Case Information
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T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Plaintiff and Appellee, v.
D IKE W ILLIAMS , Defendant and Appellant. Memorandum Decision No.
Filed April
Third Distriсt, Salt Lake Department Honorable Randall N. Skanchy
No.
Ronald Fujino, Attorney Appellant John E. Swallow and John J. Nielsen, Attorneys for Appellee J UDGE J AMES Z. D AVIS authored Memorandum Decision, J UDGES C AROLYN B. M C H UGH S TEPHEN L. R OTH concurred.
DAVIS, Judge:
¶1 Dike appeals convictions three counts of securities fraud, second degree felonies, Code Ann. §§ ‐ ‐ 21(2)(b) (LexisNexis 2011), related order restitution. We affirm convictions but remand modification restitution set forth herein. admission parol evidence, defining “material fact” for charges case, investigation presentation case, prosecution’s use trial admission
State the subject of the current charges, the refusal grant counsel’s withdraw, and the court’s of restitution. To extent these were not preserved court, asks we review them doctrines plain error and ineffective assistance of counsel. Cram , UT ¶ 4, P.3d 230 (listing plain error, exceptional circumstances, ineffective assistance exсeptions preservation rule). To prevail on grounds plain error, appellant must show “(i) [a]n error exists; (ii) error obvious trial court; (iii) error is harmful, i.e., absent there is a reasonable likelihood more favorable outcome appellant.” Dunn 1993). order prevail grounds ineffective assistance, must demonstrate, first, “that counsel’s performance deficient, it fell below objective standard reasonable professional judgment,” sеcond, “that deficient performance was prejudicial—i.e., affected outcome case.” v. Litherland (citing Strickland v. Washington U.S. 687–88 (1984)). Due, least part, to inadequate briefing, largely failed meet burden respect issues raises.
I. Parol Evidence
¶3 First, admissibility parol evidence assumes, without discussion, parol evidence rule applies context criminal proceeding. only cites assertion civil case discussing parol evidence rule, explicitly observes that We are aware cases, directs us none, excluded parol context criminal proceeding. Nonetheless, we prepared adopt State’s position parol rule never apply criminal context. That question аnother day. v. Williams
“[p]arol evidence admissible to prove party was induced into contract by fraud.” Cantamar, LLC Champagne 2006 UT App ¶ P.3d (alteration in original) (citation and internal quotation marks omitted). engages in no discussion explaining why parol еvidence should have been excluded case, where it was not admitted to prove contradict the contents the writing but to prove engaged securities fraud. Further, does discuss how the failure exclude the evidencе constituted plain error or how failure object it constituted ineffective assistance. King UT ¶ (“To prevail plain error review, must . . . error fact occur.” (citation internal quotation marks omitted)); Kelley 26, (“Failure raise futile objеctions does constitute counsel.”). He does discuss whether was obvious—indeed, given the apparent lack applicability parol evidence rule initially alludes role evidence proving transaction was аctually security opposed some other type transaction. He one point parol evidence used “to suggest contrary set facts nullify written terms parties agreed be bound.” it unclear argument how the evidenсe used contradict terms written agreements or its admission have improperly affected outcome case. Rather, appears attack the admission evidence any purpose simply because it еxtraneous written agreements, assert the jury’s consideration securities fraud charge been based entirely “the language within four corners written materials.” Because identified specific improper purposes рarol might served, we cannot separately analyze any such alleged or determine might necessary limit its use way. criminal context, we fail could have been obvious. See generally Beck (“Under error analytic dictates, error must . . . been obvious court. To show obviousness defendant must show law governing error clear at time alleged error made.” (citation internal quotation marks omitted)). also neglects discuss counsel’s failure object considered sound strаtegy. See generally Strickland U.S. (explaining evaluating counsel’s effectiveness, “the must overcome presumption that, under circumstances, challenged action might considered sound strategy” (citation internal quotation marks omitted)). Thus, we decline consider this argument further.
II. Jury Instructions next plain standards review. securities
fraud statute provides,
It unlawful any person, connection with offer, sale, purchase any security, directly indirectly to:
. . . discussion parol evidence, makes cursory refеrence collateral character evidence, argues objected “irrelevant prejudicial.” For most part, lumps rest “parol evidence” discussion fails articulate separate failure object it. Thus, we do consider argument. Thomas P.2d (“It well established reviewing court will address adequately briefed.”).
(2) make any untrue statement a material fact or omit state a material fact necessary make statements made, light circumstances which they made, not misleading;
(3) engage any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. Code Ann. § ‐ The jury instructions employed this
language essentially word word. instructions then directed jury consider standard definition a “material fact”—“something which a buyer ordinary intelligence and prudence would think be importance determining whether buy or sell a seсurity.” S&F Supply Co. Hunter (defining material fact of securities fraud). asserts these were erroneous investors involved case were accredited had
greater business acumen than “buyer ordinary intelligence prudence,” id. Accordingly, he instructions should defined material fact as something “a sophisticated person ‘business acumen’ would find important determining or make [an] investment.” does explain what facts material investor ordinary intelligence prudence would material more sophisticated investor and, once again, provides assertion definition material fact differ as concerns these two types investors. Further, fails identify misrepresentations on prosecutiоn relied would been considered material more sophisticated investor, opposed one ordinary intelligence prudence. Thus, not established prejudiced jury instructions, even assuming they were erroneous Williams counsel ineffective failing object them. See generally Litherland (identifying prejudice an element ineffective assistance); Dunn at (stating that a must harm achieve reversal on plain grounds).
III. Counsel’s Trial Strategy
¶6 connection his argument, asserts his counsel ineffective failing put certain evidence. This inadequately briefed. See R. App. P. 24(a)(9) (outlining elements adequately briefed argument). Thomas (Utah (“It well established reviewing court will not address adequately briefed.”). addresses issue single paragraph and essentially asserts his counsel eschewed “relevant defense ‘strategies’ [that] were readily available him court record.” According Williams, “counsel investigate Mr. Williams’ position, did call defense witnesses trial, cross examination wholly inadequate.” He further asserts “[a]ll counsel had do was review file would have had myriad witnesses documents present jury.” other than briefly quote statements pretrial pleadings, without analysis, fails suggest what specific strategies pursued, what purported witnesses documents might revealed, alternative strategy additional affected outcome case.
IV. Admissibility Evidence adequately briefed prosecutorial misconduct, arguments admissibility $250,000 Richard Urdahl, one three investors he defrauded, previously given him. He evidence
State v. was inadmissible because statutе of limitations run any potential fraud charges $250,000 investment, [4] because State’s ability use evidence at limited by magistrate’s statement preliminary hearing would receive evidence only background “only for preliminary hearing,” [5] unduly prejudicial rule 403 Rules of Evidence. [6] Each these is discussed only cursorily, with little if any supporting authority. Further, even assuming these assertions, if true, Williams failed explain how admission prejudiced him. v. Litherland , 92; v. Dunn , 850 P.2d 1993).
V. Motion Withdraw next erred by denying his withdraw. allegedly informed attorney “d[id] want [him] lawyer anymorе” 4. cites authority assertion and, as thoroughly demonstrated its brief, there significant authority suggesting statutes limitations do affect admissibility evidence. See, e.g. United States Haskins , F.2d 847–48 (10th Cir. 1984); United States Ashdown F.2d 793, (5th Cir. (“The statute limitations defense prosecution, rule evidence.”); Commonwealth Dunkle A.2d 838–39 (Pa. 1992).
5. As statute limitations argumеnt, cites no suggest magistrate’s statement may have constituted binding evidentiary ruling applicable trial. rule consists entirely bare assertion “probative value [of investment evidence] substantially outweighed parameters Rulе 403” cursory citation rule two cases.
State v.
then failed to appear trial. Williams’s absence, attorney
moved to withdraw the court denied the motion. The court’s
denial was based on the fact that Williams was not present thе motion was not made until the day trial. court also
observed a history employing dilatory tactics,
included filing numerous pro se motions, going through five
attorneys, failing to appear a previously scheduled trial, fleeing the state. the court violated Sixth
Amendment right counsel by denying motion withdraw. A trial ruling on a motion withdraw is
discretionary, but the court abuses its discretion if its denial the
motion violates the defendant’s constitutional right counsel.
v. Wadsworth
,
VI. Restitution
¶10 Finally, Williams trial restitution award, which ordered him repay sums associated with the earlier $250,000 investment in addition sums associated with charges case. concedes portion restitution award stemming from was improper “convicted criminal activity” admit wrongdoing connection with investment. Code Ann. § ‐ ‐ 201(4)(a) (LexisNexis 2012); id. 38A ‐ 302(1), (5)(а). We therefore find it necessary to remand trial court modify June Order Restitution accordingly.
¶11 Because we reject various alleged errors trial, we affirm convictions. However, we remand recalculate amоunt restitution owed Urdahl, so as limit restitution pecuniary loss associated with charges actually convicted.
appears contest decision proceed with absence, particularly light apparent dissatisfaction attorney. distinct assertion, so extent may be construed issue separate court erred denying withdraw, we do consider it.