State v. Jones

2020 UT App 31
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
DAVID BRYCE J ONES,
Appellant.
Opinion
No. 20170815-CA
Filed February 27, 2020
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 151912839
Deborah L. Bulkeley, Attorney for Appellant
Sean D. Reyes, Nathan D. Anderson, and
David A. Simpson, Attorneys for Appellee
JUDGE DIANA H AGEN authored this Opinion, in which
JUDGES GREGORY K. O RME and D AVID N. M ORTENSEN concurred.
HAGEN, Judge:
¶1 	After gaining power of attorney over his elderly father,
David Bryce Jones “loaned” himself the entirety of his father’s
retirement income to pay expenses for two failed restaurants and
to cover his own personal expenses. At the same time, he
neglected to pay for any of his father’s basic living expenses,
causing 	his 	father 	to 	become 	a 	ward 	of 	the 	State. 	A 	jury
convicted Jones of abuse, neglect, or exploitation of a vulnerable
adult and of unlawful dealing with property by a fiduciary. On
appeal, Jones argues that he received ineffective assistance of
counsel, 	that 	Utah’s 	abuse 	of 	a 	vulnerable 	adult 	statute 	is
unconstitutionally 	vague, 	and 	that 	there 	was 	insufficient
evidence of intent to convict him of intentional conduct. We
disagree with each of these contentions and affirm.

State v. Jones
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BACKGROUND1
Jones’s Exploitation of His Father
¶2 	After turning eighty-six years old in 2010, Jones’s father
granted Jones power of attorney, meaning that Jones obtained
control 	over 	his 	father’s 	finances 	and 	healthcare-related
decisions. Within two to three years, Jones knew that his father
suffered from “progressive dementia” and was “arguably . . .
incompetent.”
¶3 	In 	2013, 	Jones 	opened 	a 	restaurant 	called 	Brewhaha.
According to Jones, he and his father were “partners” in the
Brewhaha venture. Jones found a property to lease for the
restaurant, but the required lease had “harsh provisions” and
Jones thought that the landlord was a “horrible person.” Despite
concerns 	about 	the 	lease, 	the 	landlord, 	and 	his 	father’s
incompetence, Jones not only signed the lease but also had his
father sign as a co-tenant and personal guarantor.
¶4 	Six months after signing the lease, Jones’s father became
dehydrated and needed to be hospitalized. Due to this incident,
Jones arranged for his father to move to an apartment at an
assisted living facility (the facility). On the facility’s admission
paperwork, 	Jones 	noted 	that 	his 	father 	suffered 	from
“progressive dementia” and agreed to pay $3,000 per month for
his father’s rent and care. The cost of rent did not include
personal expenses such as medications, haircuts, toothpaste, or
other personal hygiene items.
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Ramirez, 2019 UT App 196, n.2,
355 P.3d 1082 (cleaned up).

State v. Jones
20170815-CA 	3 	2020 UT App 31
¶5 	Three weeks after placing his father in the facility, Jones
had his father sign a document authorizing Jones to loan himself
money from his father’s retirement income (the loan document).
Jones’s father received $6,500 per month in retirement income,
and the loan document placed “no limit” on how much Jones
could loan himself from that amount, so long as his father’s
physical and medical needs were met.
¶6 	Relying on the authority of the loan document, Jones
began loaning himself the entirety of his father’s retirement
income. He used this money to cover Brewhaha’s renovation
and operation costs. Also, because Jones did not have any
income of his own, he lent himself money to pay for his living
expenses. In return for fronting all of Brewhaha’s and Jones’s
expenses, Jones’s father received no ownership interest in the
restaurant and was left with insufficient funds to cover his basic
expenses and care.
¶7 	Because Jones was using all his father’s funds for his own
business and personal expenses, he stopped paying his father’s
rent at the facility. Further, Jones failed to pay for his father’s
prescription 	medications 	or 	basic 	hygiene 	items 	like 	a
toothbrush, a haircut, or bed pads. The facility sent monthly bills
and statements to Jones requesting payment for his father’s rent
and care. The staff also called, left voicemails, and spoke with
Jones in person about the need to pay for his father’s care.
Despite these efforts and Jones’s promises to pay, the facility
could not obtain the necessary payments and issued an eviction
notice to Jones requiring him to either pay the overdue balance
or have his father vacate the apartment within thirty days. Jones
ignored the notice, missed two more payments, and failed to
move his father out of the apartment.
¶8 	Around the same time that the eviction notice was issued,
Brewhaha’s landlord filed suit against Jones and his father
because Brewhaha was more than $10,000 behind in rent and

State v. Jones
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Jones had ignored the landlord’s request to vacate the property.
Jones filed a pro se motion to dismiss his father as a party,
arguing 	that 	his 	father 	had 	suffered 	from 	“progressive
dementia” since 2012 and “was not competent to sign either the
lease or the personal guarantee.” “Due to his condition,” Jones
said, his father had “no knowledge or comprehension of the
eviction . . . and ha[d] no competence to participate in th[e]
case.” The lawsuit resulted in a six-figure judgment against
Jones and signaled the end of Brewhaha as a viable business.
¶9 	Undeterred by Brewhaha’s failure, Jones opened another
restaurant called Gusto. Jones again used his father’s retirement
income to fund Gusto’s expenses. Jones’s father was, again, not
listed as an owner of the restaurant. And again, Gusto failed
within months.
¶10 	While this was happening, the father’s younger brother
learned about the eviction notice from the facility and became
concerned that Jones might be misusing his father’s funds. He
reported his concerns to the facility, which in turn contacted
Adult 	Protective 	Services 	(Protective 	Services). 	Protective
Services opened an investigation into the matter.
¶11 	Protective Services interviewed Jones’s father as part of its
investigation. 	At 	that 	interview, 	the 	father 	was 	unable 	to
remember his age, birthday, siblings’ names, where he had
worked, where he had banked, how much money he made, or
how to call 911. When the father took a phone call during the
interview, he was unable to remember with whom he was
speaking as soon as he hung up. And when the interviewers
requested 	Jones’s 	phone 	number, 	the 	father 	gave 	them 	a
fingernail kit “as if a phone number was going to be in it.”
¶12 	Protective Services also spoke to Jones, who admitted that
he had used his father’s retirement income but insisted that he
had his father’s blessing to use “whatever money he wanted to
try to run his restaurants.” When confronted with the facility’s

State v. Jones
20170815-CA 	5 	2020 UT App 31
unpaid 	bills, 	Jones told 	Protective 	Services that 	he 	had 	an
agreement with the facility whereby he could defer payments
until his restaurants were turning a profit. Based on these
conversations, Protective Services deduced that Jones’s father
had received $76,000 in retirement income during the relevant
period, but Jones had made only $12,000 in payments to the
facility. Jones’s father had no balance in his bank account,
indicating that Jones spent more than $60,000 either on the
restaurants or himself.
¶13 	As a result of Protective Services’ investigation, the Office
of Public Guardian (the Public Guardian) took over as the
father’s guardian, meaning that the Public Guardian wrested
control of the father’s finances and healthcare from Jones. From
that point forward, the father’s expenses at the facility were paid
each month, and within a year, the Public Guardian paid off the
entire amount that Jones had neglected to pay when he had
power of attorney.
¶14 	As 	Protective 	Services 	investigated 	and 	the 	Public
Guardian took over, Jones continued to accrue expenses in his
father’s name. He opened a new credit card in his father’s name.
He transferred a $5,000 balance from an old credit card to the
new card. Within three weeks of obtaining the new credit card,
Jones racked up $14,000 in expenses that included charges to ski
resorts, a dental office, the Division of Motor Vehicles, cable
television, 	and 	gas 	stations. 	Jones 	later 	called 	the 	Public
Guardian to inquire why it was not making payments on this
new credit card.
¶15 	Shortly after the Public Guardian took over, the father
was 	administered 	the 	Montreal 	Cognitive 	Assessment 	(the
MoCA 	test), 	a 	screening 	tool 	for 	dementia. 	As 	the 	nurse
practitioner who administered the MoCA test entered the room,
the father was standing, holding a phone, and listening to the
dial tone. During the MoCA test, the father was unable to

State v. Jones
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identify a lion or rhinoceros, repeat sentences or simple one- or
two-syllable words, perform basic math, or recognize letters in
the alphabet. When the MoCA test was over, Jones’s father
received the lowest possible score.
¶16 	Ten days after administration of the MoCA test, Jones
sought to regain control of his father’s finances. He drafted three
documents (the financial control documents) and took them to
his father to sign. The financial control documents directed that
all the father’s retirement income be deposited into Jones’s
personal accounts, authorized Jones to manage the retirement
accounts and make loans to himself, and changed the accounts’
contact information from the father’s to Jones’s. Each document
concluded by stating that the father did not “recognize the
authority of any person, institution, or Agency that attempts to
change these directions.” At a Protective Services hearing a
month later, Jones testified that his father was “cogent” when he
signed the financial control documents and “definitely [had] the
capacity on a day-to-day basis to make decisions about who
controls his finance[s] and where his money goes.”
¶17 	Jones eventually filed for personal bankruptcy, in which
all the “loans” he made to himself from his father’s retirement
income were discharged.
Legal Proceedings
¶18 	Based on the foregoing facts, the State charged Jones with
exploitation of a vulnerable adult and with unlawful dealing
with property by a fiduciary.
¶19 	Before trial, Jones’s attorney (trial counsel) moved to have
the exploitation of a vulnerable adult charge dismissed on the
basis that the exploitation statute was unconstitutionally vague.
The district court deferred ruling on that motion until after trial,
at which point it ruled that the statute was constitutional as
applied to Jones “under the facts and circumstances of this case.”

State v. Jones
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¶20 	In a separate pretrial motion, trial counsel moved to
exclude evidence that Jones “used [his father’s] credit cards” on
the basis that such evidence was subject to rule 404(b) of the
Utah Rules of Evidence and that the State had not provided
Jones notice of its intent to admit that evidence at trial. In ruling
on the matter, the district court said the following:
Anything that was not turned over in discovery is
not going to be admissible . . . . If it’s relevant to
what’s 	charged 	in 	the 	information, 	then 	it’s
admissible. If it is . . . evidence of other bad acts
outside 	the 	scope 	of 	what’s 	charged 	in 	the
information, then I will hear an argument that it’s
not admissible because you didn’t give the 404(b)
notice that you were required to do because the
defense asked for it and they were entitled to it.
Afterward, at trial, the State presented two pieces of evidence
that Jones now argues were improperly admitted under the
district court’s rule 404(b) ruling: (1) evidence concerning the
Brewhaha lease, and (2) a ledger sheet entitled “Loans to David
Bryce Jones” that memorialized loans made from 1998 to 2000
but no payments (the ledger).
¶21 	Also at trial, the State called one expert witness for whom
it had provided notice—a nurse practitioner. The State also
called two lay witnesses—the facility’s general manager (the
manager) 	and 	a 	Protective 	Services 	investigator 	(the
investigator)—who were not designated as experts. The expert
nurse practitioner had visited Jones’s father at the facility on
numerous 	occasions 	and 	was 	the 	same 	individual 	who
administered the MoCA test to the father. She testified that
Jones’s father received the lowest possible score on the MoCA
test and that, on his best day, may have scored two or three
points out of a possible thirty. She also testified that Jones’s
father 	would 	have 	been 	unable 	to 	read 	or 	understand 	the

State v. Jones
20170815-CA 	8 	2020 UT App 31
financial control documents at the time that he signed them and
that his memory was such that he would remember signing the
documents only for “[m]aybe five minutes.”
¶22 	The manager testified about his interactions with Jones’s
father at the facility. He testified that the father was unable to
effectively communicate with others from the beginning of his
time at the facility. For example, the father was unable to
communicate to staff that he lost his wallet and could not
understand 	most 	questions 	beyond 	basic 	pleasantries. 	The
manager also said that the father was unable to take care of his
own 	basic 	needs, 	such 	as 	feeding 	himself 	and 	personal
grooming, without cues from others. He also testified that the
father could not make his own decisions “without direction from
other 	people.” 	On 	direct 	examination, 	the 	State 	asked 	the
manager, “Based upon your psychiatry degree,[2] based upon
your daily interaction with [Jones’s father], do you have an
opinion whether or not he could read [the loan document] and
comprehend it?” The manager responded, “[A]s I know [Jones’s
father] and the complexity of what is written [in the loan
document], I would say that it would be very difficult for him to
understand what . . . he would be signing.”
¶23 	The 	investigator, 	who 	had 	a 	bachelor’s 	degree 	in
gerontology and a master’s degree in social work, also testified
to the father’s mental capacity. She was the individual who first
interviewed Jones’s father after Protective Services opened its
investigation, about ten months after the signing of the loan
document. See supra ¶ 11. Based on her observations during that
interview, 	she 	opined 	that 	Jones’s 	father 	(1) 	suffered 	from
2. 	Although 	this 	error 	went 	uncorrected 	during 	direct
examination, the manager did not have a degree in psychiatry.
Rather, the manager had a bachelor’s degree in psychology and
a master’s degree in counseling and psychology.

State v. Jones
20170815-CA 	9 	2020 UT App 31
“significant 	memory 	impairment,” 	(2) 	would 	have 	lacked
capacity to sign the loan document, and (3) would have lacked
capacity to sign the financial control documents four months
after the interview.
¶24 	At the close of the prosecution’s case, trial counsel moved
for a directed verdict based on insufficient evidence. The district
court denied the motion.
¶25 	The jury convicted Jones as charged. He now appeals.
ISSUES AND STANDARDS OF REVIEW
¶26 	Jones first argues that trial counsel was ineffective for
(1) not objecting to the State eliciting expert testimony from the
manager and investigator even though the State did not provide
notice or otherwise designate them as experts, (2) not objecting
to the State’s admission of the ledger and evidence concerning
the Brewhaha lease, (3) stipulating to an allegedly erroneous jury
instruction, and (4) not moving the district court to merge
Jones’s two convictions. “When a claim of ineffective assistance
of counsel is raised for the first time on appeal, there is no lower
court 	ruling 	to 	review 	and 	we 	must 	decide 	whether 	the
defendant was deprived of the effective assistance of counsel as
a matter of law.” State v. Ramirez, 2019 UT App 196, ¶ 13, 455
P.3d 1082 (cleaned up).
¶27 	Jones next argues that the district court erred when it
determined that the abuse of a vulnerable adult statute was not
unconstitutionally 	vague 	on 	its 	face 	or 	as 	applied 	to 	him.
“Whether a statute is unconstitutionally overbroad or vague is a
question of law reviewed for correctness.” State v. Mattinson,
2007 UT 7, ¶ 6, 152 P.3d 300 (cleaned up).
¶28 	Lastly, 	Jones 	argues 	that 	the 	district 	court 	erred 	by
denying his motion for directed verdict based on insufficient

State v. Jones
20170815-CA 	10 	2020 UT App 31
evidence. On appeal, we review a district court’s “ruling on a
motion for directed verdict for correctness.” State v. Doyle, 2018
UT App 239, ¶ 11, 437 P.3d 1266 (cleaned up).
ANALYSIS
I. Ineffective Assistance of Counsel Claims
¶29 	To prevail on an ineffective assistance of counsel claim, a
defendant must satisfy the two-part Strickland test. First, the
defendant 	must 	establish 	that 	“counsel’s 	representation 	fell
below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 688 (1984). Second, the defendant must
show prejudice by demonstrating “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
Because the defendant is required to satisfy both parts of the
Strickland 	test, 	“it 	is 	not 	necessary 	for 	us 	to 	address 	both
components of the inquiry if we determine that a defendant has
made an insufficient showing on one.” Archuleta v. Galetka, 2011
UT 73, ¶ 41, 267 P.3d 232 (cleaned up).
A. 	Failure to Object to Expert Testimony
¶30 	Jones’s first ineffective assistance of counsel claim centers
on trial counsel’s failure to object to the State asking for expert
testimony from two lay witnesses: the manager and investigator.
The State did not give notice to the defense that it intended to
use either witness as an expert, and both witnesses were asked
to 	offer 	expert 	opinions 	on 	the 	father’s mental 	health 	and
capacity. Therefore, Jones argues, trial counsel was obliged to
object to the State’s questions calling for expert testimony.
¶31 	To determine whether trial counsel was ineffective for
failing 	to 	object 	during 	the 	manager’s 	and 	investigator’s
testimony, it is first necessary to discuss the differences between

State v. Jones
20170815-CA 	11 	2020 UT App 31
lay opinion and expert testimony. Lay opinion testimony is
described by rule 701 of the Utah Rules of Evidence:
If a witness is not testifying as an expert, testimony
in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and
(c) not 	based 	on 	scientific, 	technical, 	or 	other
specialized knowledge within the scope of Rule
702.
¶32 	In contrast, “if testimony, opinion or otherwise, is based
on scientific, technical, or other specialized knowledge, it is
within the scope of rule 702 of the Utah Rules of Evidence and
may not be admitted as lay fact testimony.” State v. Rothlisberger,
2006 UT 49, ¶ 20, 147 P.3d 1176 (cleaned up). If a party “intends
to call any expert to testify in a felony case at trial,” then it must
“give notice to the opposing party as soon as practicable but not
less than 30 days before trial.” Utah Code Ann. § 77-17-13(1)(a)
(LexisNexis 2017). If a party fails to provide notice that it intends
to call an expert witness, then “the opposing party shall, if
necessary 	to 	prevent 	substantial 	prejudice, 	be 	entitled 	to 	a
continuance of the trial . . . sufficient to allow preparation to
meet the testimony.” Id. § 77-17-13(4)(a). A court can impose
more serious sanctions if it determines that noncompliance with
the notice rule “is the result of bad faith,” but the “remedy of
exclusion of the expert’s testimony will only apply if the court
finds that a party deliberately violated” the notice rule. Id.
§ 77-17-13(4)(b).
¶33 	With these differences in mind, we turn to the question of
whether trial counsel was ineffective for failing to object to the
State’s questions eliciting opinion testimony from the manager
and investigator even though the State had not provided the
defense notice of its intent to use them as experts. Regarding the

State v. Jones
20170815-CA 	12 	2020 UT App 31
manager, the State’s question called for expert testimony because
it asked him, “[b]ased on [his] psychiatry degree,” whether
Jones’s father would have understood the loan document when
he signed it. See Utah R. Evid. 702 (explaining that expert
testimony 	may 	be 	based 	on 	“[s]cientific, 	technical, 	or 	other
specialized 	knowledge” 	(emphasis 	added)).3 	Regarding 	the
investigator, 	the 	State 	both 	requested 	and 	received 	expert
testimony that could only have been based on her “scientific,
technical, 	or 	otherwise 	specialized 	knowledge.” 	Id. 	This 	is
particularly true with regard to the investigator’s testimony
concerning 	the 	father’s 	capacity 	to 	understand 	the 	loan
document; she could not have formed an opinion “based on
[her] perception,” see Utah R. Evid. 701(a), because she never
spoke to Jones’s father until ten months after the signing. But
although the State’s questions to the manager and investigator
were objectionable, Jones has not established that trial counsel’s
failure to object prejudiced his defense.
¶34 	Before the manager and investigator testified, the State
had already introduced evidence of the father’s mental capacity
through the expert testimony of the nurse practitioner. Jones
3. Although the State’s question called for expert testimony, we
note that the manager’s response to the State’s question—that it
would be difficult for Jones’s father to understand the loan
document—was couched in terms of lay opinion testimony
based on his perceptions of and interactions with Jones’s father,
not his specialized training and experience. He specifically began
his answer not with reference to his formal training but by
referring to his familiarity with Jones’s father. It seems likely that
any “average bystander” who had personally witnessed the
father’s inability to communicate or remember important events
would be “able to provide the same testimony” that he would
struggle 	to 	understand 	the 	loan 	document. 	See 	State 	v.
Rothlisberger, 2006 UT 49, ¶ 34, 147 P.3d 1176.

State v. Jones
20170815-CA 	13 	2020 UT App 31
contends that the testimony from the manager and investigator
prejudiced his defense because it improperly lent “credibility to
the State’s position that [Jones’s father] lacked capacity due to
progressive dementia.” This argument is flawed in at least two
respects.
¶35 	First, 	the 	fact 	that 	the 	nurse 	practitioner, 	the 	State’s
designated expert, had already testified to the father’s mental
incapacity cuts against a finding of prejudice. If the challenged
testimony had been the only evidence that Jones’s father lacked
the capacity to sign the loan document, it might have been
highly prejudicial. Here, however, the testimony of both the
manager and investigator is merely cumulative of other properly
admitted evidence that goes to the same facts, including the
nurse practitioner’s testimony and the position taken by Jones
himself 	in 	the 	Brewhaha 	eviction 	proceeding. 	And 	where
testimony 	is merely 	cumulative, 	we 	are disinclined 	to 	find
prejudice even when the testimony was improperly admitted.
See State v. Thomas, 777 P.2d 445, 449–50 (Utah 1989) (declining to
find 	prejudice 	where 	improper 	hearsay 	testimony 	was
cumulative and unlikely to have changed the outcome of the
trial); State v. Collier, 736 P.2d 231, 233 (Utah 1987) (declining to
find prejudice where improper testimony “was only cumulative
of the evidence and testimony” of other witnesses); State v.
Jackson, 2010 UT App 328, ¶ 17, 243 P.3d 902 (declining to find
prejudice where “the alleged hearsay evidence was cumulative
because it reiterated the essence of testimony presented by the
victims or other eyewitnesses”), overruled on other grounds by
State v. DeJesus, 2017 UT 22, 395 P.3d 111.
¶36 	Second, 	and 	perhaps 	more 	importantly, 	even 	if 	trial
counsel had objected to the State’s questioning of the manager
and investigator, it is unlikely that the testimony of either
witness 	would 	have 	been 	excluded. 	Both 	witnesses 	had
advanced degrees relevant to the subject matter to which they
testified, and so would likely have qualified as expert witnesses.

State v. Jones
20170815-CA 	14 	2020 UT App 31
See Utah R. Evid. 702(a) (stating that a witness can qualify as an
expert “by knowledge, skill, experience, training, or education”
(emphasis added)). And, absent bad faith, the statutory remedy
for 	eliciting 	expert 	testimony 	without 	prior 	notice 	is 	a
continuance, not exclusion of the expert testimony. Utah Code
Ann. § 77-17-13(4)(a). Jones could only hope to exclude the
testimony if he showed that the State “deliberately violated” the
notice rule, id. § 77-17-13(4)(b), and Jones points to no evidence
of deliberate impropriety on the part of the State. Therefore,
even if trial counsel had objected to the lack of notice, the best
that Jones could have hoped for was a continuance, and he has
not argued how such a continuance would have affected the
outcome of his trial.
¶37 	For the foregoing reasons, Jones has not established that
he was prejudiced by trial counsel’s failure to object during the
testimony of the manager and investigator.
B. 	Failure to Object to Rule 404(b) Evidence
¶38 	Jones’s 	second 	ineffective 	assistance 	of 	counsel 	claim
centers on trial counsel’s failure to object to two pieces of
evidence that Jones believes should have been excluded under
the district court’s rule 404(b) ruling: (1) evidence concerning the
Brewhaha lease, and (2) the ledger. See supra ¶ 20. We address
each argument in turn.
¶39 	Jones argues that the evidence that Jones had his father
sign the Brewhaha lease despite knowing about his father’s
infirmity constituted evidence of a “crime, wrong, or other
act,” 	see 	Utah 	R. 	Evid. 	404(b)(1), 	to 	show that 	Jones “was
dishonest and to generally show his bad character.” However,
rule 404(b) applies only “to evidence that is extrinsic to the crime
charged.” State v. Lucero, 2014 UT 15, ¶ 14 n.7, 328 P.3d 841
(cleaned up), overruled on other grounds by State v. Thornton, 2017
UT 9, 391 P.3d 1016. Where “the evidence of prior acts is
inextricably intertwined with the crime that is charged, or if both

State v. Jones
20170815-CA 	15 	2020 UT App 31
the charged crime and the prior act are considered part of a
single criminal episode, then rule 404(b) [does] not apply.” Id.
(cleaned up).
¶40 	Here, 	evidence 	concerning 	the 	Brewhaha 	lease 	was
not evidence of some prior act used to prove Jones’s general
bad character. Rather, it was offered as direct evidence of one
of the crimes for which Jones was charged: exploitation of
a 	vulnerable 	adult. 	Under 	the 	applicable 	Utah 	statute, 	a
vulnerable adult is “an elder adult” or any adult “who has
a mental or physical impairment which substantially affects
that 	person’s 	ability” 	to 	perform 	a 	number 	of 	basic 	tasks.
Utah 	Code 	Ann. 	§ 76-5-111(1)(s) 	(LexisNexis 	2012). 	And 	a
person is guilty of exploitation of a vulnerable adult if that
person “unjustly or improperly uses or manages the resources
of a vulnerable adult for the profit or advantage of someone
other than the vulnerable adult.” Id. § 76-5-111(4)(a)(iii). The
evidence 	presented 	regarding 	the 	prior 	Brewhaha 	lawsuit
included a statement in which Jones argued that his father
was 	incompetent 	when 	he 	signed 	the 	Brewhaha 	lease.
That 	admission 	supports 	the 	State’s 	contention 	that 	Jones
knew of his father’s incapacity before pressuring his father to
sign the loan and financial control documents, proving the mens
rea for acts relevant to the exploitation of a vulnerable adult
charge. Because this evidence was not extrinsic to the crime
charged, 	trial 	counsel 	did 	not 	perform 	deficiently 	by 	not
objecting to its admission because any objection would have
been futile. See State v. Karren, 2018 UT App 226, ¶ 31, 438 P.3d
18 (“[T]he failure of counsel to make motions or objections which
would 	be 	futile 	if 	raised 	does 	not 	constitute 	ineffective
assistance.” (cleaned up)).
¶41 	Jones 	next 	argues 	that 	the 	ledger 	was 	improper
rule 	404(b) 	evidence 	that 	“served 	only 	to 	portray 	[Jones]
as having a propensity to not pay back his loans” because
no 	payments 	were 	recorded 	on 	the 	ledger. 	But 	Jones’s

State v. Jones
20170815-CA 	16 	2020 UT App 31
defense 	theory 	at 	trial 	was 	that 	his 	father 	was 	a 	willing
participant and partner in the Brewhaha and Gusto ventures.
Therefore, trial counsel could have reasonably thought that
the ledger supported Jones’s defense theory inasmuch as it
demonstrated that Jones’s father willingly loaned Jones money
well 	before 	any 	dementia 	clouded 	his 	judgment. 	Because
there was a legitimate strategic reason for which trial counsel
could have chosen not to object to the ledger’s admission,
counsel’s 	failure 	to 	object 	cannot 	constitute 	deficient
performance. See State v. Vallejo, 2019 UT 38, ¶ 70, 449 P.3d 39
(finding no deficient performance where counsel did not object
to 	alleged 	hearsay 	because 	the 	testimony 	supported 	the
defendant’s strategy).
¶42 	Accordingly, 	Jones 	has 	not 	shown 	that 	trial 	counsel
performed 	deficiently 	by 	not 	objecting 	to 	evidence 	of 	the
Brewhaha lease or the ledger.
C. 	Stipulation to an Erroneous Jury Instruction
¶43 	Jones’s 	third 	ineffective 	assistance 	of 	counsel 	claim
centers on trial counsel’s stipulation to an allegedly erroneous
jury instruction regarding the mens rea requirement necessary to
convict him of unlawful dealing with property by a fiduciary.
The jury instruction stated that to find Jones guilty of that crime,
the jury must find
1. 	That the defendant, David Bryce Jones,
2. 	Acting intentionally, knowingly, or recklessly
with respect to each and every one of the
following elements;
3. 	Dealt with property that had been entrusted to
him as a fiduciary, in a manner which the
defendant knew (beyond just recklessness) was
a violation of the defendant’s duty;

State v. Jones
20170815-CA 	17 	2020 UT App 31
4. 	Which 	involved 	substantial 	risk 	of 	loss 	or
detriment to the owner or to a person for
whose benefit the property was entrusted; and
5. 	That the total value of the property is equal to
or exceeds $5,000.
Jones contends that the jury instruction erroneously applied the
mens rea requirement of knowledge to the “violation of the
person’s duty” element but not to the “involves substantial risk
of loss” element. According to Jones, the instruction improperly
lowered the State’s burden of proof because it allowed the jury
to convict if it believed Jones was merely reckless as to the
involvement of a “substantial risk of loss.” Thus, Jones contends
that trial counsel performed deficiently by stipulating to the
instruction.
¶44 	But “the proper measure of attorney performance [is]
simply reasonableness under prevailing professional norms,”
State v. Silva, 2019 UT 36, ¶ 20 (cleaned up), and Jones has not
demonstrated that trial counsel unreasonably read or interpreted
the law by stipulating to the challenged jury instruction. We
conclude that Jones’s reading of the statute—that the knowing
mens 	rea 	requirement 	applies 	to 	the 	substantial-risk-of-loss
element—is not dictated by its plain language and that Utah
caselaw does not settle the question. Therefore, trial counsel was
not deficient in stipulating to the jury instruction.
¶45 	First, 	Jones’s 	interpretation 	of 	Utah 	Code 	section
76-6-513(2) is not dictated by the plain language of the statute. In
Utah, a person is guilty of unlawfully dealing with property by a
fiduciary if:
the 	person 	deals 	with 	property 	that 	has 	been
entrusted to him as a fiduciary, or property of a
governmental 	entity, 	public 	money, 	or 	of 	a
financial institution, in a manner which the person

State v. Jones
20170815-CA 	18 	2020 UT App 31
knows is a violation of the person’s duty and
which involves substantial risk of loss or detriment
to the owner or to a person for whose benefit the
property was entrusted.
Utah Code Ann. § 76-6-513(2) (LexisNexis 2012). The relevant
question is whether the modifier “knows” applies only to the
violation-of-the-person’s-duty element or also applies to the
substantial-risk-of-loss element.
¶46 	Based 	on 	the 	statute’s 	syntax, 	competent 	defense
attorneys could reasonably conclude that the knowing mens rea
requirement applies only to the violation-of-the-person’s-duty
element. The series-qualifier canon of statutory interpretation
provides 	that 	“[w]hen 	there 	is 	a 	straightforward, 	parallel
construction 	that 	involves 	all 	nouns 	or 	verbs 	in 	a 	series,
a 	prepositive 	or 	postpositive 	modifier 	normally 	applies 	to
the entire series.” Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 147 (2012). For example,
if 	the 	statute 	required 	proof 	that 	the 	person 	dealt 	with
property “in a manner which the person knows is a violation
of the person’s duty and involves substantial risk of loss,”
the 	qualifier 	“knows” 	would 	presumably 	apply 	to 	both
elements: 	the 	person must 	know that 	those 	dealings are 	a
violation 	of 	the 	person’s 	duty 	and 	the 	person 	must 	know
that 	those 	dealings 	involve 	a 	substantial 	risk 	of 	loss. 	But
“[t]he 	typical 	way 	in 	which 	syntax 	would 	suggest 	no
carryover modification is that a determiner (a, the, some, etc.)
will be repeated before the second element.” Id. at 148.4 Here,
4. For example, in the phrase, “A solid wall or fence,” “solid” acts
as a modifier that applies to both “wall” and “fence”—both must
be solid. However, in the phrase, “A solid wall or a fence,” the “a”
is a determiner suggesting that the modifier does not apply to
“fence”—only the wall need be solid. See Antonin Scalia & Bryan
(continued…)

State v. Jones
20170815-CA 	19 	2020 UT App 31
the 	legislature 	inserted 	a 	determiner, 	“which,” 	before 	the
substantial-risk-of-loss element, suggesting that the “knows”
modifier 	does 	not 	apply 	to 	that 	element. 	In 	other 	words,
the 	statute 	appears 	to 	require 	that 	the 	person 	deal 	with
property 	“in 	a 	manner 	[1] 	which 	the 	person 	knows 	is 	a
violation 	of 	the 	person’s 	duty 	and 	[2] 	which 	involves
substantial risk of loss.” Where the statute does not specify a
mens rea for a particular element, recklessness is sufficient
to establish criminal responsibility. Utah Code Ann. § 76-2-102.
Therefore, 	based 	on 	a 	fair 	reading 	of 	the 	statute, 	trial
counsel could reasonably conclude that the jury instructions
accurately 	reflected 	the 	applicable 	mental 	states 	for 	each
element.5
¶47 	Second, such a conclusion is particularly reasonable given
that no Utah appellate court has squarely addressed whether a
knowledge or recklessness mens rea requirement applies to the
substantial-risk-of-loss 	element. 	We 	recognize 	that 	defense
attorneys are not “categorically excused from failure to raise an
argument not supported by existing legal precedent.” Silva, 2019
UT 36, ¶ 19. But without such legal precedent and without a
clear basis in the statutory language, trial counsel’s stipulation to
the jury instruction did not fall below an objective standard of
(…continued)
A. Garner, Reading Law: The Interpretation of Legal Texts 148–
49 (2012).
5. Jones’s “challenge to the jury instruction[] is viewed through
the lens of ineffective assistance of counsel, and thus we need
not definitively resolve what the statute actually means.” See
State v. Squires, 2019 UT App 113, ¶ 32 n.7, 446 P.3d 581. We
decide only that trial counsel was not deficient in stipulating to
the jury instruction because knowledge is not plainly required as
to the substantial-risk-of-loss element.

State v. Jones
20170815-CA 	20 	2020 UT App 31
reasonableness. 	See 	Squires, 	2019 	UT 	App 	113, 	¶¶ 	30–36
(concluding that failure to object to allegedly incorrect jury
instructions 	was 	not 	deficient 	performance 	where 	statutory
language did not require a particular interpretation and the issue
was unsettled under Utah caselaw); cf. State v. Eyre, 2019 UT
App 162, ¶¶ 31–32, 452 P.3d 1197 (concluding that failure to
object was not deficient performance where Utah courts had not
addressed an issue and outside authorities reached conclusions
unfavorable to the defendant’s argument); State v. Brocksmith,
2018 UT App 76, ¶¶ 16–17, 424 P.3d 1122 (holding that counsel is
not ineffective for failing to raise a “truly novel” constitutional
challenge 	when 	the 	law 	at 	issue 	“is 	not 	clearly
unconstitutional”).
¶48 	Accordingly, 	Jones 	has 	failed 	to 	establish 	deficient
performance because reasonable counsel could interpret Utah
Code section 76-6-513(2) in a manner consistent with the jury
instruction.
D. 	Failure to Move for Merger of Jones’s Convictions
¶49 	Jones’s fourth and final ineffective assistance of counsel
claim centers on trial counsel’s failure to move for merger of his
convictions 	for 	exploitation 	of 	a 	vulnerable 	adult 	and 	for
unlawful dealing with property by a fiduciary. “The merger
doctrine operates to protect criminal defendants from being
twice punished for committing a single act that may violate
more than one criminal statute.” State v. Bowden, 2019 UT App
167, ¶ 23, 452 P.3d 503 (cleaned up). “The motivation behind the
merger doctrine is to prevent violations of constitutional double
jeopardy protection.” Id. (cleaned up).
¶50 	A defendant is entitled to merger of his or her offenses if
they can satisfy one of two statutorily defined merger tests:
The first dictates that when the same act of a
defendant under a single criminal episode shall

State v. Jones
20170815-CA 	21 	2020 UT App 31
establish 	offenses 	which 	may 	be 	punished 	in
different ways under different provisions of this
code, the act shall be punishable under only one
such provision. The second dictates that when an
offense 	is 	a 	lesser 	included 	offense 	of 	another
charged offense, a defendant may not be convicted
of both offenses.
Id. ¶ 24 (cleaned up); see also Utah Code Ann. § 76-1-402(1), (3)
(LexisNexis 2012). Jones argues that he was entitled to merger of
his convictions under either test.
¶51 	Regarding the first test, Jones contends that “although
the 	two 	statutes 	under 	which 	[Jones] 	was 	convicted 	are
typically 	separate 	offenses, 	the 	State’s 	theory 	of 	the 	case
provided no factual distinction between the two charges.” This is
incorrect. The two counts against Jones were not based on “the
same act of a defendant,” see id. § 76-1-402(1), because the
charges concern, at least in part, different time periods. The
charge for unlawful dealing with property by a fiduciary could
relate only to Jones’s actions before the Public Guardian relieved
Jones of his fiduciary powers—i.e., having his father sign the
loan document and loaning himself all his father’s monthly
retirement income. The charge for exploitation of a vulnerable
adult, however, is based in part on Jones’s conduct after the
Public 	Guardian 	was 	appointed 	and 	relieved 	Jones 	of 	his
fiduciary 	powers—i.e., 	having 	his 	father 	sign 	the 	financial
control documents and racking up charges on a new credit card
that he opened in his father’s name. Therefore, because separate
criminal acts support each charge, Jones’s argument under the
first merger test fails.
¶52 	Regarding the second test, Jones argues that “[a]lthough
the 	State 	charged 	[Jones] 	with 	violating 	both 	statutes, 	the
elements overlap, particularly under the only theory advanced
by 	the 	State—that 	[Jones] 	purportedly 	used 	his 	fiduciary

State v. Jones
20170815-CA 	22 	2020 UT App 31
position to use his father’s money for a purpose other than
caring for his father.” Whether the “greater-lesser relationship”
required 	by 	the 	second 	test 	applies 	is 	“determined 	by
comparing 	the 	statutory 	elements 	of 	the 	crimes 	as 	a
theoretical matter and, where necessary, by reference to the
facts proved at trial.” State v. Hill, 674 P.2d 96, 97 (Utah 1983).
Here, 	the 	elements 	of 	the 	offenses 	do 	not 	overlap. 	The
exploitation charge required a showing that Jones’s father was
a 	vulnerable 	adult, which 	is not 	required 	by 	the 	unlawful
dealing with property by a fiduciary statute. And the unlawful
dealing with property by a fiduciary charge required a showing
that 	Jones 	was 	a 	fiduciary, 	which 	is 	not 	required 	by 	the
exploitation of a vulnerable adult statute. Compare Utah Code
Ann. 	§ 	76-5-111(4)(a)(iii), 	with 	id. 	§ 	76-6-513(2). 	Further, 	as
discussed above, supra ¶ 51, different facts were presented at
trial to support both charges. Therefore, Jones’s argument under
the second merger test fails as well.
¶53 	Because neither test applies to this case, trial counsel did
not perform deficiently by not moving the district court to merge
Jones’s convictions. See State v. Farnworth, 2018 UT App 23, ¶ 53,
414 P.3d 1053 (finding no deficient performance for failure to
move for merger because “such a motion would have been
futile”).6
6. Jones also makes a cumulative error argument under the
umbrella of ineffective assistance of counsel. However, “under
the 	cumulative 	error 	doctrine, 	we 	will 	reverse 	only 	if 	the
cumulative 	effect 	of 	the 	several 	errors 	undermines 	our
confidence that a fair trial was had. If the claims are found on
appeal to not constitute error, or the errors are found to be so
minor as to result in no harm, the doctrine will not be applied.”
State v. Alfatlawi, 2006 UT App 511, ¶ 52, 153 P.3d 804 (cleaned
up). Here, Jones has not established that any errors occurred or
(continued…)

State v. Jones
20170815-CA 	23 	2020 UT App 31
II. Vagueness Challenge
¶54 	Jones 	contends 	that 	Utah 	Code 	section 	76-5-111, 	the
exploitation of a vulnerable adult statute, is unconstitutionally
vague on its face and as applied to his conduct. In relevant part,
the statute provides:
A person commits the offense of exploitation of a
vulnerable adult when the person . . . unjustly or
improperly uses or manages the resources of a
vulnerable adult for the profit or advantage of
someone other than the vulnerable adult.
Utah Code Ann. § 76-5-111(4)(a)(iii) (LexisNexis 2012). Jones
argues 	that 	the 	“unjustly 	or 	improperly” 	language 	is
unconstitutionally vague because those are “subjective terms,
which . . . could lead to charges against virtually anyone who
uses a vulnerable adult’s resources for the use of anyone other
than the vulnerable adult.” We disagree.
¶55 	“The United States Supreme Court has explained that
vagueness challenges to ‘statutes which do not involve First
Amendment freedoms must be examined in the light of the facts
of the case at hand.’” State v. Jones, 2018 UT App 110, ¶ 15, 427
P.3d 538 (quoting Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 495 (1982)). “It is well-established that a
defendant 	who 	engages 	in 	some 	conduct 	that 	is 	clearly
proscribed cannot complain of the vagueness of the law as
applied to the conduct of others.” Id. ¶ 16 (cleaned up). “A court
should 	therefore 	examine 	the 	defendant’s 	conduct 	before
analyzing 	other 	hypothetical 	applications 	of 	the 	law.” 	Id.
(cleaned up). “If the defendant’s conduct is clearly prohibited,
(…continued)
that any of the alleged errors resulted in prejudice. Therefore, the
cumulative error doctrine does not apply.

State v. Jones
20170815-CA 	24 	2020 UT App 31
then 	he 	lacks 	standing 	to 	challenge 	the 	statute 	based 	on
another’s hypothetical conduct.” Id.
¶56 	Despite any vagueness inherent in the language of the
exploitation of a vulnerable adult statute, Jones’s conduct in this
case was clearly proscribed. Although Jones offers examples of
less egregious conduct that might arguably fall within the scope
of 	the 	statute, 	this 	is 	not 	a 	case 	of 	“one 	child 	ask[ing] 	a
vulnerable 	adult 	for 	help 	with 	paying 	college 	tuition 	or
purchasing a home from a vulnerable adult where that child’s
sibling had received no such assistance.” Rather, this is a case
where 	a 	son 	“loaned” 	himself 	the 	entirety 	of 	his 	father’s
retirement income and neglected to pay for his father’s basic
living expenses until his father became a ward of the State.
Jones’s actions in this regard are “unjust” and “improper” under
any definition of those terms.
¶57 	Because Jones’s conduct is clearly prohibited by law, “he
lacks standing to assert a vagueness claim and we need not
address the issue any further.” See id. ¶ 17.
III. Sufficiency of the Evidence
¶58 	Jones’s 	final 	argument 	is 	that 	there 	was 	insufficient
evidence that he “knew he was breaching his duty or otherwise
improperly 	or 	unjustly 	managing 	his 	father’s 	finances.”
Evidence is sufficient when, viewed in the light most favorable
to the State, there exists “some evidence . . . from which a
reasonable jury could find that the elements of the crime had
been proven beyond a reasonable doubt.” See State v. Montoya,
2004 UT 5, ¶ 9, 84 P.3d 1183 (cleaned up). We conclude that both
convictions were supported by ample evidence.
¶59 	Jones first challenges his conviction for exploitation of a
vulnerable adult, arguing that insufficient evidence supported
the jury’s finding that he acted “intentionally or knowingly,”
Utah Code Ann. § 76-5-111(4)(b)(i) (LexisNexis 2012), when he

State v. Jones
20170815-CA 	25 	2020 UT App 31
“unjustly 	or 	improperly 	use[d] 	or 	manage[d]” 	his 	father’s
resources for his own benefit, see id. § 76-5-111(4)(a)(iii). We
disagree. The State produced evidence at trial that Jones knew
his father was incompetent due to progressive dementia when
Jones began using the father’s income to fund Jones’s business
ventures. Other evidence showed that Jones took the entirety of
his father’s retirement income, leaving no funds from which his
father’s rent and other basic living expenses could be paid.
Further, Jones undoubtedly became aware 	of the unjust or
improper 	nature 	of 	his 	actions 	when 	the 	Public 	Guardian
wrested away custody of his father, but Jones was undeterred
and continued to incur expenses by opening a new credit card in
his father’s name. This is sufficient evidence from which the
jury could conclude that Jones “intentionally or knowingly”
used his father’s resources in an unjust manner and for his own
benefit.
¶60 	Jones also challenges his conviction for unlawful dealing
with 	property 	by 	a 	fiduciary. 	He 	argues 	that 	insufficient
evidence supported the criminal statute’s mens rea requirements
for the violation-of-a-person’s-duty and substantial-risk-of-loss
elements. See id. § 76-6-513(2). First, Jones contends that there
was insufficient evidence from which the jury could conclude
that he knowingly violated his fiduciary duty. But there is ample
evidence from which the jury could find that Jones knowingly
breached his duty “to act primarily for the benefit of” his father.
See Robinson v. Robinson, 2016 UT App 33, ¶ 43, 368 P.3d 105
(cleaned up). While Jones contends that his father was his
“business 	partner,” 	only 	Jones 	was 	listed 	as 	an 	owner 	of
Brewhaha and Gusto. Thus, despite fronting all the expenses, his
father had no ownership stake in either restaurant. Based on this
evidence, the jury could reasonably conclude that Jones was
using his father’s income primarily to benefit himself, not his
father. And a jury could also conclude that Jones knew he was
violating his fiduciary duties when he failed to pay his father’s
rent even as his ailing father faced the threat of eviction. This

State v. Jones
20170815-CA 	26 	2020 UT App 31
evidence is more than sufficient to support the jury’s finding that
Jones knowingly violated his fiduciary duties.
¶61 	Sufficient evidence also supported the jury’s finding with
regard 	to 	the 	substantial-risk-of-loss 	element. 	As 	already
discussed in connection with his ineffective assistance claim,
supra ¶¶ 43–48, Jones argues that the unlawful dealing statute
required the State to prove that the defendant knew that his
conduct created a substantial risk of loss. But, as applied here,
we 	see 	very 	little 	daylight 	between 	knowledge, 	i.e., 	the
defendant 	being 	“aware 	that 	his 	conduct 	[was] 	reasonably
certain 	to 	cause” 	a 	substantial 	risk 	of 	financial 	loss, 	and
recklessness, i.e., the defendant being “aware of but consciously
disregard[ing] a substantial and unjustifiable risk” of financial
loss. See generally Utah Code Ann. § 76-2-103 (LexisNexis 2012)
(defining 	“knowingly” 	and 	“recklessly”). 	Under 	either
formulation, the evidence of Jones’s conduct fully satisfied this
element. While Jones still had fiduciary power, he had his father
sign the Brewhaha lease as a co-tenant and guarantor despite
being aware of the “harsh” and “unfair” terms of the lease. And
even if Jones could argue reasonable ignorance of the risky
nature of the Brewhaha investment, he was undoubtedly aware
of the financial risks involved when he used his father’s money
to start Gusto in the immediate aftermath of Brewhaha’s failure.
This is sufficient evidence from which the jury could find that
Jones was aware that his conduct entailed a substantial risk of
loss to his father.
CONCLUSION
¶62 	Jones’s claims for ineffective assistance of counsel fail
because 	he 	has 	not 	established 	deficient 	performance 	or
prejudice with regard to any of trial counsel’s challenged actions.
Jones also has not established that Utah’s exploitation of a
vulnerable adult statute is vague as applied to his criminal

State v. Jones
20170815-CA 	27 	2020 UT App 31
conduct. And we reject Jones’s sufficiency of the evidence claim
because the jury’s findings were supported by ample evidence.
¶63 	Affirmed.