State v. Jones, No. 20170815-CA

• Court: Court of Appeals of Utah
• Writing for the Court: HAGEN, Judge
• Citation: 462 P.3d 372
• Parties: STATE of Utah, Appellee, v. David Bryce JONES, Appellant.
• Docket Number: No. 20170815-CA
• Decision Date: 27 February 2020

462 P.3d 372

STATE of Utah, Appellee,
v.
David Bryce JONES, Appellant.

No. 20170815-CA

Court of Appeals of Utah.

Filed February 27, 2020

Deborah L. Bulkeley, South Jordan, Attorney for Appellant

Sean D. Reyes, Nathan D. Anderson, Salt Lake City, and David A. Simpson, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

HAGEN, Judge:

¶1 After gaining power of attorney over his elderly father, David Bryce Jones "loaned" himself the entirety of his father's retirement income to pay expenses for two failed restaurants and to cover his own personal expenses. At the same time, he neglected to pay for any of his father's basic living expenses, causing his father to become a ward of the State. A jury convicted Jones of abuse, neglect, or exploitation of a vulnerable adult and of unlawful dealing with property by a fiduciary. On appeal, Jones argues that he received ineffective assistance of counsel, that Utah's abuse of a vulnerable adult statute is unconstitutionally vague, and that there was insufficient evidence of intent to convict him of intentional conduct. We disagree with each of these contentions and affirm.

BACKGROUND¹

Jones's Exploitation of His Father

¶2 After turning eighty-six years old in 2010, Jones's father granted Jones power of attorney, meaning that Jones obtained control over his father's finances and healthcare-related decisions. Within two to three years, Jones knew that his father suffered from "progressive dementia" and was "arguably ... incompetent."

¶3 In 2013, Jones opened a restaurant called Brewhaha. According to Jones, he and his father were "partners" in the Brewhaha venture. Jones found a property to lease for the restaurant, but the required lease had "harsh provisions" and Jones thought that the landlord was a "horrible person." Despite concerns about the lease, the landlord, and his father's incompetence, Jones not only

462 P.3d 377

signed the lease but also had his father sign as a co-tenant and personal guarantor.

¶4 Six months after signing the lease, Jones's father became dehydrated and needed to be hospitalized. Due to this incident, Jones arranged for his father to move to an apartment at an assisted living facility (the facility). On the facility's admission paperwork, Jones noted that his father suffered from "progressive dementia" and agreed to pay $3,000 per month for his father's rent and care. The cost of rent did not include personal expenses such as medications, haircuts, toothpaste, or other personal hygiene items.

¶5 Three weeks after placing his father in the facility, Jones had his father sign a document authorizing Jones to loan himself money from his father's retirement income (the loan document). Jones's father received $6,500 per month in retirement income, and the loan document placed "no limit" on how much Jones could loan himself from that amount, so long as his father's physical and medical needs were met.

¶6 Relying on the authority of the loan document, Jones began loaning himself the entirety of his father's retirement income. He used this money to cover Brewhaha's renovation and operation costs. Also, because Jones did not have any income of his own, he lent himself money to pay for his living expenses. In return for fronting all of Brewhaha's and Jones's expenses, Jones's father received no ownership interest in the restaurant and was left with insufficient funds to cover his basic expenses and care.

¶7 Because Jones was using all his father's funds for his own business and personal expenses, he stopped paying his father's rent at the facility. Further, Jones failed to pay for his father's prescription medications or basic hygiene items like a toothbrush, a haircut, or bed pads. The facility sent monthly bills and statements to Jones requesting payment for his father's rent and care. The staff also called, left voicemails, and spoke with Jones in person about the need to pay for his father's care. Despite these efforts and Jones's promises to pay, the facility could not obtain the necessary payments and issued an eviction notice to Jones requiring him to either pay the overdue balance or have his father vacate the apartment within thirty days. Jones ignored the notice, missed two more payments, and failed to move his father out of the apartment.

¶8 Around the same time that the eviction notice was issued, Brewhaha's landlord filed suit against Jones and his father because Brewhaha was more than $10,000 behind in rent and Jones had ignored the landlord's request to vacate the property. Jones filed a pro se motion to dismiss his father as a party, arguing that his father had suffered from "progressive dementia" since 2012 and "was not competent to sign either the lease or the personal guarantee." "Due to his condition," Jones said, his father had "no knowledge or comprehension of the eviction ... and ha[d] no competence to participate in th[e] case." The lawsuit resulted in a six-figure judgment against Jones and signaled the end of Brewhaha as a viable business.

¶9 Undeterred by Brewhaha's failure, Jones opened another restaurant called Gusto. Jones again used his father's retirement income to fund Gusto's expenses. Jones's father was, again, not listed as an owner of the restaurant. And again, Gusto failed within months.

¶10 While this was happening, the father's younger brother learned about the eviction notice from the facility and became concerned that Jones might be misusing his father's funds. He reported his concerns to the facility, which in turn contacted Adult Protective Services (Protective Services). Protective Services opened an investigation into the matter.

¶11 Protective Services interviewed Jones's father as part of its investigation. At that interview, the father was unable to remember his age, birthday, siblings’ names, where he had worked, where he had banked, how much money he made, or how to call 911. When the father took a phone call during the interview, he was unable to remember with whom he was speaking as soon as he hung up. And when the interviewers requested Jones's phone number, the father gave them a fingernail kit "as if a phone number was going to be in it."

462 P.3d 378

¶12 Protective Services also spoke to Jones, who admitted that he had used his father's retirement income but insisted that he had his father's blessing to use "whatever money he wanted to try to run his restaurants." When confronted with the facility's unpaid bills, Jones told Protective Services that he had an agreement with the facility whereby he could defer payments until his restaurants were turning a profit. Based on these conversations, Protective Services deduced that Jones's father had received $76,000 in retirement income during the relevant period, but Jones had made only $12,000 in payments to the facility. Jones's father had no balance in his bank account, indicating that Jones spent more than $60,000 either on the restaurants or himself.

¶13 As a result of Protective Services’ investigation, the Office of Public Guardian (the Public Guardian) took over as the father's guardian, meaning that the Public Guardian wrested control of the father's finances and healthcare from Jones. From that point forward, the father's expenses at the facility were paid each month, and within a year, the Public Guardian paid off the entire amount that Jones had neglected to pay when he had power of attorney.

¶14 As Protective Services investigated and the Public Guardian took over, Jones continued to accrue expenses in his father's name. He opened a new credit card in his father's name. He transferred a $5,000 balance from an old credit card to the new card. Within three weeks of obtaining the new credit card, Jones racked up $14,000 in expenses that included charges to ski resorts, a dental office, the Division of Motor Vehicles, cable television, and gas stations. Jones later called the Public Guardian to inquire why it was not making payments on this new credit card.

¶15 Shortly after the Public Guardian took over, the father was administered the Montreal Cognitive Assessment (the MoCA test), a screening tool for dementia. As the nurse practitioner who administered the MoCA test entered the room, the father was standing, holding a phone, and listening to the dial tone. During the MoCA test, the father was unable to identify a lion or rhinoceros, repeat sentences or simple one- or two-syllable words, perform basic math, or recognize letters in the alphabet. When the MoCA test was over, Jones's father received the lowest possible score.

¶16 Ten days after administration of the MoCA test, Jones sought to regain control of his father's finances. He drafted three documents (the financial control documents) and took them to his father to sign. The financial control documents directed that all the father's retirement income be deposited into Jones's personal accounts, authorized Jones to manage the retirement accounts and make loans to himself, and changed the accounts’ contact information from the father's to Jones's. Each document concluded by stating that the father did not "recognize the authority of any person, institution, or Agency that attempts to change these...