State v. Jack, 20150901-CA

• Decision Date: 01 February 2018
• Docket Number: No. 20150901-CA,20150901-CA
• Citation: 414 P.3d 1063
• Parties: STATE of Utah, Appellee, v. Jordan Jeffery JACK, Appellant.
• Court: Utah Court of Appeals

414 P.3d 1063

STATE of Utah, Appellee,

v.Jordan Jeffery JACK, Appellant.

No. 20150901-CA

Court of Appeals of Utah.

Filed February 1, 2018

Rudy J. Bautista and Kelly Ann Booth, Attorneys, Salt Lake City, for Appellant

Sean D. Reyes, Salt Lake City, and Tera J. Peterson, Attorneys, for Appellee

Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

Opinion

HAGEN, Judge:

¶1DefendantJordan Jeffery Jack was convicted of seven counts of exploitation of a vulnerable adult, third degree felonies, seeUtah Code Ann. § 76-5-111(LexisNexis 2012), and one count of communications fraud, a second degree felony, seeid.§ 76-10-1801.¹Jack appeals, arguing that the trial court should have merged his communications fraud conviction into his exploitation of a vulnerable adult convictions under Utah Code section 76-1-402(3) and the double jeopardy clauses of the United States and Utah constitutions.SeeU.S. Const. amend. V;Utah Const. art. I, § 12.We affirm.

BACKGROUND²

¶2 Jack worked as an associate director for Chrysalis, a business that provides residential services for individuals with traumatic brain injuries and other intellectual, cognitive, and developmental impairments that cause the individuals "to function at levels comparable to those of teenagers, small children and even in some cases infants."To be eligible to receive Chrysalis's residential services, clients must be diagnosed with an intellectual disability, and they must meet the poverty guidelines for Medicaid.

¶3 Residential services consist of group homes—each housing three or four clients—that are staffed twenty-four hours per day.The staff teaches clients "adaptive and habilitative skills" and assists them with daily living activities, such as eating, bathing, dressing, toileting, and ambulating.

¶4 Chrysalis also provides financial support, which includes helping clients apply for Social Security benefits.Because Chrysalis is the representative payee for approximately "90 plus percent" of the clients it serves, the company's representative payee supervisor manages the Social Security funds upon receipt.Initially, clients' funds are deposited into a collective bank account, which the supervisor uses to pay for clients' rent, utilities, and personal needs.If there is a remaining balance, those funds are transferred to a pay card that Chrysalis's associate directors may use to pay for the clients' additional expenses, such as groceries, clothing, and entertainment.

¶5 As an associate director, Jack was "heavily involved" in managing finances for clients who resided in the eight to ten group homes that he oversaw.Jack's duties included, among other things, purchasing items, requesting funds, allocating expenses, and reviewing monthly statements for clients.

¶6 Each month, Jack would send receipts and a ledger to the area director and the supervisor.The ledger listed the items that he had purchased and allocated those items to the corresponding client.The supervisor then prepared statements to maintain a monthly accounting of each client's balance.Once finalized, the statements were returned to Jack for review.Typically, if there was an error, associate directors notified the area director who, in turn, asked the supervisor to correct the charge and adjust the client's balance.Finalized statements were then distributed to the house managers and the clients' legal guardians.

¶7 In January 2014, Jack asked an administrative assistant to send the original statements to him to fix before sending the statements to the house managers and the clients' legal guardians.Believing that "something was off" when Jack sent the administrative assistant "corrected" statements, she contacted the area director.After learning that Jack had circumvented Chrysalis's procedure for rectifying errors in statements on several prior occasions, the area director became concerned.He reviewed Jack's new statements, identified several discrepancies, and subsequently notified Chrysalis's CEO.During a joint review, the area director and CEO found multiple discrepancies between the statements that the supervisor had produced and the statements that were sent to the house managers of the group homes that Jack oversaw and to the clients' legal guardians.

¶8 When confronted with the allegations, Jack eventually admitted that he had submitted altered receipts and changed statements to conceal the fact that he had used client funds for his own personal expenses.Among other things, his unlawful purchases included a trip to Las Vegas, concert tickets, multiple televisions, jewelry, and expensive shoes.Jack was charged with seven counts of exploitation of a vulnerable adult, one count of communications fraud, and one count of theft by deception.

¶9 Prior to trial, Jack filed a motion to merge the communications fraud charge into the exploitation of a vulnerable adult charges under Utah Code section 76-1-402(3) and the double jeopardy clauses of the United States and Utah constitutions.The trial court denied the motion, reasoning that there were "elements unique to each of the crimes charged."Specifically, exploitation of a vulnerable adult requires two elements that communications fraud does not—(1) a victim that is "a vulnerable adult based on age and impairment" and (2) a "defendant who is in a position of trust or similar relationship."The trial court also found that Jack's charged conduct did not "constitute a single criminal episode."

¶10 After a bench trial, the trial court found Jack guilty of one count of communications fraud and seven counts of exploitation of a vulnerable adult.Jack again moved to merge his communications fraud conviction into his exploitation of a vulnerable adult convictions, arguing that "communications fraud was the modus operandi by which each exploitation offense was perpetrated."At the sentencing hearing, the trial court denied Jack's motion, noting that it was "critical" that although there were fourteen victims, "the State chose to charge only seven on the exploitation, but all 14 were covered in the communications fraud."

¶11 Jack now appeals the trial court's denial of the motion to merge his convictions.

ISSUE AND STANDARD OF REVIEW

¶12 The only issue on appeal is whether the trial court erred in denying the motion to merge Jack's convictions for communications fraud and exploitation of a vulnerable adult."Merger is a question of law, which we review for correctness."State v. Sanchez , 2015 UT App 27, ¶ 5, 344 P.3d 191.

ANALYSIS

¶13 In arguing that his convictions should have merged at sentencing, Jack refers to both the lesser included offense analysis codified in Utah Code section 76-1-402(3) and to the common law merger doctrine.Although both doctrines flow from the double jeopardy clauses of the state and federal constitutions and "may indeed overlap in certain circumstances, they are analytically distinct."State v. Kerr , 2010 UT App 50, ¶ 2 n.1, 228 P.3d 1255.

¶14 On one hand, "where the two crimes are such that the greater cannot be committed without necessarily having committed the lesser, then as a matter of law they stand in the relationship of greater and lesser offenses, and the defendant cannot be convicted or punished for both."State v. Smith , 2005 UT 57, ¶ 8, 122 P.3d 615(citation and internal quotation marks omitted).This analysis "turns on the statutorily defined elements of the two crimes."State v. Finlayson , 2000 UT 10, ¶ 16, 994 P.2d 1243.Because the law barring punishment for both a greater and lesser included offenses is codified in Utah Code section 76-1-402(3), we refer to it as statutory merger.

¶15 The Utah Supreme Court has recognized "another conceptually distinct basis for finding that one set of facts may give rise to a merger of two or more separate crimes, despite each crime's unique statutory elements, so as to preclude multiple convictions for essentially the same conduct."State v.Mecham , 2000 UT App 247, ¶ 30, 9 P.3d 777(citation and internal quotation marks omitted).Under this common law merger doctrine, the facts establishing one offense must not be "incidental to" or "inherent in" the other offense and must have "some significance independent of the other crime."Finlayson , 2000 UT 10, ¶ 19, 994 P.2d 1243(citation and internal quotation marks omitted).

¶16We conclude that Jack's conviction for communications fraud does not merge into his convictions for exploitation of a vulnerable adult under either statutory or common law merger.We analyze each doctrine in turn.

I.Statutory Merger

¶17 Jack contends that, under the Utah merger statute, his conviction for communications fraud must merge with his convictions for exploitation of a vulnerable adult because "both offenses are triggered by the same facts and established by the same proof at trial."In response, the State contends that the statutes' "unique elements" preclude the conclusion that either statute is a lesser included offense of the other.We agree with the State that because the two crimes have distinct statutory elements, neither crime is a lesser included offense of the other.

¶18"A defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense."Utah Code Ann. § 76-1-402(3)(LexisNexis 2012).The statute lists several circumstances in which an offense will be deemed to be a lesser included offense,³ including when an offense "is established by proof of the same or less than all the facts required to establish the commission of the offense charged."Id.§ 76-1-402(3)(a).But "[t]he Utah Supreme Court has made it abundantly clear ... that section 76-1-402 never applies to merge crimes that have distinct statutory elements."State v. Mecham , 2000 UT App 247, ¶ 29, 9 P.3d 777;see alsoState v. Finlayson , 2000 UT 10, ¶ 16, 994 P.2d 1243("[W]hether one crime is a lesser included offense of a greater...