451 P.3d 1050
Utah Ct. App.2019Background
- Kimberly Bowen led multiple "Empire Alliance" companies as a real-estate agent/homebuilder and provided start-up capital; she marketed and sold lots in the Fox Hollow "Neighborhood."
- The Neighborhood lots lacked access to culinary water; the city had indicated permits would require completion of the water system, but the plat was recorded and Bowen sold lots to investors nonetheless.
- Bowen used an entity structure (Sterling Mountain Properties and Mountain Lake Ventures) to acquire and resell lots to investors at a markup; Bowen was not formally listed as a manager of Mountain Lake Ventures but was financially involved and a signatory on its accounts.
- Buyers could not obtain building permits because the water system remained incomplete; homes were never built and investors lost their investments through foreclosure.
- The State charged Bowen with five counts of communications fraud and one count of pattern of unlawful activity, alleging failures to disclose her financial interest, misrepresentations about readiness to build, knowledge of incomplete water, and improper handling of earnest money.
- At trial the defense introduced an administrative-rule-based jury instruction (Instruction 49) and evidence of a contractor license; the State rebutted with contractor testimony; the jury convicted on all counts and the trial court denied Bowen’s motion to arrest judgment.
Issues
| Issue | Plaintiff's Argument (Bowen) | Defendant's Argument (State/Counsel) | Held |
|---|---|---|---|
| Ineffective assistance for submitting Instruction 49 without explaining it is not criminal law | Counsel was deficient by proposing an administrative-rule instruction that could mislead the jury and create prejudice | Counsel acted strategically to show Bowen owed no disclosure under that rule (no ownership interest); tactical choice with reasonable basis | Rejected—counsel’s decision was a reasonable tactical choice and not objectively deficient; no prejudice shown |
| Admission of rebuttal testimony from Contractor about licensing | Rebuttal testimony should have been excluded because defense did not open the door to the son-vs.-father license distinction | Defense itself introduced contractor-license evidence; the State may rebut to explain/minimize that evidence | Admitted—no abuse of discretion; Bowen opened the door to rebuttal testimony |
| Motion to arrest judgment / sufficiency of evidence regarding material omission and water misrepresentations | Evidence insufficient: omissions not material to reasonable investor; key witnesses were inherently improbable; prosecutorial misconduct | Multiple evidentiary theories supported guilt (undisclosed financial interest, misrepresentations about readiness to build, multiple witnesses corroborating water knowledge); jury properly instructed | Denied—viewing evidence in favor of the verdict, sufficient evidence supported convictions |
| Rule 23B remand request to develop ineffective-assistance allegations (additional claims) | Remand to develop claims that counsel failed to call witnesses, file pleadings, or argue points | Allegations were speculative/conclusory and do not show prejudice | Denied—claims were nonspecific and speculative, insufficient to warrant remand |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong deficient performance and prejudice test for ineffective assistance of counsel)
- Green v. Louder, 29 P.3d 638 (Utah 2001) (describes purpose of rebuttal evidence; review for abuse of discretion)
- State v. Nielsen, 326 P.3d 645 (Utah 2014) (in sufficiency review, evidence and reasonable inferences viewed in light most favorable to jury verdict)
- State v. Coombs, 438 P.3d 967 (Utah Ct. App. 2019) (gives trial counsel wide latitude for tactical decisions)
- State v. Larsen, 865 P.2d 1355 (Utah 1993) (materiality is assessed by whether a reasonable investor would be influenced)
- State v. Prater, 392 P.3d 398 (Utah 2017) (defines "inherent improbability" standard for attacking witness testimony)
- State v. Beckering, 346 P.3d 672 (Utah Ct. App. 2015) (jury instructions are assessed as a whole to determine whether they fairly state the law)