State v. Moore
349 P.3d 797
Utah Ct. App.2015Background
- Shawn H. Moore was convicted of four counts of securities fraud, four counts of sale by an unlicensed agent, and one count of pattern of unlawful activity based on investments by VesCor clients.
- Counts 1–8 arose from four specific investments (Dec 2003–Jan 2006); count 9 (pattern) relied on counts 1–8 and also referenced three earlier, time‑barred investments as possible predicate acts.
- The statutory mens rea for the charged securities and licensing offenses is willfulness under Utah law. Moore’s defense contested whether the jury was properly instructed on willfulness.
- The trial court gave Instruction 50 (adopted from federal/administrative authority) imposing a “duty to investigate/know” and allowing conviction for recklessness or failure to investigate; the court also gave Instructions 23 and 43 defining mental states and willfulness in more general terms.
- Moore also raised (and the panel considered for guidance) objections to prosecution expert testimony (legal conclusions/definitions) and to the trial court’s restitution ruling, including restitution for time‑barred investments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Instruction 50 improperly defined willfulness by importing a duty‑to‑investigate/recklessness standard | Instruction 50 merely described industry practices and was not central to the State’s case; any error was harmless given evidence | Instruction 50 converted willfulness into recklessness/duty to know, relieving State of burden on mens rea | Instruction 50 was legally incorrect; it supplanted statutory willfulness with recklessness and required reversal of all convictions (counts 1–9) |
| Whether Instructions 23 and 43 adequately defined willfulness | Instructions collectively gave proper mens rea guidance | Instructions omitted Larsen’s clarifying language limiting willfulness to deliberate/ purposeful misstatements or omissions | Court found Instructions 23 and 43 not dispositive here (because Instruction 50 was reversible error) but advised revising willfulness language on remand to reflect Larsen’s clarification |
| Whether expert testimony impermissibly offered legal conclusions (e.g., defining willfulness, materiality, agent, securities) | Expert testimony was admissible; experts may testify on ultimate issues | Expert gave legal definitions and applied legal terms to facts, risking improper legal conclusion testimony | Court expressed concern and provided guidance: experts should avoid legal conclusions; testimony must be tied to industry understanding and not tell jury the legal result |
| Whether restitution was properly calculated and could include time‑barred investments | Restitution was supported by victim loss evidence; trial court appropriately considered factors | Court failed to adequately address statutory restitution factors and included time‑barred investments improperly | Court advised clearer, explicit restitution findings on remand and cautioned against including time‑barred investments without firm legal basis; reversal of convictions vacated basis for restitution review |
Key Cases Cited
- State v. Larsen, 865 P.2d 1355 (Utah 1993) (willfulness requires acting deliberately and purposefully; not mere oversight)
- Hanly v. Securities & Exchange Commission, 415 F.2d 589 (2d Cir. 1969) (administrative duty‑to‑investigate standard in SEC administrative proceedings; not controlling for criminal prosecutions)
- State v. Maestas, 299 P.3d 892 (Utah 2012) (review jury instructions in totality; affirm when instructions fairly state the law)
- State v. Chapman, 338 P.3d 230 (Utah Ct. App. 2014) (willfulness includes conscious avoidance of facts; distinguishes negligent oversight)
- State v. Tenney, 913 P.2d 750 (Utah Ct. App. 1996) (expert testimony must not state legal conclusions or tie opinions to legal requirements)