State v. Squires, 446 P.3d 581

Background

Squires, a construction manager at Fitz Roy LLC, persuaded his uncle to pledge unencumbered real property as collateral for a $660,000 hard‑money deposit needed to secure a larger $~10M loan from lender Dincom.
Squires repeatedly told Uncle the collateral would be used only briefly ("two to three weeks") and reassured him the deposit and property were safe; the loan documents required repayment in 90 days and Fitz Roy promised $100,000 and other benefits to Uncle.
Dincom failed to fully fund the loan; Fitz Roy received partial/returned funds, Anderson (Fitz Roy’s principal) used/redirected money for other obligations and investments, and Fitz Roy never repaid the hard‑money loan—Uncle’s property was ultimately lost in foreclosure.
The State charged Squires with five counts of communications fraud and one count under the Utah Pattern of Unlawful Activity Act (UPUAA); a jury convicted him on four communications‑fraud counts and the pattern‑of‑unlawful‑activity count. He was sentenced to probation and restitution.
On appeal Squires argued (1) trial counsel was ineffective for failing to object to jury instructions on communications fraud (arguing a specific‑intent and "presently existing fact" requirement) and for failing to object to certain testimony as hearsay, and (2) the evidence was insufficient to sustain the UPUAA conviction.
The court affirmed the communications‑fraud convictions, holding counsel was not ineffective, but reversed the UPUAA conviction and remanded with instructions to enter judgment of acquittal on that count.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Squires)	Held
Whether communications‑fraud jury instructions required specific intent to defraud	Statute requires proof of intent and jury was correctly instructed using statutory mens rea (intentional, knowing, reckless)	Communications fraud requires specific intent to defraud because of the phrase "scheme or artifice"; jury should have been instructed accordingly	Counsel not ineffective for failing to demand a specific‑intent instruction; statute can be read to require only intentional/knowing/reckless statements to carry out a scheme to obtain value (affirmed)
Whether jury instructions must require recklessness as to a "presently existing fact" (i.e., bar mere promissory future statements)	Statutory language, as instructed, sufficed; no criminal precedent mandating civil "presently existing fact" rule	Criminal fraud must track civil fraud rule: misrepresentations of future intent are not actionable unless defendant lacked intent when made	Counsel not ineffective for failing to request such an instruction; no controlling criminal authority or plain statutory text compelled importing civil standard (affirmed)
Whether counsel was ineffective for failing to object to Uncle’s testimony recounting what the hard‑money lender told him (alleged hearsay)	The contested statement was brief, unexpected, and the prosecutor did not emphasize it; strategic choice not to object was reasonable	Counsel should have objected to inadmissible hearsay and requested a limiting instruction	Counsel not ineffective; reasonable trial strategy to avoid drawing attention to an unexpected, brief statement (affirmed)
Whether evidence was sufficient to prove a "pattern of unlawful activity" under UPUAA	The multiple communications/fraud counts and affiliation with Fitz Roy supported an enterprise and pattern	The acts were a single scheme aimed at a single victim over a short period and therefore cannot establish the continuity required for a pattern	Insufficient evidence as a matter of law: the acts lacked closed‑ or open‑ended continuity (single victim, short closed period, no threat of repetition); UPUAA conviction reversed and acquittal ordered

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing the two‑prong ineffective‑assistance test)
Loughrin v. United States, 573 U.S. 351 (interpreting fraud‑statute disjunctive language and mens rea issues)
H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (explaining the "continuity plus relationship" test for a RICO pattern)
State v. Bradshaw, 152 P.3d 288 (Utah 2006) (discussing "scheme or artifice" as term of art under Utah law)
State v. Bird, 345 P.3d 1141 (Utah 2015) (requiring jury instructions to identify the mens rea implicated by statute)
Hill v. Estate of Allred, 216 P.3d 929 (Utah 2009) (holding UPUAA "pattern" mirrors RICO—requires continuity plus relationship)
State v. McGrath, 749 P.2d 631 (Utah 1988) (enterprise is separate element under UPUAA; standard for sufficiency review)
State v. Stringham, 957 P.2d 602 (Utah Ct. App. 1998) (discussing need to instruct jury on statutory mens rea in communications‑fraud context)