State v. Jack

2018 UT App 18
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JORDAN J EFFERY JACK,
Appellant.
Opinion
No. 20150901-CA
Filed February 1, 2018
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 141902101
Rudy J. Bautista and Kelly Ann Booth, Attorneys
for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
GREGORY K. O RME and R YAN M. HARRIS concurred.
HAGEN, Judge:
¶1 	Defendant Jordan Jeffery Jack was convicted of seven
counts 	of 	exploitation 	of 	a 	vulnerable 	adult, 	third 	degree
felonies, see Utah Code Ann. § 76-5-111 (LexisNexis 2012), and
one count of communications fraud, a second degree felony, see
id. § 76-10-1801.1 Jack appeals, arguing that the trial court should
have 	merged 	his 	communications 	fraud 	conviction 	into 	his
exploitation of a vulnerable adult convictions under Utah Code
1. Jack was also convicted of one count of theft by deception, a
class B misdemeanor, see Utah Code Ann. § 76-6-405 (LexisNexis
2012), which is unchallenged on appeal.

State v. Jack
20150901-CA 	2 	2018 UT App 18
section 76-1-402(3) and the double jeopardy clauses of the United
States and Utah constitutions. See U.S. Const. amend. V; Utah
Const. art. I, § 12. We affirm.
BACKGROUND2
¶2 	Jack worked as an associate director for Chrysalis, a
business that provides residential services for individuals with
traumatic brain injuries and other intellectual, cognitive, and
developmental 	impairments 	that 	cause 	the 	individuals 	“to
function 	at 	levels 	comparable 	to 	those 	of 	teenagers, 	small
children and even in some cases infants.” To be eligible to
receive 	Chrysalis’s 	residential 	services, 	clients 	must 	be
diagnosed with an intellectual disability, and they must meet the
poverty guidelines for Medicaid.
¶3 	Residential 	services 	consist 	of 	group 	homes—each
housing three or four clients—that are staffed twenty-four hours
per day. The staff teaches clients “adaptive and habilitative
skills” and assists them with daily living activities, such as
eating, bathing, dressing, toileting, and ambulating.
¶4 	Chrysalis also provides financial support, which includes
helping 	clients 	apply 	for 	Social 	Security 	benefits. 	Because
Chrysalis is the representative payee for approximately “90 plus
percent” of the clients it serves, the company’s representative
payee 	supervisor 	manages 	the 	Social 	Security 	funds 	upon
receipt. Initially, clients’ funds are deposited into a collective
bank account, which the supervisor uses to pay for clients’ rent,
2. On appeal from a bench trial, we view and recite the evidence
in the light most favorable to the trial court’s findings; we
present additional evidence only as necessary to understand the
issues on appeal. See, e.g., State v. Finlayson, 2014 UT App 282,
¶ 2 n.4, 362 P.3d 926.

State v. Jack
20150901-CA 	3 	2018 UT App 18
utilities, and personal needs. If there is a remaining balance,
those 	funds 	are 	transferred 	to 	a 	pay 	card 	that 	Chrysalis’s
associate directors may use to pay for the clients’ additional
expenses, such as groceries, clothing, and entertainment.
¶5 	As an associate director, Jack was “heavily involved” in
managing finances for clients who resided in the eight to ten
group homes that he oversaw. Jack’s duties included, among
other 	things, 	purchasing 	items, 	requesting 	funds, 	allocating
expenses, and reviewing monthly statements for clients.
¶6 	Each month, Jack would send receipts and a ledger to the
area director and the supervisor. The ledger listed the items that
he had purchased and allocated those items to the corresponding
client. The supervisor then prepared statements to maintain a
monthly accounting of each client’s balance. Once finalized, the
statements were returned to Jack for review. Typically, if there
was an error, associate directors notified the area director who,
in turn, asked the supervisor to correct the charge and adjust the
client’s balance. Finalized statements were then distributed to
the house managers and the clients’ legal guardians.
¶7 	In January 2014, Jack asked an administrative assistant to
send the original statements to him to fix before sending the
statements 	to 	the 	house 	managers 	and 	the 	clients’ 	legal
guardians. Believing that “something was off” when Jack sent
the 	administrative 	assistant 	“corrected” 	statements, 	she
contacted 	the 	area 	director. 	After 	learning 	that 	Jack 	had
circumvented 	Chrysalis’s 	procedure 	for 	rectifying 	errors 	in
statements on several prior occasions, the area director became
concerned. 	He 	reviewed 	Jack’s 	new 	statements, 	identified
several 	discrepancies, 	and 	subsequently 	notified 	Chrysalis’s
CEO. During a joint review, the area director and CEO found
multiple 	discrepancies 	between 	the 	statements 	that 	the
supervisor had produced and the statements that were sent to
the house managers of the group homes that Jack oversaw and
to the clients’ legal guardians.

State v. Jack
20150901-CA 	4 	2018 UT App 18
¶8 	When confronted with the allegations, Jack eventually
admitted that he had submitted altered receipts and changed
statements to conceal the fact that he had used client funds for
his own personal expenses. Among other things, his unlawful
purchases included a trip to Las Vegas, concert tickets, multiple
televisions, jewelry, and expensive shoes. Jack was charged with
seven counts of exploitation of a vulnerable adult, one count of
communications fraud, and one count of theft by deception.
¶9 	Prior 	to 	trial, 	Jack 	filed 	a 	motion 	to 	merge 	the
communications 	fraud 	charge 	into 	the 	exploitation 	of 	a
vulnerable adult charges under Utah Code section 76-1-402(3)
and the double jeopardy clauses of the United States and Utah
constitutions. The trial court denied the motion, reasoning that
there were “elements unique to each of the crimes charged.”
Specifically, exploitation of a vulnerable 	adult requires two
elements that communications fraud does not—(1) a victim that
is “a vulnerable adult based on age and impairment” and (2) a
“defendant who is in a position of trust or similar relationship.”
The trial court also found that Jack’s charged conduct did not
“constitute a single criminal episode.”
¶10 	After a bench trial, the trial court found Jack guilty of one
count of communications fraud and seven counts of exploitation
of 	a 	vulnerable 	adult. 	Jack 	again 	moved 	to 	merge 	his
communications 	fraud 	conviction 	into 	his 	exploitation 	of 	a
vulnerable 	adult 	convictions, 	arguing 	that 	“communications
fraud was the modus operandi by which each exploitation
offense was perpetrated.” At the sentencing hearing, the trial
court denied Jack’s motion, noting that it was “critical” that
although there were fourteen victims, “the State chose to charge
only seven on the exploitation, but all 14 were covered in the
communications fraud.”
¶11 	Jack now appeals the trial court’s denial of the motion to
merge his convictions.

State v. Jack
20150901-CA 	5 	2018 UT App 18
ISSUE AND STANDARD OF REVIEW
¶12 	The only issue on appeal is whether the trial court erred
in 	denying 	the 	motion 	to 	merge 	Jack’s 	convictions 	for
communications fraud and exploitation of a vulnerable adult.
“Merger is a question of law, which we review for correctness.”
State v. Sanchez, 2015 UT App 27, ¶ 5, 344 P.3d 191.
ANALYSIS
¶13 	In arguing that his convictions should have merged at
sentencing, 	Jack 	refers 	to 	both 	the 	lesser 	included 	offense
analysis codified in Utah Code section 76-1-402(3) and to the
common law merger doctrine. Although both doctrines flow
from 	the 	double 	jeopardy 	clauses 	of 	the 	state 	and 	federal
constitutions and “may indeed overlap in certain circumstances,
they are analytically distinct.” State v. Kerr, 2010 UT App 50, ¶ 2
n.1, 228 P.3d 1255.
¶14 	On one hand, “where the two crimes are such that the
greater 	cannot 	be 	committed 	without 	necessarily 	having
committed the lesser, then as a matter of law they stand in the
relationship of greater and lesser offenses, and the defendant
cannot be convicted or punished for both.” State v. Smith, 2005
UT 57, ¶ 8, 122 P.3d 615 (citation and internal quotation marks
omitted). This analysis “turns on the statutorily defined elements
of the two crimes.” State v. Finlayson, 2000 UT 10, ¶ 16, 994 P.2d
1243. Because the law barring punishment for both a greater
and lesser included offenses is codified in Utah Code section
76-1-402(3), we refer to it as statutory merger.
¶15 	The 	Utah 	Supreme 	Court 	has 	recognized 	“another
conceptually distinct basis for finding that one set of facts may
give rise to a merger of two or more separate crimes, despite
each 	crime’s 	unique 	statutory 	elements, 	so 	as 	to 	preclude
multiple convictions for essentially the same conduct.” State v.

State v. Jack
20150901-CA 	6 	2018 UT App 18
Mecham, 2000 UT App 247, ¶ 30, 9 P.3d 777 (citation and internal
quotation 	marks 	omitted). 	Under 	this 	common 	law 	merger
doctrine, 	the 	facts 	establishing 	one 	offense 	must 	not 	be
“incidental to” or “inherent in” the other offense and must have
“some significance independent of the other crime.” Finlayson,
2000 UT 10, ¶ 19 (citation and internal quotation marks omitted).
¶16 	We conclude that Jack’s conviction for communications
fraud does not merge into his convictions for exploitation of a
vulnerable adult under either statutory or common law merger.
We analyze each doctrine in turn.
I. Statutory Merger
¶17 	Jack contends that, under the Utah merger statute, his
conviction 	for 	communications 	fraud 	must 	merge 	with 	his
convictions for exploitation of a vulnerable adult because “both
offenses are triggered by the same facts and established by the
same proof at trial.” In response, the State contends that the
statutes’ “unique elements” preclude the conclusion that either
statute is a lesser included offense of the other. We agree with
the State that because the two crimes have distinct statutory
elements, neither crime is a lesser included offense of the other.
¶18 	“A defendant may be convicted of an offense included in
the offense charged but may not be convicted of both the offense
charged and the included offense.” Utah Code Ann. § 76-1-402(3)
(LexisNexis 2012). 	The 	statute 	lists 	several 	circumstances 	in
which an offense will be deemed to be a lesser included offense,3
3. Under Utah Code section 76-1-402(3)(b), an offense may also
be 	included 	when 	“[i]t 	constitutes 	an 	attempt, 	solicitation,
conspiracy, 	or 	form 	of 	preparation 	to 	commit 	the 	offense
charged.” Although Jack contends that communications fraud is
a “form of” exploitation of a vulnerable adult, he inadequately
briefs this issue. See Utah R. App. P. 24(a)(8). “[A]n issue is
(continued…)

State v. Jack
20150901-CA 	7 	2018 UT App 18
including when an offense “is established by proof of the same
or less than all the facts required to establish the commission of
the offense charged.” Id. § 76-1-402(3)(a). But “[t]he Utah Supreme
Court has made it abundantly clear . . . that section 76-1-402
never 	applies 	to 	merge 	crimes 	that 	have 	distinct 	statutory
elements.” State v. Mecham, 2000 UT App 247, ¶ 29, 9 P.3d 777;
see also State v. Finlayson, 2000 UT 10, ¶ 16, 994 P.2d 1243
(“[W]hether one crime is a lesser included offense of a greater
crime under section 76-1-402, turns on the statutorily defined
elements 	of 	the 	two 	crimes.”). 	Accordingly, 	we 	begin 	our
analysis by comparing the statutory elements of communications
fraud and exploitation of a vulnerable adult.
¶19 	To convict Jack of felony communications fraud, the State
had to prove beyond a reasonable doubt that Jack
[1] 	devised 	any 	scheme 	or 	artifice 	to 	defraud
another or to obtain from another money, property,
or anything of value [2] by means of false or
fraudulent pretenses, representations, promises, or
material omissions, and . . . [3] communicate[d]
directly or indirectly with any person [4] by any
means for the purpose of executing or concealing
the scheme or artifice.
(…continued)
inadequately briefed when the overall analysis of the issue is so
lacking as to shift the burden of research and argument to the
reviewing court.” See State v. MacNeill, 2017 UT App 48, ¶ 83, 397
P.3d 	626 	(citation 	and 	internal 	quotation 	marks 	omitted).
Because Jack fails to provide any reasoned analysis explaining
how communications fraud is a form of preparation to commit
the crime of exploitation of a vulnerable adult, we decline to
further address this issue.

State v. Jack
20150901-CA 	8 	2018 UT App 18
Utah Code Ann. § 76-10-1801(1). Further, communications fraud
is a second degree felony “when the value of the property,
money, or thing obtained or sought to be obtained is or exceeds
$5,000.” Id. § 76-10-1801(1)(d).
¶20 	On the other hand, a person is guilty of exploitation of a
vulnerable adult when that person
[1] is in a position of trust and confidence, or has a
business relationship, with the vulnerable adult or
has undue influence over the vulnerable adult and
[2] knowingly, [3] by deception or intimidation,
[4] obtains or uses, or endeavors to obtain or use,
[5] the vulnerable adult’s funds, credit, assets, or
other property [6] with the intent to temporarily or
permanently deprive the vulnerable adult of the
use, benefit, or possession of the adult’s property,
[7] 	for 	the 	benefit 	of 	someone 	other 	than 	the
vulnerable adult.[4]
Id. § 76-5-111(4)(a)(i).
¶21 	Jack 	concedes that 	exploitation 	of 	a 	vulnerable 	adult
cannot 	be 	construed 	as 	a 	lesser 	included 	offense 	of
communications 	fraud, 	because 	it 	requires 	at 	least 	two
additional statutory elements that communications fraud does
4. Because the State charged only one variant of exploitation of a
vulnerable adult, it is unnecessary for us to look beyond the
statutory elements to the facts to determine which variation was
proved at trial. See State v. Ross, 951 P.2d 236, 241 (Utah Ct. App.
1997) (“[W]here the two crimes have multiple variations, we
must 	look 	beyond 	the 	statutory 	elements and 	consider 	the
evidence to determine whether the greater-lesser relationship
exists between the specific variations of the crimes actually
proved at trial.” (citation and internal quotation marks omitted)).

State v. Jack
20150901-CA 	9 	2018 UT App 18
not: (1) that the property must belong to a vulnerable adult and
(2) 	that 	the 	defendant 	must 	be 	in 	a 	position 	of 	trust 	and
confidence or in a business relationship. Instead, Jack contends
that 	communications 	fraud 	is 	a 	lesser 	included 	offense 	of
exploitation of a vulnerable adult. Even assuming that a more
serious offense can merge into a lesser offense,5 the crimes in the
present 	case 	do 	not 	merge 	because 	communications 	fraud
contains at least two distinct statutory elements beyond what is
required 	for 	exploitation 	of 	a 	vulnerable 	adult. 	Unlike
exploitation 	of 	a 	vulnerable 	adult, 	communications 	fraud
requires a scheme or artifice to defraud and a direct or indirect
communication with any person for the purpose of executing or
concealing the scheme or artifice. Thus, because exploitation of a
vulnerable adult can be committed without necessarily having
committed communications fraud, the two crimes do not stand
in a relationship of greater and lesser offenses and therefore do
not merge under Utah Code section 76-1-402(3). See State v.
Smith, 2005 UT 57, ¶ 8, 122 P.3d 615.
II. Common Law Merger
¶22 	Even if statutory merger does not apply, Jack contends
that the common law merger doctrine requires merger of his
5. Jack alleges that merging the greater offense, a second degree
felony, with the lesser offenses, third degree felonies, would not
be “without precedent.” He cites State v. Lopez, 2004 UT App 410,
103 P.3d 153, where we noted that the trial court presumably
would have merged the greater offense into the lesser offense—a
departure from the general application of the merger doctrine. Id.
¶ 9 n.1. Because the case was remanded, however, the court did
not address whether that would be a permissible application of
Utah Code section 76-1-402(3). Likewise, because we can resolve
the present case on other grounds, it is unnecessary for us to
reach that issue here.

State v. Jack
20150901-CA 	10 	2018 UT App 18
convictions for communications fraud and exploitation of a
vulnerable adult. Specifically, Jack alleges that because “the
commission of communications fraud was inherent in each and
every commission of exploitation of a vulnerable adult,” we
would be punishing him multiple times for the same conduct.
We disagree.
¶23 	“The 	motivating 	principle 	behind 	the 	[common 	law]
merger doctrine is to prevent violations of constitutional double
jeopardy protection,” State v. Calvert, 2017 UT App 212, ¶ 24, 407
P.3d 1098 (citation and internal quotation marks omitted), and to
avoid convicting and punishing defendants multiple times for
essentially the same conduct, State v. Sanchez, 2015 UT App 27,
¶ 8, 344 P.3d 191. This doctrine “is most commonly applied to
situations involving a defendant who has been charged with
committing 	both 	a 	violent 	crime, 	in 	which 	a 	detention 	is
inherent, 	and 	the 	crime 	of 	kidnaping 	based 	solely 	on 	the
detention necessary to the commission of the companion crime.”
State v. Kerr, 2010 UT App 50, ¶ 2 n.1., 228 P.3d 1255 (citation and
internal quotation marks omitted).
¶24 	To address such factual scenarios, the Utah Supreme
Court adopted a three-part test, which states:
[I]f a taking or confinement is alleged to have been
done to facilitate the commission of another crime,
to 	be 	kidnaping[,] 	the 	resulting 	movement 	or
confinement:
(a) Must not be slight, inconsequential and
merely incidental to the other crime;
(b) Must not be of the kind inherent in the
nature of the other crime; and
(c) Must have some significance independent
of the other crime in that it makes the other

State v. Jack
20150901-CA 	11 	2018 UT App 18
crime substantially easier of commission or
substantially lessens the risk of detection.
State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243 (alteration in
original) (citation and internal quotation marks omitted).
¶25 	Relying on State v. Zaragoza, 2012 UT App 268, 287 P.3d
510, Jack contends that “the commission of communications
fraud was inherent in each and every commission of exploitation
of a vulnerable adult, and is not ‘independent of and not merely
incidental to’ the exploitation offenses.” (Quoting id. ¶ 6). But he
makes no attempt to explicitly lay out the three-part test and has
not identified any cases that apply the Finlayson factors to
charges other than kidnapping, rape, aggravated assault, and
aggravated robbery, all of which focus on the extent of the
victim’s detention.
¶26 	Even assuming that the Finlayson factors are applicable to
communications fraud and exploitation of a vulnerable adult, we
nevertheless remain unconvinced that Jack’s convictions should
merge under this doctrine. Jack’s convictions for exploitation of a
vulnerable adult were supported by evidence that he made
various unauthorized purchases for himself. On the other hand,
his conviction for communications fraud 	was supported by
evidence 	that 	Jack 	had 	altered 	numerous 	receipts 	and
statements. Because Jack could have made the unauthorized
purchases—thereby satisfying the elements of exploitation of a
vulnerable 	adult—without 	concealing 	the 	unauthorized
purchases through communications fraud, the conduct required
to commit the two crimes was distinct. Creating false receipts
and statements was not inherent in the crime of exploitation of a
vulnerable adult. The false communications had independent
significance in that those communications made it easier for him
to continue exploiting the vulnerable adults without detection.
See State v. Lee, 2006 UT 5, ¶ 34, 128 P.3d 1179 (reasoning that
aggravated 	kidnapping 	carried 	significance 	independent 	of

State v. Jack
20150901-CA 	12 	2018 UT App 18
aggravated assault where dragging the victim into an alley
substantially lessened the risk of detection).
¶27 	Even if we accept Jack’s argument that the concealment
was 	inherent 	in 	exploitation 	of 	a 	vulnerable 	adult, 	the
communications 	fraud 	conviction 	remains 	supported 	by
independent evidence. Jack was charged with and convicted of
exploiting 	only 	seven 	of 	the 	fourteen 	vulnerable 	adults.
However, the State included all fourteen vulnerable adults in the
one count of communications fraud. At trial, the State presented
separate evidence relating to the additional seven victims that
independently supported Jack’s conviction for communications
fraud. Because there was some significant factual independence
between communications fraud and exploitation of a vulnerable
adult, the trial court did not err in denying Jack’s motion to
merge offenses.
CONCLUSION
¶28 	We conclude that communications fraud is not a lesser
included offense of exploitation of a vulnerable adult under
statutory merger because both offenses contain unique statutory
elements. Additionally, the common law merger doctrine does
not apply in this case because Jack’s conduct in concealing the
crime of exploitation of a vulnerable adult by forging receipts
and 	altering 	statements 	independently 	supported 	the
communications 	fraud 	conviction. 	Furthermore, 	the
communications fraud conviction encompassed conduct toward
seven 	additional 	victims 	that 	separately 	support 	the
communications fraud charge.
¶29 	Affirmed.