State v. Buttars

2020 UT App 87
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
DAVID BRUCE BUTTARS,
Appellant.
Opinion
No. 20170436-CA
Filed June 4, 2020
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 131901512
Alexandra S. McCallum, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and DIANA H AGEN
concurred.
ORME, Judge:
¶1 	David 	Bruce 	Buttars 	appeals 	his 	convictions 	on 	four
counts of securities fraud and one count of pattern of unlawful
activity. Among other things, Buttars argues that the district
court erred in admitting his bank records under the residual
exception of rule 807 of the Utah Rules of Evidence. We reverse
and remand for a new trial.

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20170436-CA 	2 	2020 UT App 87
BACKGROUND1
Ellipse and MovieBlitz
¶2 	In 2005, Buttars and a business partner (Partner) created
a company called Ellipse Technology (Ellipse). Ellipse was a
“startup” that attempted to create kiosks where customers could
“take a memory key similar to a USB . . . and download . . .
movie[s] or any other media content,” “take it home, watch it
on 	a 	playback 	device, 	and 	then 	never 	have 	to 	return 	it
again.” Buttars and Partner each owned 50% of the company,
with Buttars acting as CEO and Partner as president. For about
two years, both Buttars and Partner worked for Ellipse full
time and drew a salary. Other individuals were subsequently
brought in to assist with research and development, fundraising,
and other corporate responsibilities, but Buttars remained in
control.
¶3 	Buttars, an electrical engineer, was the “brains” behind
the project. He was “in charge of fundraising,” managing the
finances, establishing “relationship[s] with the investors,” and
developing the kiosk and USB technology. As CEO, Buttars was
essentially “over everything,” and from the start it “was made
very clear” that he was the “top decision maker” and “in
charge.”
¶4 	Buttars’s home served as Ellipse’s corporate headquarters.
It was equipped with an email server and a phone system, and it
contained a room in the basement that was used for weekly
meetings. It was also common for visitors on Ellipse-related
business trips to stay at the home.
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence 	only 	as 	necessary 	to 	understand 	issues 	raised 	on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

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20170436-CA 	3 	2020 UT App 87
¶5 	In 2007, after Ellipse raised more than $600,000 from
approximately 50 individual investors, Ellipse’s legal counsel
advised 	the 	company 	that 	it 	“had 	too 	many 	individual,
non-accredited investors” and that it should instead focus its
fundraising efforts “on accredited or institutional investors”
with 	“significant 	financial 	reserves.” 	Buttars 	discussed 	this
advice with Partner and others in the company, “[a]nd it was
understood that money could no longer be raised . . . the way it
had 	been.” 	Subsequently, 	from 	2007 	to 	2008, 	a 	number 	of
interested 	institutional 	investors 	made 	offers 	in 	the
millions-of-dollars range in exchange for significant shares of the
company. Partner and others involved with Ellipse wanted to
accept the offers, which would have provided sufficient funding
to have gotten Ellipse “to a true product, one that was actually
functional and that [they] could go beta with.”2 Ultimately,
however, the offers “were all rejected” because Buttars, as the
one “in charge,” “said he didn’t want to do it.”
¶6 	Late 	in 	2008, 	Buttars 	involved 	his 	friend 	(Friend) 	in
Ellipse because Friend “claimed to have access to large amounts
of institutional funding overseas,” which claim turned out to be
false. Friend was made a board member and executive of Ellipse.
Ellipse then funded a trip to Switzerland for Friend to secure
funding, but the funding did not materialize.
¶7 	With no institutional investors on board, Ellipse was soon
in need of funding and, at this point, Partner discovered that
Buttars 	was 	again 	soliciting 	investments 	from 	individual
investors “at the micro level,” against the advice of counsel. In
early 2009, Ellipse had “no money” and Partner and three other
individuals on the board filed a lawsuit against Buttars in an
attempt to “get control of the company so that [they] could try
2. The beta version of a product “is a nearly complete prototype
of a product.” Beta, Merriam-Webster, https://www.merriam-
webster.com/dictionary/beta [https://perma.cc/CPP7-DTQX].

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20170436-CA 	4 	2020 UT App 87
and find another way to get [the technology] to completion so
that [they] could pay back . . . all of the investors.”
¶8 	In response, Buttars resigned as Ellipse’s CEO, but “he
would not relinquish his shares or his voting rights” and would
not allow Ellipse to “go forward because it was his technology.”
Due to Partner’s and Buttars’s dispute, the patents for the
technology, registered in both their names, became encumbered
and were of “no value to the company.” Ellipse’s bank account
was closed on May 1, 2009, and the company “ultimately just
dissolved.”
¶9 	At some point in 2009, before Ellipse’s demise, board
members discovered that Ellipse funds were being used to make
mortgage 	payments 	on 	Friend’s 	home, 	and 	they 	generally
“suspected that funds were being misused.” Another individual
tasked with fundraising for the company said that during this
time, Buttars called him and was angry he had not raised more
funds, asking, “[H]ow do you expect me to support two families
on what you’ve brought in?”
¶10 	During the collapse of Ellipse, Buttars and Friend formed
a new company, MovieBlitz, to develop the same technology,
and they began raising money anew from individual investors.
From approximately 2007 to 2010, Buttars raised over $815,000
on behalf of the two companies.
Investors
¶11 	The mother of an Ellipse employee (Mother) initially
invested $10,000 in Ellipse in 2007. Buttars informed Mother that
her money “would be used in producing the [kiosk] product and
getting it to market.” In March 2009, Mother invested another
$5,000 after being told that Ellipse “needed just a little bit more
money so they could get [the kiosk] to market.” Mother stated
that the “general tone of the conversation with” Buttars “was
positive in that . . . this was going to be a great thing that they

State v. Buttars
20170436-CA 	5 	2020 UT App 87
had going.” Mother was never informed that her “investment
funds might be used for any other purpose.”
¶12 	In late May and early June of 2009, Buttars’s neighbor
(Neighbor) and her boyfriend (Boyfriend) each invested $2,000
in 	MovieBlitz. 	Before 	investing, 	they 	met with 	Buttars and
Friend, who showed them “that [they] had patents and . . . they
were ready to roll.” Buttars and Friend explained the investment
opportunity in “fabulous terms” that “seemed to be so close . . .
to com[ing] to fruition.” The “overall tone of the meeting” was
“[p]ositive” with “[n]o risks involved.”
¶13 	But there were risks involved, of which Buttars failed to
inform the two investors. Buttars also informed them that their
money would be used to incorporate the company in Nevada
and “to produce this [memory] key [and] the kiosk.” Buttars did
not 	inform 	Neighbor 	and 	Boyfriend 	about 	the 	predecessor
company, Ellipse, and its ultimate failure to bring the same
technology 	to 	market. 	In 	January 	2010, 	Boyfriend 	invested
another 	$7,000 	in 	MovieBlitz 	because 	Buttars 	and 	Friend
“painted such a pretty picture that this [was] . . . really going to
be something” that “sounded too good to be true.”3
¶14 	In February 2010, Neighbor introduced her ex-husband
(Ex-husband) to Buttars, and Ex-husband invested $10,000 in
MovieBlitz that same month. Before making the investment,
Ex-husband met with Buttars, Friend, and other investors. This
was “a positive meeting,” in which Buttars told Ex-husband that
his investment “would be used to develop the [memory] key and
the kiosks.” There was no discussion that his investment “would
be 	used 	for 	any 	other 	purpose.” 	Buttars 	did 	not 	inform
Ex-husband about Ellipse and its collapse or about previously
invested money being used for nonbusiness purposes.
3. Boyfriend apparently forgot the other half of this cautionary
adage: “If it sounds too good to be true, it probably is.”

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20170436-CA 	6 	2020 UT App 87
Investigation
¶15 	In 	early 	2011, 	an 	agent 	with 	the 	State 	Bureau 	of
Investigation (Agent) began investigating Buttars for his actions
regarding 	Ellipse 	and 	MovieBlitz. 	Agent 	obtained 	multiple
investigative 	subpoenas—which 	a 	magistrate 	approved
following a review of Agent’s good cause statement—for the
bank records of Buttars, Friend, Ellipse, and MovieBlitz. The
banks involved were Frontier Community Bank (Frontier) and JP
Morgan Chase Bank (Chase). The first subpoena was issued on
April 21, 2011, for Buttars’s and Ellipse’s Frontier records from
January 1, 2007, through April 1, 2011. A second subpoena was
issued 	on 	March 	5, 	2012, 	for 	Buttars’s and 	Ellipse’s Chase
records from January 1, 2007, through April 1, 2011. A third and
final subpoena was issued, again to Frontier, on August 20, 2012,
for the account records of MovieBlitz and Friend ranging from
June 1, 2008, through December 31, 2010. Frontier produced the
requested records in “three or four” batches but failed to attach
custodial certificates to any of the batches.4 Instead, Frontier
4. The rule of evidence that allows records such as these to be
admitted 	into 	evidence 	is 	known 	as 	the 	business 	records
exception to the hearsay rule. See Utah R. Evid. 803(6). This rule
requires that (1) “the record was made at or near the time by . . .
someone with knowledge”; (2) “the record was kept in the
course 	of 	a 	regularly 	conducted 	activity 	of 	a 	business [or]
organization”; and (3) “making the record was a regular practice
of 	that 	activity.” 	Id. 	R. 	803(6)(A)–(C). 	The 	party 	seeking
admission of these records through this rule must show that
these conditions are met through either “the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11).” Id. R. 803(6)(D). In short, the party
must provide foundation for the records through a witness or a
certificate from the custodian “that must be signed in a manner
that, 	if 	falsely 	made, 	would 	subject 	the 	signer 	to 	criminal
(continued…)

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provided only two free-standing custodial certificates to Agent.
Chase, however, produced the records requested of it with an
adequate custodial certificate.
¶16 	Each 	subpoena 	directed 	the 	banks 	“that 	pursuant 	to
§ 77-22a-1(4), Utah Code, . . . you are not to disclose to any
person the existence or service of the subpoena, the information
being sought, or the existence of an investigation, as it could
impede this ongoing criminal investigation.” The district court
later found that because “[t]he State did not seek or obtain a
secrecy 	order 	from 	the 	Court 	[as 	required 	by 	section
77-22-2(6)(a)(i) of the Utah Code]5 to keep the investigation or
material 	obtained 	through 	the 	subpoenas 	secret,” 	“[t]he
inclusion of [the secrecy] language was in error.” The banks
adhered to these instructions, however, and Buttars did not
receive 	notice 	from 	the 	banks 	of 	the 	subpoenas 	or 	of 	the
subsequent disclosure of his bank records to Agent.
¶17 	After interviewing the investors and reviewing the bank
records, Agent discovered that Buttars had not informed the
investors of Ellipse’s and MovieBlitz’s low account balances at
the time they invested and that Buttars had been using investor
funds from the companies’ business accounts for illegitimate
purposes. He further discovered that investor money had been
(…continued)
penalty.” See id. R. 902(11). Otherwise, the records do not qualify
for admission under the exception.
5. 	The 	statute 	requires 	that 	before 	a 	subpoena 	with 	the
complained-of secrecy language can be issued, the State must
show 	that 	there 	is 	“a 	reasonable 	likelihood 	that 	publicly
releasing information about . . . the substance of the evidence
resulting from a subpoena or interrogation would pose a threat
of harm to a person or otherwise impede the investigation.”
Utah Code Ann. § 77-22-2(6)(a)(i) (LexisNexis 2017).

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directly deposited into Buttars’s personal checking account on
multiple occasions and that Buttars had initiated a number of
transfers from Ellipse’s and MovieBlitz’s accounts to his own
personal account, from which questionable payments had been
made.
¶18 	Agent found that at the time Mother invested her $5,000,
Ellipse had only $1,299 in its account, and within six weeks, all
of Mother’s investment had been spent. The records showed that
Buttars used 	that 	money, 	along 	with 	$10,000 	from 	another
investor, to pay his ex-wife for legal fees, purportedly for patent
work 	she 	performed 	months 	earlier; 	to 	pay 	a 	private
investigator; 	and 	for 	personal 	expenses 	such 	as 	groceries,
restaurant tabs, and gas. Buttars also transferred some of that
money to his own personal checking account to pay for personal
items such as a phone bill, insurance, and a satellite television
bill.
¶19 	The 	records 	also 	revealed 	that 	at 	the 	times 	Buttars
convinced Neighbor and Boyfriend to invest in MovieBlitz, its
account balance ranged between $0 and $597. Overall, Neighbor
and Boyfriend invested $11,000, of which $8,500 was directly
deposited into MovieBlitz’s account and $2,500 was directly
deposited into Buttars’s personal checking account. Soon after
these deposits were made, $5,715 of the amount deposited into
MovieBlitz’s 	account 	was 	transferred 	to 	Buttars’s 	personal
account and $500 was transferred to Friend’s personal account.
In 	general 	terms, 	the 	records 	showed 	that 	Neighbor’s 	and
Boyfriend’s 	investment 	money—found 	in 	both 	MovieBlitz’s
business account and Buttars’s personal checking account—was
used to pay another investor; make a debt settlement payment;
and pay for restaurant tabs, a talent agency, gas, groceries,
natural gas bills, child support, electric bills, clothing, and other
personal expenses. Only $859 was used toward MovieBlitz’s
incorporation in Nevada—one of the uses to which Buttars told
Neighbor and Boyfriend he would be putting their money. Not
long after Neighbor and Boyfriend invested with Buttars, the

State v. Buttars
20170436-CA 	9 	2020 UT App 87
account 	balances 	in 	the 	MovieBlitz 	account 	and 	Buttars’s
personal checking account were either zero, close to zero, or in
the negative.
¶20 	Finally, at the time of Ex-husband’s $10,000 investment,
MovieBlitz’s account had a balance of only $294 and, within a
month, all but $5 of his investment had been spent. The records
showed that Ex-husband’s $10,000 was initially deposited into
MovieBlitz’s account, but nearly $6,000 was soon transferred to
Buttars’s personal account while another $3,000 was transferred
to Friend’s personal account. The money transferred to Buttars’s
personal account was first used to make up a negative balance in
the account and then to pay for gas, groceries, restaurant tabs,
music, debt settlement, bail bonds, child support, and other
personal expenses. Agent also discovered that at the time the
investors invested in either Ellipse or MovieBlitz, those company
accounts were significantly underfunded, ranging from $0 at the
lowest to about $1,300 at the highest.
¶21 	As a result of Agent’s investigation, the State charged
Buttars with four counts of securities fraud and four counts of
theft—one count each for his dealings with the four investors
previously discussed—and one count of engaging in a pattern of
unlawful activity.
Bank Records, Summaries, and Cover Sheets
¶22 	Before proceeding to trial, Buttars moved to suppress the
Frontier and Chase bank records. Buttars argued that Agent
obtained the records in violation of “the Fourth Amendment to
the United States Constitution and Article I, § 12 of the Utah
State Constitution.” Specifically, he claimed that the subpoenas
issued 	to 	the 	banks 	“were 	unlawful” 	because 	“the 	State
inexplicably demanded that the subpoenaed parties not disclose
the existence of the subpoenas, [improperly] relying up[on] Utah
Code Ann. § 77-22a-1” and that “[t]his erroneous demand for
secrecy violated [Buttars’s] constitutionally protected rights to
privacy 	in 	[his] 	bank 	records.” 	Later, 	Buttars 	opposed 	the

State v. Buttars
20170436-CA 	10 	2020 UT App 87
admission of the records on the additional ground that “the
affidavits of the record custodians are either entirely missing or
otherwise fatally flawed,” rendering the records “inadmissible
hearsay [that] do not fall within the business records exception”
of rule 803(6) of the Utah Rules of Evidence.
¶23 	The district court denied Buttars’s motion to suppress the
records, ruling that (1) under the Subpoena Powers Act, the State
is not required “to provide notice to the subject of a criminal
investigation when the State initiates an investigation or issues
subpoenas”; 	(2) 	the 	improper 	the 	“inclusion 	of 	the 	secrecy
language 	. 	. 	. 	did 	not 	make 	the 	subpoenas 	unlawful 	or
unreasonable under” the United States or Utah constitutions
because “[t]he state met all the requirements of obtaining a
lawful subpoena”; and (3) even if the subpoenas were unlawful,
the 	good 	faith 	exception 	would 	apply 	because 	“the 	State
obtained judicial review of the investigative subpoenas and
reasonably relied on the Court’s approval of the subpoenas.”
The court did not address Buttars’s rule 803(6) argument in its
order.
¶24 	Following the court’s ruling, the State had an expert
(Expert) prepare summaries of the bank records, with detailed
cover 	sheets 	containing 	Expert’s 	notations 	and 	opinions 	on
certain transactions, which gave an overview of the financial
information previously discussed. See supra ¶¶ 17–20. The cover
sheets also tracked Buttars’s use of the investment money from
the four investors. The State then sought a pretrial ruling on the
admissibility of the summaries and the underlying bank records
under rules 703, 803(6), 807, and 1006 of the Utah Rules of
Evidence.
¶25 	The district court ruled that the underlying bank records
were 	not 	admissible 	as 	business 	records 	under 	rule 	803(6)
because 	the 	State 	was 	not 	“able 	to 	establish 	the 	necessary
foundation” 	under 	rule 	902(11) 	due 	to 	the 	missing 	and
untethered custodial certificates. But it ruled that both “the bank

State v. Buttars
20170436-CA 	11 	2020 UT App 87
records 	and 	bank 	summaries 	[were] 	admissible 	under 	the
residual hearsay exception” of rule 807 because the bank records
and summaries met the rule’s admissibility criteria.6 Finally, the
court ruled that because the bank records were admissible, the
summaries of the bank records were also admissible under rule
1006. And “[b]ecause the bank records and summaries [were]
admissible for their substance under Rule 807, the Court [did]
not 	address whether the 	records or 	summaries [were] 	also
admissible 	under 	Rule 	703.” 	The 	court 	did 	not 	distinguish
between 	the 	summaries 	and 	cover 	sheets, 	apparently
considering the cover sheets to be part of the summaries.
Trial
¶26 	The State called Expert to testify and had the summaries
and the attached cover sheets admitted through him, but the
actual bank records were not admitted. Expert testified that the
summaries he compiled were based on the bank records he
examined and that they “fairly and accurately reflect[ed]” those
records. The cover sheets contained Expert’s commentary and
opinions labeling certain transactions, such as the payments for a
private investigator, groceries, a talent agency, and phone bills
as “questionable” or “potentially legitimate,” and money in
Buttars’s 	personal 	checking 	as 	being 	“commingled” 	with
“investor money.” Over the course of his direct examination,
Expert went through a detailed explanation of the cover sheets
6. Rule 807 requires that for hearsay to be admissible under the
residual exception it must (1) have “equivalent circumstantial
guarantees of trustworthiness,” (2) be “offered as evidence of a
material fact,” (3) be “more probative on the point for which it is
offered than any other evidence that the proponent can obtain
through reasonable efforts,” and (4) be such that “admitting it
will best serve the purposes of these rules and the interests of
justice.” Utah R. Evid. 807(a)(1)–(4). The district court found that
the bank records satisfied these four requirements.

State v. Buttars
20170436-CA 	12 	2020 UT App 87
and, to a lesser extent, the summaries themselves, explaining
why he labeled certain transactions as questionable and money
in the bank accounts as commingled. Overall, Expert’s testimony
was tied to the cover sheets he created, and the State used these
cover sheets and the summaries as the primary evidence to show
how Buttars misused investor funds.
¶27 	After hearing testimony from Expert, the four investors,
Partner, and other board members and corporate officers of
Ellipse, the jury found Buttars, who did not testify, guilty on all
counts of securities fraud and one count of pattern of unlawful
activity, but it acquitted him of the four theft charges. Buttars
appeals.
ISSUES AND STANDARDS OF REVIEW
¶28 	Buttars primarily argues that “[t]he Frontier bank records
were inadmissible hearsay” and thus the summaries that “relied
either solely or mostly on the Frontier records” were likewise
inadmissible. Conversely, the State asserts that the bank records
and the summaries were properly admitted by the district court
under the residual exception to the hearsay rule found in rule
807 of the Utah Rules of Evidence.7 “In reviewing hearsay
7. The State also asserts that even though the court ruled that the
Frontier records were not admissible under the business records
exception to the hearsay rule, “the majority of the records were
properly certified and should have been ruled admissible under
that exception.” The State claims that the bank records received
from Frontier in response to the first subpoena “were produced
in two distributions, each with its own custodial certification,”
and that the records received as a result of the second subpoena
“were produced via a secure email . . . with[out] a custodial
certificate,” resulting in Agent receiving only three batches of
records from Frontier.
(continued…)

State v. Buttars
20170436-CA 	13 	2020 UT App 87
rulings, 	we 	review 	legal 	questions 	for 	correctness, 	factual
questions for clear error, and the final ruling on admissibility for
abuse of discretion.” State v. McNeil, 2013 UT App 134, ¶ 14, 302
P.3d 844, aff'd, 2016 UT 3, 365 P.3d 699.
(…continued)
The record on appeal is fairly confusing on this point. There
are two custodial certificates in the record from Frontier dated
after 	the 	first 	subpoena 	and 	before 	the 	second 	subpoena,
seeming to indicate that the certificates were for the two batches
that were produced as a result of the first subpoena issued to
Frontier. But we cannot conclusively state that this is the case
because the batches are not part of the record on appeal and
there was confusion below as to whether there were only two
batches delivered before the second subpoena was issued and
only three batches in total. Agent testified that he obtained
records from Frontier “three or four times.” Agent also said that
he “probably picked up physical[] records twice” and then
Frontier “mail[ed] [him] a duplicate copy of one of the sets of
records” and then he received the last batch through “a secure
email with those records attached.”
The district court subsequently found that “[t]he testimony is
that there were three or four batches of records from Frontier
Bank 	[and] 	[t]here 	are 	two 	certificates 	of 	authentication 	or
declaration.” It continued, however, that “[i]t is unclear from the
testimony and evidence what certificates go with which batch”
because 	“there 	was 	no 	testimony 	to 	support 	where 	these
certificates of authentication went, and with what records.”
In considering an alternative ground for affirmance, we are
“limited to the findings of fact made by the trial court and may
not find new facts or reweigh the evidence in light of the new
legal theory or alternate ground.” Bailey v. Bayles, 2002 UT 58,
¶ 20, 52 P.3d 1158. Because the State’s alternative theory of
admissibility is contrary to the district court’s findings, it does
not provide an alternative ground for affirmance.

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20170436-CA 	14 	2020 UT App 87
¶29 	Second, Buttars asserts that the district court erred in
denying his motion to suppress the bank records because they
were 	“unconstitutionally 	seized” 	due 	to 	the 	subpoenas’
inclusion of the secrecy language contained in Utah Code section
77-22a-1(4). “We review a trial court’s decision to grant or deny a
motion to suppress for an alleged [constitutional] violation as a
mixed question of law and fact.” State v. Fuller, 2014 UT 29, ¶ 17,
332 P.3d 937. “[T]he court’s factual findings are reviewed for
clear 	error 	[while] 	its 	legal 	conclusions, 	. 	. 	. 	including 	its
application of law to the facts of the case,” are reviewed for
correctness. Id. Even though we reverse Buttars’s convictions on
another ground, we address this issue because it will likely arise
again on remand. See generally State v. Low, 2008 UT 58, ¶ 61, 192
P.3d 867 (recognizing an appellate court’s ability to address
“other issues presented on appeal that will likely arise during
retrial”).8
ANALYSIS
I. Admissibility of Bank Records
¶30 	Hearsay is an out-of-court statement offered “to prove the
truth of the matter asserted in the statement,” Utah R. Evid.
801(c), and is ordinarily inadmissible at trial,9 id. R. 802. But the
Utah Rules of Evidence provide certain exceptions to the general
8. Buttars also contends that the district court erred in allowing
Expert to give “testimony that violated rules 702, 704, and 403”
of the Utah Rules of Evidence and that his trial counsel provided
ineffective 	assistance 	in 	three 	respects. 	Because 	we 	reverse
Buttars’s 	conviction 	on 	the 	ground 	that 	the 	court 	erred 	in
admitting his bank records and the summaries, we do not
consider these further assertions of error.
9. It is undisputed in this case that the bank records are hearsay.

State v. Buttars
20170436-CA 	15 	2020 UT App 87
prohibition on the admission of hearsay evidence. Pertinent to
the issue at hand are two exceptions. The first is what is known
as the business records exception, found in rule 803(6). This rule
allows records of a regularly conducted activity to be admitted if
(A) the record was made at or near the time by—or
from information transmitted by—someone with
knowledge;
(B) the record was kept in the course of a regularly
conducted 	activity 	of 	a 	business, 	organization,
occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of
that activity;
(D) all these conditions are shown by the testimony
of the custodian or another qualified witness, or by
a certification that complies with Rule 902(11) or
(12) or with a statute permitting certification; and
(E) 	neither 	the 	source 	of 	information 	nor 	the
method or circumstances of preparation indicate a
lack of trustworthiness.
Id. R. 803(6).
¶31 	The 	party 	seeking 	the 	admission 	of 	business records
under rule 803(6) must show that these conditions are met
through 	either 	“the 	testimony 	of 	the 	custodian 	or 	another
qualified 	witness, 	or 	by 	a 	certification 	that 	complies 	with
Rule 902(11).” Id. R. 803(6)(D). Under rule 902(11), a party
must provide foundation for the relevant records through a
certificate from the custodian “that must be signed in a manner
that, 	if 	falsely 	made, 	would 	subject 	the 	signer 	to 	criminal
penalty.” Id. R. 902(11). And regarding summaries of these
types of records and their admissibility, we have previously

State v. Buttars
20170436-CA 	16 	2020 UT App 87
held 	that 	“a 	summary 	cannot 	be 	used 	as 	a 	cover 	for
bringing inadmissible hearsay evidence into the courtroom.”10
Sunridge Dev. Corp. v. RB & G Eng'g, Inc., 2013 UT App 146, ¶ 20,
305 P.3d 171 (quotation simplified). “Thus, the proponent of
a 	summary 	must 	also 	show 	that 	the 	underlying 	records
are 	admissible, 	which 	typically 	requires 	a 	showing 	that
the records qualify under the business records exception to
the hearsay rule.” Id. See also International Harvester Credit Corp.
v. Pioneer Tractor & Implement, Inc., 626 P.2d 418, 422 (Utah 1981)
10. Buttars argues that the summaries were inadmissible in
their own right because they “did not prove the content of
the underlying bank records.” But because we ultimately hold
that the underlying Frontier records were inadmissible and
reverse on this basis, we do not need to address the presentation
of 	the 	summaries 	to 	the 	jury. 	This 	issue 	may 	arise 	again
on 	remand, 	however, 	so 	we 	note 	that 	the 	cover 	sheets
themselves—not 	necessarily 	the 	summaries—are 	concerning.
See generally State v. Low, 2008 UT 58, ¶ 61, 192 P.3d 867.
Under rule 1006 of the Utah Rules of Evidence, a party may
present “a summary, chart, or calculation to prove the content
of voluminous writings, recordings, or photographs that cannot
be 	conveniently 	examined 	in 	court.” 	Utah 	R. 	Evid. 	1006
(emphasis 	added). 	These 	summaries 	can 	only 	“prove 	the
content” of what they are summarizing, and Expert’s notations
on 	the 	cover 	sheets, 	characterizing 	certain 	transactions 	as
“questionable” 	and 	that 	money 	was 	“commingled” 	was 	an
inappropriate 	use 	of 	this 	rule, 	because 	these 	notations 	are
Expert’s opinion and 	not part of the content of the actual
underlying records. Although the cover sheets may well be
admissible 	as 	demonstrative 	evidence 	illustrating 	Expert’s
testimony, they do not constitute substantive evidence under
rule 1006. See generally State v. Perea, 2013 UT 68, ¶¶ 45–46, 322
P.3d 624 (explaining the distinction between substantive and
demonstrative evidence).

State v. Buttars
20170436-CA 	17 	2020 UT App 87
(“Rules governing the admissibility of documentary summaries
and of hearsay evidence must both be complied with.”).11
¶32 	The 	second 	pertinent 	rule 	is 	the 	residual 	hearsay
exception found in rule 807 of the Utah Rules of Evidence. That
rule provides:
Under 	the 	following 	circumstances, 	a 	hearsay
statement 	is 	not 	excluded 	by 	the 	rule 	against
hearsay even if the statement is not specifically
covered by a hearsay exception in Rule 803 or 804:
(1) 	the 	statement 	has 	equivalent
circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which
it is offered than any other evidence that the
proponent 	can 	obtain 	through 	reasonable
efforts; and
(4) admitting it will best serve the purposes
of these rules and the interests of justice.
Utah R. Evid. R. 807(a).
11. In the present case, the court deemed all the underlying bank
records admissible under the residual exception, but the State
did not seek to admit those records directly. Instead, it had
Expert prepare summaries of the records pursuant to rule 1006
and succeeded in having the summaries admitted. Therefore,
because the summaries were created from the underlying bank
records, if the bank records were inadmissible hearsay, then the
summaries 	are 	on 	no 	stronger 	footing 	and 	would 	likewise
constitute inadmissible hearsay.

State v. Buttars
20170436-CA 	18 	2020 UT App 87
¶33 	“The residual exception is a catchall provision that may
be applied when a hearsay statement ‘is not specifically covered
by 	a 	hearsay 	exception 	in 	Rule 	803 	or 	804.’”
State v. Clopten, 2015 UT 82, ¶ 23, 362 P.3d 1216 (quoting Utah R.
Evid. 807(a)). This exception “was intended for use in those rare
cases where, although the out-of-court statement does not fit into
a recognized exception, its admission is justified by the inherent
reliability of the statement and the need for its admission,” State
v. Nelson, 777 P.2d 479, 482 (Utah 1989), and is therefore “to be
used rarely and construed strictly,” State v. Workman, 2005 UT
66, ¶ 12, 122 P.3d 639. “Furthermore, several federal circuit
courts have said that [the residual exception] is to be ‘used very
rarely, and only in exceptional circumstances.’” State v. Webster,
2001 UT App 238, ¶ 26, 32 P.3d 976 (emphasis in original)
(quoting United States v. Trujillo, 136 F.3d 1388, 1395 (10th Cir.
1998)).
¶34 	We 	interpret 	our 	rules 	of 	evidence 	“like 	statutes, . . .
according to their plain language.” Burns v. Boyden, 2006 UT 14,
¶ 19, 133 P.3d 370. And when confronted with two potentially
applicable provisions, the “more specific in application governs
over the more general provision.” Carter v. University of Utah
Med. 	Center, 	2006 	UT 	78, 	¶ 	12, 	150 	P.3d 	467 	(quotation
simplified). In the present case, this means that the bank records
should not have been admitted on the strength of the residual
rule given the precise applicability and primacy of the business
records exception.
¶35 	Here, the business records exception is the specific rule
dealing with the bank records, and it therefore governs over the
more general, less favored residual exception. The business
records exception is in place so that parties can, in a regularized
and predictable way, seek to have these exact types of records
admitted into evidence. Parties are therefore required to comply
with this rule if they wish to seek admission of such records
because the residual exception was only intended to be used
when the records “do[] not fit into a recognized exception.”

State v. Buttars
20170436-CA 	19 	2020 UT App 87
Nelson, 777 P.2d at 482. The bank records in question absolutely
“fit” within the scope of the business records exception.
¶36 	We are not necessarily prepared to say that parties could
never seek to have business records admitted under the residual
rule, as we can envision scenarios in which a custodian of
business records has long since passed away or a company has
gone 	out 	of 	business 	and 	cannot 	produce 	the 	necessary
documentation to authenticate them under rule 902(11). In such
scenarios, parties might be able to have the business records
admitted under the residual exception, provided that they make
a compelling showing explaining why, even though the business
records do not satisfy the business records exception, the records
should nevertheless come in under the residual rule.
¶37 	But in the present case, it was error to admit the bank
records under the residual rule without a more compelling
explanation for why the business records exception would not
suffice. On appeal, the State concedes that “nothing in the record
. . . suggest[s]” that it could not have called a witness to testify or
obtained certification as required by rules 803(6) and 902(11).
Therefore, there is nothing to indicate that this case would be
one of those “rare cases,” Nelson, 777 P.2d at 482, featuring
“exceptional circumstances” that would warrant the use of the
residual 	exception, 	Trujillo, 	136 	F.3d 	at 	1395 	(quotation
simplified). See Clopten, 2015 UT 82, ¶ 23; Webster, 2001 UT App
238, ¶ 26. Thus, the bank records were not admissible under the
residual rule and, by extension, the summaries of those records,
which 	is 	one 	step 	removed 	from 	the 	business 	records
themselves, was also inadmissible.
II. Prejudice from Admission of the Frontier Records
¶38 	Having determined that the district court erroneously
admitted the bank records under the residual rule, we must now
consider whether the error prejudiced Buttars. See Utah R. Crim.
P. 30(a) (“Any error, defect, irregularity or variance which does
not affect the substantial rights of a party shall be disregarded.”).

State v. Buttars
20170436-CA 	20 	2020 UT App 87
To do this, “we must determine whether there is a reasonable
likelihood that the outcome of [Buttars’s] trial would have been
more favorable to him” had the court not erred in admitting the
bank records. See State v. Knight, 734 P.2d 913, 920 (Utah 1987).
“This determination . . . is based upon a review of the record . . .
[and] require[s] us to determine from the record what evidence
would have been before the jury absent the error.” Id.
¶39 	While the district court ruled that all the bank records
were inadmissible under the business records exception and
admitted them under the residual rule, it is clear that the Chase
records had the proper custodial certificates and were readily
admissible 	under 	the 	business 	records 	exception. 	Thus, 	we
analyze whether Buttars was prejudiced by the court’s error in
admitting the Frontier records, which lacked such certificates.
See supra note 7.
¶40 	The State asserts that Buttars has not suffered prejudice
from this error, arguing that the State could have simply called a
witness to testify or obtained certification as required by rules
803(6) and 902(11) of the Utah Rules of Evidence to authenticate
the 	Frontier 	records, 	thereby 	allowing 	their 	admission. 	But
nothing in the record suggests that this was actually the case. In
fact, the opposite is more likely. One assumes that if the State
could have so easily called a witness to vouch for the records or
obtained the necessary certification, it would have done so.
Instead, the State and Buttars litigated the admissibility of these
records at some length, and the State put all its eggs in the
residual rule basket. In April 2016, after the State moved for the
records to be admitted under rule 70312 or 803(6), the district
12. Rule 703 states that
[a]n expert may base an opinion on facts or data in
the case that the expert has been made aware of or
personally observed. If experts in the particular
field would reasonably rely on those kinds of facts
(continued…)

State v. Buttars
20170436-CA 	21 	2020 UT App 87
court ruled that the records were not admissible under rule
803(6) because the State “need[ed] to provide foundation in
support of the bank records to establish an indicia of reliability.”
It did not rule on the rule 703 portion of the State’s motion
because neither party fully briefed the issue, and it asked for
further 	briefing 	so 	that 	it 	could 	more 	fully 	consider 	that
rationale. In the requested briefing, the State strengthened its
rule 703 analysis but alternatively asked the court to admit the
records under the residual exception. Nearly two months after
its 	initial 	ruling, 	the 	court 	granted 	the 	State’s 	motion,
disregarding the rule 703 portion of the State’s analysis and
concluding that the bank records were admissible under the
residual rule.
¶41 	This procedural history appears to contradict the State’s
position on appeal that it could have easily called a witness to
testify and provide authentication or obtained certification for
the 	Frontier 	records 	under 	rules 	803(6) 	and 	902(11).13 	As
(…continued)
or data in forming an opinion on the subject, they
need 	not 	be 	admissible 	for 	the 	opinion 	to 	be
admitted. But if the facts or data would otherwise
be inadmissible, the proponent of the opinion may
disclose them to the jury only if their probative
value in helping the jury evaluate the opinion
substantially outweighs their prejudicial effect.
Utah R. Evid. 703.
13. Rule 803(6) requires that the party seeking the admission of
records 	through 	the 	business 	records 	exception 	provide
foundation 	for 	the 	records 	through 	“the 	testimony 	of 	the
custodian or another qualified witness, or by a certification that
complies with Rule 	902(11).” Utah R. Evid. 803(6)(D). Rule
902(11) provides that for business records to be admitted, the
foundation of the records must be “shown by a certification of
(continued…)

State v. Buttars
20170436-CA 	22 	2020 UT App 87
indicated, if it was such a simple task, we fail to see why the
State did not undertake it in the two-month period after the
court’s first ruling in April when it informed the State of the
problem 	with 	the 	records’ 	authentication. 	Rather 	than
continuing to try and get the records admitted under a different
rule—which result was less assured than if the State had simply
attempted to get them admitted under rule 803(6)—calling upon
the custodian to testify or furnish the required certification in
compliance with rule 803(6) would have been a much more
sensible way to proceed. And if, contrary to its position on
appeal, the State could not have done this, then it should have
made 	a 	more 	compelling 	showing 	of 	the 	problems 	with
authenticating the records in the usual way and then moved to
admit them under the residual exception. But the State did not
do so. Therefore, in analyzing prejudice, we are unwilling to
conclude that the State could have simply called the custodian as
a witness or obtained certification for the records to be admitted
under the business records exception.
¶42 	This is not the end of the prejudice inquiry, however,
because 	we 	must 	also 	determine 	whether, 	without 	these
inadmissible records, Buttars would have been likely to receive a
more favorable result at trial. To convict Buttars of securities
fraud, the State had to prove that he, “in connection with the
offer, sale, or purchase of any security, . . . [made] any untrue
statement of a material fact or . . . omit[ted] to state a material
fact necessary in order to make the statements made, in the light
of 	the 	circumstances 	under 	which 	they 	are 	made, 	not
misleading.” Utah Code Ann. § 61-1-1(2) (LexisNexis 2018). And
to convict him of a pattern of unlawful activity, the State was
required to prove that Buttars “engag[ed] in conduct which
(…continued)
the custodian or another qualified person that must be signed in
a manner that, if falsely made, would subject the signer to
criminal penalty.”

State v. Buttars
20170436-CA 	23 	2020 UT App 87
constitute[d] 	the 	commission 	of 	at 	least 	three 	episodes 	of
unlawful activity, which episodes [were] not isolated, but have
the same or similar purposes, results, participants, victims, or
methods 	of 	commission, 	or 	otherwise 	are 	interrelated 	by
distinguishing characteristics.” Id. § 76-10-1602(2).
¶43 	The cover sheets and the underlying summaries provided
the jury with a detailed explanation of how much money was in
the business accounts when Buttars solicited the investor money,
where the investor money was deposited, and how Buttars used
that money. The majority of the evidentiary backing for these
summaries 	and 	the 	cover 	sheets 	came 	directly 	from 	the
inadmissible Frontier records, and our review of the record on
appeal shows that it is not reasonably likely that Buttars would
have been convicted based on the Chase records alone. Indeed,
the 	summaries 	and 	cover 	sheets 	contained 	only 	fleeting
references 	to 	the 	Chase 	account, 	indicating 	that 	the 	State
understood that if it were to get a conviction, the Frontier
records were vital to its case.
¶44 	The State’s case hinged on the Frontier records, and
without those records, the State would have had an extremely
difficult task of proving that Buttars made misleading statements
that amounted to a pattern of unlawful activity. The Frontier
records were tied directly to testimony from the investors, who
explained what Buttars had told them regarding how he was
going to use their money and the great shape the companies
were in. The Frontier records showed that he did not use the
money in the manner which he told the investors he would and
that the companies were actually severely underfunded at the
time 	he 	solicited 	the 	investors’ 	money, 	thus 	making 	his
statements to the investors misleading or untrue. In conjunction
with the investors’ testimony, then, the Frontier records gave the
jury an adequate basis on which to find Buttars guilty on four
counts of securities fraud and one count of a pattern of unlawful
activity. But without these records, it is reasonably likely that the
jury would not have found that Buttars committed securities

State v. Buttars
20170436-CA 	24 	2020 UT App 87
fraud, much less that he perpetrated a pattern of unlawful
activity.
¶45 	The district court’s error in admitting the Frontier records
under the residual exception prejudiced Buttars because nothing
in the record on appeal establishes that the State could have
actually called a witness to authenticate the Frontier records or
obtained certification, and without the Frontier records there is a
“reasonable 	likelihood 	that 	the 	outcome 	of 	[Buttars’s] 	trial
would have been more favorable to him.” See State v. Knight, 734
P.2d 913, 920 (Utah 1987).
III. Suppression of the Bank Records
¶46 	Buttars asserts that the district court erred in denying his
motion to suppress the Frontier and Chase records, arguing that
the erroneous inclusion of the secrecy language from Utah Code
section 77-22a-1(4) rendered the subpoenas illegal, resulting in
the bank records being “unconstitutionally seized.” While the
statute was violated in a technical manner, mere violations of
statutes do not automatically rise to the level of a constitutional
violation. See Screws v. United States, 325 U.S. 91, 108 (1945)
(“Violation of local law does not necessarily mean that federal
rights have been invaded.”); Creative Env’ts, Inc. v. Estabrook, 680
F.2d 822, 833 (1st Cir. 1982) (“The violation of a state statute does
not automatically give rise to a violation of rights secured by the
Constitution.”) (quotation simplified). Buttars has not met his
burden of showing that the mere inclusion of the erroneous
secrecy language, which resulted in Buttars not receiving notice
of subpoenas he could not have quashed in any event, renders
the seizure of the bank records unreasonable and violative of his
Utah and United States constitutional rights.
¶47 	Insofar as Buttars asserts that he was entitled under the
statute to suppression of the bank records, his argument is
unavailing because he fails to demonstrate prejudice in that
regard. Rule 30(a) of the Utah Rules of Criminal Procedure
“foreclose[s] 	reversal 	of 	a 	conviction 	unless 	the 	error 	is

State v. Buttars
20170436-CA 	25 	2020 UT App 87
substantial and prejudicial in the sense that there is a reasonable
likelihood that in its absence there would have been a more
favorable result for the defendant.” State v. Dominguez, 2011 UT
11, ¶ 22, 248 P.3d 473 (quotation simplified). Buttars has not
shown that had the complained-of language not been included
in the subpoena and had he received notice of the subpoenas
that he would have been able to quash them. He argues that he
“was entitled to a pre-compliance opportunity to object [to the
subpoenas] regardless of whether he would ultimately succeed
in quashing them.” This is incorrect. Buttars must show that
“there is a reasonable likelihood that [absent the error] the
outcome . . . would have been more favorable to him.” State v.
Knight, 734 P.2d 913, 920 (Utah 1987). See Utah R. Crim. P. 30(a)
(“Any error, defect, irregularity or variance which does not
affect the substantial rights of a party shall be disregarded.”).
Buttars 	has 	not 	attempted 	to 	show 	that 	he 	would 	have
succeeded in quashing the subpoena and therefore has not
shown prejudice on this claim.
¶48 	Thus, we agree with the district court that “even if the
secrecy provision was not included in the subpoena[s], there is
no evidence that [Buttars] would have . . . successfully moved to
quash them” and thus that absent the error there is a reasonable
likelihood that he would have received a more favorable result.
“We therefore conclude that the [secrecy language] constituted
nothing more than [a technical error] which did not affect the
validity 	of 	the 	[subpoenas] 	and 	the 	search 	conducted
thereunder.” State v. Anderton, 668 P.2d 1258, 1262 (Utah 1983).
CONCLUSION
¶49 	Absent a showing by the State that the circumstances
required it to seek admission under rule 807 rather than under
the usual business records exception found in rule 803(6), the
district court erred in admitting the Frontier bank records under
the residual exception found in rule 807 of the Utah Rules of
Evidence. This error prejudiced Buttars because those records

State v. Buttars
20170436-CA 	26 	2020 UT App 87
constituted the bulk of the critical evidence presented, on which
the jury found Buttars guilty on four counts of securities fraud
and one count of pattern of unlawful activity. Without those
records, there is a reasonable likelihood that Buttars would have
received a more favorable result at trial. Accordingly, Buttars is
entitled to the new trial he requests, and we reverse and remand
for that trial or for such other proceedings as may now be
appropriate.