State v. Bruun and Diderickson

2017 UT App 182
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
A LLAN BRUUN AND J AMES DIDERICKSON ,
Appellants.
Opinion
Nos. 20140295-CA and 20140296-CA
Filed September 28, 2017
Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
Nos. 111903468 and 111903467
Clifton W. Thompson, Attorney for Appellant
Allan Bruun
Karra J. Porter and J.D. Lauritzen, Attorneys for
Appellant James Diderickson
Sean D. Reyes, Ryan D. Tenney, and Jeffrey S. Gray,
Attorneys for Appellee
JUDGE S TEPHEN L. R OTH authored this Opinion, in which J UDGE
GREGORY K. O RME and S ENIOR JUDGE P AMELA T. GREENWOOD
concurred.1
1. Judge Stephen L. Roth participated in this case as a member of
the Utah Court of Appeals. He retired from the court before this
decision issued. Senior Judge Pamela T. Greenwood sat by
special assignment as authorized by law. See generally Utah R.
Jud. Admin. 11-201(6).

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ROTH, Judge:
¶1 	Allan 	Bruun 	and 	James 	Diderickson 	appeal 	their
convictions on multiple counts of theft and one count each of a
pattern of unlawful activity. They further appeal the restitution
the district court ordered for those convictions. We affirm.2
BACKGROUND3
¶2 	In 1989, a Utah County couple (the Victims) bought forty-
two acres of land in Saratoga Springs. Although they sold
approximately 	thirteen 	acres 	over 	the 	years, 	they 	retained
twenty-nine acres (the Property) as a “nest egg” to fund their
retirement.
¶3 	In August 2007, the Victims entered into two agreements
with 	Bruun 	and 	Diderickson 	(collectively, 	Defendants) 	to
develop the Property. First, pursuant to a Real Estate Purchase
Agreement (REPC), the Victims agreed to sell the Property to
Equity Partners LLC, a company in which Defendants held
interests through another company, Four Winds Development
Group LLC (Four Winds).4 The purchase price was $3.5 million,
2. Although Bruun and Diderickson have separately appealed,
their cases were tried together below and they have raised the
same issues on appeal and submitted virtually identical briefing.
Accordingly, we consolidated State v. Bruun, No. 20140295, and
State v. Diderickson, No. 20140296, for purposes of this decision.
3. “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in the light most favorable to that verdict
and recite the facts accordingly.” State v. Nay, 2017 UT App 3,
¶ 2, 391 P.3d 367 (citation and internal quotation marks omitted).
4. The sole member of Equity Partners LLC was Four Winds;
Defendants comprised two of the three members of Four Winds.

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with $750,000 to be paid to the Victims up front. Second, the
Victims and Defendants formed Tivoli Properties LLC (Tivoli) to
develop 	the 	Property, 	with 	Equity 	Partners 	owning 	a 	75%
interest in the company and the Victims together owning the
remaining 25% interest. In connection with the formation of
Tivoli, 	the 	parties 	executed 	an 	operating 	agreement 	(the
Operating 	Agreement 	or 	the 	Agreement) 	setting 	out 	their
respective interests and describing, among other things, the
purpose, structure, and powers of Tivoli. Equity Partners was
designated as Tivoli’s Managing Member.
¶4 	Although under the REPC the Victims were to be paid
$750,000 	as 	a 	down 	payment 	toward 	the 	purchase 	of 	the
Property, 	once 	the 	Operating 	Agreement 	was 	signed,
Defendants informed the Victims that they were not able to
“come up with the money to make the purchase price and
continue with [the] purchase agreement as it was.” Defendants
persuaded the Victims to put the Property up as collateral for a
“hard-money 	loan” 	to 	“create 	some 	revenue” 	to 	begin
development. Defendants then entered into a short-term, high-
interest 	loan 	for 	the 	$750,000, 	which 	was 	secured 	by 	the
Property. Approximately $350,000 of the $750,000 was used to
pay off existing mortgages and taxes on the Property, and the
remaining money was “put into a checking account . . . for Tivoli
Properties.” 	This deposit 	constituted 	Tivoli’s only 	operating
funds and, according to the prosecution, was intended to fund
the initial development, which primarily consisted of completing
the “entitlement” process through which the city of Saratoga
Springs would approve the development of the Property. The
Victims understood that once entitlement was obtained from
Saratoga Springs, Tivoli would secure a construction loan with
better terms to replace the hard-money loan and fund the actual
development of the Property. In accordance with the Operating
Agreement, the Victims began receiving monthly distributions
from Tivoli’s funds as this process went forward.

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¶5 	Unbeknownst to the Victims, Equity Partners entered into
a joint venture agreement between Tivoli and Hidden Acres
LLC, another of Defendants’ companies, for development of
property located in Centerville, Utah. The Victims were aware of
a Hidden Acres project because Defendants had taken them to
visit the property at one point, but they were not told that Tivoli
had entered into an agreement to develop the Hidden Acres
property, nor did they consent to it. In May 2008, Defendants
informed the Victims that they were not able to pay the Victims
their 	regular 	distributions. 	When 	asked 	why, 	Defendants
responded with a “rough draft of what was spent on what” but
they did not provide any receipts. The Victims then accessed the
Tivoli account themselves and discovered that the remaining
balance had been reduced to only $1,083. They reviewed the
check-payment 	history 	over 	the 	previous 	six 	months 	and
discovered that Defendants had spent thousands of dollars on
expenses that appeared to be unrelated to the development of
the Property. For example, there were several checks written to
Four Winds for thousands of dollars in management fees; a
check for more than $30,000 related to a lot closing at the Hidden
Acres development; an earnest money check for purchase of
another property; and payments for equipment, landscaping,
and dump fees unrelated to the Property. Defendants had not
sought the Victims’ consent for any of these expenditures, nor
were the Victims aware of them until their own investigation.
¶6 	Around the time the Victims discovered the expenditures
from the Tivoli capital account, they found out Tivoli had not
made a single payment on the hard-money loan, which was then
coming 	due. 	To 	keep 	the 	lender 	from 	foreclosing 	on 	the
Property, Defendants asked the Victims to sign an agreement to
increase the balance on the short-term loan by another $100,000.
One of the Victims refused to sign and instead filed a notice of
default in an attempt to get the Property back and to keep it
from being auctioned by the hard-money lender.

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¶7 	In November 2008, the Victims and Defendants, along
with Equity Partners, Four Winds, Tivoli, and other interested
parties, entered into a settlement agreement (the Settlement). As
part of the Settlement, the Victims received title to the Property
and $174,000, which represented proceeds from the sale of .60
acres of the Property to the Utah Department of Transportation
(UDOT). In return, the Victims paid $25,000 to Equity Partners
and agreed to release that company from all claims related to its
management of Tivoli.
¶8 	About two and a half years later, in May 2011, the State
charged Defendants with a number of criminal offenses related
to their dealings with the Victims—twenty-eight counts of theft
of varying degrees, targeting individual checks written from the
Tivoli operating account, and one count of engaging in a pattern
of unlawful activity.
¶9 	Of 	central 	importance 	in 	the 	case 	was 	whether
Defendants 	were 	authorized 	to 	make 	the 	expenditures
represented 	in 	the 	checks. 	During 	preliminary 	hearing
proceedings, Defendants argued that the Operating Agreement
authorized the expenditures as a matter of law. The magistrate
determined, however, that “believable evidence exists to support
a conclusion that the checks were unauthorized” under the
Operating 	Agreement 	and 	bound 	Defendants 	over 	on 	the
charges.
¶10 	At trial, Defendants repeated their argument that the
Operating Agreement authorized the expenditures, and they
note on appeal that “much of the trial was consumed with
witnesses reading aloud, and then offering their interpretations
of, various language of the Operating Agreement.” Indeed,
Defendants explained to the jury that the Operating Agreement
was “the brains, . . . the rules, . . . the code book for how
[members] conduct [themselves]” and that the jurors would read
the Agreement and see for themselves that the “purpose of
[Tivoli] . . . wasn’t just to do the entitlement on [the Property].”

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Bruun also testified that he believed Defendants were authorized
to make the contested expenditures as well as enter into the
Hidden Acres joint venture on the basis of their management
authority under the Operating Agreement’s terms. The State
countered 	that 	“Tivoli 	Properties 	was 	established 	with 	the
express 	purpose 	of 	developing 	[the 	Property]” 	and 	that
Defendants spent “nearly a quarter million dollars” “for other
purposes,” 	such 	as 	“landscaping, 	dumping, 	[and] 	heavy
equipment” unrelated to the Property, as well as “other real
estate development projects that the Defendants had up in Davis
County.” The State elicited extensive testimony from the Victims
regarding their understanding of particular provisions of the
Operating Agreement relevant to the question of whether the
disputed checks were authorized. The State also presented an
expert 	forensic 	accountant, 	who 	opined 	that 	the 	Operating
Agreement and other representations made during the parties’
association did not authorize the majority of the expenditures at
issue.
¶11 	The trial court admitted the Operating Agreement as an
exhibit at trial and provided it to the jurors to use, together with
other 	evidence 	adduced 	at 	trial, 	to 	determine 	whether 	the
various contested expenditures amounted to thefts. Defendants
did 	not 	request 	that 	the 	court 	provide 	a 	jury 	instruction
construing the Operating Agreement and did not object to the
lack of any contract interpretation instructions.
¶12 	Each of the twenty-eight counts of theft the State brought
against Defendants related to individual checks drawn on the
Tivoli account. For each of Defendants, the State voluntarily
dismissed two counts during trial, and the jury returned not-
guilty verdicts on fourteen counts and guilty verdicts on twelve
counts. 	The 	checks 	the 	jury 	determined 	to 	be 	thefts 	all
represented expenditures for development projects other than
the Property. For example, the jury determined that the lot
closing payment and the equipment, landscaping, and dump fee
expenditures were thefts. The jury also convicted Defendants on

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the one count of pattern of unlawful activity. As part of their
sentences, the trial court ordered Defendants to jointly and
severally pay restitution in an amount equal to the value of the
checks the jury determined constituted thefts—$189,574.33.
¶13 	Defendants appeal their convictions and the restitution
order.
ISSUES
¶14 	Defendants raise five claims of error. First, they argue that
the trial court should have determined as a matter of law that the
Operating Agreement authorized Defendants’ use of the funds
in the Tivoli operating accounts for other development projects
or, if the question of authorization was not clear as a matter of
law, the court erred when it failed to instruct the jury regarding
the 	Operating 	Agreement’s 	provisions 	and 	effect. 	In 	the
alternative, Defendants argue that their use of Tivoli’s funds was
authorized as a matter of law by relevant provisions of the Utah
Revised Limited Liability Company Act, see Utah Code Ann.
§§ 48-2c-101 to -1902 (LexisNexis 2010),5 and that the jury should
have been instructed accordingly.
¶15 	Second, Defendants argue that the trial court incorrectly
interpreted the theft statute when it allowed the State to charge
Defendants with theft of the full value of each of the twelve
checks 	written 	on 	the 	Tivoli operating 	account 	rather 	than
limiting the value of the thefts to the Victims’ combined 25%
interest in the company.
5. The Utah Revised Limited Liability Company Act Defendants
rely upon was repealed and replaced effective January 1, 2016.
However, its provisions were in effect at all times pertinent to
the proceedings, and we cite them accordingly.

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¶16 	Third, Defendants argue that the trial court failed to
instruct the jury on the lesser included offense of wrongful
appropriation for each theft count.
¶17 	Fourth, Defendants argue that the trial court failed to
correctly instruct the jury that there was a minimum time frame
required to establish a pattern of unlawful activity and that, in
any event, the maximum time period encompassing the offenses
charged in this case—nine months—was insufficient as a matter
of law to support Defendants’ convictions.
¶18 	Fifth, Defendants argue that, in determining restitution,
the trial court failed to take into account the effect of the
Settlement between Defendants and the Victims.
¶19 	Finally, Defendants argue that we should reverse under
the cumulative error doctrine.
ANALYSIS
I. Authorization Under the Operating Agreement
and the LLC Act
¶20 	Defendants were charged with multiple counts of theft
under Utah Code section 76-6-404, which requires the State to
prove 	that 	a 	defendant 	“obtains 	or 	exercises 	unauthorized
control over the property of another with a purpose to deprive
him thereof.” They were charged on the basis of certain checks
they wrote from Tivoli’s account for expenses that the State
claimed 	were 	unrelated 	to 	development 	of 	the 	Property.
Defendants acknowledged that the majority of the disputed
checks on the Tivoli account went toward expenses related to
Defendants’ 	other 	development 	projects—in 	particular, 	the
Hidden Acres development.
¶21 	On 	appeal, 	Defendants 	argue 	that 	their 	convictions
should be reversed because, as a matter of law, their actions

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“were expressly authorized by two sources that should have
been interpreted, and applied, by the trial court”—the Operating
Agreement and Utah’s Revised Limited Liability Company Act
(the LLC Act or the Act). They contend that the Operating
Agreement’s 	provisions—particularly 	those 	related 	to
managerial 	powers—authorized 	them 	to 	enter 	into 	joint
ventures and make expenditures unrelated to the Property’s
development, and that, on this basis, the court should have
decided that their actions were authorized as a matter of law. In
the 	alternative, 	they 	contend 	that 	even 	if 	the 	Operating
Agreement was ambiguous about the issue of authorization, the
court should have sua sponte identified the precise nature of the
ambiguity for the jury and appropriately instructed the jury
regarding its role in interpreting the Operating Agreement. And
although Defendants concede that the issue was not raised
below, they argue that the LLC Act also authorized their actions
as a matter of law and request that we review the issue under
the doctrines of plain error, ineffective assistance of counsel, and
manifest 	injustice. 	We 	first 	address 	whether 	the 	Operating
Agreement authorized Defendants’ actions and whether the
court 	erred 	in 	not 	instructing 	the 	jury 	regarding 	contract
interpretation. We then address whether the LLC Act authorized
their actions.
A. 	The Operating Agreement
¶22 	Defendants 	argue 	that 	the 	question 	of 	whether 	their
actions were authorized should have been decided by the court
as a matter of law, not as a question of fact to be sent to the jury.6
6. We question whether this issue was preserved. We have had
difficulty identifying in the voluminous record the point at
which Defendants asked the court to decide this issue in the way
they have presented it on appeal. Nevertheless, neither party has
raised preservation as a barrier to our review of this issue, and
(continued…)

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Certainly, 	if 	the 	Operating 	Agreement 	unambiguously
authorized 	the 	expenditures 	for 	which 	Defendants 	were
convicted, the theft counts would have been susceptible to
dismissal by the court as a matter of law because the State could
not have proved the “unauthorized control” element of the theft
offenses. See State v. Burton, 800 P.2d 817, 819 (Utah Ct. App.
1990). In Burton, for example, we reversed the defendant’s theft
conviction 	because 	we 	determined 	that 	“[t]he 	terms 	of 	the
contract 	underlying 	[the] 	transaction 	are 	unambiguous 	and
create no express duty requiring Burton to pay over the sums
received from [the alleged victim].” Id. And we noted in a later
case that “we reversed Burton’s theft conviction because there
was 	no 	legal 	basis 	for 	finding 	that 	Burton 	exercised
‘unauthorized 	control’ 	over 	the 	funds paid 	by 	[the 	alleged
victim] to Burton.” State v. Larsen, 834 P.2d 586, 591 (Utah Ct.
App. 1992). However, we determined that the agreement at issue
in Larsen could not be read to authorize the defendant in that
case charged with theft of partnership property “to deal with
partnership 	property 	as 	he 	wished.” 	Id. 	We 	reasoned 	that,
“[a]lthough 	the 	partnership 	agreement 	granted 	the 	general
partners numerous powers,” it “did not authorize defendant to
deal with partnership property in a manner that he knew was
not in the partnership’s best interests.” Id. We concluded that, as
a consequence, “there was a legal basis for finding ‘unauthorized
control’, and it was for the jury to decide whether a theft was
committed.” Id.; cf. Sullivan v. Louisiana, 508 U.S. 275, 277 (1993)
(explaining that, pursuant to the Sixth Amendment’s right to
trial by jury, “although a judge may direct a verdict for the
defendant if the evidence is legally insufficient to establish guilt,
he 	may 	not 	direct 	a 	verdict 	for 	the 	State, 	no 	matter 	how
overwhelming the evidence”).
(…continued)
we therefore address it on its merits, noting that the result is the
same, regardless.

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¶23 	Here, 	because 	the 	trial 	court 	sent 	the 	Operating
Agreement to the jury along with all other evidence pertaining
to the thefts charged, the court implicitly determined that the
Operating Agreement’s provisions were either ambiguous as to
the 	element 	of 	authorization, 	see 	Holladay 	Bank 	& 	Trust 	v.
Gunnison Valley Bank, 2014 UT App 17, ¶ 12, 319 P.3d 747
(explaining what constitutes ambiguity in a contract), or that the
Agreement unambiguously did not allow Defendants’ actions, cf.
Sullivan, 508 U.S. at 277. Either way, the court determined that it
was 	proper 	for 	the 	jury 	to 	determine 	the 	element 	of
authorization and that the case could not be dismissed on the
basis 	of 	the 	Operating 	Agreement’s 	provisions. 	Cf. 	State 	v.
Walker, 2017 UT App 2, ¶ 24, 391 P.3d 380 (explaining that “a fact
question, or a mixed question of law and fact, does not morph
into a pure legal question for Sixth Amendment purposes merely
because 	the 	evidence 	is 	overwhelming 	and 	might 	be
characterized as supporting only one reasonable conclusion as a
matter of law”). We conclude that the trial court did not err in
submitting the issue of authorization to the jury. In particular,
we 	are 	not 	persuaded 	by 	Defendants’ 	argument 	that 	the
Operating Agreement unambiguously authorized Defendants’
actions and that, as a result, the trial court ought to have decided
the element of authorization in Defendants’ favor as a matter of
law and dismissed the theft charges against them.
¶24 	“A contract’s interpretation may be either a question of
law, determined by the words of the agreement, or a question of
fact, determined by extrinsic evidence of intent.” Peterson v.
Sunrider Corp., 2002 UT 43, ¶ 14, 48 P.3d 918 (citation and
internal quotation marks omitted). Thus, it does not follow, as
Defendants seem to contend, that contractual language pertinent
to an element of a criminal charge must always be construed as a
matter of law. Rather, as emphasized in Burton, “[w]e construe
unambiguous contracts as a matter of law.” 800 P.2d at 819
(emphasis added). “The underlying purpose in construing or
interpreting a contract is to ascertain the intentions of the parties
to the contract.” WebBank v. American Gen. Annuity Service Corp.,

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2002 UT 88, ¶ 17, 54 P.3d 1139. As a first step, “[w]e look to the
writing itself to ascertain the parties’ intentions, and we consider
[e]ach contract provision . . . in relation to all of the others, with a
view toward giving effect to all and ignoring none.” Jones v. ERA
Brokers Consol., 2000 UT 61, ¶ 12, 6 P.3d 1129 (second alteration
and omission in original) (citation and internal quotation marks
omitted). “If the language within the four corners of the contract
is unambiguous, the parties’ intentions are determined from the
plain meaning of the contractual language, and the contract may
be interpreted as a matter of law.” WebBank, 2002 UT 88, ¶ 19
(citation and internal quotation marks omitted). “However, if the
language of the contract is ambiguous such that the intentions of
the parties cannot be determined by the plain language of the
agreement,” the contract’s interpretation becomes a question of
fact, and “extrinsic evidence must be looked to in order to
determine the intentions of the parties.” See id. (citation and
internal quotation marks omitted). “A contract is ambiguous if it
is capable of more than one reasonable interpretation because of
uncertain meanings of terms, missing terms, or other facial
deficiencies.” Holladay Bank & Trust, 2014 UT App 17, ¶ 12
(citation and internal quotation marks omitted).
¶25 	Among 	the 	major 	questions 	at 	trial 	related 	to 	the
authorization element of the theft charges was whether the
Operating Agreement limited Tivoli’s activities—and hence its
expenditures—solely 	to 	the 	Property. 	The 	State 	elicited
testimony suggesting that, properly interpreted, the Agreement
did just that, while Defendants contended that there was no such
constraint. The Operating Agreement contains provisions that
appear to support both sides of the question. For example, the
Agreement’s recitals explain that Tivoli was formed “to and for
the sole purpose of investing in, purchasing, selling, granting, or
taking 	an 	option 	on 	lands 	for 	investment 	purposes 	and/or
development,” a relatively expansive statement of the scope of
Tivoli’s business purpose. See Recital, Black’s Law Dictionary
(10th ed. 2014) (explaining that a recital is “[a] preliminary
statement 	in 	a 	contract 	or deed 	explaining 	the reasons for

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entering into it or the background of the transaction”). Similarly,
as Defendants point out, the “Business of the Company” section
provides 	“an 	express 	limitation” 	on 	the 	nature 	of 	Tivoli’s
business and the managerial powers, stating that “the Company
is intended to purchase and develop, hold and [sell] real estate
for investment purposes only, and no activities inconsistent with
such 	limited 	purposes 	shall 	be 	undertaken.” 	Finally, 	the
“Formation 	of 	Company” 	subsection 	similarly 	explains 	that
“[t]he Company was formed as a new venture for the purpose of
acquiring real property for development.” These provisions are
broad enough to suggest that the Operating Agreement could be
read to authorize investments and expenditures on real estate
development projects apart from the Property.
¶26 	On 	the 	other 	hand, 	a 	number 	of 	provisions 	in 	the
Operating Agreement appear to limit Tivoli’s activities to the
Property itself. In the definitions section, “Property” is defined
as the “approximately 29 acres of real property located in Utah
County, . . . which real property is the subject of the Purchase
Agreement,” and “Developer” is defined as “Tivoli Properties,
LLC, a Utah Limited Liability Company established to manage,
improve, subdivide, develop, lease, and sell the Property and to
perform all other activities reasonably related thereto.” The
“Purposes of the Company” subsection then explains that Tivoli
“is organized for the purpose of carrying on the business of
acquiring, 	managing, 	improving, 	subdividing, 	developing,
leasing and selling the Property or any other enterprise that
members may mutually agree upon.” (Emphasis added.) And
although the “Business of the Company” provision considered
in isolation is broadly written, it could reasonably be construed
to incorporate the more specific “Purposes of the Company”
provision to limit its breadth: “Equity Partners, LLC . . . shall
have full, exclusive and complete authority and discretion in the
management and control of the business of the Company for the
purposes herein stated . . . .” (Emphasis added.) Cf. Nephi City v.
Hansen, 779 P.2d 673, 675 (Utah 1989) (explaining that, “where
general terms follow specific ones, the rules of construction . . .

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require 	that 	the general 	terms be 	given a 	meaning 	that 	is
restricted to a sense analogous to the preceding specific terms”);
New York Ave. LLC v. Harrison, 2016 UT App 240, ¶ 21, 391 P.3d
268 (explaining that we “interpret the contract as a whole,
considering each contract provision in relation to all of the
others, with a view toward giving effect to all and ignoring
none” (brackets, ellipsis, citations, and internal quotation marks
omitted)).
¶27 	Thus, the Operating Agreement’s descriptions of Tivoli’s
business purpose do not appear to clearly authorize Tivoli (or
Equity Partners, on its behalf) to engage in real estate related
activities apart from the Property itself. In fact, as the State
argued below and on appeal, there appears to be a reasonable
basis in the Agreement from which to conclude that, unless the
members 	“mutually” 	agreed 	otherwise, 	Tivoli’s 	authorized
business activities were limited to development of only the
Property. See Holladay Bank & Trust, 2014 UT App 17, ¶ 12.
Accordingly, we conclude that the Operating Agreement did not
unambiguously authorize joint ventures between Tivoli and
other entities for investment in and development of property
other than the Property.
¶28 	A related issue at trial was whether Defendants had
managerial authority to make the expenditures they did on
Tivoli’s behalf. Defendants argued that the broad powers the
Operating Agreement gave to Tivoli’s managers encompassed
the contested expenditures, while the State argued that the
Agreement curtailed the managers’ authority to make those
expenditures without consent of all the members—including the
Victims. 	For 	example, 	Defendants 	argue 	that 	the 	“General
Powers of Managers” subsection gave the managers authority to,
among other things, “[p]urchase, lease, or otherwise acquire any
real or personal property” as well as “[p]articipate with others in
partnerships, joint ventures, and other associations and strategic
alliances.” However, they fail to acknowledge the caveat that
managers may participate in such partnerships, joint ventures,

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associations, and alliances “only where same are directly in
pursuit 	of 	the 	Business, 	as 	defined 	above,” 	which 	seems
arguably limited to development of the Property, as we have
discussed. In addition, Defendants argue that the “Policies”
subsection explains that in instances where the members do not
agree “with reference to the policies to be followed by the
company, the managing members shall have the right to decide
what policy or policies shall be followed” and that their decision
shall 	be 	considered 	“as 	final.” 	And 	a 	section 	addressing
“Conduct 	of 	the 	Company” 	provides 	that 	“[a]ny 	questions
regarding 	the 	conduct 	of 	the 	Company 	business 	shall 	be
determined by a vote of 100% of the Managing Members of the
Company.” Defendants contend that these management-related
provisions 	allowed 	them 	broad 	latitude 	to 	extend 	Tivoli’s
business—and its capital expenditures—beyond the Property.
¶29 	But 	the 	State 	contends 	that 	other 	sections 	of 	the
Agreement significantly limit the managers’ authority to take
certain actions, and a reasonable argument can be made that
several 	of 	those 	limitations 	apply 	to 	the 	expenditures 	and
investments that underlay the theft counts on which the jury
convicted. The “Limitations” on managers’ powers subsection of
the Operating Agreement provides that “no act shall be taken,
sum expended, decision made, obligation incurred or power
exercised by any Manager on behalf of the Company except by the
consent of One Hundred percent (100%) of all Membership Interests
with 	respect 	to” 	“[a]ny 	significant 	and 	material 	purchase,
receipt, lease, exchange, or other acquisition of any real or
personal property or business”; “[a]ny matter which could result
in a change in the amount or character of the Company’s
capital”; “[t]he commission of any act which would make it
impossible for the Company to carry on its ordinary business
and affairs”; and “[a]ny act that would contravene any provision
of the Articles or of this Operating Agreement.” (Emphasis
added.) These restraints can reasonably be interpreted to apply
to Defendants’ actions. As a result, given that the Operating
Agreement’s 	broad 	grant 	of 	authority 	to 	the 	company’s

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managers 	is 	qualified 	by 	specific 	restraints, 	we 	are 	not
persuaded 	that 	it 	unambiguously 	authorized 	Defendants 	to
make 	the 	non-Property-related 	expenditures 	underlying 	the
charges against Defendants.
¶30 	Thus, we conclude that the Operating Agreement did not
unambiguously authorize Defendants to use Tivoli’s capital for
the expenditures that underlay the theft charges against them.
Rather, while there are provisions in the Agreement from which
the 	jury 	might 	reasonably 	have 	concluded 	that 	the 	parties
intended Tivoli to engage broadly in real estate acquisition and
development and that Defendants were authorized to engage in
joint ventures and make the sorts of expenditures represented by
the checks, there are also provisions reasonably supporting a
conclusion that the parties intended Tivoli’s business to be
limited to development of the Property and that the Agreement
limited the managers’ ability to make the disputed purchases
and payments. See Holladay Bank & Trust v. Gunnison Valley Bank,
2014 UT App 17, ¶ 12, 319 P.3d 747 (“A contract is ambiguous if
it is capable of more than one reasonable interpretation because
of uncertain meanings of terms, missing terms, or other facial
deficiencies.” (citation and internal quotation marks omitted));
see also Daines v. Vincent, 2008 UT 51, ¶ 29, 190 P.3d 1269
(explaining that when there is ambiguity, “contrary [contract]
interpretations [are] reasonably supported by the language of
the contract” (citation and internal quotation marks omitted)).
When a contract is “determined to be ambiguous in 	some
respect[,] . . . the 	parties’ 	intended 	meaning . . . [becomes] 	a
question 	of 	fact 	to 	be 	determined 	by 	extrinsic 	evidence 	of
intent.” Florence v. Colbert, 2011 UT App 72, ¶ 2, 251 P.3d 246
(citation and internal quotation marks omitted).
¶31 	And, as the State points out, the court could reasonably
have determined that there was sufficient evidence to send the
theft counts to the jury and let the jury decide whether the
Operating Agreement’s constraints on Tivoli’s business and the
managers’ authority precluded Defendants from making the

State v. Bruun and Diderickson
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expenditures at issue. The parties presented extensive evidence
on the meaning of the Operating Agreement during trial. As
Defendants concede, “much of the trial was consumed with
witnesses reading aloud, and then offering their interpretations
of, various language in the Operating Agreement” regarding
whether they had authority under the Agreement to make the
expenditures at issue in the case. The State elicited testimony
and 	argued 	that 	Defendants 	lacked 	authority 	to 	make 	the
expenditures 	they 	were 	charged 	with, 	while 	Defendants
attempted to demonstrate that under the Agreement they were
not limited to making expenditures related only to the Property
and that they had authority as managers to involve Tivoli in
their other development projects and make the expenditures. As
a result, the evidence presented at trial on the issue of whether
the Operating Agreement authorized Defendants’ actions was
conflicting at best, but certainly not insufficient to submit to the
jury for decision. For example, as the State argues, the jury could
have decided that the dollar amount of some of the checks
qualified them as “significant purchases” and that several of the
larger checks were sufficiently “significant and material” to have
resulted in “a change in the amount” of Tivoli’s capital—both of
which required the consent of all of Tivoli’s members under the
Operating Agreement. Similarly, the jury could have decided,
based 	on 	the 	Operating 	Agreement’s 	language 	and 	related
testimony, that Tivoli’s business was limited to activities related
solely to the Property absent the “mutual agreement” of the
members 	and 	that 	certain 	checks 	involving 	investments 	or
expenditures in aid of other business ventures, such as Hidden
Acres LLC, were contrary to the “Purposes of the Company”
provision 	of 	the 	Operating 	Agreement. 	Thus, 	given 	the
ambiguity 	of 	the 	Operating 	Agreement 	and 	substantial
conflicting evidence about its meaning, we are not persuaded
that the trial court was required to interpret the Operating
Agreement to have authorized Defendants’ conduct as a matter
of law and dismiss the theft counts on that basis. See State v.
Clark, 2001 UT 9, ¶ 13, 20 P.3d 300 (“We will uphold the trial
court’s decision to submit a case to the jury if, upon reviewing

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the evidence and all inferences that can be reasonably drawn
from it, the court concludes that some evidence exists from
which a reasonable jury could find that the elements of the crime
had been proven beyond a reasonable doubt.” (citation and
internal quotation marks omitted)).
¶32 	In sum, because we are not persuaded that the Operating
Agreement unambiguously authorized Defendants’ actions, the
issue of whether Defendants were authorized to use Tivoli’s
capital as they did was properly submitted to the jury to decide
based on the Agreement’s language and the other evidence
presented of the parties’ intent. Cf. State v. Larsen, 834 P.2d 586,
591 (Utah Ct. App. 1992) (concluding that, because there was a
legal basis for the jury to find that the defendant’s actions were
unauthorized based on the partnership agreement, “it was for
the jury to decide whether a theft was committed”).
B. 	Jury Instructions
¶33 	Defendants also argue that, even if the trial court did not
err in sending the authorization question to the jury, it should
have provided an instruction identifying each ambiguity in the
Operating Agreement that the jury was required to resolve and
advising that the parties’ intent with regard to the managers’
authority must be determined as of the time the Operating
Agreement 	was 	entered 	into. 	This 	issue 	is 	unpreserved.
Defendants did not request such an instruction in the trial court
nor did they ask the court to identify contractual ambiguities for
the jury. “To preserve an issue for appeal, a party must present it
to the trial court in such a way that the trial court has an
opportunity to rule on that issue.” State v. Robinson, 2014 UT
App 114, ¶ 9, 327 P.3d 589 (citation and internal quotation marks
omitted). In particular, “[u]nless a party objects to an instruction
or the failure to give an instruction, the instruction may not be
assigned as error except to avoid a manifest injustice.” Utah R.
Crim. P. 19(e). “When a defendant asserts an unpreserved jury
instruction error on appeal on the basis that failure to review it

State v. Bruun and Diderickson
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would result in manifest injustice, we apply the same standard
as we do for plain error review.” State v. Sellers, 2011 UT App 38,
¶ 8, 248 P.3d 70. That is, the defendant must show that failure to
so instruct was an obvious, prejudicial error. See id. In this
regard, “relief is not available via the plain-error doctrine”
unless Defendants persuade us that the error they allege is
supported on the basis of settled law. See Thomas v. Mattena, 2017
UT App 81, ¶¶ 13–14, 397 P.3d 856; see also State v. Roman, 2015
UT App 183, ¶ 9, 356 P.3d 185 (“Thus, an error is not obvious if
there is no settled appellate law to guide the trial court.” (citation
and internal quotation marks omitted)); State v. Davis, 2013 UT
App 228, ¶ 32, 311 P.3d 538 (explaining that “[t]o establish that
the error should have been obvious to the trial court, [the
appellant] must show that the law governing the error was clear
at the time the alleged error was made” (second alteration in
original) (citation and internal quotation marks omitted)).
¶34 	Defendants have not established that reversal under the
plain error standard is appropriate. For instance, they claim that,
in the event an agreement does not unambiguously authorize
certain behavior in a criminal case, the trial court was required to
affirmatively 	“identify 	the 	nature 	of 	the 	ambiguity” 	in 	the
agreement for the jury. They claim the court could have done so
by, for example, explaining uncertainties in specific provisions of
the Operating Agreement or in the document as a whole. But the
only case Defendants cite to support their contention, Daines v.
Vincent, 2008 UT 51, 190 P.3d 1269, is a civil breach of contract
case where the issue was whether the district court correctly
directed a verdict on the basis that the plaintiff had previously
signed a release of claims that unambiguously included the
claims brought in the case. Id. ¶¶ 12–15, 18–19. The supreme
court 	agreed 	with 	the 	district 	court 	that 	the 	release
unambiguously released the defendants from the appellant’s
breach of contract claims. Id. ¶ 37. Daines did not address
whether 	a 	court 	is required 	to 	identify 	the 	“nature 	of 	the
ambiguity” in an agreement presented to a jury as evidence
relating to the rights or obligations of a 	contracting party,

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whether in a civil or a criminal case, much less establish that
failure to do so constitutes reversible error. And Defendants
provide 	no 	other 	authority, 	such 	as 	case 	law 	or 	model
instructions, to support their argument that the trial court was
obviously required to instruct the jury on the particulars of any
ambiguities 	in 	the 	Operating 	Agreement 	or 	about 	how 	to
determine the parties’ intent in the face of ambiguity. Instead,
their analysis is limited to conclusory assertions that “[i]f the
trial court found the Operating Agreement ambiguous, it would
have needed to identify the nature of the ambiguity” and that
“[o]nly after making these initial [ambiguity] determinations
could the court meaningfully direct the jury as to its charge.”
¶35 	Accordingly, Defendants have failed to demonstrate that
it would have been obvious to the trial court that it was required
to instruct the jury on the nature of any ambiguity in the
Operating Agreement or to specifically instruct the jury about
how 	to 	determine 	the 	parties’ 	intent 	from 	the 	Operating
Agreement. See Davis, 2013 UT App 228, ¶ 32. Consequently,
Defendants have failed to persuade us that failure to give such
an instruction resulted in manifest injustice, as required by rule
19(e) of the Utah Rules of Criminal Procedure.
C. 	The LLC Act
¶36 	Defendants 	argue 	in 	the 	alternative 	that, 	whatever
constraints on their authority may have existed in the Operating
Agreement, the LLC Act authorized as a matter of law their
decisions to use Tivoli’s funds to support or invest in other
projects.
1. 	Preservation
¶37 	The State contends that Defendants failed to preserve this
argument in the trial court. “In order to preserve an issue for
appeal, it must be specifically raised such that the issue is
sufficiently raised to a level of consciousness before the trial

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court so as to give the trial court an opportunity to address the
claimed error, and if appropriate, correct it.” State v. Noor, 2012
UT App 187, ¶ 5, 283 P.3d 543 (brackets, citation, emphasis,
ellipses, 	and 	internal 	quotation 	marks 	omitted). 	Defendants
concede the accuracy of the State’s assertion that trial counsel
“did not specifically request the court to interpret the LLC Act”
and in fact “did not mention [the LLC Act], . . . let alone ask the
trial court to apply it or to instruct the jury in accordance with its
provisions.” As a result, we agree with the State that questions
regarding the interpretation of the LLC Act, which Defendants
now raise on appeal, were not preserved. See id.
¶38 	“To the extent that Defendant[s] did not preserve [their]
claims before the trial court, [they] must establish plain error,
ineffective assistance of counsel, or exceptional circumstances to
warrant review by this court.” State v. Kozlov, 2012 UT App 114,
¶ 28, 276 P.3d 1207. Defendants argue that we can review the
issue under the plain error, ineffective assistance of counsel, and
manifest injustice exceptions. It is unclear—and Defendants do
not assist with any analysis on the issue—whether they believe
that “manifest injustice” is an additional preservation exception
applicable here. In any event, as a general rule, “[m]anifest
injustice is synonymous with the plain error standard.” State v.
Cox, 2012 UT App 234, ¶ 2, 286 P.3d 15 (citation and internal
quotation 	marks 	omitted). 	“To 	demonstrate 	plain 	error, 	a
defendant must establish that (i) an error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error is
harmful . . . .” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346
(brackets, citation, and internal quotation marks omitted). As
explained above, to succeed on plain error review, Defendants
must demonstrate that the error they allege is supported on the
basis of settled law. See State v. Davis, 2013 UT App 228, ¶ 32, 311
P.3d 538 (explaining that “an error is not obvious if there is no
settled appellate law to guide the trial court” (citation and
internal quotation marks omitted)).

State v. Bruun and Diderickson
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¶39 	“With respect to any ineffectiveness claim, a defendant
must first demonstrate that counsel’s performance was deficient,
in 	that 	it 	fell 	below 	an 	objective 	standard 	of 	reasonable
professional judgment. Second, the defendant must show that
counsel’s 	deficient 	performance 	was 	prejudicial—i.e., 	that 	it
affected the outcome of the case.” State v. Litherland, 2000 UT 76,
¶ 19, 12 P.3d 92 (citation omitted). “[W]e presume that counsel
has rendered adequate assistance,” State v. Dunn, 850 P.2d 1201,
1225 (Utah 1993) (citing Strickland v. Washington, 466 U.S. 668,
690 (1984)), and “[t]o establish a claim of ineffectiveness based
on an oversight or misreading of law, a defendant bears the
burden of demonstrating why, on the basis of the law in effect at
the time of trial, his or her trial counsel’s performance was
deficient,” State v. Edgar, 2017 UT App 53, ¶ 10, 397 P.3d 670
(citation and internal quotation marks omitted); id. ¶¶ 16, 18
(concluding that counsel was not deficient for failing to file a
motion “based on an unresolved proposition of law” and for
which “[t]he law on [the] issue [was] not settled in Utah”). In
this regard, plain error and ineffective assistance of counsel are
similar—an appellant cannot prevail under either standard if he
or she is unable to show that settled law supports the claims of
legal error. Compare Edgar, 2017 UT App 53, ¶¶ 10, 16, 18, with
Davis, 	2013 	UT 	App 	228, 	¶ 	32. 	And 	Defendants 	must
demonstrate all of the elements under either plain error or
ineffective assistance to prevail on either claim on appeal. See
Dunn, 850 P.2d at 1209 (plain error); McCamey v. State, 2017 UT
App 97, ¶ 11, 400 P.3d 1114 (ineffective assistance of counsel).
¶40 	As we explain below, we are not persuaded that it would
have been obvious to the trial court or counsel that the LLC Act
dictated a different result in this case.
2. 	The LLC Act’s Provisions
¶41 	Defendants’ arguments with respect to application of the
LLC Act rest on their claim that they owned effectively 75% of
Tivoli through their ownership interest in Equity Partners. They

State v. Bruun and Diderickson
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20140296-CA 	23 	2017 UT App 182
contend 	that 	the 	LLC 	Act 	authorized 	their 	use 	of 	Tivoli’s
operating capital to make expenditures related to the Hidden
Acres development because the LLC Act permits owners of more
than two-thirds of the interests in a limited liability company to
act with “extremely broad authority—even to take actions in
contravention to the operating agreement or the stated purpose
of the LLC.”
¶42 	“When we interpret statutes, our primary goal is to give
effect to the legislature’s intent in light of the purpose the statute
was meant to achieve.” Evans v. State, 963 P.2d 177, 184 (Utah
1998). “[W]e first look to the plain language of the statute and
give effect to that language unless it is ambiguous.” State v.
Jeffries, 2009 UT 57, ¶ 7, 217 P.3d 265. Like contracts, statutory
language is ambiguous if “its terms remain susceptible to two or
more reasonable interpretations after we have conducted a plain
language analysis.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011
UT 50, ¶ 15, 267 P.3d 863. Because we are reviewing this issue for
plain error and ineffective assistance, for Defendants to prevail
on appeal, they must persuade us that the statutory provisions
unambiguously authorized Defendants’ actions as a matter of
law. Otherwise, we cannot conclude that the law on this issue
was sufficiently settled to give rise to claims of plain error or
ineffective assistance of counsel. See Edgar, 2017 UT App 53,
¶¶ 10, 16, 18 (ineffective assistance of counsel); Davis, 2013 UT
App 228, ¶ 32 (plain error). We are not persuaded that the LLC
Act clearly authorized Defendants’ actions.
¶43 	The LLC Act “establish[es] the duties and powers of a
limited liability company.” See CCD, LC v. Millsap, 2005 UT 42,
¶ 23, 116 P.3d 366. In doing so, the Act addresses everything
from 	formation, 	governance 	of 	members, 	management 	and
distributions, to dissolution, winding up, and conversions and
mergers. See Utah Code Ann. §§ 48-2c-101 to -1902 (LexisNexis
2010). 	However, 	the 	LLC 	Act 	does 	not 	comprehensively
prescribe every detail of company management. Rather, the
legislature stated its intent that the Act “be interpreted so as to

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give the maximum effect to the principle of freedom of contract
and to the enforceability of operating agreements of companies.”
Id. § 48-2c-1901. To give this principle meaningful effect, the LLC
Act gives the members of an LLC broad authority to adapt a
number of the Act’s core provisions to meet their particular
governance needs:
[A]n operating agreement may modify the rules of
any provision of this chapter that relates to: (a) the
management of the company; (b) the business or
purpose of the company; (c) the conduct of the
company’s affairs; or (d) the rights, duties, powers,
and qualifications of, and relations between and
among, the members, the managers, the members’
assignees and transferees, and the company.
Id. § 48-2c-502(1). This flexible approach is directly reflected in
the provisions of the Act most pertinent to this appeal, found in
the 	part 	dedicated 	to 	“Management.” 	Indeed, 	nearly 	every
section describing management roles, duties, and operations
includes 	the 	proviso 	that 	the 	stated 	rules 	apply 	“unless
otherwise provided in the articles of organization or operating
agreement.” E.g., id. §§ 48-2c-801(2), -803, -803.1, -804(6), -805,
-807(3), -808. In this regard, we have recognized that “[u]nder
the LLC Act, members of an LLC are allowed great flexibility
when choosing how the LLC will be organized and managed,”
with 	“the 	provisions 	of 	the 	LLC 	Act 	serv[ing] 	as 	default
provisions that govern an LLC if its members do not include
contrary language in their operating agreement or in the LLC’s
articles of organization.” OLP, LLC v. Burningham, 2008 UT App
173, ¶ 18, 185 P.3d 1138; see also Duke v. Graham, 2007 UT 31, ¶ 19,
158 P.3d 540 (“In short, the LLC Act grants broad authority to
the members of an LLC to override its default provisions relating
to the management of the company through recognizing the
specific 	terms 	contained 	in 	a 	company’s 	operating
agreement . . . .” (internal quotation marks omitted)); DePatco,
Inc. v. Teton View Golf Estates, LLC, 2014 UT App 266, ¶ 11, 339

State v. Bruun and Diderickson
20140295-CA and
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P.3d 	126 	(explaining 	that 	the 	LLC 	Act 	“contemplates 	that
operating agreements may alter various ‘default’ provisions”).
¶44 	Nonetheless, 	Defendants 	point 	to 	several 	subsections
which they contend, read together, authorized them to “enter
into the [Hidden Acres] joint venture” and to use Tivoli’s money
to make expenditures for other development projects. First, they
look to section 48-2c-804, titled “Management by managers.”
This section defines the role of a manager under the LLC Act
and describes the actions a manager is authorized to take on
behalf 	of 	a 	company. 	Defendants focus specifically 	on 	two
subsections. Subsection (4) provides that “no manager shall have
authority 	to 	do 	any act 	in 	contravention 	of 	the 	articles of
organization or the operating agreement, except as provided in
Subsection 	(6)(g).” 	Subsection 	(6)(g) 	provides 	that 	“unless
otherwise provided in the articles of organization or operating
agreement of the company: (g) approval by: . . . (ii) members
holding 2/3 of the profits interests in the company, and 2/3 of the
managers 	shall 	be 	required 	for 	all 	matters 	described 	in
Subsection 48-2c-803(3).” Defendants claim that they qualify
under this subsection because they owned or controlled more
than two-thirds of the membership interests in Tivoli. Subsection
803(3) in turn identifies a list of actions that may be taken if 2/3
of the members vote, approve, or consent, including,
(a)(i) authorizing a member or any other person to
do any act on behalf of the company that is not in
the ordinary course of the company’s business, or
business of the kind carried on by the company; . . .
(c) resolving any dispute connected with the usual
and 	regular 	course 	of 	the 	company’s 	business;
[and] 	(d) 	making 	a 	substantial 	change 	in 	the
business purpose of the company.
Utah Code Ann. § 48-2c-803(3) (LexisNexis 2010). Defendants
contend that these sections together are dispositive on the issue
of their authorization to act as they did with Tivoli’s capital

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because Defendants “undisputedly held a greater than two-
thirds 	profits 	interest 	in 	Tivoli,” 	which 	meant 	they 	were
statutorily authorized to “enter into the [Hidden Acres] joint
venture 	and 	expend 	Tivoli 	funds 	on 	the 	Hidden 	Acres
development, 	regardless 	of 	any 	allegation 	that 	it 	was 	in
contravention of the Operating Agreement or not in the course
of Tivoli’s regular business.”
¶45 	In response, the State contends that, even if Defendants
held a two-thirds interest in Tivoli, the statute did not authorize
Defendants’ 	contested 	actions. 	The 	State 	asserts 	that 	the
Operating 	Agreement’s 	requirement 	for 	consent 	of 	all 	the
owners for the managers’ actions taken outside the scope of the
company’s business or in contravention of the Agreement’s
specific requirements overrode what amounted only to statutory
default provisions permitting a two-thirds membership majority
to avoid the business constraints of an operating agreement. The
State 	argues 	that, 	although 	subsection 	(6)(g), 	taken 	out 	of
context, may be read to permit members holding two-thirds or
more interest to exercise powers described in subsection 803(3),
subsection (6) itself—and therefore each of its subsections—
begins with the proviso, “unless otherwise provided in the
articles of organization or operating agreement of the company.”
The State notes that the Operating Agreement expressly requires
“consent of One Hundred percent (100%) of all Membership
Interests” 	for 	“[a]ny 	amendment 	or 	restatement” 	of 	the
Operating Agreement, “[a]ny change in the character of the
business and affairs of the Company,” “[a]ny significant and
material purchase,” and the “commission of any act which
would make it impossible for the Company to carry on its
ordinary business and affairs.” And, the State argues, the thefts
charged against Defendants involved just this sort of prohibited
management conduct.
¶46 	Defendants 	respond, 	however, 	that 	the 	most 	logical
interpretation 	of 	subsection 	804(4)’s 	proviso, 	excepting
management actions described in subsection 804(6)(g) from the

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constraints of an operating agreement, requires that subsection
804(6)’s prefatory proviso, that the actions may be taken “unless
otherwise provided in . . . the operating agreement,” not apply
once subsection 804(4) has been invoked. Defendants argue that
“[t]he only reasonable meaning of Section 804(4) is that, when it
mentioned 	804(6)(g), 	that 	is 	what 	it 	meant—(6)(g)” 	alone,
without the prefatory language of subsection (6). Defendants
claim 	that, 	otherwise, 	subsection 	804(4) 	“could 	never 	be
triggered” if the 806(6) prefatory proviso applies, because “a
manager 	could 	never 	act 	in 	contravention 	of 	an 	operating
agreement”; as a matter of simple logic, “if the action is in
contravention 	of 	the 	operating 	agreement, 	that 	means 	the
operating 	agreement 	‘otherwise 	provides’ 	some 	prohibition
against 	the 	action.” 	Defendants 	also 	argue 	that 	the 	State’s
contrary interpretation is “not only circular but inconsistent with
the actual wording and purpose of the statute,” where the “Act
is intended to afford flexibility to LLC members” and one way to
achieve this “is to permit those with the biggest stakes . . . in
conjunction 	with 	those 	who 	have 	been 	given 	management
authority to take actions in a more flexible and timely manner,”
a description they claim perfectly fits Defendants.
¶47 	We acknowledge that there is some logic to Defendants’
interpretation, 	and 	their 	argument 	illuminates 	a 	potential
inconsistency in the statute if subsection 804(6)’s introductory
proviso is included when subsection 804(4) is invoked. But it is
certainly 	not 	obvious 	that 	804(4) 	is 	meant 	to 	incorporate
804(6)(g) without 804(6)’s broad qualification giving primacy to
contrary provisions of an operating agreement, especially in
light of the LLC Act’s overarching policy elevating the specific
agreements of a company’s members over the default provisions
of the Act. And we are not convinced that an interpretation
which includes the (6)(g) proviso necessarily renders subsection
804(4) a nullity, as Defendants contend. But even assuming that
it would, Defendants essentially ask us to narrowly employ the
“canon 	of 	independent 	meaning” 	in 	a 	manner 	and 	under
circumstances that obviously undercut the relevant underlying

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policy in the LLC Act to give “maximum effect” to “freedom of
contract and to the enforceability of operating agreements of
companies” in areas of management authority that seem crucial
to the protection of minority members from the will of the
majority. See Utah Code Ann. § 48-2c-1901 (LexisNexis 2010);
Lancer Ins. Co. v. Lake Shore Motor Coach Lines, Inc., 2017 UT 8,
¶ 13, 391 P.3d 218 (explaining that the canon of independent
meaning “expresses . . . a reluctance to attribute to the legislature
the intent to adopt a nullity,” and “presumes that each provision
of 	a 	statute 	has 	meaning 	independent 	of 	all 	others”). 	Our
supreme court has explained in the context of interpreting the
LLC Act that this is something courts ought to avoid.
¶48 	In CCD, LC v. Millsap, 2005 UT 42, 116 P.3d 366, our
supreme court explained that we should “construe the meaning
of 	the 	[LLC 	Act] 	in 	a 	manner 	consonant 	with 	its 	policy
objectives” 	and 	avoid 	a 	“bare 	mechanical” 	plain 	language
reading that “strips away from its text all policy considerations”
that would instead favor “an artificial construction unrelated to
the Act’s purpose.” Id. ¶¶ 20, 25. The appellant in Millsap argued
that a plain language reading of the Act mandated that the LLC
could not expel him because the LLC’s operating agreement
permitted a member to withdraw by retiring and, at the time the
LLC attempted to expel him, “he had retired and was no longer
a member.” Id. ¶¶ 17–20. The supreme court noted that the
appellant’s argument “neatly reduce[d]” to a syllogism—under a
plain language reading of the LLC Act, “only members of
limited liability companies may be expelled; [the appellant] was
not a member; therefore, [the appellant] could not be expelled.”
Id. ¶ 19. But the court explained that “[t]here exists . . . no legal
principle that requires legislative enactments to be leashed to
Aristotelian logic” and that, while, “in the abstract . . . [the
appellant’s] syllogism is unassailable,” “when placed in the
context of applying a statute assigned the task of regulating the
formation and operation of limited liability companies, that
syllogism becomes starkly artificial and irrelevant.” Id. The court
explained that “the Act takes pains to preserve the statutory

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expulsion 	provisions 	against 	erosion 	through 	the 	terms 	of
operating agreements” and that the appellant’s reading would
“sanction[] by indirection what the Act directly prohibits.” Id.
¶ 24. The court accordingly declined to adopt the appellant’s
“protracted” 	plain-language 	reading 	and 	instead 	adopted 	a
reading of the LLC Act that was “consonant with its policy
objectives,” which it determined compelled the result that the
Act authorized the appellant’s expulsion. Id. ¶¶ 21, 25.
¶49 	Here, 	even 	if, 	“in 	the 	abstract” 	Defendants’ 	plain
language 	reading 	makes 	some 	sense, 	“when 	placed 	in 	the
context of applying a statute” that “takes pains to preserve”
freedom of contract in 	the areas of company management,
changes 	in 	business 	purpose, 	company 	conduct, 	and 	the
allocation 	of 	rights 	and 	powers 	as 	between 	managers 	and
members, Defendants’ reading contravenes the stated intent and
the relevant overall policy of the Act. Certainly the isolated
provisions of the Act relied on by Defendants on appeal do not
legally 	settle 	the 	question 	of 	whether 	at 	the 	time 	of 	trial
Defendants had authority to act as they did, especially given the
Act’s express policy and provisions aimed at giving primacy to
the parties’ own agreements over otherwise contrary “default”
provisions of the LLC Act itself.
¶50 	And Defendants’ assertions in this regard are even less
persuasive given that the result they urge—that provisions of the
LLC Act must be read to invalidate significant management
constraints in the Operating Agreement—appears to contradict
the terms of the Operating Agreement itself, which echoes the
notion that the provisions of the LLC Act operate only as a
default where the Operating Agreement itself does not address
the subject: “The rights and obligations of the Members shall be
as set forth in the [LLC] Act unless the Articles or this Agreement
expressly provide otherwise, in which case the provisions of the
Articles or this Agreement shall control.” (Emphasis added.)

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¶51 	Accordingly, because the provisions of the LLC Act that
Defendants rely on do not obviously authorize them to act in
contravention 	of 	relevant 	provisions 	of 	the 	Operating
Agreement, we are not persuaded that the trial court committed
plain error by sending the case to the jury on the theft element of
authorization in the face of settled law exonerating them or that
trial 	counsel 	performed 	deficiently 	by 	failing 	to 	make 	the
arguments with respect to the LLC Act that Defendants have
now made on appeal. See State v. Edgar, 2017 UT App 53, ¶ 16,
397 P.3d 670 (explaining that an appellant must demonstrate that
the law in effect at the time of trial supports his position in order
to demonstrate deficient performance); State v. Bell, 2016 UT App
157, ¶ 8, 380 P.3d 11 (“Plain error requires obvious, prejudicial
error.”); see also State v. Saunders, 893 P.2d 584, 591–92 (Utah Ct.
App. 1995) (explaining that as a general rule alleged errors that
are not obvious to the trial court will also not be obvious to
counsel), rev’d on other grounds, 1999 UT 59, 992 P.2d 951.
II. Percentage of Profits
¶52 	Defendants next argue that the trial court should have
instructed the jury that because Defendants “owned all but 25
percent of the allegedly stolen LLC funds,” “the value of the
allegedly stolen property was not more than 25 percent of the
checks at issue.” They contend that had the jury been properly
instructed, all but four counts would have been dismissed,
because the rest would have been reduced from the charged
felonies 	to 	misdemeanors 	and 	would 	therefore 	“have 	been
subject 	to 	dismissal 	based 	upon 	the 	two-year 	statute 	of
limitations” applicable to misdemeanor theft. See Utah Code
Ann. 	§ 	76-1-302(1)(b) 	(LexisNexis 	2012) 	(providing 	that 	“a
prosecution for . . . a misdemeanor . . . shall be commenced
within two years after it is committed”); see also id. § 76-6-412(c),
(d) (explaining the classifications of misdemeanor theft).
¶53 	The State responds that, under Utah law, “[i]t is no
defense [under the theft statute] that the actor has an interest in

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the property or service stolen if another person also has an
interest that the actor is not entitled to infringe.” Utah Code Ann.
§ 76-6-402(2) (LexisNexis 2012). The State argues that, as a result,
the 	Victims’ 	fractional 	interest 	in 	Tivoli 	did 	not 	provide
Defendants with a value-based defense to the theft charges. The
State also points out that, even if Defendants’ ownership interest
could 	provide 	a 	defense, 	it 	could 	not 	do 	so 	here, 	where
Defendants’ own “interest was in Tivoli,” a “legal entity distinct
from its members” and they accordingly had no direct interest in
Tivoli’s assets. We agree with the State.
¶54 	Defendants’ argument essentially presents “an issue of
statutory construction that we review for correctness, according
no particular deference to the trial court.” State v. Hawker, 2016
UT App 123, ¶ 5, 374 P.3d 1085 (citation and internal quotation
marks omitted). Utah Code section 76-6-402 expressly provides
that it is not a defense to theft that the accused owned some
interest in the stolen property “if another person also has an
interest that the actor is not entitled to infringe.” We have
applied this statute in circumstances analogous to this case. For
example, in State v. Larsen, 834 P.2d 586 (Utah Ct. App. 1992), the
defendant 	argued 	that 	the 	theft 	charges 	against 	him 	were
precluded because of his ownership interest as a partner in the
partnership whose assets he was accused of stealing. Id. at 590.
Citing Utah Code sections 76-6-402(2) and 404, we explained that
Utah has abandoned by statute the common law theory that
partners “cannot misappropriate what is already theirs.” Id.
Defendants’ argument here is essentially the same as Larsen’s—
they cannot be convicted of stealing what they already own by
virtue of their 75% ownership interest in Tivoli.7
7. We note that, even assuming that Defendants could limit the
value 	of 	the 	stolen 	money 	according 	to 	their 	fractional
ownership 	interest 	in 	Tivoli, 	the 	convoluted 	nature 	of
Defendants’ ownership interests seems to limit the applicability
(continued…)

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¶55 	And, as the State points out, both the LLC Act and the
Operating Agreement undermine Defendants’ argument that the
value of any theft they may have committed must be reduced by
any ownership interest they have in Tivoli. According to the Act,
an LLC “is a legal entity distinct from its members.” Utah Code
Ann. § 48-2c-104 (LexisNexis 2010). Even if a “member” of an
LLC (in this case, Equity Partners) has “an ownership interest”
in the LLC, id. § 48-2c-102(14), “[that] member has no interest in
specific property of [the] company,” id. § 48-2c-701(2). Thus,
under the LLC Act, Defendants’ ownership of 75% of Tivoli did
not entitle them to 75% of the company’s specific property—in
this case, the operating capital—to do with as they chose. The
Operating 	Agreement 	provides 	similarly. 	For 	example, 	the
definitions 	section 	of 	the 	Agreement 	expressly 	defines
“Membership Interest” as “a Member’s percentage interest in the
Company, consisting of the Member’s right to share in Profits,
receive distributions, participate in the Company’s governance,
approve the Company’s acts, participate in the designation and
removal of a Manager, and receive information pertaining to the
Company’s affairs.” Thus, by definition, the members’ interests
create 	proportional 	rights 	to 	profits, 	distributions, 	and
participation rights, not a right to access and use the company’s
operating capital. And the Agreement expressly states that the
$750,000 procured by Equity Partners through the hard-money
loan—the source of the money that Defendants were convicted
(…continued)
of this defense in the circumstances here. For example, the
members of Tivoli are Equity Partners, 75%, and both of the
Victims, collectively 25%. But Equity Partners itself is composed
of only one member—Four Winds, another LLC. And, as noted
above, Four Winds is comprised of three members, of which
only two are Defendants. Thus, even according to Defendants’
own 	argument, 	it 	is 	not 	clear 	how 	Defendants, 	acting 	as
individuals, could be said to own a clear 75% interest in Tivoli
given the stacked LLCs involved in Tivoli’s ownership.

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of 	stealing—“will 	be 	used 	as 	operating 	capital 	for 	the
Company.” See State v. Stites, 297 P.2d 227, 229 (Utah 1956)
(upholding a conviction of misapplication of corporate funds
even when the accused shareholder “owned all but four shares
of the stock” in a corporation, reasoning that “[s]o long as the
corporation is an entity and owns the money, and that money is
withheld or taken and used for non-corporate purposes, . . .
there is no escape from the conclusion that there has been a
wrongful and intentional misapplication of corporate funds”).
¶56 	Defendants’ reliance on State v. Parker, 137 P.2d 626 (Utah
1943), to support their argument that the value of the thefts
should have been limited to the Victims’ interest in Tivoli’s
funds is misplaced. Parker’s holding is limited to the proposition
that a bailor can be charged with theft of his own property if he
takes that property from a bailee who maintains a security
interest—a lien—in the property.8 Id. at 628–30. And although
the concurrences in that case suggested that the value of the
thefts should have been limited to the amount of the security
interest rather than the full value of the property and that the
jury ought to have been so instructed, see id. at 631 (Wolfe, J.,
concurring); id. at 633 (McDonough, J., concurring); id. at 634
(Wade, J., concurring), as Defendants concede, “the adequacy of
the jury instructions was not raised by the parties” in the case. In
any event, Defendants fail to explain why their situation—i.e.,
individuals with an attenuated equity interest in Tivoli through
membership in a chain of other LLCs—is comparable to a
common law bailor–bailee relationship, where the bailor is the
direct owner of the bailed property.
8. “Bailment” is “[a] delivery of personal property by one person
(the bailor) to another (the bailee) who holds the property for a
certain purpose, usually under an express or implied-in-fact
contract. Unlike a sale or gift of personal property, a bailment
involves a change in possession but not in title.” Bailment, Black’s
Law Dictionary (10th ed. 2014).

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¶57 	Accordingly, we are not persuaded that the trial court
erred when it failed to instruct the jury that the value of the
thefts 	was 	limited 	in 	proportion 	to 	Defendants’ 	ownership
interests in Tivoli or that certain of the charged thefts ought to
have been dismissed on that basis.
III. Lesser Included Offense
¶58 	Defendants 	argue 	that 	their 	convictions 	“should 	be
reversed for [the trial court’s] failure to instruct on the lesser-
included 	offense 	of 	wrongful 	appropriation.”9 	Defendants
concede 	that 	this 	issue 	is 	unpreserved, 	as 	trial 	counsel
affirmatively “forewent an instruction on the lesser included
offense of misappropriation.” They therefore raise the issue
under 	the 	doctrines 	of 	manifest 	injustice 	and 	ineffective
assistance 	of 	counsel. 	In particular, they 	contend that their
attorneys either (1) “reasonably believed there was a stipulation
with the State on which [they] relied in foregoing the instruction,
and on which the State later reneged,” or (2) “unreasonably
believed there was a stipulation with the State.” If Defendants’
counsel reasonably believed that there was a stipulation, then
they contend that our review of this issue “is necessary to
prevent 	manifest 	injustice.” 	And 	if 	counsel 	unreasonably
believed 	there 	was 	a 	stipulation, 	then 	“that 	unreasonable
action . . . fell 	below 	an 	objective 	standard 	of 	reasonable
professional judgment.” Either way, they contend, “a new trial is
required.”
¶59 	“When a claim of error regarding a jury instruction is
made for the first time on appeal, appellate courts review the
instruction for manifest injustice” under Utah Rule of Criminal
9. 	Utah 	Code 	section 	76-6-404.5 	provides 	that 	“[w]rongful
appropriation is a lesser included offense of the offense of theft”
and that it is “punishable one degree lower than theft.” Utah
Code Ann. § 76-6-404.5(3), (4) (LexisNexis 2012).

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Procedure 19(e). State v. Cox, 2012 UT App 234, ¶ 2, 286 P.3d 15
(internal quotation marks omitted). In this context, the manifest
injustice 	exception 	is 	“synonymous 	with 	the 	plain 	error
standard.” 	See 	id. 	(citation 	and 	internal 	quotation 	marks
omitted). 	In 	any 	event, 	here, 	Defendants’ 	trial 	counsel
affirmatively withdrew a request for a wrongful appropriation
instruction. Under the doctrine of invited error, “where a party
makes an affirmative representation encouraging the court to
proceed without further consideration of an issue, an appellate
court need not consider the party’s objection to that action on
appeal.” State v. Moa, 2012 UT 28, ¶ 27, 282 P.3d 985; see also State
v. Alfatlawi, 2006 UT App 511, ¶ 26, 153 P.3d 804 (explaining that
when 	an 	error 	is 	invited, 	“a 	party 	on 	appeal 	cannot 	take
advantage of [that] error committed at trial when that party led
the trial court into committing the error” (citation and internal
quotation 	marks 	omitted)). 	The 	doctrine 	of 	invited 	error
precludes review under even the manifest injustice exception.
See State v. Cooper, 2011 UT App 234, ¶¶ 8–9, 20, 261 P.3d 653.
Therefore, 	regardless 	of 	whether 	trial 	counsel 	reasonably
believed that a stipulation had been made with the State, by
withdrawing 	the 	request 	for 	the 	lesser 	included 	offense
instruction, counsel provided the trial court an “affirmative
representation [that] led the district court to commit the error
that [Defendants] now challenge[] on appeal.” See Moa, 2012 UT
28, ¶ 31. Accordingly, we decline to review this issue under
manifest injustice.
¶60 	While invited error precludes us from reaching the jury
instruction issue under manifest injustice, it does not preclude us
from reaching the issue under a claim for ineffective assistance
of counsel. See State v. McNeil, 2013 UT App 134, ¶ 25, 302 P.3d
844, aff’d, 2016 UT 3, 365 P.3d 699. To demonstrate ineffective
assistance of counsel, “a defendant must show, first, that his
counsel rendered deficient performance in some demonstrable
manner, which performance fell below an objective standard of
reasonable professional judgment and, second, that counsel’s
performance prejudiced defendant.” State v. Bedell, 2014 UT 1,

State v. Bruun and Diderickson
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¶ 20, 	322 	P.3d 	697 	(citation 	and 	internal 	quotation 	marks
omitted). “[B]oth prongs of the [ineffective assistance of counsel
test] must be met,” and “we need not address both components
of the inquiry if the defendant makes an insufficient showing on
one.” State v. Arriaga, 2012 UT App 295, ¶ 12, 288 P.3d 588
(citation and internal quotation marks omitted).
¶61 	Defendants argue that trial counsel’s decision to forgo the
lesser 	included 	offense 	instruction 	because 	of 	a 	perceived
stipulation with the State fell below the “objective standard of
reasonable 	professional 	judgment.” 	Specifically, 	Defendants
argue that trial counsel’s belief that the State had agreed to a
favorable 	post-verdict 	process 	was 	unreasonable. 	But 	an
appellate court reviewing trial counsel’s actions for ineffective
assistance does not have to accept at face value the explanation
appellant provides for the challenged decision. See Jackson v.
State, 2015 UT App 217, ¶ 19, 359 P.3d 659 (explaining that “our
consideration of counsel’s performance does not depend on
counsel’s 	subjective 	state 	of 	mind” 	(citation 	and 	internal
quotation marks omitted)). Instead, “we focus on the objective
reasonableness 	of 	counsel’s 	performance.” 	Id. 	(citation 	and
internal quotation marks omitted); see also State v. Christensen,
2014 UT App 166, ¶ 23, 331 P.3d 1128 (explaining that “we must
presume that counsel had a legitimate reason for his choices
where a plausible explanation for his choices can be posited”).
The question for our review is whether “a reasonable, competent
lawyer could have chosen the strategy that was employed in the
real-time context of trial.” State v. Barela, 2015 UT 22, ¶ 21, 349
P.3d 676 (emphasis added); see also State v. Tennyson, 850 P.2d
461, 	468 	(Utah 	Ct. 	App. 	1993) 	(“Given 	Strickland’s 	strong
presumption of competence, we need not come to a conclusion
that counsel, in fact, had a specific strategy in mind. Instead, we
need only articulate some plausible strategic explanation for
counsel’s behavior.” (citation omitted)).
¶62 	Here, we agree with the State that there was a plausible
basis for counsel’s decision not to request a lesser included

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offense instruction. For example, as the State suggests, trial
counsel could have decided to forgo a lesser included offense
instruction as part of an “‘all or nothing’ defense theory, i.e., that
[Defendants were] totally innocent of any wrongdoing.” State v.
Dyer, 671 P.2d 142, 145 (Utah 1983); see also State v. Feldmiller,
2013 UT App 275, ¶¶ 3–4, 316 P.3d 991 (per curiam) (concluding
that it was not ineffective assistance for trial counsel to withdraw
a request for a manslaughter instruction in a murder case where
defense counsel pursued an “all or nothing” strategy). Here,
pursuing the “all or nothing” strategy could have resulted in an
acquittal. See State v. Campos, 2013 UT App 213, ¶ 36, 309 P.3d
1160 (discerning no ineffective assistance where counsel pursued
“one middle-ground defense and [chose] to forego another,”
because, had the strategy prevailed, the defendant “would have
been entitled to acquittal”). And, as the State points out, the
burden of even misdemeanor criminal convictions could have
impaired future business opportunities for defendants such as
these, with otherwise clean criminal records. Similarly, counsel
could have concluded that a lesser included offense strategy
would have been inconsistent with, and accordingly weaken,
Defendants’ claim that they were completely innocent of theft.
Cf. id. (concluding that counsel’s decision to “forego another
[defense] that was arguably inconsistent with [the defendant’s]
version 	of 	the 	events” 	was 	not 	per 	se 	unreasonable 	trial
strategy).
¶63 	Under these circumstances, we are not persuaded that
Defendants’ trial counsel performed deficiently. And because
Defendants have not shown that their trial counsel performed
deficiently, 	we 	do 	not 	address 	whether 	counsel’s 	strategy
prejudiced Defendants. See Arriaga, 2012 UT App 295, ¶ 12.
IV. Pattern of Unlawful Activity
¶64 	Defendants next argue that their convictions for engaging
in a pattern of unlawful activity should be dismissed because
their actions took place over a period of less than a year, a time

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frame they contend was insufficient as a matter of law to
constitute 	a 	“pattern” 	under 	the 	Utah 	Pattern 	of 	Unlawful
Activity Act (the UPUAA). They point out that the supreme
court held in Hill v. Estate of Allred, 2009 UT 28, 216 P.3d 929, that
the “series of related predicates” which may constitute a pattern
of unlawful activity under the UPUAA must extend “over a
substantial 	period 	of 	time” 	or 	that 	there 	must 	be 	“a
demonstrated threat of continuing unlawful activity.” Id. ¶ 41.
Recognizing that “the Utah Supreme Court has not had occasion
to decide what constitutes a ‘substantial period of time’ under
Hill,” Defendants nonetheless argue that, based upon RICO law,
the federal analogue to the UPUAA, the period of less than nine
months in which Defendants wrote the checks underlying the
pattern 	of 	unlawful 	activity 	charges 	cannot 	constitute 	a
“substantial period of time.” And they contend that we should
rely 	on 	federal 	RICO 	law 	to 	determine 	that 	“the 	UPUAA
imposes a minimum threshold of at least one year to allege
closed continuity,” because the supreme court has looked to
federal RICO law in the past to interpret the UPUAA and federal
RICO law establishes that a “substantial period of time” must be
more than one year.
¶65 	Alternatively, they contend that their convictions should
be reversed because the jury was not adequately instructed
regarding 	the 	temporal 	element 	of 	“continuing 	unlawful
conduct.” Again relying on Hill, they argue that the jury was not
instructed, as it should have been, that it could find a pattern of
unlawful activity had occurred under the UPUAA only if it
extended over a substantial period of time. And characterizing
the “substantial period of time” part of the test as a “key
requirement,” they assert that the failure to so instruct the jury
requires reversal of their UPUAA convictions.
¶66 	Defendants 	concede 	that 	trial 	counsel 	did 	not 	seek
dismissal of the UPUAA counts or request a jury instruction
containing a “substantial period of time” element. Thus, their
arguments on this issue are not preserved. Nonetheless, they

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assert that we should review their claims under ineffective
assistance of counsel, plain error, and manifest injustice.
¶67 	As 	previously 	discussed, 	to 	sustain 	a 	claim 	that
Defendants 	received 	ineffective 	assistance 	of 	trial 	counsel,
Defendants must show that their counsel’s performance “was
both deficient and prejudicial.” State v. Cox, 2012 UT App 234,
¶ 2, 286 P.3d 15. To demonstrate that the court plainly erred,
they must show that “(i) an error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful—i.e.,
absent the error there is a reasonable likelihood of a more
favorable outcome.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d
346 (brackets, citation, and internal quotation marks omitted).
“To 	prevail 	on 	appeal, 	[Defendants] 	must 	establish 	all 	the
elements of either test.” See Cox, 2012 UT App 234, ¶ 2. Under
either ineffective assistance or plain error, the test for prejudice is
the same—a reasonable likelihood of a more favorable outcome.
See State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699. And manifest
injustice in the context of jury instruction claims is usually
“synonymous with the plain error standard.” State v. Cooper,
2011 UT App 234, ¶ 8, 261 P.3d 653 (citation and internal
quotation marks omitted).
¶68 	Defendants contend that their trial counsel was ineffective
for failing to move for dismissal of the pattern of unlawful
activity 	counts, 	contending 	that 	the 	“UPUAA 	imposes 	a
minimum 	threshold 	of 	at 	least 	one 	year” 	to 	establish 	an
actionable pattern of unlawful activity and that the facts in their
case show that, at most, the predicate acts occurred only over a
nine-month 	period. 	Because 	the 	claim 	of 	ineffectiveness 	is
“based 	on 	an 	[asserted] 	oversight 	or 	misreading 	of 	law,
[Defendants] bear the burden of demonstrating why, on the
basis of the law in effect at the time of trial, [their] counsel’s
performance was deficient.” See State v. Dunn, 850 P.2d 1201,
1228 (Utah 1993); accord State v. Edgar, 2017 UT App 53, ¶ 10, 397
P.3d 670. Similarly, counsel 	is not ineffective for failing to
advance a theory or interpretation of the law which has not yet

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been settled or ruled upon by our courts. See State v. Love, 2014
UT App 175, ¶ 7, 332 P.3d 383 (explaining that counsel “cannot
be faulted for failing to advance a novel legal theory which has
never 	been 	accepted 	by 	the 	pertinent 	courts” 	(citation 	and
internal quotation marks omitted)). In this respect, as we have
noted 	above, 	the 	requirements 	to 	establish 	plain 	error 	and
ineffective assistance of counsel are substantially the same—that
is, it is not ineffective assistance of counsel or plain error for the
court or counsel to fail to take some action on the basis of
unsettled law. Compare id., with State v. Roman, 2015 UT App 183,
¶¶ 10–11, 356 P.3d 185 (explaining that an appellant cannot
successfully 	“invoke 	the 	plain 	error 	exception 	to 	our
preservation rules” if he or she is unable to demonstrate that
there is “settled appellate law” governing the alleged legal
error).
¶69 	Here, Defendants have not demonstrated that their trial
counsel’s 	performance 	was 	deficient 	for 	failing 	to 	move 	to
dismiss the UPUAA counts. They are correct that in Hill v. Estate
of 	Allred, 	2009 	UT 	28, 	216 	P.3d 	929, 	the 	supreme 	court
determined that “[t]he proper test for determining whether there
was a pattern of unlawful activity is whether there was ‘a series
of related predicates extending over a substantial period of time’
or a demonstrated threat of continuing unlawful activity[10] and
not whether there were multiple schemes.” Id. ¶ 41 (quoting H.J.
10. The supreme court noted in Hill that continuity “‘is both a
closed- and open-ended concept, referring either to a closed
period of repeated conduct, or to past conduct that by its nature
projects into the future with a threat of repetition.’” 2009 UT 28,
¶ 39, 216 P.3d 929 (quoting H.J. Inc. v. Northwestern Bell Tel. Co.,
492 	U.S. 	229, 	241 	(1989)). 	Defendants 	characterize 	the
“substantial period of time” component as applying to closed,
not open, continuity, and they limit their argument accordingly.
We 	therefore 	limit 	our 	discussion 	of 	continuity 	to 	closed
continuity.

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Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 242 (1989)). That
much, at least, was established law at the time of trial. However,
the meaning of a “substantial period of time” under the UPUAA
was 	not. 	The 	major 	UPUAA-related 	question 	in 	Hill 	was
whether the district court was correct in concluding that the
defendants’ multiple actions in furtherance of converting the
plaintiff’s money 	constituted 	“only 	one 	episode 	of 	criminal
activity” 	as 	opposed 	to 	“a 	pattern 	of 	unlawful 	activity,”
something not at issue here. See id. ¶ 35. Adopting and applying
the “proper test” from H.J. Inc., the court concluded that the
“several incidents of unlawful activity” by the defendants “over
a five-year period” “constituted a pattern of unlawful activity.”
Id. ¶ 41. Thus, other than briefly deciding that the five-year
period 	was 	sufficient 	when 	combined 	with 	the 	other
circumstances in the case to constitute a pattern of unlawful
activity, Hill did not decide the meaning of “substantial period
of time” as applied to closed continuity.
¶70 	As a result, as Defendants concede, while adopting the
concept as part of the “proper test” for determining whether
there 	has 	been 	an 	unlawful 	pattern 	of 	activity 	under 	the
UPUAA, neither our supreme court nor this court have provided
any guidance about what actually constitutes a “substantial
period of time.” Because Utah appellate courts had not adopted
a specific standard for determining whether a particular set of
related 	acts 	meets 	the 	closed 	continuity 	requirement 	of 	“a
substantial period of time” under the UPUAA, much less a rule
that established the cut-off at a year or more, that issue was a
matter of first impression in Utah at the time of trial and was
therefore unsettled.
¶71 	Nonetheless, as Defendants assert, the court in Hill chose
to look to RICO federal case law as guidance for interpreting the
UPUAA, and they contend that federal cases interpreting and
applying 	the 	federal 	RICO 	statute 	have 	overwhelmingly
declined to find a pattern in circumstances where the unlawful
activities occurred over less than a year. See, e.g., First Capital

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Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 181 (2d Cir.
2004) (noting that “this Court has never found a closed-ended
pattern 	where 	the 	predicate 	acts 	[to 	establish 	a 	pattern 	of
unlawful activity] spanned fewer than two years”); Jackson v.
BellSouth Telecomms., 372 F.3d 1250, 1266 (11th Cir. 2004) (noting
that “[o]ther circuits have agreed that the substantial period of
time requirement for establishing close-ended continuity cannot
be met with allegations of schemes lasting less than a year”). On
this basis, they contend that we should conclude as a matter of
law that the “UPUAA imposes a minimum threshold of at least
one year to allege closed continuity,” and that, because the
conduct constituting the pattern charged in this case occurred
over a period of less than one year, “the UPUAA conviction[s]
should be reversed.”
¶72 	However, as the court in Hill noted, “we are not obligated
to give pattern of unlawful activity the same interpretation as
pattern of racketeering activity under RICO.” 2009 UT 28, ¶ 38.
And deciding an unsettled question of state law as a matter of
first impression does not fit within the rubric of ineffective
assistance, plain error, or manifest injustice. See Love, 2014 UT
App 175, ¶ 7 (explaining that counsel is not ineffective for
“failing to advance a novel legal theory which has never been
accepted by the pertinent courts” (citation and internal quotation
marks omitted)); State v. Davis, 2013 UT App 228, ¶ 32, 311 P.3d
538 (explaining that, to demonstrate plain error, the appellant
“must show that the law governing the error was clear at the
time the alleged error was made” and that “an error is not
obvious if there is no settled appellate law to guide the trial
court” (citations and internal quotation marks omitted)). At the
time of trial, no appellate court in Utah had determined what
constituted a “substantial period of time” under the UPUAA or
suggested that it was a question to which applying bright-line
rules such as Defendants urge would be appropriate.
¶73 	Moreover, even the federal RICO case law appears to be
unsettled regarding how closed continuity may be met. Several

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circuits have specifically eschewed any bright-line rules on the
question of continuity or as to whether a pattern of criminal
activity exists and instead have embraced a flexible, fact-specific
approach. See, e.g., ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 182
(4th Cir. 2002) (explaining that “there is no mechanical formula
to assess whether the pattern requirement has been satisfied”
under RICO and that “it 	is a commonsensical, 	fact-specific
inquiry”); Efron v. Embassy Suites (Puerto Rico), Inc., 223 F.3d 12,
18 (1st Cir. 2000) (noting that H.J. Inc. requires a “natural and
commonsense approach to RICO’s pattern element” and that “its
discussion 	of 	temporal 	factors 	did 	not 	mean 	that 	other
considerations were to be entirely ignored” (citation and internal
quotation marks omitted)). Indeed, it appears that the majority
of circuit courts have determined that the continuity element,
while it may be “primarily a temporal concept,” is not reduced
to solely a temporal inquiry where the amount of time between
the 	first 	and 	the 	last 	predicate 	acts 	dictates 	whether 	the
continuity 	element 	is 	met. 	See 	Satinwood, 	385 	F.3d 	at 	181
(explaining that “[a]lthough continuity is primarily a temporal
concept, 	other 	factors 	such 	as 	the 	number 	and 	variety 	of
predicate acts, the number of both participants and victims, and
the 	presence 	of 	separate 	schemes 	are 	also 	relevant 	in
determining whether closed-ended continuity exists” (citation
and internal quotation marks omitted)). Rather, courts have
instead employed a number of factors in addition to duration to
determine whether continuity exists. See, e.g., id.; Jackson, 372
F.3d at 1267 (analyzing continuity in terms of duration, number
of schemes involved, and the “discrete” nature of the scheme’s
goal); Efron, 223 F.3d at 17–18 (explaining that continuity is a
“common sense” inquiry where various factors in addition to
duration 	ought 	to 	be 	taken 	into 	account); 	Vemco, 	Inc. 	v.
Camardella, 	23 	F.3d 	129, 	134–35 	(6th 	Cir. 	1994) 	(analyzing
continuity in terms of factors such as the number of victims,
schemes, purposes involved as well as the duration of the related
acts); Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1543–44 (10th
Cir. 1993) (analyzing the continuity element according to a
variety of factors, including “duration of the related predicate

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acts,” “the extensiveness of the RICO enterprise’s scheme,” “the
number of the racketeering acts,” “the complexity and size of the
scheme,” and “the nature or character of the enterprise or
unlawful activity,” with the goal of reaching “a natural and
commonsense result” (citations and internal quotation marks
omitted)); United States v. Pelulio, 964 F.2d 193, 208 (3d Cir. 1992)
(“We 	have 	eschewed 	the 	notion 	that 	continuity 	is 	solely 	a
temporal concept, though duration remains the most significant
factor.”); Ashland Oil, Inc. v. Arnett, 875 F.2d 1271, 1277–78 (7th
Cir. 	1989) 	(explaining 	that 	continuity 	is 	determined 	by
“[r]elevant factors” that “include the number and variety of
predicate acts and the length of time over which they were
committed, the number of victims, the presence of separate
schemes and the occurrence of distinct injuries” (citation and
internal quotation marks omitted)).
¶74 	Further, it does not appear that the federal circuits are in
full agreement about whether it is appropriate to impose a
specific minimum durational requirement that, as matter of law,
will preclude the continuity element from being met for alleged
patterns failing to meet the minimum duration. Some circuits
have adopted a bright-line rule regarding duration. See, e.g.,
Satinwood, 385 F.3d at 181 (explaining that two years is “the
minimum duration necessary to find closed-ended continuity”);
Hughes v. Consol-Pennsylvania Coal Co., 945 F.2d 594, 611 (3d Cir.
1991) (holding that “twelve months is not a substantial period of
time” as a matter of law for closed-ended continuity under
RICO). But other courts have declined to reduce the duration
factor to a bright-line rule. See, e.g., Efron, 223 F.3d at 17–18
(explaining that the duration must be at least more than a “few
weeks or months” suggested by H.J. Inc., but that, otherwise,
continuity is a “common sense” inquiry where various factors in
addition to duration ought to be taken into account (citation and
internal quotation marks omitted)); Allwaste, Inc. v. Hecht, 65 F.3d
1523, 1528 (9th Cir. 1995) (explaining that a “bright line, one-year
rule” “misconstrues the flexible continuity requirement under
RICO” and declining to adopt such a rule at the defendants’

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request); Vicom, Inc. v. Harbridge Merchant Services, Inc., 20 F.3d
771, 780 (7th Cir. 1994) (acknowledging the multi-factor test for
continuity and explaining that the Seventh Circuit has declined
to hold “that predicate acts spanning less than one year do not as
a matter of law constitute a substantial period of time” (internal
quotation marks omitted)). Thus, although Defendants assert
that we should adopt a one-year minimum threshold because
federal courts have done so, it is apparent that federal courts
interpreting 	federal 	RICO 	law 	are 	not 	as 	uniform 	in 	their
interpretation of the duration element as Defendants contend.
Therefore, even if we accepted the premise that federal decisions
are fully persuasive precedent on the question, we are not
persuaded that it was settled that closed continuity under the
UPUAA could not as a matter of law be established by a pattern
lasting less than one year. See, e.g., Ashland Oil, 875 F.2d at 1277–
79 (explaining that “[t]he doctrinal requirement of a pattern of
racketeering 	activity 	is 	a 	standard, 	not 	a 	rule,” 	where 	the
determination of whether continuity has been met “depends on
the facts and circumstances of the particular case, with no one
factor being necessarily determinative,” and concluding that a
four-month period was sufficient to constitute a pattern under
RICO 	“in 	light 	of 	other 	evidence 	of 	continuity,” 	including
multiple victims, the variety of predicate acts, and the use of
“several unlawful means” to achieve the scheme’s goal).
¶75 	Accordingly, because there was no settled, controlling law
establishing that a period of less than a year did not constitute a
“substantial period of time” for purposes of establishing closed
continuity 	under 	the 	UPUAA, 	Defendants 	have 	failed 	to
establish either plain error on the part of the trial court for failing
to dismiss the pattern charge sua sponte or ineffective assistance
of counsel for failing to request dismissal on that basis. See State
v. Edgar, 2017 UT App 53, ¶ 16, 397 P.3d 670 (explaining that an
ineffective assistance of counsel claim fails when the law on the
challenged issue is “not settled in Utah” and the appellant
“cannot demonstrate that the law in effect at the time of trial
supports” his contrary argument); Davis, 2013 UT App 228, ¶ 32

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(explaining that, under plain error review, “an error is not
obvious if there is no settled appellate law to guide the trial
court” 	(citation 	and 	internal 	quotation 	marks 	omitted)).
Defendants’ 	manifest 	injustice 	argument 	fails 	for 	the 	same
reason. See State v. Cooper, 2011 UT App 234, ¶ 8, 261 P.3d 653
(explaining that “[i]n most circumstances the term manifest
injustice is synonymous with the plain error standard” (citation
and internal quotation marks omitted)).
¶76 	Defendants argue alternatively that “the jury should have
been instructed as to the ‘substantial period’/threat of continuing
activity and temporal requirements,” and that counsel provided
ineffective assistance by not requesting such an instruction and
the court plainly erred by not instructing the jury on this point.
We will affirm unpreserved challenges to jury instructions when
the instructions “fairly instruct the jury on the applicable law.”
See State v. Kennedy, 2015 UT App 152, ¶ 24, 354 P.3d 775.
¶77 	Here, the trial court instructed the jury that it had to find
that Defendants “participated as a principal” in “a pattern of
unlawful activity” in order to find them guilty of these counts.
The 	trial 	court 	further 	instructed 	the 	jury 	that 	“pattern 	of
unlawful activity” meant
[e]ngaging 	in 	conduct 	which 	constitutes 	the
commission of at least three episodes of unlawful
activity, which episodes are not isolated, but have
the same or similar purposes, results, participants,
victims, or methods of commission, or otherwise
are interrelated by distinguishing characteristics.
Taken 	together, 	the 	episodes 	shall 	demonstrate
continuing unlawful conduct and be related either
to each other or to the enterprise. The most recent
act 	constituting 	part 	of 	a 	pattern 	of 	unlawful
activity as defined shall have occurred within 5
years of the commission of the next preceding act
alleged as part of the pattern.

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This language was taken directly from the definitions section of
the version of the UPUAA in effect at the time. See Utah Code
Ann. § 76-10-1602(2) (LexisNexis 2012). Hill v. Estate of Allred
expounded upon the meaning of “continuing unlawful conduct”
when it explained that continuity is a “closed- and open-ended
concept,” where continuity may be demonstrated either “over a
closed period by proving a series of related predicates extending
over a substantial period of time” or where “the threat of
continuity is demonstrated.” 2009 UT 28, ¶ 39, 216 P.3d 929. But,
as the State notes, Hill was not a jury instruction case, and it
accordingly did not reach the question of whether a jury had to
be separately instructed regarding what constitutes closed or
open continuity. Further, in Hill, the supreme court noted that
the above-quoted statutory language itself includes the essential
UPUAA 	elements 	of 	“continuity 	plus 	relationship,” 	and 	it
characterized 	its 	interpretation 	of 	the 	definition 	as 	a
“clarification” to the meaning of “a pattern of unlawful activity”
already set out in the Act. Id. ¶¶ 38, 41. And Hill did not purport
to adopt “a substantial period of time” as a discrete, additional
element of the pattern offense or indicate that a jury must be so
instructed.
¶78 	Thus, because the trial court instructed the jury based
upon the definitions included in the UPUAA itself and Hill did
not require that a jury must be specifically instructed regarding
the nuances of closed and open continuity, it appears on its face
that the jury was “fairly instruct[ed] on the applicable law.” See
Kennedy, 2015 UT App 152, ¶ 24; cf. State v. Starks, 627 P.2d 88, 90
(Utah 1981) (“If an instruction is supported by the evidence and
its meaning is clear, an instruction in the form of statutory
language is not improper.”). As a result, we are unpersuaded
that trial counsel was ineffective for failing to request a jury
instruction 	including 	“a 	substantial 	period 	of 	time” 	as 	an
element of a pattern of unlawful activity or that the trial court
plainly erred by failing to give such an instruction.

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¶79 	In any event, Defendants have failed to explain how they
were harmed by the omission of an instruction regarding the
“substantial period/threat of continuing activity and temporal
requirements.” The word “substantial” commonly means “of
ample or considerable amount, quantity, size, etc.” Substantial,
Dictionary.com, 	http://www.dictionary.com/browse/substantial.
Even if the trial court instructed the jury that it was required to
find the period of unlawful conduct to be “substantial,” the
jurors still would have been left on their own to decide what
length 	of 	time 	constitutes 	“substantial” 	and 	to 	ultimately
determine the issue factually; there was no controlling law in
Utah to provide guidance to trial counsel in requesting an
instruction or to the trial court in giving an instruction regarding
the factors relevant to making such a 	determination. 	Here,
Defendants’ conduct underlying the pattern of unlawful activity
charges occurred over a period between four to nine months. On
its 	face, 	a 	period 	of 	such 	length 	does 	not 	appear 	to 	be
insubstantial; rather, the jury could have appropriately decided
that any period within this range was “of ample or considerable
amount” or “quantity.” Thus, we cannot say that the failure to
instruct the jury that the unlawful conduct had to occur over a
“substantial period of time” was harmful, i.e., that it would
likely have led to a different outcome. See State v. McNeil, 2016
UT 3, ¶¶ 27–28, 365 P.3d 699 (explaining that to meet the
prejudice standard, an appellant must show “‘that there is a
reasonable probability that, but for [the alleged] errors, the result
of the proceeding would have been different’” and that the
prejudice standard under ineffective assistance of counsel and
plain error is the same (quoting Strickland v. Washington, 466 U.S.
668, 694 (1984))).
V. Restitution
¶80 	Defendants 	argue 	that 	the 	trial 	court 	erred 	in 	its
restitution award. The trial court ordered Defendants to pay
restitution in the aggregated amount of the twelve checks the
jury 	determined 	to 	be 	thefts—$189,574.33. 	First, 	Defendants

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contend that the release of claims in the Settlement, signed by
both Defendants and the Victims, precluded restitution as a
matter of law. Second, they argue that the consideration the
Victims received as part of the Settlement should have been
taken into account in the court’s restitution order. Either way,
they contend that no restitution should have been ordered. We
conclude that the trial court did not err and affirm the restitution
order.
¶81 	Utah 	Code 	section 	77-38a-302(1) 	provides, 	“When 	a
defendant is convicted of criminal activity that has resulted in
pecuniary damages, in addition to any other sentence it may
impose, the court shall order that the defendant make restitution
to 	victims 	of 	crime[.]” 	Utah 	Code 	Ann. § 77-38a-302(1)
(LexisNexis 2012). At the time, the restitution statute defined
“pecuniary damages” as
all demonstrable economic injury, whether or not
yet incurred, which a person could recover in a
civil 	action 	arising 	out 	of 	the 	facts 	or 	events
constituting the defendant’s criminal activities and
includes the fair market value of property taken,
destroyed, 	broken, 	or 	otherwise 	harmed, 	and
losses 	including 	lost 	earnings 	and 	medical
expenses, 	but 	excludes 	punitive 	or 	exemplary
damages and pain and suffering.
Id. § 77-38a-102(6).11 In addressing restitution, a court must
determine complete restitution, which is “restitution necessary
to compensate a victim for all losses caused by the defendant.”
See id. § 77-38a-302(2)(a). However, a court has considerable
discretion over whether to impose court-ordered restitution and
11. Because the legislature has since amended the definition of
pecuniary damages in the restitution statute, we cite the prior
version of the statute.

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the amount to be imposed. See id. § 77-38a-302(2)(b) (defining
court-ordered restitution as “the restitution the court having
criminal jurisdiction orders the defendant to pay as a part of the
criminal sentence”); State v. Laycock, 2009 UT 53, ¶ 28, 214 P.3d
104 (explaining that a court is not required to order court-
ordered restitution). Defendants challenge the amount of court-
ordered restitution.
A. 	The Settlement
¶82 	Defendants first argue that the court erred in ordering
them to pay restitution in any amount at all, alleging that the
Settlement precluded further recovery by the Victims because
they released Defendants from all liability related to the checks.
They point to the restitution statute’s definition of pecuniary
damages, which limits “economic injury” to that which may be
recovered “in a civil action arising out of the facts or events
constituting the defendant’s criminal activities.” See Utah Code
Ann. § 77-38a-102(6). And they rely on the supreme court’s
decision in Laycock to support their argument. They contend that
Laycock stands for the proposition that the money represented by
the checks could not serve as the basis for a restitution order
because the supreme court in Laycock noted that a court may
determine restitution only “on facts that would meet the same
strict requirements as found in a civil setting.” See 2009 UT 53,
¶ 23. In this regard, Defendants contend that Laycock, “at least in
dictum, reaffirms that an amount not recoverable in a civil action
is not properly awarded in restitution,” and they allege that it
was therefore improper for the court to award restitution here,
where 	the 	release 	would 	preclude 	recovery 	of 	the 	amount
represented by the checks in a civil action. In sum, they contend
that, because the release would bar the Victims from recovery on
the checks in a civil action, the Victims cannot recover their
economic losses based on those checks through a restitution
award. We disagree.

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¶83 	In Laycock, the supreme court primarily considered two
questions: first, whether “a civil settlement between a defendant
and a victim, which includes a release of all claims by the victim,
may bar a district court from imposing restitution in a criminal
action involving the same incident,” see id. ¶¶ 12–18, and second,
whether the district court abused its discretion in relation to the
actual restitution it ordered, see id. ¶¶ 19–34. Before reaching the
question of whether the district court wrongly included amounts
in the restitution award that would not be recoverable in a civil
action, the supreme court determined that a civil settlement and
release of claims between a defendant and a victim does not bar
a court from imposing restitution in the related criminal case. See
id. ¶ 18. Defendants do not acknowledge this aspect of the
Laycock 	decision, 	but 	we 	conclude 	that 	it 	significantly
undermines their argument that the release bars a restitution
award under the circumstances here.
¶84 	In 	Laycock, 	the 	defendant 	pled 	guilty 	to 	negligent
homicide of the victim’s husband; the defendant had fallen
asleep while driving and had hit the husband’s vehicle head-on.
Id. ¶ 3. In the negligent homicide criminal case, the court
awarded 	court-ordered 	restitution 	but 	failed 	to 	determine
complete restitution. Id. ¶¶ 4, 24. In the meantime, the victim’s
family had filed a civil action against the defendant for wrongful
death. 	Id. 	¶ 	5. 	Before 	the 	criminal 	restitution 	proceedings
concluded, the 	civil 	action 	was settled, and as part of the
settlement, the victim “executed a Release of All Claims that
released 	[the 	defendant] 	from 	any 	past, 	present, 	or 	future
claims.” Id. During the same period, the State filed a petition in
the 	criminal 	case, 	asking 	the 	court 	to 	determine 	complete
restitution. Id. ¶ 6. Before oral argument on that petition, the
defendant 	filed 	a 	suggestion 	of 	mootness 	based 	on 	the
settlement 	agreement, 	arguing 	that 	the 	settlement 	had
“effectively extinguished all of [the victim’s] claims against [the
defendant],” including any claim for restitution. Id. ¶ 14.

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¶85 	The supreme court determined that a civil settlement and
release of claims did not bar the district court from imposing
restitution as part of the criminal sentence. Id. ¶ 18. The court
explained that, while the release may have ended the civil
controversy between the defendant and the victim, it “did not
affect 	the 	criminal 	proceedings 	between 	the 	State 	and 	[the
defendant].” Id. ¶ 15. The supreme court reasoned that the
purpose of restitution is not solely to compensate the victim for
pecuniary losses caused by the defendant; rather, restitution “is
part of a criminal sanction imposed by the state,” and it therefore
has “a two-fold purpose”: (1) “to compensate the victim for
pecuniary damages,” and (2) “to rehabilitate and deter the
defendant, and others, from future illegal behavior.” Id. ¶ 18. It
explained that the settlement and release did not address or
resolve “the rehabilitative and deterrent purposes of restitution.”
Id. As a result, the court concluded that the restitution issue was
not 	moot 	because, 	notwithstanding 	the 	release, 	“the 	dual
purposes of restitution have not been fulfilled.” Id.
¶86 	Similarly here, although Defendants contend that there is
some 	language 	in 	Laycock 	that 	suggests 	some 	relationship
between court-ordered restitution and an amount that could be
recovered in a civil action, they fail entirely to address the
supreme court’s initial holding that a civil settlement and release
do not bar imposition of restitution in a related criminal case.
The State in the present case was not a party to the release of
claims between Defendants and the Victims; therefore, as in
Laycock, the State’s interests were not foreclosed by the release.
As a consequence, the release did not bar the State from seeking
restitution or the trial court from imposing restitution as part of
Defendants’ criminal sentences.
B. 	Double Recovery
¶87 	Defendants next contend that the trial court erred by
essentially granting the Victims a double recovery through its
restitution order. “[I]n the case of restitution, a reviewing court

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will not disturb a district court’s determination unless the court
exceeds the authority prescribed by law or abuses its discretion.”
State v. Laycock, 2009 UT 53, ¶ 10, 214 P.3d 104. Defendants argue
that the court erred by failing to take into account, in its court-
ordered restitution determination, the consideration the Victims
received as part of the Settlement, which included the “rezoned
and retitled 29 acre property and the UDOT payment.” They
contend that the court therefore wrongly ordered them to pay
restitution in the amount of $189,574.33, “the aggregated check
amounts,” and thereby granted the Victims a double recovery
because the value of the Settlement at least equaled all their
possible 	losses. 	We 	are 	not 	persuaded. 	Defendants 	do 	not
engage with the basis of the trial court’s decision to award
restitution in the amount of the aggregated checks, and, as we
explain below, we conclude that the court did not exceed its
discretion when it decided to base the restitution award on the
amount of the checks.
¶88 	The trial court did, in fact, order Defendants to pay as
restitution the total amount of the checks underlying the theft
counts on which jury found them guilty. But the court reached
its determination of the restitution amount only after rejecting on
an evidentiary basis the argument that Defendants make on
appeal. The court decided that the evidence presented regarding
the value of the Property—both pre- and post-settlement—was
too speculative to form the basis of the restitution order. Instead,
the 	trial 	court 	decided 	to 	base 	restitution 	upon 	the 	non-
speculative amount represented by the thefts, the known loss
associated with Defendants’ criminal conduct.
¶89 	In the proceedings below, the State requested that the
court award restitution based on the difference between the
value of the Property at the time the parties entered into the
REPC and the value of the Property after it was returned to the
Victims and they had then given up half of the Property to
satisfy the hard-money loan obligation. The State urged the court
to consider the starting point of the calculation as the Property’s

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$3.5 million purchase price, which it contended was “a fixed
number” that represented what the Victims would have received
“but for the Defendants’ actions.” And from the $3.5 million, the
State proposed deducting the estimated value of the Property at
the time the Victims finally received it free of Defendants’
interests as a result of the Settlement as well as other amounts,
such as the monthly payments the Victims received in the first
months after Tivoli was formed. The State asserted that value of
the Property at that point was $749,696, which was based upon a
Utah County tax assessment value of the half of the Property the
Victims 	retained 	after 	entering 	into 	an 	agreement 	with 	an
outside investor to satisfy the monetary obligation. Based on
these calculations, the State contended that the total restitution
award 	should 	be 	approximately 	$1.9 	million, 	with 	each
defendant responsible for half.
¶90 	In response, rather than propose their own formula for
calculating restitution, Defendants sought to discredit the State’s
approach by demonstrating that using the State’s rationale, but
substituting 	their 	own 	post-Settlement 	valuations 	of 	the
Property, the trial court should conclude that the Victims had
gained rather than lost value in the end and that no restitution
should be awarded. In this regard, Defendants contended that
the court should consider the value of the full twenty-nine acres,
because that was what the Victims received in the Settlement,
and that the court should not take into account the Victims’
decision to thereafter give up half the Property to resolve the
hard-money loan because evidence of that deal was based only
on the Victims’ testimony, and the deal should not be considered
as an arms-length transaction. Accordingly, they argued that, at
the time of the Settlement, the Property was worth substantially
more than $749,696 when returned to the Victims—“at least $8.6
million”—with 	much 	of 	the 	appreciation 	in 	value 	due 	to
Defendants’ efforts in rezoning it. In support of their valuation,
Defendants argued that the court should value the Property at
the $290,000 per-acre price they contended UDOT had been
willing to pay when it acquired approximately .60 acres of the

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Property before the Settlement.12 Defendants also submitted a
commercial appraisal that valued the Property at $6.7 million,
factoring 	in 	the 	rezoning. 	They 	concluded 	by 	arguing 	that
“under the State’s rationale” and using the value of the entire
twenty-nine acres, the Victims had actually received a windfall
of nearly $6 million over the original $3.5 million purchase price
for the Property and there was thus no basis for any restitution
award.
¶91 	The trial court rejected both the State’s and Defendants’
restitution calculations, reasoning that “valuing the property,
whether we value it at what it was worth when they came into
this, or what it was worth at the moment they walked out, or
what it’s worth now, all starts to become speculative.” The court
expressed concern that the parties had not provided the court
with a reliable method for determining the Property’s value. For
example, the State’s approach depended on restitution being
determined essentially by the difference between the Property’s
purchase price and 	its post-settlement value, net of certain
offsets. In this regard, the State used the original purchase price
of $3.5 million as the baseline value for the Property, and
Defendants used the same baseline for their own proposed
calculations. But at the restitution hearing the State admitted
that, apart from the fact that the parties had agreed to the
purchase price, it had no evidence of the Property’s actual fair
market value at the time of sale. And the court questioned
whether the $3.5 million was an accurate estimate in any event,
where the Victims “could only get a loan” at the time for
$750,000—the hard-money loan, which seemed to the court to
indicate that the Property was not worth much more than that
amount at the time of sale. In addition, the court expressed
12. We note that below Defendants did not include the UDOT
payment in their proposed restitution calculation or argue to the
court that that payment should have factored into the restitution
calculation as a separate component.

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doubt about the State’s contention that half of the Property,
which was allegedly valued at $3.5 million in its entirety before
entitlement, was valued at only $749,696 post-settlement, even
after Defendants’ efforts in obtaining development approval
from the city.
¶92 	The court also expressed concern about the reliability of
Defendants’ post-settlement valuations. Defendants contended
that 	their 	contributions 	greatly 	increased 	the 	value 	of 	the
Property, pointing to a post-zoning appraisal that valued the full
twenty-nine acres at $6.76 million and extrapolating an $8.6
million value from the amount UDOT paid for a small parcel
near 	the 	time 	of 	the 	Settlement. 	Defendants 	claimed 	that,
through their efforts, they “made the [Victims] wealthy” by
returning to them property that was worth substantially more
than it had been at the outset. But the court expressed that,
although 	it 	understood 	Defendants’ 	argument 	that 	their
contributions to the Property increased its total post-settlement
value by millions, it was not clear how those contributions ought
to 	be 	appropriately 	factored 	into 	the 	calculations 	for 	the
Property’s valuation or the restitution amount, especially in light
of Defendants’ criminal conduct.
¶93 	To resolve its concerns, the court instead rejected entirely
the parties’ proposed calculations and determined that it made
more sense “to value the restitution based on” “the actual theft
amount,” “according to the jury and according to the contract as
we heard it.” It stated that “there were . . . 12 checks written that
the jury found were not appropriate and were thefts” in the total
amount 	of 	$189,574.33 	and 	that 	these 	checks 	established 	a
reliably calculable sum in terms of the Victims’ monetary loss:
“The money would not have been there for spending but for the
[Victims’] land,” and “100 percent” of the value of the checks
was “the [Victims’] money” as far “as the jury was concerned.”
The court noted that “when the jury found the Defendants
guilty” of theft, it “had meticulously and carefully gone through
a list of every single check,” which included marking the checks

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the jury “thought had been paid back.” The court therefore
ordered 	Defendants 	to 	pay 	restitution 	in 	the 	amount 	of
$189,574.33, to be allocated equally between them.
¶94 	In essence, then, the court concluded that the amount
represented 	by 	the 	thefts 	was 	sufficiently 	certain 	as 	an
evidentiary 	matter 	to 	support 	a 	reliable 	restitution
determination, whereas the value of the Property at pertinent
points in time—whether pre-sale, settlement, post-settlement, or
at the time of the hearing—was not. We defer to the trial court
regarding 	the 	weight it 	assigns to 	the 	evidence 	and 	in 	its
credibility determinations. See State v. Hodges, 798 P.2d 270, 274
(Utah Ct. App. 1990) (“In a bench trial or other proceeding in
which the judge serves as fact finder, the court has considerable
discretion to assign relative weight to the evidence before it. This
discretion includes the right to minimize or even disregard
certain evidence.”). Defendants have not challenged the trial
court’s decision to reject on an evidentiary basis their proposed
restitution calculation. Instead, Defendants simply argue that the
trial court erred when it failed to take into account the value of
the Settlement as a total offset to any harm the Victims may have
suffered from the thefts; they do not engage with the court’s
reasoning that the evidence of value presented by both sides was
too speculative to support a reliable valuation of the Settlement’s
economic effect, that is, whether the result of the Settlement
made the Victims whole. As a result, Defendants have failed on
appeal to challenge the basis for the trial court’s decision to reject
their valuation evidence and base the restitution award on the
theft amounts. See Duchesne Land, LC v. Division of Consumer
Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (concluding that the
appellants had failed to persuade this court “that the district
court’s ruling constituted error” where the appellants had “not
addressed the actual basis for the district court’s ruling”); see also
Allen v. Friel, 2008 UT 56, ¶ 14, 194 P.3d 903 (explaining that
“[s]ince an appeal is a resort to a superior court to review the
decision of a lower court, Utah appellate rules require the
appellant to address reasons why the district court’s [decision]

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should be overturned”). And as a necessary corollary, because
Defendants 	have 	failed 	to 	challenge 	the 	district 	court’s
conclusion that the value represented by the Settlement did not
provide a reliable evidentiary basis for restitution, Defendants
have also failed to persuade us that the trial court’s actual
restitution award amounted to a double recovery.
¶95 	In any event, we cannot fault the court for deciding to
base 	its 	restitution 	determination 	on 	the 	certain 	amount
represented by the checks the jury determined to reflect amounts
stolen 	from 	the 	Victims 	instead 	of 	on 	the 	parties’ 	various
valuations of the Property, which the court determined were
unreliable and to which the court gave little weight. It is well
within a district court’s broad discretion in determining criminal
restitution to reject a party’s valuation contentions on the basis
of evidentiary concerns. See State v. Laycock, 2009 UT 53, ¶¶ 25–
29, 214 P.3d 104.
¶96 	For example, in Laycock, the State had requested that the
district court find “as a matter of law that no allocation of fault
should be assigned to [the victim’s husband],” who was killed in
the accident, and that the court include loss of the husband’s
future earnings—in the amount of nearly $600,000—in its court-
ordered restitution determination. The district court declined the
State’s request on both points because of the “limited factual
basis,” where the evidence established the fact of the accident
and 	provided 	limited 	information 	about 	the 	surrounding
circumstances but not much more. Id. ¶¶ 2–3, 27. In light of the
limited evidence, rather than assume for purposes of court-
ordered 	restitution 	that 	the 	driver 	who 	was 	killed 	by 	the
defendant was not himself negligent, the district court decided
“to allow the facts to be established in a civil litigation setting”
instead of “impos[ing] court-ordered restitution based on” any
assumptions about 	negligence. 	Id. 	¶ 	27. 	And 	as to 	loss of
earnings, the district court also concluded that “the facts were
too limited to justify court-ordered restitution for an array of
damages including lost wages.” Id. ¶ 28. Accordingly, the district

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court based its restitution order upon the readily ascertainable
amounts of the medical and funeral expenses and the damage to
the deceased’s car. Id. ¶ 4. The supreme court held the district
court’s decisions to be within the court’s discretion, observing
that “[r]estitution should be ordered only in cases where liability
is clear as a matter of law and where commission of the crime
clearly establishes causality of the injury or damages,” noting
that “[w]hen the facts of a case are limited or unclear,” such as in
“[m]atters of negligence, proximate cause and the amount of
resulting damages,” “the civil setting is the best place for them to
be determined.” Id. ¶ 29 (citation and internal quotation marks
omitted).
¶97 	In the present case, like Laycock, the trial court determined
that the parties’ approach to “figuring out restitution by valuing
the property . . . [was] too speculative at this point in time” and
instead decided to base restitution on the known value of the
thefts for which Defendants were convicted. In other words, the
trial court concluded that “the facts were too limited to justify
court-ordered restitution” based on the speculative value of the
Property at various points in time during the parties’ association
and the subsequent legal proceedings. See id. ¶ 28. We cannot
fault the trial court’s decision in this regard when, at the time of
the restitution hearing, Defendants’ liability for the thefts was
“clear as a matter of law” and the jury, through its verdict,
established the “causality of the injury or damages” for the thefts
from 	the 	Tivoli 	capital. 	See 	id. 	¶ 29 	(citation 	and 	internal
quotation marks omitted). We also cannot fault the court for
exercising its discretion to base restitution upon the theft amount
when 	each 	party 	presented 	the 	court 	with 	fairly 	complex
calculations 	and 	proposed 	valuations 	that, 	in 	the 	court’s
estimation, failed to adequately account for what the court
considered to be pertinent considerations, such as Defendants’
overall 	contributions 	to 	the 	Property 	or 	the 	effect 	of 	their
criminal conduct. See id.

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¶98 	And certainly, in these circumstances, the court was not
required to simply accept Defendants’ argument that what the
Victims 	received 	at 	the 	time 	of 	the 	Settlement, 	consisting
primarily 	of 	the 	full 	twenty-nine 	acres 	of 	the 	Property,
adequately took into account the effect of Defendants’ criminal
actions on the Victims. See id. ¶¶ 27–29 (explaining that a court
determining restitution has discretion to “refuse to impose court-
ordered restitution” on the basis of assumptions or for matters or
categories of loss on which it determines it has only a “limited
factual basis”). Indeed, one of the main points of disagreement
between the State and Defendants during the restitution hearing
was whether it was appropriate for the court to take into account
the Victims’ contention that they lost half of the Property post-
settlement to satisfy the hard-money loan obligation Defendants
persuaded 	them 	to 	incur, 	and 	calculate 	the 	restitution
accordingly. Therefore, we are not persuaded that the court
exceeded its discretion in ordering Defendants to repay to the
Victims the actual amounts Defendants stole from what was, in
effect, the Victims’ direct contribution to Tivoli’s capital rather
than attempting to effect a complex reconciliation of Defendants’
and 	the 	Victims’ 	economic 	entanglements 	on 	the 	basis 	of
evidence the court judged to be speculative and unpersuasive.
¶99 	In sum, we conclude that, under Laycock, the Settlement
and release did not as a matter of law preclude the Victims from
being awarded restitution. We are also unpersuaded that the
restitution amount ordered was the result of the trial court’s
abuse of discretion or error. Accordingly, we affirm the trial
court’s restitution order.
VI. Cumulative Error
¶100 	Finally, Defendants contend that we should reverse on
the basis of cumulative error. “We reverse only if the cumulative
effect of multiple errors undermines our confidence that a fair
trial was had.” State v. Davis, 2013 UT App 228, ¶ 16, 311 P.3d
538. But “because we have found no error in this case, the

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requirements of the cumulative error doctrine are not met.” See
State v. Killpack, 2008 UT 49, ¶ 62, 191 P.3d 17, abrogated on other
grounds as recognized by State v. Lowther, 2017 UT 34, 398 P.3d
1032.
CONCLUSION
¶101 	For 	the 	foregoing 	reasons, 	we 	affirm 	Defendants’
convictions and the trial court’s restitution award.