State v. Williams , 300 P.3d 788 ( 2013 )

2013 UT App 101_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
DIKE WILLIAMS,
Defendant and Appellant.
Memorandum Decision
No. 20110525‐CA
Filed April 25, 2013
Third District, Salt Lake Department
The Honorable Randall N. Skanchy
No. 041906672
Ronald Fujino, Attorney for Appellant
John E. Swallow and John J. Nielsen, Attorneys for
Appellee
JUDGE JAMES Z. DAVIS authored this Memorandum Decision,
in which JUDGES CAROLYN B. MCHUGH and STEPHEN L. ROTH
concurred.
DAVIS, Judge:
¶1 Dike Williams appeals his convictions of three counts of
securities fraud, second degree felonies, see Utah Code Ann. §§ 61‐
1‐1, ‐21(2)(b) (LexisNexis 2011), and the related order of restitution.
We affirm Williams’s convictions but remand for modification of
the restitution order as set forth herein.
¶2 Williams challenges the trial court’s admission of parol
evidence, the jury instructions defining a “material fact” for
purposes of the charges in this case, his trial counsel’s investigation
and presentation of his case, the prosecution’s use and the trial
court’s admission of evidence relating to a $250,000 investment that
State v. Williams
was not the subject of the current charges, the trial court’s refusal
to grant his counsel’s motion to withdraw, and the trial court’s
order of restitution. To the extent that these challenges were not
preserved in the trial court, Williams asks that we review them
under the doctrines of plain error and ineffective assistance of
counsel. See generally State v. Cram, 2002 UT 37, ¶ 4, 46 P.3d 230(listing plain error, exceptional circumstances, and ineffective
assistance of counsel as exceptions to the preservation rule). To
prevail on grounds of plain error, an appellant must show that “(i)
[a]n error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant.” State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). In order
to prevail on grounds of ineffective assistance, a defendant must
demonstrate, first, “that counsel’s performance was deficient, in
that it fell below an objective standard of reasonable professional
judgment,” and second, “that counsel’s deficient performance was
prejudicial—i.e., that it affected the outcome of the case.” State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v.
Washington, 466 U.S. 668, 687–88 (1984)). Due, at least in part, to
inadequate briefing, Williams has largely failed to meet his burden
to demonstrate plain error or ineffective assistance with respect to
the issues he raises.
I. Parol Evidence
¶3 First, Williams’s argument regarding the admissibility of
parol evidence assumes, without discussion, that the parol
evidence rule applies in the context of this criminal proceeding.1
The only authority he cites in support of this assertion is a civil case
discussing the parol evidence rule, which explicitly observes that
1. We are aware of no cases, and Williams directs us to none, that
have excluded parol evidence in the context of a criminal
proceeding. Nonetheless, we are not prepared to adopt the State’s
position that the parol evidence rule could never apply in the
criminal context. That is a question for another day.
20110525‐CA 2 2013 UT App 101State v. Williams
“[p]arol evidence is admissible to prove that a party was induced
into a contract by fraud.” Cantamar, LLC v. Champagne, 2006 UT
App 321, ¶ 21, 142 P.3d 140 (alteration in original) (citation and
internal quotation marks omitted). Williams engages in no
discussion explaining why parol evidence should have been
excluded in this case, where it was not admitted to prove or
contradict the contents of the writing2 but to prove that Williams
engaged in securities fraud. Further, he does not discuss how the
trial court’s failure to exclude the evidence constituted plain error
or how trial counsel’s failure to object to it constituted ineffective
assistance. See generally State v. King, 2006 UT 3, ¶ 21, 131 P.3d 202(“To prevail under plain error review, a defendant must
demonstrate . . . that an error did in fact occur.” (citation and
internal quotation marks omitted)); State v. Kelley, 2000 UT 41, ¶ 26,
1 P.3d 546 (“Failure to raise futile objections does not constitute
ineffective assistance of counsel.”). He does not discuss whether
the error was obvious—indeed, given the apparent lack of
authority regarding the applicability of the parol evidence rule in
2. Williams initially alludes to the role of this evidence in proving
that the transaction was actually a security as opposed to some
other type of transaction. He also asserts at one point that the parol
evidence was used “to suggest a contrary set of facts in order to
nullify the written terms by which the parties had agreed to be
bound.” However, it is unclear from Williams’s argument how the
evidence was used to contradict the terms of the written
agreements or how its admission could have improperly affected
the outcome of his case. Rather, his argument appears to attack the
court’s admission of the evidence for any purpose simply because
it was extraneous to the written agreements, and to assert that the
jury’s consideration of the securities fraud charge should have been
based entirely on “the plain language within the four corners of the
written materials.” Because Williams has not identified the specific
improper purposes the parol evidence might have served, we
cannot separately analyze any such alleged purposes or determine
whether it might have been necessary for the court to limit the
evidence or its use in any way.
20110525‐CA 3 2013 UT App 101State v. Williams
the criminal context, we fail to see how it could have been obvious.
See generally State v. Beck, 2007 UT 60, ¶ 11, 165 P.3d 1225 (“Under
plain error analytic dictates, the error must . . . have been obvious
to the trial court. To show obviousness of the error, the defendant
must show that the law governing the error was clear at the time
the alleged error was made.” (citation and internal quotation marks
omitted)). Williams also neglects to discuss whether counsel’s
failure to object could have been considered a sound trial strategy.
See generally Strickland, 466 U.S. at 689 (explaining that in
evaluating counsel’s effectiveness, “the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy” (citation and
internal quotation marks omitted)). Thus, we decline to consider
this argument further.3
II. Jury Instructions
¶4 Williams next challenges the jury instructions under plain
error and ineffective assistance standards of review. The securities
fraud statute provides,
It is unlawful for any person, in connection with the
offer, sale, or purchase of any security, directly or
indirectly to:
...
3. In his discussion of parol evidence, Williams also makes cursory
reference to collateral character evidence, which he argues his
counsel should have objected to as “irrelevant and prejudicial.” For
the most part, he lumps this evidence in with the rest of the “parol
evidence” in his discussion and fails to articulate any separate
argument regarding his counsel’s failure to object to it. Thus, we do
not consider this argument. See generally State v. Thomas, 961 P.2d
299, 304 (Utah 1998) (“It is well established that a reviewing court
will not address arguments that are not adequately briefed.”).
20110525‐CA 4 2013 UT App 101State v. Williams
(2) make any untrue statement of a material
fact or to omit to state a material fact necessary in
order to make the statements made, in the light of the
circumstances under which they are made, not
misleading; or
(3) engage in any act, practice, or course of
business which operates or would operate as a fraud
or deceit upon any person.
Utah Code Ann. § 61‐1‐1. The jury instructions employed this
language essentially word for word. The instructions then directed
the jury to consider the standard definition of a “material
fact”—“something which a buyer of ordinary intelligence and
prudence would think to be of importance in determining whether
to buy or sell a security.” See generally S&F Supply Co. v. Hunter, 527
P.2d 217, 221 (Utah 1974) (defining a material fact for purposes of
securities fraud).
¶5 Williams asserts that these instructions were erroneous
because the investors involved in this case were accredited and had
greater business acumen than a “buyer of ordinary intelligence and
prudence,” see id. Accordingly, he asserts that the jury instructions
should have defined a material fact as something that “a
sophisticated person with ‘business and investment acumen’
would find important in determining whether or not to make [an]
investment.” However, Williams does not explain what facts
material to an investor of ordinary intelligence and prudence
would not be material to a more sophisticated investor and, once
again, provides no authority in support of his assertion that the
definition of material fact should differ as concerns these two types
of investors. Further, he fails to identify any misrepresentations on
which the prosecution relied that would not have been considered
material to a more sophisticated investor, as opposed to one of
ordinary intelligence and prudence. Thus, Williams has not
established how he could have been prejudiced by the jury
instructions, even assuming that they were erroneous or that
20110525‐CA 5 2013 UT App 101State v. Williams
counsel was ineffective for failing to object to them. See generally
Litherland, 2000 UT 76, ¶ 19 (identifying prejudice as an element of
ineffective assistance); Dunn, 850 P.2d at 1208 (stating that a
defendant must demonstrate harm in order to achieve reversal on
plain error grounds).
III. Counsel’s Trial Strategy
¶6 In connection with his jury instructions argument, Williams
asserts that his counsel was ineffective for failing to put on certain
evidence. This argument is inadequately briefed. See Utah R. App.
P. 24(a)(9) (outlining the elements of an adequately briefed
argument). See generally State v. Thomas, 961 P.2d 299, 304 (Utah
1998) (“It is well established that a reviewing court will not address
arguments that are not adequately briefed.”). Williams addresses
this issue in a single paragraph and essentially asserts that his
counsel eschewed “relevant defense ‘strategies’ [that] were readily
available to him in the court record.” According to Williams,
“counsel did not investigate Mr. Williams’ position, he did not call
defense witnesses at trial, and his cross‐examination was wholly
inadequate.” He further asserts that “[a]ll counsel had to do was
review the court file and he would have had a myriad of witnesses
and documents to present to the jury.” However, other than to
briefly quote statements from his pretrial pleadings, without
analysis, Williams fails to suggest what specific strategies his
counsel should have pursued, what the purported witnesses and
documents might have revealed, or how an alternative strategy or
additional evidence could have affected the outcome of his case.
IV. Admissibility of the $250,000 Evidence
¶7 Williams has also not adequately briefed his prosecutorial
misconduct, plain error, and ineffective assistance arguments
relating to the admissibility of evidence regarding a $250,000
investment that Richard Urdahl, one of the three investors he
defrauded, had previously given him. He asserts that this evidence
20110525‐CA 6 2013 UT App 101State v. Williams
was inadmissible because the statute of limitations had run on any
potential fraud charges relating to the $250,000 investment,4
because the State’s ability to use the evidence at trial was limited by
the magistrate’s statement at the preliminary hearing that he would
receive the evidence only for background purposes and “only for
the preliminary hearing,”5 and because the evidence was unduly
prejudicial under rule 403 of the Utah Rules of Evidence.6 Each of
these arguments is discussed only cursorily, with little if any
supporting authority. Further, even assuming that these assertions,
if true, could demonstrate error, Williams has failed to explain how
the admission of this evidence prejudiced him. See generally State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92; State v. Dunn, 850 P.2d
1201, 1208 (Utah 1993).
V. Motion to Withdraw
¶8 Williams next asserts that the trial court erred by denying
his counsel’s motion to withdraw. Williams allegedly informed his
attorney that he “d[id] not want [him] as his lawyer anymore” and
4. Williams cites no authority in support of this assertion and, as
the State thoroughly demonstrated in its brief, there is significant
authority suggesting that statutes of limitations do not affect the
admissibility of evidence. See, e.g., United States v. Haskins, 737 F.2d
844, 847–48 (10th Cir. 1984); United States v. Ashdown, 509 F.2d 793,
798 (5th Cir. 1975) (“The statute of limitations is a defense to
prosecution, not a rule of evidence.”); Commonwealth v. Dunkle, 602
A.2d 830, 838–39 (Pa. 1992).
5. As with his statute of limitations argument, Williams cites no
authority to suggest that the magistrate’s statement may have
constituted a binding evidentiary ruling applicable to the trial.
6. Williams’s rule 403 argument consists entirely of his bare
assertion that the “probative value [of the $250,000 investment
evidence] was substantially outweighed by the parameters of Rule
403” and his cursory citation of rule 403 and two cases.
20110525‐CA 7 2013 UT App 101State v. Williams
then failed to appear at trial. In Williams’s absence, his attorney
moved to withdraw and the court denied the motion. The court’s
denial was based on the fact that Williams was not present and that
the motion was not made until the day of trial. The court also
observed that Williams had a history of employing dilatory tactics,
which included filing numerous pro se motions, going through five
attorneys, failing to appear for a previously scheduled trial, and
fleeing the state. Williams asserts that the court violated his Sixth
Amendment right to counsel by denying counsel’s motion to
withdraw. A trial court’s ruling on a motion to withdraw is
discretionary, but the court abuses its discretion if its denial of the
motion violates the defendant’s constitutional right to counsel.
State v. Wadsworth, 2012 UT App 175, ¶ 2, 282 P.3d 1037 (mem.).
¶9 Williams primarily contends that the trial court improperly
focused on his absence from the trial rather than the merits of the
motion. However, the Utah Rules of Criminal Procedure explicitly
require a defendant’s presence when a motion to withdraw is made
unless the court orders otherwise. Utah R. Crim. P. 36(a)(2) (“A
motion to withdraw as an attorney in a criminal case shall be made
in open court with the defendant present unless otherwise ordered
by the court.”). Thus, Williams’s absence alone could have justified
the court in denying the motion. See id.; cf. State v. Pando, 2005 UT
App 384, ¶ 26, 122 P.3d 672 (affirming the trial court’s denial of a
motion to withdraw made by court‐appointed counsel where the
defendant did not appear, explaining that the defendant “was
obligated to appear and explain to the trial court specifically why
he wanted the court to allow his counsel to withdraw”).
Furthermore, because “‘[a] defendant’s right to retain counsel of his
choice . . . may not be insisted upon in a manner that will obstruct
an orderly procedure in courts of justice,’” see State v. Barber, 2009
UT App 91, ¶ 42, 206 P.3d 1223 (omission in original) (quoting
United States v. Collins, 920 F.2d 619, 625 (10th Cir. 1990)), the denial
was also justified by the fact that the motion was not made until the
morning of trial and was part of a series of tactics employed by
Williams to delay the court proceedings, cf. Wadsworth, 2012 UT
App 175, ¶ 10 (determining that the trial court did not violate a
20110525‐CA 8 2013 UT App 101State v. Williams
defendant’s right to counsel of his choice by requiring substitute
counsel to make an appearance before permitting the defendant’s
hired counsel to withdraw so that the trial would not be delayed).7
VI. Restitution
¶10 Finally, Williams challenges the trial court’s restitution
award, which ordered him to repay sums associated with the
earlier $250,000 investment in addition to sums associated with the
charges in this case. The State concedes that the portion of the
restitution award stemming from the $250,000 investment was
improper because Williams was not “convicted of criminal
activity” and did not admit any wrongdoing in connection with
that investment. See Utah Code Ann. § 76‐3‐201(4)(a) (LexisNexis
2012); id. 77‐38A‐302(1), (5)(a). We therefore find it necessary to
remand for the trial court to modify the June 10, 2011 Order of
Restitution accordingly.
¶11 Because we reject Williams’s various arguments relating to
alleged errors at trial, we affirm his convictions. However, we
remand for the trial court to recalculate the amount of restitution
owed to Urdahl, so as to limit restitution to pecuniary loss
associated with the charges on which Williams was actually
convicted.
7. Williams also appears to contest the court’s decision to proceed
with the trial in his absence, particularly in light of his apparent
dissatisfaction with his attorney. However, he asserts no distinct
argument in support of this assertion, so to the extent it may be
construed as an issue separate from that of whether the trial court
erred in denying the motion to withdraw, we do not consider it.
20110525‐CA 9 2013 UT App 101