‚‘we are not convinced that it is so lacking as to make
the *jury’s] verdict plainly unreasonable and unjust.’‛
Id. para. 5
20130468-CA 18
2016 UT App 9
State v. Hawkins
(alteration in original) (quoting State v. Stringham,
2001 UT App
13, ¶ 30,
17 P.3d 1153).
¶50 In sum, we conclude that any error in binding Hawkins
over was cured by the jury’s having found him guilty beyond a
reasonable doubt. In addition, any error the trial court may have
made in interpreting the meaning of the term devise under the
communications fraud statute was harmless, because the jury
was properly instructed on the meaning of that term. Finally, we
hold that sufficient evidence exists to sustain Hawkins’s
conviction.
II. Material Omissions
¶51 Hawkins next contends that the trial court erred in
refusing to instruct the jury that to convict on the basis of a
material omission it first had to find that Hawkins had a duty to
disclose. The State responds that the trial court ‚properly
refused to add a ‘duty to disclose’ element to the statutory
elements of communications fraud‛ and that ‚[e]ven if the trial
court erred‛ ‚there is no reasonable likelihood the jury would
have acquitted‛ Hawkins had it received a proper instruction.
We agree that Hawkins has not shown that any error in the jury
instruction resulted in prejudice.
¶52 ‚Claims of erroneous jury instructions present questions
of law that we review for correctness.‛ State v. Jeffs,
2010 UT 49,
¶ 16,
243 P.3d 1250. However, to ‚reverse a trial verdict, *we+
must find not a mere possibility, but a reasonable likelihood that
the error affected the result.‛ Id. ¶ 37 (alteration in original)
(citations and internal quotation marks omitted). So, for
example, ‚*w+here the evidence overwhelmingly supports a
conviction under one variation of a crime submitted to the jury,
we need not reverse a conviction even if there were erroneous
instructions on another variation.‛ State v. Fisher,
680 P.2d 35, 37
(Utah 1984).
20130468-CA 19
2016 UT App 9
State v. Hawkins
¶53 It is not clear that the court committed error by refusing to
instruct the jury on a duty to disclose.6 But we need not
determine that issue here, ‚because even assuming that it was
error not to instruct on [a duty to disclose], we find that the
failure to give the instruction was harmless.” See State v. Allen,
839 P.2d 291, 302 (Utah 1992).
¶54 A person commits communications fraud if the person
devises a scheme to defraud ‚by means of false or fraudulent
pretenses, representations, promises, or material omissions‛ and
communicates with another to execute the scheme.
Utah Code
Ann. § 76-10-1801(1) (LexisNexis 2008). Accordingly, multiple
means exist by which a jury may convict a defendant of
communications fraud. Here, no special verdict form required
the jury to indicate whether they relied on representations or
material omissions to convict Hawkins.7 However, we have
already concluded that sufficient evidence of affirmative acts—
not mere omissions—supports Hawkins’s conviction. Supra
¶¶ 43–50. The question before us, then, is whether, in light of
this evidence, Hawkins can show a reasonable likelihood that
the absence of a duty-to-disclose instruction affected the
outcome of his trial.
6. We are aware of no Utah case holding that the
communications fraud statute requires an instruction on the
duty to disclose.
7. This omission alone might prove fatal to a sufficiency claim,
because ‚a defendant who has made ‘no request for an
instruction which would enable him to know which theory the
jury adopted’ cannot complain of insufficiency of the evidence
for one theory of [the crime] when there was ample evidence
under *another+ theory.‛ State v. Fisher,
680 P.2d 35, 37–38 (Utah
1984) (quoting State v. Anderson,
495 P.2d 804, 805 (Utah 1972)).
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State v. Hawkins
¶55 Hawkins argues that ‚this case was about mere omissions
and *he+ was convicted based on mere omissions.‛ In support of
this argument, he asserts that ‚the State fails to cite to a single
false representation that *he+ made to *the victim+.‛ But as set
forth above, the State in fact relied on numerous false
representations made by Hawkins. Hawkins distinguishes many
of the false representations on the ground that he made those
representations to the victim’s brother-in-law and others, but not
to the victim. But the communications fraud statute does not
require that the accused make the false representations directly
to the victim. It requires only that the person communicate,
directly or indirectly, to any person for the purpose of executing a
scheme to defraud:
Any person who has devised any scheme . . . to
defraud another . . . by means of false or fraudulent
pretenses, representations, promises, or material
omissions, and who communicates directly or
indirectly with any person by any means for the
purpose of executing or concealing the scheme . . .
is guilty . . . .
Utah Code Ann. § 76-10-1801(1) (emphasis added). Thus, the
question is not, as Hawkins contends, whether he made false
representations to the victim, but whether he made false
representations to any person either ‚directly or indirectly.‛
Id.
¶56 The record demonstrates that Hawkins made many false
representations to the victim indirectly through the victim’s
brother-in-law and others. For example, the brother-in-law
explained that he had asked Hawkins about utilities as part of
his due diligence as the victim’s consultant. Thus, the jury could
reasonably infer that the brother-in-law, as the victim’s real
estate consultant, would communicate Hawkins’s
misrepresentation to the victim. Indeed, the brother-in-law
participated in the transaction solely to assist the victim with the
deal. In addition, the victim testified that he ‚was always told‛
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State v. Hawkins
the money would come from ‚a family trust,‛ that ‚a family
trust was going to come in and buy the whole lot, [and] supply
the money for the entire project.‛ Although the victim did not
specify who told him about the family trust, Hawkins did
directly communicate to DPC’s principal that a trust would
come in and fund the whole project. Thus, the jury could
reasonably conclude that the victim learned about the family
trust either directly or indirectly through a communication from
Hawkins.
¶57 In contrast to this evidence of affirmative
misrepresentations, Hawkins has identified no material omission
that the jury might have relied on to convict him. Although he
repeatedly asserts that the jury convicted him on the basis of
‚mere omissions,‛ that he ‚‘said nothing’ he was just there,‛ the
evidence marshaled above refutes that assertion.
¶58 In sum, even if the trial court erred in refusing to read an
implied duty to disclose into the communications fraud statute
and in refusing to so instruct the jury—an issue on which we
express no opinion—Hawkins cannot show a reasonable
likelihood of a different result had the additional instruction
been given.
III. Fair Trial
¶59 Hawkins next contends that he ‚was denied his right to a
fair trial.‛ Hawkins relies nominally on the Due Process and
Equal Protection Clauses of the United States Constitution, but
he provides no reasoned analysis of either clause or of how they
apply to this case. Rather, Hawkins points to four errors he
contends should undermine our confidence that he received a
fair trial.
¶60 To the extent Hawkins’s claim rests on the Due Process
and Equal Protection Clauses of the United States Constitution,
it is inadequately briefed. ‚*T+o be adequate, briefs must provide
meaningful legal analysis. An adequate brief is one that fully
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State v. Hawkins
identifies and analyzes the issues with citation to relevant legal
authority. Mere bald citation to authority, devoid of any
analysis, is not adequate. And we may refuse, sua sponte, to
consider inadequately briefed issues.‛ State v. Lee,
2006 UT 5,
¶ 22,
128 P.3d 1179 (citations and internal quotation marks
omitted); see also Utah R. App. P. 24(a)(9). Under this standard,
Hawkins inadequately briefed this claim. Accordingly, he fails to
carry his burden of persuasion on appeal. See Utah R. App. P.
24(a)(9); see also Lee,
2006 UT 5, ¶ 22; State v. Alzaga,
2015 UT App
133, ¶ 43,
352 P.3d 107.
¶61 As to his other four claims of error, Hawkins first asserts
that ‚an expert witness . . . withheld testimony at the instruction
of the prosecution.‛ In support of his assertion, Hawkins relies
solely on extra-record evidence attached as an addendum to his
brief. The State moved this court to strike Hawkins’s extra-
record material. We granted that motion. ‚[A]n appellant’s
addendum may not consist of evidence that is outside the record
on appeal.‛ State v. Pliego,
1999 UT 8, ¶ 7,
974 P.2d 279. ‚An
appellate court’s review is . . . limited to the evidence contained
in the record on appeal.‛
Id. (omission in original) (citation and
internal quotation marks omitted). Because ‚we will not
consider evidence which is not part of the record,‛
id., we
decline to consider Hawkins’s first asserted error.
¶62 Second, Hawkins asserts that another of the State’s expert
witnesses ‚testified impermissibly concerning assumptions
about evidence that were not properly before the jury.‛ Hawkins
challenges the witness’s testimony on the ground that the
witness ‚materially misrepresented the facts of the case.‛ The
State asks that we decline to consider Hawkins’s argument as
inadequately briefed. Hawkins counters in his reply brief that he
‚recites the relevant facts, includes record citations, and applies
the relevant law. That is all that is required.‛ We agree with the
State.
¶63 Rule 24(a)(9) of the Utah Rules of Appellate Procedure
mandates that a party’s brief ‚shall contain the contentions and
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State v. Hawkins
reasons of the appellant with respect to the issues presented . . .
with citations to the authorities, statutes, and parts of the record
relied on.‛ Utah R. App. P. 24(a)(9) (emphasis added). Hawkins
challenges the testimony of a particular expert witness but his
supporting citations to the record refer to a transcript from a day
on which the witness did not testify. The appellant bears the
burden of identifying the parts of the record that he claims
demonstrate trial court error. We will not undertake that burden
on his behalf. Accordingly, Hawkins has failed to carry his
burden of persuasion on appeal, and we decline to consider his
second asserted error. See Alzaga,
2015 UT App 133, ¶ 42.8
¶64 Third, Hawkins asserts that after his ‚direct examination,
and prior to his cross-examination, the State’s prosecutor
approached *him+ and his counsel and stated ‘I will prosecute
*Hawkins+ for perjury after this is over.’‛ Hawkins argues that
‚*s+uch threats amount to misconduct and justify reversal.‛ He
cites one case from Iowa and one case from the D.C. Circuit as
authority for his argument. We decline to consider this claim on
the ground that it is inadequately briefed. The inadequacy lies
not in the quantity or the quality of the cited authority, but in the
failure to analyze and apply that authority. ‚*A+ party’s brief
must contain meaningful legal analysis. Specifically, [a] brief
must go beyond providing conclusory statements and fully
identify, analyze, and cite its legal arguments. Meaningful
analysis requires not just bald citation to authority but
development of that authority and reasoned analysis based on
that authority.‛ Hess v. Canberra Dev. Co.,
2011 UT 22, ¶ 25, 254
8. Furthermore, the trial court appears to have given a curative
instruction on this point, at defense counsel’s request and with
defense counsel’s assistance. On appeal, Hawkins makes no
attempt to demonstrate why this instruction did not cure any
alleged error. See State v. Harmon,
956 P.2d 262, 271–73 (Utah
1998).
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State v. Hawkins
P.3d 161 (second alteration in original) (citation and internal
quotation marks omitted).
¶65 Here, Hawkins fails to develop the authority on which he
relies. Rather, he makes the conclusory statement that when a
prosecutor threatens a witness with perjury, that ‚amount*s+ to
misconduct and justif*ies+ reversal.‛ Hawkins provides no rule
of law against which we can judge the prosecutor’s alleged
misconduct in this case.9
¶66 Fourth and finally, Hawkins asserts that his ‚right to a
fair trial was denied when the trial court refused to permit him
to present his theory of the case to the jury in the jury
instructions.‛ Hawkins devotes one sentence to this contention.
We assume that Hawkins means to incorporate his argument
that the trial court erred in refusing to instruct the jury that it
had to find a duty to disclose before it could convict Hawkins on
the basis of a material omission. We have already concluded that
any error the trial court may have committed with respect to the
jury instructions was harmless. Supra ¶ 58. We reiterate that
conclusion here.
¶67 Having considered the errors Hawkins has identified, we
conclude that none of these errors, alone or in combination, are
sufficient to undermine our confidence in the ‚essential fairness
of the trial.‛ See State v. Dunn,
850 P.2d 1201, 1229 (Utah 1993).
9. The Iowa case on which Hawkins relies, State v. Peterson,
532
N.W.2d 813 (Iowa Ct. App. 1995), does provide a rule: ‚For there
to be a denial of due process due to prosecutorial misconduct,
there must be a showing that (1) the prosecutorial misconduct
kept the witness from testifying (intimidation); and (2) the
defendant was prejudiced as a result.‛
Id. at 816. Hawkins did
testify here.
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State v. Hawkins
IV. Right to a Speedy Trial
¶68 Hawkins next contends that he ‚was denied his rights to a
speedy trial.‛ We review the issue of whether a defendant was
deprived of his right to a speedy trial for correctness. State v.
Younge,
2013 UT 71, ¶ 10,
321 P.3d 1127.
¶69 Hawkins nominally relies on the Utah Constitution in
support of his right to a speedy trial. However, Hawkins does
not develop any authority based on Utah’s constitution. Rather,
he relies exclusively on authority based on the right to a speedy
trial guaranteed by the Sixth Amendment to the United States
Constitution. Consequently, to the extent this claim asserts a
violation of the Utah Constitution, it is inadequately briefed and
we decline to consider it. See State v. Worwood,
2007 UT 47, ¶ 19,
164 P.3d 397 (declining to address a state constitutional claim as
inadequately briefed when the appellant did not ‚attempt*+ any
separate state constitutional analysis‛); State v. Hoffman,
2013 UT
App 290, ¶¶ 54–57,
318 P.3d 225. We do, however, address
Hawkins’s claim that the trial court violated his speedy trial
rights under the Sixth Amendment.
¶70 The Sixth Amendment to the United States Constitution
guarantees that ‚*i+n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial.‛ U.S. Const. amend.
VI. ‚The right to a speedy trial is fundamental and is imposed by
the Due Process Clause of the Fourteenth Amendment on the
States.‛ Younge,
2013 UT 71, ¶ 16 (quoting Barker v. Wingo,
407
U.S. 514, 515 (1972)). In analyzing whether a defendant has been
deprived of his right to a speedy trial, we consider four factors:
‚[1] Length of the delay, [2] the reason for the delay, [3] the
defendant’s assertion of his right, and [4] the prejudice to the
defendant.‛ Barker,
407 U.S. at 530; see also State v. Knill,
656 P.2d
1026, 1029 (Utah 1982) (adopting Barker’s four-part balancing
test).
¶71 ‚The length of the delay is to some extent a triggering
mechanism. Until there is some delay which is presumptively
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State v. Hawkins
prejudicial, there is no necessity for inquiry into the other factors
that go into the balance.‛ Barker,
407 U.S. at 530. In addition, the
Utah Supreme Court has refused ‚to evaluate a speedy trial
claim when the right has been affirmatively waived.‛ State v.
Woodland,
945 P.2d 665, 670 (Utah 1997). Similarly, our supreme
court has held ‚that when a *defendant+ acts to delay trial, he
indicates his willingness to temporarily waive his right to a
speedy trial.‛ State v. Ossana,
739 P.2d 628, 631 (Utah 1987)
(citing State v. Velasquez,
641 P.2d 115, 116 (Utah 1982)).
¶72 Here, the record shows that, from the time of Hawkins’s
arrest in September 2009 until December 2010, he expressly
waived his right to a speedy trial three times—October 2009,
March 2010, and December 2010.
¶73 Approximately 18 months elapsed between the date of
Hawkins’s last waiver in December 2010 and the date on which
Hawkins first asserted his right to a speedy trial in May 2012. 10
During those 18 months, Hawkins moved to continue the pre-
trial conference (January 2011); he also filed a notice of
appearance and substitution of trial counsel (March 2011), two
motions to modify conditions of pretrial release (June and July
2011), a motion for authorization to travel (July 2011), and a
motion to quash bindover (October 2011). Then, on May 23,
2012, the State moved to continue trial because a material
witness had suffered complications from surgery and could not
travel from California to testify. Hawkins objected, asserting his
right to a speedy trial. The court granted the State’s motion and
set a June scheduling conference. At that scheduling conference
the court set a pretrial conference for December 3, 2012 and a
five-day jury trial to begin January 11, 2013. On December 14,
2012, Hawkins moved to dismiss for lack of a speedy trial.
10. Hawkins does not challenge the trial court’s finding that he
first asserted his right to a speedy trial in May 2012.
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State v. Hawkins
¶74 Hawkins asserts that ‚the length of delay *in this case+
was approximately 40 months, satisfying the first Barker factor.‛
Although Hawkins does not explain how he calculated the
alleged 40-month delay, 40 months did elapse between his arrest
in September 2009 and his trial in January 2013. But under
controlling law not all of this period figures into the speedy trial
calculation.
¶75 In particular, we cannot ignore Hawkins’s waivers. As
explained above, Hawkins expressly waived his right to a
speedy trial for the period between October 2009 and December
2010. And during the 18 months between the time Hawkins last
waived his right to a speedy trial and first asserted the same
right, Hawkins appears to have at least acquiesced, and at most
contributed, to the 18-month delay. In fact, in his reply brief
Hawkins concedes that ‚both sides contributed to delays.‛ To
the extent that Hawkins caused the delay during this 18-month
window, we conclude that Hawkins effectively waived his right
to a speedy trial, at least until he first asserted his right in May
2012. See Ossana, 739 P.2d at 631.
¶76 Accordingly, we conclude that in calculating the length of
the delay, the relevant period begins when Hawkins first
asserted his right to a speedy trial in May 2012, at which time the
state had moved for a continuance based on the unavailability of
a material witness, and ends the first day of trial in January 2013.
Thus, the length of the relevant period is seven months.
Hawkins concedes as much in his reply brief stating, ‚there is no
dispute that prior to the 7-month continuance, both sides
contributed to delays. The real issue before the [court of appeals]
is the trial court’s handling of the State’s motion to continue at
the eleventh hour.‛
¶77 We reiterate that, ‚[u]ntil there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into
the other factors that go into the balance.‛ Barker v. Wingo,
407
U.S. 514, 530 (1972). Hawkins concedes the relevant delay in this
case consists of seven months. That period is not obviously
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State v. Hawkins
prejudicial and he points to no authority to show that a delay of
this duration ‚is presumptively prejudicial.‛ See
id. Thus, we see
no need to inquire into the other Barker factors. See
id.
Accordingly, we hold that the delay in this case did not deprive
Hawkins of his right to a speedy trial.
V. Indigency Motion
¶78 Finally, Hawkins contends that the trial court erred in
denying his motion for a determination of indigency and
appointment of counsel. In his motion, filed on the first day of
trial, Hawkins asked the trial court to find him indigent and to
appoint his current privately retained counsel as his indigent
defender. A trial court’s indigency determination presents a
mixed question of fact and law. See State v. Vincent,
883 P.2d 278,
282 (Utah 1994). We review the trial court’s findings of fact for
clear error, and its application of law for correctness. See
id.
¶79 Utah’s Indigent Defense Act (the IDA) governs the
provision of counsel to indigent defendants.
Utah Code Ann.
§§ 77-32-101 to -704 (LexisNexis 2012). Under the IDA ‚*a+
determination of indigency . . . of any defendant may be made
by the court at any stage of the proceedings.‛
Id. § 77-32-202(1).
However, ‚*i+f a county or municipality has contracted or
otherwise provided for a defense services provider, the court
may not appoint a noncontracting attorney‛ unless, among other
things, the court finds ‚a compelling reason to authorize or
designate a noncontracting attorney . . . .‛ Id. § 77-32-303(1). This
case was tried in Salt Lake County, which contracts with the Salt
Lake Legal Defender Association (LDA). Consequently, the court
could appoint Hawkins’s private, noncontracting counsel as
Hawkins’s indigent counsel only if it found a compelling reason
to do so. See id.
¶80 In his motion for determination of indigency and
appointment of counsel, Hawkins claimed that he qualified as
indigent because he ‚has no means to pay his attorneys and has
failed to do so since May of 2012.‛ Thus, Hawkins requested that
20130468-CA 29
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State v. Hawkins
his current and private counsel ‚be appointed to represent *him+
as an indigent defendant.‛
¶81 In support of his motion, Hawkins claimed that
compelling reasons justified the appointment of his privately
retained counsel as his indigent defender. Hawkins argued that
because the case involved ‚more than one defendant . . . whose
interests are adverse,‛ LDA ‚is conflicted from representing
*him+.‛ He also argued that ‚[m]ore importantly,‛ because ‚trial
in this matter, including jury selection, is scheduled to begin at
1:00 p.m. on Friday, January 11, 2013 . . . any attorney contracted
by [LDA] would be unable to prepare a defense in this matter
given the time constraints involved.‛ Hawkins concluded his
motion by stating that his current counsel ‚does not desire to
withdraw if the relief requested herein is denied and plans to
continue with trial as scheduled.‛ The trial court found that
these facts did not constitute a ‚compelling reason‛ to appoint a
noncontracting defense attorney. We agree.
¶82 First, the trial court rejected Hawkins’s argument that an
LDA attorney could not represent him due to a conflict of
interest. The court explained that LDA’s contract with Salt Lake
County contains a provision ‚for non-LDA ‘conflict’ contract
counsel to represent clients when a conflict of interest with LDA
exists.‛ Accordingly, Hawkins could have been appointed non-
LDA conflict counsel. The trial court did not err in rejecting
Hawkins’s conflict argument as non-compelling. Hawkins does
not challenge this aspect of the court’s ruling on appeal.
¶83 Second, the trial court rejected Hawkins’s argument that,
given the trial’s start date, an LDA attorney would not have time
to prepare a defense. The trial court properly rejected this
argument as a manufactured crisis. While the IDA allows a
defendant to file a motion of indigency at any time during the
proceedings,
Utah Code Ann. § 77-32-202, a defendant cannot
withhold his motion until the first day of trial and claim a
compelling reason exists to appoint private counsel because, in
Hawkins’s words, ‚any attorney contracted by *LDA+ would be
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State v. Hawkins
unable to prepare a defense in this matter given the time
constraints involved.‛
¶84 Hawkins claims that he should not have had to delay his
trial to allow an LDA attorney time to come up to speed; that he
should not have had to choose between his right to a speedy trial
and his rights under the IDA. But Hawkins offers no reason why
he could not have moved the court to appoint counsel much
earlier than he did. For example, Hawkins’s claim of indigency
rested in part on the fact that he had not paid his retained
attorney since May 2012, seven months before trial. Further,
Hawkins asserted that although he had not paid counsel since
May 2012, he became indigent in September 2012, four months
before trial. He also maintains that he started incurring
significant legal fees beginning in November 2012, two months
before trial. Yet he waited until the first day of trial to file his
motion to appoint his retained counsel to represent him. In light
of these facts, we agree with the trial court that ‚it appears . . .
that Mr. Hawkins filed [his indigency motion] not with any
actual desire to obtain a public defender, but rather to find a way
to have his private attorney paid‛ with taxpayer dollars.
¶85 We therefore affirm the trial court’s denial of Hawkins’s
motion for indigency.
CONCLUSION
¶86 For the foregoing reasons, Hawkins’s conviction is
affirmed.
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