¶ 1 Allan Bruun and James Diderickson appeal their convictions on multiple counts of theft and one count each of a pattern of unlawful activity. They further appeal the restitution the district court ordered for those convictions. We affirm.
BACKGROUND
¶ 2 In 1989, a Utah County couple (the Victims) bought forty-two acres of land in Saratoga Springs. Although they sold -approximately thirteen acres over the years, they retained twenty-nine acres (the Property) as a “nest egg” to fund their retirement.
¶3 In August'2007, the Victims entered into two agreements with Braun and Dider-ickson (collectively, Defendants) to develop the Property. First, pursuant to a Real Estate Purchase Agreement (REPC), the Victims agreed to sell the Property to Equity Partners LLC, a company in which Defendants held interests through another company, Four. Winds Development- Group LLC (Four Winds).
¶ 4 Although under the REPC the Victims were to be paid $750,000 as a down payment toward the purchase of the Property, once the Operating Agreement was signed, Defendants informed the Victims that they were not able to “come up with the money to make the purchase price and continue with [the] purchase agreement as it was.” Defendants persuaded the Victims to put the Property up as collateral for a “hard-money loan” to “create some revenue” to begin development. Defendants then entered into a short-term, high-interest loan for the $750,000, which was secured by the Property. Approximately $350,000 of the $750,000 was used to pay off existing mortgages and taxes on the Property, and the remaining money was “put into a checking account ... for Tivoli Properties.” This deposit constituted Tivoli’s only operating funds and, according to the prosecution, was intended to fund the initial development, which primarily consisted of completing the
¶ 5 Unbeknownst to the Victims, Equity Partners entered into a joint venture agreement between Tivoli and Hidden Acres LLC, another of Defendants’ companies, for development of property located in Centerville, Utah. The Victims were aware of a Hidden Acres project because Defendants had taken them to visit the property at one point, but they were, not told that Tivoli had entered into an agreement to develop the Hidden Acres property, nor did they consent to it. In May 2008, Defendants informed the Victims that they were not able to pay the Victims their regular distributions. When asked why, Defendants responded with a “rough draft of what was spent on what” but they did not provide any receipts. The Victims then, accessed the Tivoli account themselves and discovered that the remaining balance had been reduced to only $1,083. They reviewed the check-payment history over the previous six months and discovered that Defendants had spent thousands of dollars on expenses that appeared to be unrelated to the development of the Property. For example, there were several checks written to Four Winds for thousands of dollars in management fees; a cheek for more than $30,000 related to a lot closing at the Hidden Acres development; an earnest money cheek for purchase of another property; and payments for equipment, landscaping, and dump fees unrelated to the Property. Defendants had not sought the Victims’ consent for any of these expenditures, nor were the Victims aware of them until their own investigation.
¶ 6 Around the time the Victims discovered the expenditures from the Tivoli capital account, they found out Tivoli had not made a single payment on the hard-money loan, which was then coming due. To keep the lender from foreclosing on the Property, Defendants asked the Victims to sign an agreement to increase the balance on the short-term loan by another $100,000. One of the Victims refused to sign and instead filed a notice of default in an attempt to get the Property back and to keep it from being auctioned by the hard-money lender.
¶7 In November 2008, the Victims and Defendants, along with Equity Partners, Four Winds, Tivoli, and other interested parties, entered into a settlement agreement (the Settlement). As part of the Settlement, the Victims received title to the Property and $174,000, which represented proceeds from the sale of .60 acres of the Property to the Utah Department of Transportation (UDOT). In return, the Victims paid $25,000 to Equity Partners and agreed to release that company from all claims related to its management of Tivoli.
¶ 8 About two and a half years later, in May 2011, the State charged Defendants with a number of criminal offenses related to them dealings with the Victims — twenty-eight counts of theft of varying degrees, targeting individual cheeks written from the Tivoli operating account, and one count of engaging in a pattern of unlawful activity.
¶ 9 Of central importance in the case was whether Defendants were • authorized to make the expenditures represented in the checks^ During preliminary hearing proceedings, Defendants argued that the Operating Agreement authorized the expenditures as a matter of law. The magistrate determined, however, that “believable evidence exists to support a conclusion that the checks were unauthorized” under the. Operating Agreement and bound Defendants over on the charges.
¶ 10 At trial, Defendants repeated them argument that the Operating Agreement authorized the expenditures, and they note on appeal that “much of the trial was consumed with witnesses reading aloud, and then offering their interpretations of, various language of the Operating Agreement.” Indeed, Defendants explained to the jury that the Operating Agreement was “the brains, ... the rules, ... the code book for how [members]
¶ 11 The trial court admitted the Operating Agreement as an exhibit at trial and provided it to the jurors to use, together with other evidence adduced at trial, to determine whether the various contested expenditures amounted to thefts. Defendants did not request that the court provide a jury instruction construing the Operating Agreement and did not object to the lack of any contract interpretation instructions.
¶ 12 Each of the twenty-eight counts of theft the State brought against Defendants related to individual checks drawn on the Tivoli account. For each of Defendants, the State voluntarily dismissed two counts during trial, and the jury returned not-guilty verdicts on fourteen counts and guilty verdicts on twelve counts. The checks the jury determined to be thefts all represented expenditures for development projects other than the Property. For example, the jury determined that the lot closing payment and the equipment, landscaping, and dump fee expenditures were thefts. The jury also convicted Defendants on the one count of pattern of unlawful activity. As part of their sentences, the trial court ordered Defendants to, jointly and severally pay restitution in an amount equal to the value of the checks the jury determined constituted thefts— $189,574.33.
¶ 13 Defendants appeal their convictions and the restitution order.
ISSUES
¶ 14 Defendants raise five claims of error. First, they argue that the trial court should have determined as a matter of law that the Operating Agreement authorized Defendants’ use- of the funds in the Tivoli operating accounts for other development projects or, if the question of authorization was not clear as a matter of law, the Court erred when it failed to instruct the jury regarding the Operating Agreement’s provisions and effect. In the alternative, Defendants argue that their use of Tivoli’s funds was authorized as a matter of law by relevant provisions of the Utah Revised Limited Liability Company Act, see Utah Code Ann. §§ 48-2c-101 to - 1902 (LexisNexis 2010),
¶ 15 Second, Defendants argue that the trial court incorrectly interpreted the theft statute when it allowed the State to charge Defendants with theft of the full value ;of each of the twelve checks written on the Tivoli operating account rather than limiting the value of the thefts to the Victims’ combined 25% interest in the company.
¶ 16 Third, Defendants argue that the trial court failed to instruct the jury on the lesser included offense of wrongful appropriation for each theft count.
¶ 17 Fourth, Defendants argue that the trial court failed to correctly instruct the jury that there was a minimum time frame required to establish a pattern of unlawful activity
¶ 18 Fifth, Defendants argue that, in determining restitution, the trial court failed to take into account the effect of the Settlement between Defendants and the Victims,-
¶ 19 Finally, Defendants argue that we should reverse under the cumulative error doctrine.
ANALYSIS
I. Authorization Under the Operating Agreement and the LLC Act
¶20 Defendants were charged with multiple counts of theft under Utah Code section 76-6-404, which requires the State to prove that a defendant “obtains or exercises unauthorized control over .the property of another with a purpose to deprive him thereof.” They were charged on the basis of certain checks they wrote from Tivoli’s account for expenses that the State claimed were unrelated to development of the Property. Defendants acknowledged that the majority of the disputed checks on the Tivoli account went toward expenses related to Defendants’ other development projects — in particular, the Hidden Acres development. '
¶ 21 On appeal, Defendants argue that their convictions should be reversed because, as a matter of law, their actions “were expressly authorized by two sources that should have been interpreted, and applied, by the trial court” — the Operating Agreement and Utah’s Revised Limited Liability Company Act (the LLC Act or the Act). They contend that the Operating Agreement’s provisions — particularly those related to managerial powers — authorized them to enter into joint ventures and make expenditures unrelated to the Property’s development, and that, on this basis, the court should have decided that their actions were authorized as a matter of law. In the alternative, they contend that even if the Operating Agreement, was ambiguous about the .issue of-authorization, the court should have sua sponte identified the precise nature of the ambiguity for the jury and appropriately instructed the jury regarding its role in interpreting the Operating Agreement, And although Defendants concede that the issue was not raised below, they argue that the LLC Act also authorized their actions as a matter of law and request that we review the issue under the doctrines of plain error, ineffective assistance of counsel, and manifest injustice, We first address whether the Operating Agreement authorized Defendants’ actions and whether the court erred in not instructing the jury regarding contract interpretation. We then address whether the LLC Act authorized their actions.
A. The Operating Agreement
¶ 22 Defendants argue that the question of whether their actions were authorized should have been decided by the court as a matter of law, not as a question of fact to he sent to the jury,
¶ 23 Here, because the trial court sent the Operating Agreement to the jury along with all other evidence pertaining to the thefts charged, the court implicitly determined that the Operating Agreement’s provisions were either ambiguous as to the element of authorization, see Holladay Bank & Trust v. Gunnison Valley Bank,
¶ 24 “A contract’s interpretation may be either a question of law, determined by the words of the agreement, -or a question of fact, determined by extrinsic evidence of intent.” Peterson v. Sunrider Corp.,
¶ 25 Among the major questions at trial related to the authorization element of the theft charges was whether the Operating Agreement limited Tivoli’s activities — and hence its expenditures — solely to the Property. The State elicited testimony suggesting that, properly interpreted, the Agreement did just that, while Defendants contended that there was no such constraint. The Operating Agreement contains provisions that appear to support both sides of the question. For example, the Agreement’s recitals explain that Tivoli was formed “to and for the sole purpose of investing in, purchasing, selling, granting, or taking an option on lands for investment purposes and/or development,” a relatively expansive statement of the scope of Tivoli’s business purpose. See Recital, Black’s Law Dictionary (10th ed. 2014) (explaining that a recital is “[a] preliminary statement in a contract or deed explaining the reasons for entering into it or the background of the transaction”). Similarly, as Defendants point out, the “Business of the Company” section provides “an express limitation” on the nature of Tivoli’s business and the managerial powers, stating that “the Company is intended to purchase and develop, hold and [sell] real estate for investment purposes only, and no activities inconsistent with such limited purposes shall be undertaken.” Finally, the “Formation of Company” subsection similarly explains that “[t]he Company was formed as a new venture for the purpose of acquiring real property for development.” These provisions are broad enough to suggest that the Operating Agreement could be read to authorize investments and expenditures on real estate development projects apart from the Property.
¶ 26 On the other hand, a number of provisions in the Operating Agreement appear to limit Tivoli’s activities to the Property itself. In the definitions section, “Property” is defined as the “approximately 29 acres of real property located in Utah County, ... which real property is the subject of the Purchase Agreement,” and “Developer” is defined as “Tivoli Properties, LLC, a Utah Limited Liability Company established to manage, improve, subdivide, develop, lease, and sell the Property and to perform all other activities reasonably related thereto.” The “Purposes of the Company” subsection then explains that Tivoli “is organized for the purpose of carrying on the business of acquiring, managing, improving, subdividing, developing, leasing and selling the Property or any other enterprise that members may mutually agree upon.” (Emphasis added.) And although the “Business of the Company” provision considered in isolation is broadly written, it could reasonably be construed to incorporate the more specific “Purposes of the Company” provision to limit its breadth: “Equity Partners, LLC ... shall have full, exclusive and complete authority and discretion in the management and control of the business of the Company for the purposes herein .stated ....” (Emphasis added.) Cf. Nephi City v. Hansen,
¶ 27 Thus, the Operating Agreement’s descriptions of Tivoli’s business purpose do not appear to clearly authorize Tivoli (or Equity Partners, on its behalf) to engage in real estate related activities apart from the Property itself. In fact, as the State argued below and on appeal, there appears to be a reasonable basis in the Agreement from which to conclude that, unless the members “mutually” 'agreed otherwise, Tivoli’s authorized business activities were limited to development of only the Property. See Holladay Bank & Trust,
¶29 But the State contends that other sections of the Agreement significantly limit the managers’ authority to take certain actions, and a reasonable argument can be made that several of those' limitations apply to the expenditures and investments that underlay the theft counts on which the jury convicted. The “Limitations” on managers’ powers subsection of the Operating Agreement provides that “no act shall be taken, sum expended, decision made, obligation incurred or power exercised by any Manager on behalf of the Company except by the consent of One Hundred percent (100%) of all Membership Interests with respect to” “[a]ny significant and material purchase, receipt, lease, exchange, or other acquisition of any real or personal property or business”; “[a]ny matter which could residt in a change in the amount or character of the Company’s capital”; “[t]he commission of any act which would make it impossible for the Company to carry on its ordinary business and affairs”; and “[a]ny act that would contravene any provision of the Articles or of this Operating Agreement.” (Emphasis added.) These restraints can reasonably be interpreted to apply to Defendants’ actions. As a result, given that the Operating Agreement’s broad grant of authority to the company’s managers is qualified by specific restraints; we are not persuaded that it unambiguously authorized Defendants to make the non-Property-related expenditures underlying the charges against Defendants.
¶ 30 Thus, we conclude that the Operating Agreement did not unambiguously authorize Defendants to use Tivoli’s capital for the expenditures that underlay the theft charges against them. Rather, while there are provisions in the Agreement from which the jury might reasonably have concluded that the parties intended Tivoli to engage broadly in real estate acquisition and development and that Defendants were authorized to engage in joint ventures and make the sorts of expenditures represented by the checks, there are also provisions reasonably supporting a conclusion that the parties intended Tivoli’s business to -be limited ‘to development of the Property and that the Agreement limited the managers’ ability to make the disputed purchases and payments. See Holladay Bank & Trust v. Gunnison Valley Bank,
¶ 31 And, as the State points out, the court could reasonably have determined that there was sufficient evidence to send the theft counts to .the jury and let the jury decide whether the Operating Agreement’s constraints on Tivoli’s business and the managers’ authority precluded Defendants from making the expenditures at issue. The parties presented extensive evidence on the meaning of the Operating Agreement during trial. As Defendants concede, “much of the trial was consumed with witnesses reading aloud, and then offering their interpretations of, various language in the Operating Agreement” regarding whether they had authority •under the Agreement to make the expenditures at issue in the case. The State elicited testimony and argued that Defendants lacked authority to make the expenditures they were charged with, while Defendants attempted to demonstrate that under the Agreement they were not limited to making expenditures related only to the Property and that they had authority as managers to involve .Tivoli in their other developmeht projects and make the expenditures. As a result, the evidence presented at trial on the issue.of whether the Operating Agreement authorized Defendants’ actions was conflicting at best, but certainly not insufficient to submit to the jury for decision. For example, , as the State argues, the jury could have decided that the dollar amount of some of.the checks qualified them, as “significant purchases” and that several of the larger checks were sufficiently “significant and material” to have resulted in “a change in the amount” of Tivoli’s capital — both of which required the consent of all of Tivoli’s members under the Operating Agreement. Similarly, the jury could have decided, based on the Operating Agreement’s language and related testimony, that Tivoli’s business was limited to activities related solely to the Property absent the “mutual agreement” of the members and that certain checks involving investments or expenditures in aid of other business ventures, such as Hidden Acres LLC, were contrary to the “Purposes of the Company” provision of the Operating Agreement. Thus, given the ambiguity of the Operating Agreement and substantial conflicting evidence about its meaning, we are not persuaded that the trial court was required to interpret the Operating Agreement to.have authorized Defendants’ conduct as a matter of law and dismiss the theft counts on that basis. See State v. Clark,
¶ 32 In sum, because we are not persuaded that the Operating Agreement unambiguously authorized Defendants’ actions, the issue of whether Defendants were authorized to use Tivoli’s capital as they did was properly submitted to the jury to decide based on the Agreement’s language and the other evidence presented of the parties’ intent. Cf. State v. Larsen,
B. Jury Instructions
¶-33 Defendants also argue that, even if the trial court did not err in sending the authorization question to the jury, it should have provided an instruction identify^ ing each ambiguity in the Operating Agreement that the jury was required to resolve and advising that the parties’ intent with regard to the managers’ authority must be determined as of the time the Operating Agreement was entered into. This issue is unpreserved. Defendants did not request suph an instruction in the trial court nor did
¶ 34 Defendants have not established that reversal under the plain error standard is appropriate. For instance, they claim that, in the event an agreement does not unambiguously authorize certain behavior in a criminal case, the trial court was required to affirmatively “identify the nature of the ambiguity” in the agreement for the jury. They claim.the court could have done so by, for example, explaining uncertainties in specific provisions of the Operating Agreement or in the document as a whole. But the only case Defendants cite to support their contention, Daines v. Vincent,
¶ 35 Accordingly, Defendants have failed to demonstrate that it would have been, obvious to the trial court that it was required to instruct the jury on the. nature of any ambiguity in the Operating Agreement or to specifically instruct the jury about how to determine the parties’ intent from the Operating Agreement. See Davis,
C. The LLC Act.
¶36 Defendants argue in the alternative that, whatever constraints on their authority may have existed in the Operating Agreement, the LLC Act authorized as a matter of law their decisions to use Tivoli’s funds to support or invest in other projects.
¶ 37 The State contends that Defendants failed to preserve this argument in the trial court. “In order to preserve an issue for appeal, it must be specifically raised such that the issue is sufficiently raised to a level of consciousness before the trial court so as to give the trial court an opportunity to address the claimed error, and if appropriate, correct it.” Slate v. Noor,
¶ 38 “To the extent that Defendants] did not preserve [then*] claims before the trial court, [they] must establish plain error, ineffective assistance of counsel, or exceptional circumstances to warrant review by this court.” State v. Kozlov,
¶ 39 “With respect to any. ineffectiveness claim, a defendant must first demonstrate that counsel’s performance was deficient, in that it fell below an objective standard of reasonable professional judgment. Second, the defendant must show that counsel’s deficient performance was prejudicial — i.e., that it affected the outcome of the case.” State v. Litherland,
¶ 40 As we explain below, we are not persuaded that it would have been obvious to the trial court or counsel that the LLC Act dictated a different result in this case.
¶ 41 Defendants’ arguments with respect to application of the LLC Act rest on their claim that they owned effectively 75% of Tivoli through their ownership interest in Equity Partners. They contend that the LLC Act authorized their use of Tivoli’s operating capital to make expenditures related to the Hidden Acres development because the LLC Act permits owners of more than two-thirds of the interests in a limited liability company to act with “extremely broad authority — even to take actions in contravention to the operating agreement or the stated purpose of the LLC.”
¶ 42 “When we interpret statutes, our primary goal is .to give effect to the legislature’s intent in light of the purpose the statute was meant to achieve.” Evans v. State,
¶ 43 The LLC Act “establishes] the duties and powers of a limited liability company.” See CCD, LC v. Millsap,
[A]n operating agreement may modify the rules of any provision of this chapter that relates to: (a) the management of the company; (b) the business or purpose of the company; (c) the conduct of the company’s affairs; or (d) the rights, duties, powers, and qualifications 'of, and relations between and among,- the members, the managers, the members’ assignees and transferees, and the company.
Id. § 48-2c-502(l). This flexible approach is directly reflected in the provisions of the Act most pertinent to this appeal, found in the part dedicated, to. “Management.” Indeed, nearly every section describing management roles, duties, and operations includes the proviso that the stated rules apply “unless otherwise provided in the articles of organization or operating agreement.” E.g., id. §§ 48-2c-801(2), -803, -803.1, -804(6), -805, -807(3), - 808. In this regard, we have recognized that “[u]nder the LLC Act, members of an LLC are allowed great flexibility when choosing how the LLC will be organized and managed,” with “the . provisions of the LLC Act serving] as default provisions that govern an LLC if its members "do not include contrary language in their operating agreement or in the LLC’s articles of organization.” OLP, LLC v. Burningham,
¶ 44 Nonetheless, Defendants'point to several subsections which they contend, read together, authorized them to “enter into the [Hidden Acres] joint venture” and to use Tivoli’s money to make expenditures for other development projects. First, they look to section 48-2c-804, titled “Management by managers.” This section defines the role of a manager under .the LLC Act and describes the actions a manager is authorized to take on behalf of a-company. Defendants focus specifically on two. subsections. Subsection (4) provides that “no manager shall have authority to .do any act in contravention of the articles of organization or the operating agreement, except as provided in Subsection (6)(g).” Subsection (6)(g) provides that “unless ,otherwise provided in the .articles of organization or operating agreement of the company: (g) approval by: . . . (ii) members holding 2/3 of the profits interests in the company, and 2/3' of the managers shall be required for all matters described in Subsection 48-2c-803(3).” Defendants claim that they qualify under this subsection because they owned' or controlled more than two-thirds of the membership interests in Tivoli. Subsection 803(3) in turn identifies a list of actions that may be taken if 2/3 of the members vote, approve, or consent, including,
(a)(i) authorizing a member or any other person to do any act on behalf of the company that is not in the ordinary course of the company’s business, or business of the kind carried’ on by the company; ... (e) resolving any dispute connected with the usual and regular course of the eompa-.ny’s business; [and] (d) making a substantial change in .the husiness purpose of the company,
Utah. Code Aim. § .48-2c-803(3) (LexisNexis 2010). Defendants contend that these sections. together are dispositive on the issue of their authorization to act as they did with Tivoli’s capital because Defendants “undis-putedly held a greater, than two-thirds profits interest in Tivoli,” which meant they were statutorily authorized to “enter info the [Hidden Acres] joint venture and expend Tivoli funds on the Hidden Acres development, regardless of any allegation that it was in contravention of the Operating Agreement or not in the course of Tivoli’s regular business.”
.¶ 45 In response, the State contends that, even if Defendants held a two-thirds interest in Tivoli, the statute did not authorize Defendants’ contested actions. The State asserts that the Operating Agreement’s requirement for consent of all the owners for the managers’ actions taken outside the scope of the company’s business or in contravention of the Agreement’s specific requirements overrode what amounted only to statutory default provisions permitting a two-thirds membership majority to avoid the business constraints of an operating agreement. The State argues that, although subsection (6)(g), taken out of context, may be read to permit members holding two-thirds or more interest to exercise powers described in subsection 803(3), subsection (6) itself — and therefore each of its subsections — begins with the proviso, “unless otherwise provided in the articles of organization or operating agreement of the company.” The State notes that the Operating Agreement expressly requires “consent of One Hundred percent (100%) of all Membership Interests” for “[a]ny amendment or restatement” of the Operating Agreement “[a]ny change in the character of the business and affairs of the Company,” “[a]ny significant and material purchase,” ■ and the “commission of any act which would make it impossible for the Company to carry on its ordinary business and affairs.” And, the State argues, the thefts charged against Defendants involved just this sort of prohibited management conduct;
¶ 46 Defendants respond, however, that the most logical interpretation of subsection 804(4)’s proviso,' excepting management actions described in subsection 804(6)(g) from the constraints of an operating agreement, requires that subsection 804(6)’s prefatory proviso, that the actions may be taken “unless otherwise, provided in ... the operating agreement,” not apply once, subsection 80.4(4) has been invoked. Defendants argue that “[t]he only reasonable meaning of Section 804(4) is that, when it mentioned 804(6)(g),
¶ 47 We acknowledge that there is some logic to Defendants’ interpretation, and their argument illuminates a potential inconsistency in the statute if subsection 804(6)’s introductory provisoes included‘when subsection 804(4) is invoked. But it is certainly not obvious that 804(4) is meant to incorporate 804(6)(g) without 804(6)’s broad qualification giving primacy to contrary provisions of an operating agreement, -especially in light of the LLC Act’s overarching policy elevating the specific agreements of a company’s members over the default provisions of the Act. And we are not convinced that an interpretation which includes the (6)(g) proviso necessarily renders subsection 804(4) a nullity, as Defendants contend. But even assuming that it would, Defendants essentially ask us to narrowly employ the “canon of independent meaning” in a manner and under circumstances that obviously undercut tiie releyant underlying policy in the LLC Act to give “maximum effect” to “freedom of. contract and to the enforceability of operating agreements of companies” in areas of management authority that seem crucial to the protection of minority members from the will of the majority. See Utah Code Ann. § 48-2e-1901 (LexisNexis 2010); Lancer Ins. Co. v. Lake Shore Motor Coach, Lines, Inc.,
¶ 48 In CCD, LC v. Millsap,
¶ 49 Here, even if, “in the abstract” Defendants’ plain language reading makes some sense, “when placed in the context of applying a statute” that “takes pains to preserve” freedom of contract in the areas of company management, changes in business purpose, company conduct, and the allocation of rights and powers as between managers and members, Defendants’ reading contravenes the stated intent and the relevant overall policy of the Act. Certainly the isolated provisions of the Act relied on by Defendants on appeal do not legally settle the question of whether at the timé of trial Defendants had authority to act as they did, especially given the Act’s express policy and provisions aimed at giving primacy to the parties’ own agreements over otherwise contrary “default” provisions of the LLC Act itself.
¶ 50 And Defendants’ assertions in this regard are even less persuasive given that the result they urge — that provisions of the LLC Act must be read to invalidate significant management constraints in the Operating Agreement — appears to contradict the terms of the Operating Agreement itself, which echoes the notion that the provisions of the LLC Act operate only as a default where the Operating Agreement itself does not' address the subject: “The rights and obligations of the Members shall be as set forth in the [LLC] Act unless the Articles or this Agreement expressly provide otherwise, in which case the provisions of the Articles or this Agreement shall control.” (Emphasis added.)
¶ 51 Accordingly, because the provisions of the LLC Act that Defendants' rely on do not obviously authorize them to act in contravention of relevant provisions of the Operatiiig Agreement,' we are not persuaded that the trial court committed plain error by sending the ease to the jury on the theft element of authorization in the face of settled law exonerating them or that trial counsel-performed deficiently by failing to make the arguments with respect to the LLC Act that Defendants have now made on appeal. See State v. Edgar,
II. Percentage of Profits
¶ 52 Defendants next argue that the trial court should have instructed the jury that because Defendants “owned all but 25 percent of the allegedly stolen LLC funds,” “the value of the allegedly stolen property was not more than 25 percent of the checks at issue.” They contend- that had the jury been properly instructed, all but four counts would have been dismissed, because the rest would have been reduced from the charged felonies to misdemeanors and would therefore “have been subject to dismissal based upon the two-year statute of limitations” applicable- to misdemeanor theft. See Utah Code Ann. § 76-l-302(l)(b) (LexisNexis 2012) (providing that “a prosecution for ... a misdemeanor ... shall be commenced within two years after it is committed”); see also id. § 76-6-412(c), (d) (explaining the classifications of misdemeanor theft).
¶ 53 The State responds that, under Utah law, “[i]t is no defense [under the theft statute] that the actor has an interest in the property or service stolen if another person also has' an interest that the actor is not entitled to infringe.” Utah Code Ann. § 76-6-402(2) (LexisNexis 2012). The State argues that, as a result, the Victims’ fractional interest in Tivoli did not provide Defendants with a value-based defense to the theft charges. The State also points out that, even if Defendants’ ' ownership interest could provide • a defense, it could not do so here, where Defendants’ own “interest was in Tivoli,” a “legal entity distinct from its members” and they" accordingly had no direct interest in Tivoli’s assets. We agree with the State.
¶ 54 Defendants’ argument essentially presents “an issue of statutory construetion
¶ 55 And, as the State points out, both the LLC Act and the Operating Agreement undermine Defendants’ argument that the value of any theft they may have committed must be reduced by any ownership interest they have in Tivoli. According to the Act, an LLC “is a legal entity distinct from its members.” Utah Code Ann. § 48-2e-104 (LexisNexis 2010). Even if a “member” of an LLC (in this case, Equity Partners) has “an ownership interest” in the LLC, id. § 48-2e-102(14), “[that] member has no interest in specific property of [the] company,” id. § 48-2e-701(2), Thus, under the LLC. Act, Defendants’ ownership of 75% of Tivoli did not entitle them to 75% of the company’s specific property — in this case, the operating capital — to do with as they chose. The Operating Agreement provides similarly. For example, the definitions section of the Agreement expressly- defines “Membership Interest” as “a Member’s percentage interest in the Company, consisting of the Member’s right to share in Profits, receive distributions, participate in the -.Company’s governance, approve the Company’s acts, participate in the designation and removal of a Manager, and receive information pertaining to the Company’s affairs.” Thus, by definition, the members’ interests create proportional rights to profits, distributions, and participation rights, not a right to access and use the company’s operating capital. And the Agreement expressly states that the $750,000 procured by Equity Partners through the hard-money loan — the source of the money that Defendants were convicted of stealing — “will be used as operating capital for the Company.” See State v. Stites,
¶ 56 Defendants’ reliance on State v. Parker,
¶ 57 Accordingly, we are not persuaded that the trial court erred when it failed to instruct the jury that the value of the thefts was limited in proportion to Defendants’ ownership interests in Tivoli or that certain of the charged thefts ought to have been dismissed on that basis.
III. Lesser Included Offense
¶ 58 Defendants argue that their convictions “should be reversed for [the trial court’s] failure to instruct on the lesser-included offense of wrongful appropriation.”
. ¶ 59 “When a claim of error regarding a jury instruction is made for the first time on appeal, appellate courts review the instruction for manifest injustice” under Utah Rule-of Criminal Procedure 19(e), State v. Cox,
¶ 61 Defendants argue . that trial counsel’s decision to forgo the lesser included offense instruction because of a perceived stipulation with the State fell below the “objective standard of reasonable professional judgment.” Specifically, Defendants argue that trial counsel’s belief that the State had agreed to a favorable post-verdict process was unreasonable, But an appellate court reviewing trial counsel’s actions for ineffective assistance does not have to accept at face value the explanation appellant provides for the challenged decision. See Jackson v. State,
¶ 62 Here, we agree with' the- State that there’was a plausible basis for counsel’s decision not to request a lesser included offense instruction; Por example, as the State suggests, trial counsel could have decided to forgo a lesser included offense instruction as part of an “ ‘all or nothing’ defense theory, i,e., that [Defendants were] totally innocent of any wrongdoing.” State v. Dyer,
■¶ 63 Under these circumstances, we are not persuaded that Defendants’ trial counsel performed- deficiently. And because Defendants have not shown that their trial counsel .performed deficiently, we do not address whether counsel’s strategy prejudiced Defendants.
IV. Pattern of Unlawful Activity
¶ 64 Defendants next' argue 'that their convictions for engaging in a pattern of unlawful activity should be dismissed because their actions took place over a period of less than a year, a time frame they contend was insufficient as a matter of law to constitute a “pattern” under the Utah Pattern of Unlawful Activity Act (the UPUAA). They point out that the supreme court held in Hill v. Estate of Allred,
¶ 65 Alternatively, they contend that their convictions should be reversed because the jury was not adequately instructed regarding thé temporal element of “continuing unlawful conduct.” Again relying on Hill, they argue that the jury was not instructed, as it should have been, that it could find a pattern of unlawful activity had occurred under the UPUAA only if it extended over a substantial period of time. And characterizing the “substantial period of time” part of the test as a “key requirement,” they assert that the failure to so instruct the jury requires reversal of their UPUAA convictions. •
¶ 66 Defendants concede that trial counsel did not seek dismissal of the UPUAA counts or request a jury instruction containing a “substantial period of time” element. Thus, their arguments on this issue are not preserved. Nonetheless, they assert that we should review their claims under ineffective assistance of counsel, plain error, and manifest injustice.
. ¶ 67 As previously discussed, to sustain a claim that Defendants received ineffective assistance of trial counsel, Defendants must show that their counsel’s performance “was both deficient and prejudicial.” State v. Cox,
¶ 68 ■ Defendants contend that their trial counsel was ineffective for failing to move for dismissal of the pattern of unlawful activity counts, contending that the “UPUAA imposes a minimum threshold of at least one year” to establish an actionable pattern of unlawful activity and that the facts in them ease show that, at most, the predicate acts occurred only over a nine-month period. Because the claim of ineffectiveness is “based on an [asserted] oversight or misreading of law, [Defendants] bear the burden of demonstrating why, on the basis of the law in effect at the time of trial, [their] counsel’s performance was deficient.” See State v. Dunn,
¶ 69 Here, Defendants have not demonstrated that their trial counsel’s performance was deficient for failing to move to dismiss the UPUAA counts. They are correct that in Hill v. Estate of Allred,
¶ 70 As a result, as Defendants concede, while adopting the concept as part of the “proper test” for determining whether there has been an unlawful pattern of activity under the UPUAA, neither our supreme court nor this court have provided any guidance about what actually constitutes a “substantial period of time.” Because Utah appellate courts had not adopted a specific standard for determining whether a particular set of related acts meets the closed continuity requirement of “a substantial period of time” under the UPUAA, much less a rule that established the cut-off at a year or more, that issue was a matter of first impression in Utah at the time of trial and was therefore unsettled.
¶ 71 Nonetheless, as Defendants assert, the court in Hill chose to look to - RICO federal case law as guidance for interpreting the UPUAA and they contend that federal cases interpreting and applying the federal RICO statute have overwhelmingly declined to find a pattern in circumstances where the unlawful activities occurred over less than a year. See, e.g., First Capital Asset Mgmt., Inc. v. Satinwood, Inc.,
¶ 72 However, as the court in Hill noted, “we are, not obligated to give pattern of unlawful activity the same interpretation as pattern of racketeering activity under RICO”
¶ 73 Moreover, even the federal RICO case law appears to be unsettled regarding how closed continuity may be met. Several circuits have specifically eschewed any bright-line rules on the question of continuity or as to whether a pattern of criminal activity exists and instead have embraced a flexible, fact-specific approach. See, e.g., ePlus Tech, Inc. v. Aboud,
¶ 74 Further, it does not appear that the federal circuits are in full agreement about whether it is appropriate to impose a specific minimum durational requirement that, as matter of law, will preclude the continuity element from being met for alleged patterns failing to meet the minimum duration. Some circuits have adopted a bright-line rule regarding duration. See, e.g., Satinwood,
¶75 Accordingly, because- there was no settled, controlling law establishing that a period of less than a year did not constitute a “substantial period of time” for purposes of establishing closed continuity under the UPUAA, Defendants have failed to establish either plain error on- the. part of the trial court for failing to dismiss the pattern charge sua sponte or ineffective assistance of counsel for failing to request dismissal on that- basis. See State v. Edgar,
¶ 76 Defendants argue alternatively that “the jury should have been instructed as to the ‘substantial period’/threat of continuing activity and temporal requirements,” and that counsel provided ineffective assistance by not requesting such an instruction and the court plainly erred by not instructing the jury on this point. We. will affirm unpre-served challenges to jury instructions when the instructions “fairly instruct the jury on the' applicable law.” See State v. Kennedy,
¶ 77 Here, the trial court instructed the jury that it had to find that Defendants “participated as a principal” in “a pattern of unlawful activity” in order to find them guilty of these counts. The trial court, further instructed the jury that “pattern of unlawful activity” meant
[ejngaging in conduct which constitutes the commission of at least three episodes of unlawful activity, which episodes are not isolated, but have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics. Taken together, the episodes shall demonstrate continuing unlawful conduct and be related either to each other or to the enterprise. The most recent act constituting part of a pattern of unlawful activity as defined shall have occurred within 5 years of the commission of the next preceding act alleged as part of the- pattern.
This language was taken directly from the definitions section of the version of the UPUAA in effect at the time. See Utah Code Ann. §’ 76-10-1602(2) (LexisNexis 2012). Hill v. Estate of Allred expounded upon the meaning of “continuing unlawful conduct” when it explained that continuity is a “closed- and open-ended concept,” where continuity may'be demonstrated either “over a closed period by proving a series of related predicates extending over a substantial period of time” or where “the threat of continuity is demonstrated.”
¶ 78 Thus, because the trial court instructed the jury based upon the definitions included in the UPUAA itself and Hill did not require that a jury must be specifically instructed regarding the nuances of closed and open continuity, it appears on its face that the jury was “fairly instruct[ed] on the applicable law.” See Kennedy,
¶ 79 In any event, Defendants have failed to explain how they were harmed by the omission of an instruction regarding the “substantial period/threat of continuing áetívity and temporal" requirements.” The word “substantial” commonly means “of ample or considerable amount, quantity, size, etc.” Substantial, Dictionary.com,' http://www. dictionary.com/browse/substantial. Even if the trial court instructed the jury that it was required to find the period of unlawful conduct to be “substantial,” the jurors still would have been left on their own to decide what length of time constitutes “substantial” and to ’ ultimately determine the issue factually; there was no controlling law in Utah to provide
V. Restitution
¶ 80 Defendants argue that the trial court erred in its restitution award. The trial court ordered Defendants to pay restitution in the aggregated amount of the twelve checks the jury determined to be thefts — $189,574.33. First, Defendants contend that the release of claims in the Settlement, signed by both Defendants and the Victims, precluded restitution as a matter of law. Second, they argue that the consideration the Victims received as part of the Settlement should have been taken into account in the court’s restitution order. Either way, they contend that no restitution should have been ordered. We conclude that the trial court did not err and affirm the restitution order.
¶ 81 Utah Code section 77-38a-302(l) provides, “When a defendant is convicted of criminal activity that has resulted in pecuniary damages, in addition to any other sentence it may impose, the court shall order that the defendant make restitution to victims of erime[.]” Utah Code Ann. § 77-38a-302(1) (LexisNexis 2012). At the time, the restitution statute defined “pecuniary damages” as
all demonstrable economic injury, whether or not yet incurred, which a person could recover in a civil action arising out' of the facts or events constituting the defendant’s criminal activities and includes the fair market value of property taken, destroyed, broken, or otherwise harmed, and losses including lost earnings and medical expenses, but excludes punitive or exemplary damages and pain and suffering.
Id. § 77-38a-102(6).
A The Settlement
¶ 82 Defendants first argue that the court erred in ordering them to pay restitution in any amount at all, alleging that the Settlement precluded further recovery by the Victims because they released Defendants from all liability related to the checks. They point to the restitution statute’s definition of pecuniary damages, which limits “economic injury” to that which may be recovered “in a civil action arising out of the facts or events constituting the defendant’s criminal activities.” See Utah Code Ann. § 77-38a-102(6). And they rely on the supreme court’s decision in Laycock to support their argument.
¶83 In Laycock, the supreme court primarily considered two questions: first, whether “a civil settlement between a defendant and a victim, which includes a release of all claims by the victim, may bar a district court from imposing restitution in a criminal action involving the same incident,” see id. ¶¶ 12-18, and second, whether the district court abused its discretion in relation to the actual restitution it ordered, see id. ¶¶ 19-34. Before reaching the question of whether the district court wrongly included amounts in the restitution awai-d that would not be recoverable in a civil action, the supreme court determined that a civil settlement and release of claims between a defendant and a victim does not bar a court from imposing restitution in the related criminal case. See id. ¶ 18. Defendants do not acknowledge this aspect of the Laycock decision, but we conclude that it significantly undermines their argument that the release bars a restitution award under the circumstances here,
¶ 84 In Laycock, the defendant pled guilty to negligent homicide of- the victim’s husband; the defendant had fallen, asleep while driving and had hit the husband’s vehicle head-on. Id. ¶ 3. In the negligent homicide criminal case, the court awarded court-ordered restitution but failed to determine complete . restitution. Id. ¶¶ 4, 24. In the meantime, the victim’s family had filed a civil action against the defendant for wrongful death. Id. ¶ 5. Before the criminal restitution proceedings concluded, the civil action was settled, and as part of the settlement, the victim “executed a Release of All Claims that released [the defendant] from any past, present, or future claims.” Id. During the same period, the State filed a petition in the criminal case, asking .the court to determine complete restitution. Id. ¶ 6. Before oral argument on that petition, the defendant filed a suggestion of mootness based on the settlement agreement, arguing that the, settlement had “effectively extinguished all , of [the victim’s] claims against [the defendant],” including any claim for restitution. Id. ¶ 14.
¶ 85 The supreme court determined that a civil settlement and release of claims did not bar the district court from imposing restitution as part of the criminal sentence. Id. ¶ 18. The court explained that, while the release may have ended the civil controversy between the defendant and the victim, it “did not affect the criminal proceedings between the State and [the defendant].” Id. ¶ 15. The supreme court reasoned that the purpose of restitution is not solely to compensate the victim for pecuniary losses caused by the defendant; rather, restitution “is part of a criminal sanction imposed by the state,” and it therefore has “a two-fold purpose”: (1) “to compensate the victim for pecuniary damages,” and (2) “to rehabilitate and deter the defendant, and others, from future illegal behavior.” Id. ¶ 18. It explained that the settlement and release did not address or resolve “the rehabilitative and deterrent purposes of restitution.” Id, As a result, the court concluded that the restitution issue was not nroot because, notwithstanding the release, “the dual purposes of restitution .have not been fulfilled.” Id. .
¶ 86 Similarly here, although Defendants contend that there is some language in Lay-cock that suggests some relationship between court-ordered restitution and an amount .that could.be recovered in a civil action, they fail entirely to address the supreme court’s initial holding that a civil settlement and release do not bar imposition of restitution in a related
B. Double Recovery
¶ 87 Defendants next contend that the trial court erred by essentially granting the Victims a double recovery through its restitution order. “[I]n the case of restitution, á reviewing court will not disturb a district court’s determination unless the court exceeds the authority prescribed by law or abuses its discretion.” State v, Laycock,
¶88 The trial court did, in fact, order Defendants to pay as restitution the total amount of the checks underlying the theft counts on which jury found them guilty. But the court reached its determination of the restitution amount only after rejecting on an evidentiary basis the argument that Defendants make on appeal. The court decided that the evidence presented regarding the value of the Property — both pre- and post-settlement — was too speculative to form the basis of the restitution order. Instead, the trial court decided to base restitution upon the non-speculative amount represented by the. thefts, the known loss associated with Defendants’ criminal conduct.
¶ 89 In the' proceedings below, the State requested that the court award restitution based' on the' difference between the value of the Property at the 'time the parties entered into the REPC and the value of the Property after it was returned to the Victims and they had then given up half of the Property to satisfy the hard-money loan obligation. The State urged the court to consider the starting point of the calculation as the Property’s $3.5 million purchase price, which it contended was “a fixed 'number” that represented what the Victims would have’ received “but for the Defendants’ actions.” And from the $3.5 million, the State proposed deducting the' estimated value of the Property at the time the Victims finally received it free of Defendants’ interests as a result of the Settlement as well as other amounts, such as the monthly payments the Victims received in the first months after Tivoli was formed. The State asserted that value of the Property at that point was $749,696, which was based upon a Utah County tax assessment value of the half of the Property the Victims retained after entering into an agreement with an outside investor to satisfy the monetary obligation. Based on these calculations, the State' contended that the total restitution'award should be approximately $1.9 million, with each defendant responsible for half.
¶ 90 In response, rather than propose their own formula for calculating restitution, Defendants sought to discredit the State’s approach by demonstrating, that using the State’s rationale, but substituting their own post-Settlement valuations of the Property, the trial court should conclude that the Victims had gained rather than lost value in the end and that no restitution should be awarded. In this regard, Defendants contended that the court should consider the value of the full twenty-nine acres, because, that was what the Victims received in the Settlement, and that the court should not take into account the Victims’ decision to thereafter give up half the Property to resolve the hard-* money loan because evidence of that deal was
¶ 91 The trial court rejected both the State’s and Defendants’ restitution calculations, reasoning that “valuing the property, whether we value it at what it was worth when they came into this, or what it .was worth at the moment they walked out, or what it’s worth now, all starts to become speculative.” The court expressed concern that the parties had not provided the court with a reliable method for determining the Property’s value. For example, the State’s approach depended on restitution being determined essentially by the difference between the Property’s purchase price and its post-settlement value, net of certain offsets. In this regard, the State used the original purchase price of $3.5 million as the baseline value for the Property, and Defendants used the same baseline for their own proposed calculations. But at the' restitution hearing the State admitted that, apart from the fact that the parties had agreed to the purchase price, it had no evidence of the Property’s actual fair market value at the time of sale. And the court questioned whether the $3.5 million was an accurate estimate in any event, where the Victims “could only get a loan” at the time for $750,000 — the hard-money loan, which seemed to the court to indicate that the Property was not worth much more than that amount at the time of sale. In addition, the court expressed doubt about the State’s contention that half of the Property, which was allegedly valued at $3.5 million in its entirety before entitlement, was valued at only $749,696 post-settlement, even after Defendants’ efforts in obtaining development approval from the city.
¶ 92 The court also expressed concern about the reliability of Defendants’ post-settlement valuations. Defendants contended that their contributions greatly increased the value of the Property, pointing to a post-zoning appraisal that valued the full twenty-nine acres at $6.76 million and extrapolating an $8.6 million value from the amount UDOT paid for a small parcel near the time of the Settlement. Defendants claimed that, through their efforts, they “made the [Victims] wealthy” by returning to them property that was worth substantially more than it had been at the outset. But the court expressed that, although it understood Defendants’ argument that their contributions to the Property increased its total post-settlement value by millions, it was not clear how those contributions ought to be appropriately factored into the calculations for the Property’s valuation or the restitution amount, especially in light of Defendants’ criminal conduct.
¶ 93 To resolve its concerns, the court instead rejected entirely the parties’ proposed calculations and determined that it made more sense “to value the restitution based on” “the actual theft amount,” “according to the jury and according to the contract as we heard it.” ■ It stated that “there were ... 12 checks written that the jury found were not appropriate and were thefts” in the total amount of $189,574.33 and that these checks established a reliably calculable sum in terms of the Victims’ monetary loss: “The money would not have been there for spending but for the [Victims’] land,” and “100 percent” of
¶ 94 In essence, then, the court concluded that the amount represented by the thefts was sufficiently certain as an evidentiary matter to support a reliable restitution determination, whereas the value of the Property at pertinent points in time — whether pre-sale, settlement, post-settlement, or at the time of the hearing — was not. We defer to the trial court regarding the weight it assigns to the evidence and in its credibility determinations. See State v. Hodges,
¶ 95 In any event, we cannot fault the court for deciding to base its restitution determination on the certain amount represented by the checks the jury determined to reflect amounts stolen from the Victims instead of on the parties’ various valuations of the Property, which the court determined were unreliable and to which thé court gave little weight. It is well within a district court’s broad discretion in determining criminal restitution to reject a party’s valuation contentions on the basis of evidentiary concerns. See State v. Laycock,
¶ 96 For example, in Laycock, the State had requested that the district court find “as a matter of law that no allocation of fault should be assigned to [the victim’s husband],” who was killed in the accident, and that the court include loss of the husband’s future earnings — in the amount of nearly $600,-000 — in its court-ordered restitution determination. The district court declined the State’s request on both points because of the “limited factual basis,” where the evidence estab-. lished the fact of the accident and provided limited information about the surrounding circumstances but not much more. Id. ¶¶ 2-3, 27. In light of the limited evidence, rather than assume for purposes of court-ordered restitution that the driver who was killed by the defendant was not himself negligent, the district court decided “to allow the facts to be established in a civil litigation setting” instead of “impos[ing] court-ordered, restitution based on” any assumptions about negligence. Id. ¶27. And as to loss of earnings, the district court also concluded that “the facts were too limited.to justify court-ordered restitution for an array of damages including lost wages.” Id ¶ 28. Accordingly, the distinct court based .its restitution order upon the readily ascertainable amounts of the medical and funeral expenses and the damage to the deceased’s car. Id. ¶4. The supreme court held the .district court’s decisions to be within the court’s discretion, observing that “[rjesti-tution should be, ordered only in cases where liability is clear as a matter of law and where commission of the crime clearly, establishes causality of the injury or . damages,” noting that “[w]hen the facts of a case are limited or unclear,” such as in “[m]atters of negligence, proximate cause and the amount of resulting damages,” “the civil setting is the best place for them to be determined,”7A ¶ 29 (citation and internal quotation marks omitted).
¶ 97 In the present case, like haycock, the trial court determined that the parties’ approach to “figuring out restitution by valuing the property ... [was] too speculative at this point in time” and instead decided to base restitution on the known value of the thefts for which Defendants were convicted. In other words, the trial court concluded that “the facts
¶ 98 And certainly, in these circumstances, the court was not required to simply accept Defendants’ argument that what the Victims received at the time of the Settlement, consisting primarily of the full twenty-nine acres of the Property, adequately took into account the effect of Defendants’ criminal actions on the Victims. See id ¶¶ 27-29 (explaining that a court determining restitution has discretion to “refuse to impose court-ordered restitution” on the basis of assumptions- or for matters or categories of loss on which it determines it has only a “limited factual basis”). Indeed, one of the main points of disagreement between the State and Defendants during the restitution hearing was whether it was appropriate for the court to take into account the Victims’ contention that they lost half of the Property post-settlement to satisfy the hard-money loan obligation Defendants persuaded them to incur, and calculate the restitution accordingly. Therefore, we are not persuaded that the.court exceeded its discretion in ordering Defendants to repay to the Victims the actual amounts Defendants stole from what was, in effect, the Victims’ direct contribution to Tivoli’s capital rather than attempting to effect a complex reconciliation of Defendants’ and. the Victims’ economic entanglements on the basis of evidence the court judged to be speculative and unpersuasive.
¶ 99 In sum, we conclude that, under Lay-cock, the Settlement and release did not as a matter of law preclude the Victims from being awarded restitution. We are also unpersuaded that the restitution amount ordered was the result of the trial' court’s abuse of discretion or error. Accordingly, we affirm the trial court’s restitution order.
VI. Cumulative Error
¶ 100 Finally, Defendants contend that we should reverse on the basis of cumulative error. “We reverse only if the cumulative effect of multiple errors undermines our confidence that a fair trial was had.” State v. Davis,
¶ 101 For the foregoing reasons, we affirm Defendants’ convictions and the trial court’s restitution award.
Notes
. Although Bruun and Diderickson have separately appealed, their cases were tried together below and they have raised the same'issues on appeal and submitted virtually identical briefing. Accordingly, we consolidated State v. Bruun, No. 20140295, and State v. Diderickson, No. 20140296, for purposes of this decision.
. "On appeal from a jury verdict, we view the evidence and all reasonable inferences in the light most favorable to that verdict and recite the facts accordingly.” State v. Nay,
. The sole member of Equity Partners LLC was Four Winds; Defendants comprised two of the - .three members of Four Winds.
. The Utah Revised Limited Liability Company Act Defendants rely upon was repealed and replaced effective January 1, 2016. However, its provisions were in effect at all times pertinent to the proceedings, and we cite them accordingly.
. We question whether this issue was preserved. We have had difficulty identifying in the voluminous record the point at which Defendants asked the court to decide this issue in the way they have presented it on appeal. Nevertheless, neither party has raised preservation as a barrier to our review of this issue, and we therefore address it on its merits, noting that the- result is the same, regardless.
. We note that, even assuming that Defendants could limit the value of the stolen money according to their fractional ownership interest in Tivo-li, the convoluted-nature of Defendants’ ownership interests seems to limit the applicability of this defense in the circumstances here. For example, the members of Tivoli are Equity Partners, 75%, and both of the Victims, collectively 25%. But Equity Partners itself is composed of only one member — Four Winds, another LLC. And, as noted above, Four Winds is comprised of three members, of which only two are Defendants. Thus, even according to Defendants' own argument, it is not clear how Defendants, acting as individuals, could be said to own a clear 75% interest in Tivoli given the stacked LLCs involved in Tivoli's ownership.
. "Bailment” is "[a] delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose, usually under an express or implied-in-fact contract. Unlike a sale or gift of'personal property, a bailment involves a change in possession but not in title,” Baiifmnt, Black’s Law Dictionary (10th ed. 2014).
. Utah Code section 76-6-404.5 provides that "[w]rongfol appropriation is a lesser included ’ offense of the offense of theft” and that it is "punishable one degree lower than theft.” Utah Code Ann. § 76-6-404,5(3), (4) (LexisNexis 2012).
. The supreme court noted in Hill that continuity " 'is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.’ ”
. Because the legislature has since amended the definition of pecuniary damages in the restitution statute, we cite the prior version of the statute.
. We note that below Defendants did not include the UDOT payment in their proposed restitution calculation Or argue to the court that that payment should have factored into the restitution calculation as a separate component.