State v. Bowen , 2019 UT App 163 ( 2019 )

2019 UT App 163THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KIMBERLY BOWEN,
Appellant.
Opinion
No. 20160754-CA
Filed October 10, 2019
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 091900778
Emily Adams, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
MORTENSEN, Judge:
¶1 Kimberly Bowen—a real estate agent and homebuilder—
was convicted on five counts of communications fraud and one
count of pattern of unlawful activity in connection with a failed
real estate development. Bowen sold residential lots to five
separate buyers. But there were problems: among other things,
the lots had no access to culinary water, and therefore the buyers
could not obtain building permits. The buyers who purchased
lots from Bowen consequently lost their investments and land in
foreclosure. Bowen argues that (1) she received ineffective
assistance of counsel and (2) the trial court erred in admitting
certain rebuttal testimony and denying Bowen’s motion to arrest
judgment. We reject Bowen’s ineffective assistance claim, and we
affirm on the remaining points.
State v. Bowen
BACKGROUND 1
¶2 In 2006, Bowen, Sandra Chapple, and Leon Harper set out
to become homebuilders. Their business model was to purchase
lots, get investors with good credit to buy those lots, have the
investors finance the residential construction, build homes at a
“reduced rate,” then sell the homes and split the profits with the
investors.
¶3 To carry out their business plan, Bowen, Chapple, and
Harper formed several corporate entities: Empire Alliance,
Empire Custom Homes, Sterling Mountain Properties, and
Mountain Lake Ventures (collectively, Empire Alliance
Companies). Empire Alliance was the corporate umbrella under
which the other entities would operate. Sterling Mountain
Properties would buy land from a developer; then Mountain
Lake Ventures would take title to the land and sell it to
investors. After investors secured construction loans, Empire
Custom Homes would build the homes.
¶4 Bowen was in charge of the Empire Alliance Companies.
She was listed as the president of Empire Alliance and Empire
Custom Homes and a manager of Sterling Mountain Properties.
Although Bowen was not a manager of Mountain Lake
Ventures, she was a signatory on all its accounts. 2 Bowen also
provided the start-up capital—$200,000—to fund the Empire
Alliance Companies. And she authorized all expenses and
1. We recite the facts in the light most favorable to the jury’s
verdict. State v. Nielsen, 2014 UT 10, ¶ 46, 326 P.3d 645.
2. Bowen was intentionally left out of the leadership of Mountain
Lake Ventures, so she would not have to disclose an ownership
interest when Mountain Lake Ventures sold lots to investors,
and she acted as real estate agent for both parties.
20160754-CA 2 2019 UT App 163State v. Bowen
signed most checks on behalf of the companies. Bowen also
picked the location for their first venture: an undeveloped parcel
in Saratoga Springs, Utah, called Fox Hollow—specifically, a
portion of Fox Hollow called “neighborhood 3” (Neighborhood).
¶5 Next, Bowen negotiated with Richard Wolper, a
developer, to purchase lots in the Neighborhood. Wolper
informed Bowen from the outset that the lots in the
Neighborhood did not have access to culinary water. In fact,
Saratoga Springs (City) initially informed Wolper that he would
need to finish construction of the culinary water system before
the City would record the Neighborhood plat map and issue
building permits for Neighborhood lots. In the fall of 2006,
however, the City allowed Wolper to record the Neighborhood
plat despite not having finished building the culinary water
system.
¶6 With the Neighborhood plat recorded, Bowen began
selling lots. But because Bowen’s company did not have the
money to purchase the lots directly, she had to recruit investors.
Each time Bowen located an investor, Sterling Mountain
Properties would buy the lot, Mountain Lake Ventures would
then take title to it, and then sell it to an investor at a $65,000
mark up. Mountain Lake Ventures then sent that money to
Empire Custom Homes. In total, Bowen’s companies sold lots to
five investors.
¶7 To attract investors, Bowen misrepresented facts and
failed to disclose material information. In three sales from
Mountain Lake Ventures to investors, Bowen acted as the real
estate agent for both parties but she did not disclose her financial
interest in Mountain Lake Ventures or the other Empire Alliance
Companies. Bowen failed to disclose to the investors that the
City would not issue building permits until Wolper completed
the water system. Bowen also misrepresented that Empire
Custom Homes was ready to build. In the end, Wolper and
20160754-CA 3 2019 UT App 163State v. Bowen
Bowen were not able to raise enough money to finance the water
system. And as a result, the City did not issue building permits,
homes were not built, and the investors lost their money and
land through foreclosure.
Criminal Proceedings
¶8 The State charged Bowen with five counts of
communications fraud (one for each investor) and one count of
pattern of unlawful activity, all second degree felonies. At trial,
the State argued that Bowen (1) had a financial interest in her
companies that she did not disclose to investors, (2) created
Mountain Lake Ventures to “shield” her interests from being
exposed, (3) misrepresented to investors that Empire Custom
Homes “had subcontractors on notice ready to go,” (4) knew, but
failed to disclose, that the water system was incomplete and
therefore the City would not issue building permits, and
(5) caused one investor’s earnest money to be deposited into the
Empire Alliance company account rather than an escrow
account.
¶9 Over the course of a seven-day trial, the State called
twelve witnesses and introduced other evidence in support of its
theories that Bowen had failed to disclose, or misrepresented,
certain facts to investors. At least four witnesses—Wolper,
Wolper’s real estate agent, Harper, and one of the investors—
testified that Bowen knew that the water system was not
complete at the time the lots were sold to investors. And
although the trial court recognized that Wolper had credibility
issues, 3 it acknowledged that the jury could choose whether to
believe him.
3. After Wolper testified, the parties had a discussion in
chambers, and the trial court characterized Wolper as a “liar,
(continued…)
20160754-CA 4 2019 UT App 163State v. Bowen
¶10 After the State rested, Bowen’s defense counsel (Counsel)
moved for a directed verdict on two grounds: (1) Wolper had
been discredited on the water issue, without which there was not
a crime, and (2) Bowen could not be liable for not disclosing an
interest in Mountain Lake Ventures, because she was not a
manager of that company. The State opposed the motion,
arguing that the case involved more than the water; it was also
about Bowen’s undisclosed interest, her action of shielding her
undisclosed interest by forming Mountain Lake Ventures, the
lack of readiness to build, and one investor’s money going into
an improper account. The trial court denied Bowen’s motion for
a directed verdict and ruled that the State had presented
“believable evidence that a reasonable juror” could convict on
each of the charges.
¶11 In her defense, Bowen called several witnesses and
introduced evidence to support her theory that she reasonably
believed that the lots were buildable when she marketed and
sold them to investors. Several of Bowen’s witnesses testified
that it was reasonable for her to believe that the lots were
buildable due to the Neighborhood plat being recorded. Bowen
also introduced evidence showing that Empire Custom Homes
had an agreement with a licensed contractor (Contractor) to use
his license for construction.
¶12 On rebuttal, the State called Contractor, who testified that
he did have a license, but that Empire Custom Homes had
actually listed his son as their contractor and his son did not
have a contractor license. Counsel stated that he had no issue
with allowing Contractor to testify about the license, but he
objected to Contractor differentiating himself from his son
(…continued)
liar, pants on fire,” somebody with “no credibility,” and an
“absolute liar.”
20160754-CA 5 2019 UT App 163State v. Bowen
because the State could have done that during its case-in-chief
and the defense had not “discussed that aspect or anything in
terms of its case-in-chief.” The trial court admitted the
testimony, ruling that “the door has been opened on this” and it
would “allow some leeway.”
¶13 Counsel proposed an instruction outlining an agent’s
“disclosure-of-interest” duties as contained in the chapter of the
Utah Administrative Code concerning real estate licensing
(Instruction 49). Instruction 49 informed the jury that a real
estate agent with interest in property has to disclose that interest
when selling that property:
A licensee shall not either directly or indirectly
buy, sell, lease or rent any real property as a
principal, without first disclosing in writing on the
purchase agreement or the lease or rental
agreement the licensee’s true position as principal
in the transaction. For the purposes of this rule, a
licensee will be considered to be a “principal in the
transaction” if the licensee: a) is the buyer or the
lessee in the transaction; b) has any ownership
interest in the property; c) has any ownership
interest in the entity that is the buyer, seller, lessor
or lessee; or d) is an officer, director, partner,
member, or employee of the entity that is the
buyer, seller, lessor, or lessee.
The State did not object to Instruction 49, and the court gave it to
the jury. Counsel later explained that he asked for Instruction 49
so the State would have to prove that Bowen had an ownership
interest before it could argue that she failed to disclose the
alleged interest.
¶14 The jury convicted Bowen on all counts. Before
sentencing, Bowen filed a motion to arrest judgment, arguing
20160754-CA 6 2019 UT App 163State v. Bowen
that the State failed to show a false representation or material
omission regarding Bowen’s interest in Mountain Lake
Ventures. The trial court denied the motion, ruling that the State
presented sufficient evidence that Bowen had made false
representations or material omissions. The court imposed six
concurrent one-to-fifteen-year prison sentences, suspended
them, and placed Bowen on probation for three years. Bowen
appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 Bowen argues that she received ineffective assistance
when Counsel submitted Instruction 49 without any explanation
that a violation of that rule did not carry criminal liability. “An
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162.
¶16 Next, Bowen argues that the trial court abused its
discretion when it allowed the State to offer Contractor’s rebuttal
testimony about the contractor license. “We review challenges to
the admission of rebuttal testimony for abuse of discretion.”
Green v. Louder, 2001 UT 62, ¶ 19, 29 P.3d 638.
¶17 Finally, Bowen argues that the trial court erred when it
denied her motion to arrest judgment. A trial court “may arrest a
jury verdict when the evidence, viewed in the light most
favorable to the verdict, is so inconclusive or so inherently
improbable as to an element of the crime that reasonable minds
must have entertained a reasonable doubt as to that element.”
State v. Black, 2015 UT App 30, ¶ 12, 344 P.3d 644 (cleaned up).
“Accordingly, we review the [trial] court’s decision to arrest
judgment for correctness.” Id.
20160754-CA 7 2019 UT App 163State v. Bowen
ANALYSIS
I. Ineffective Assistance of Counsel
¶18 Bowen argues that she received ineffective assistance
when Counsel submitted Instruction 49 without explanation that
a violation of the referenced administrative rule did not create
criminal liability. 4 To establish that her Counsel was ineffective,
Bowen must prove that Counsel performed deficiently and that
she was prejudiced as a result. Strickland v. Washington, 466 U.S.
668, 687 (1984). To prove the first prong of Strickland, Bowen
4. Bowen also argues that she received ineffective assistance
when Counsel failed to file a separate motion to arrest judgment
concerning one of the State’s theories—that Bowen deposited a
buyer’s earnest money into the wrong account—which applied
to only one of the five investors. Bowen, however, admits in her
briefing that Counsel “moved to arrest judgment on the other
theories that applied to all the buyers.” As discussed below, infra
¶¶ 29–31, that motion to arrest judgment was properly denied
because there was sufficient evidence to convict Bowen as to all
of the investors. Thus, even if Counsel filed a motion to arrest
judgment concerning the theory that Bowen did not know that a
single buyer’s earnest money had been deposited in the wrong
account, there was still sufficient evidence to convict Bowen on
any number of the State’s other theories—like Bowen’s failure to
disclose her interest in the lots, the lack of access to culinary
water, or Empire Custom Homes’ lack of readiness to build.
Therefore, we conclude that Bowen’s counsel was not ineffective
for declining to file a motion to arrest judgment that would have
been denied. See State v. Garcia, 2017 UT App 200, ¶ 39, 407 P.3d
1061 (“The failure of counsel to make motions that would be
futile if raised does not constitute ineffective assistance, because
the decision not to pursue a futile motion is almost always a
sound trial strategy.” (cleaned up)).
20160754-CA 8 2019 UT App 163State v. Bowen
“must overcome the strong presumption that [her] trial counsel
rendered adequate assistance by persuading the court that there
was no conceivable tactical basis for counsel’s actions.” State v.
Coombs, 2019 UT App 7, ¶ 20, 438 P.3d 967 (cleaned up); accord
State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. Our supreme court
stated in Gordon v. State that a tactical decision is “[a]ny decision
based on counsel’s purposeful analysis . . . whether or not it
turned out to be a bad tactic in hindsight.” 2016 UT 11, ¶ 32, 369
P.3d 1255. Accordingly, we give “trial counsel wide latitude in
making tactical decisions and will not question such decisions
unless there is no reasonable basis supporting them.” Coombs,
2019 UT App 7, ¶ 20 (cleaned up).
¶19 Here, Counsel’s submission of Instruction 49 was not
deficient performance. Counsel stated that he decided to request
Instruction 49 so he could argue that “Bowen complied with her
duties under the Administrative Rules governing Realtors.” In
other words, Counsel engaged in a purposeful and strategic
analysis in proposing Instruction 49 and believed that it
supported the defense theory that Bowen had no duty to
disclose because she did not have an ownership interest in
Mountain Lake Ventures. This amounts to a tactical decision. 5
5. Bowen argues that State v. Mahoney—a case in which the
Supreme Court of New Jersey held that admission of an
administrative rule “without appropriate guidance from the
court was error”—is instructive. 908 A.2d 162, 164 (N.J. 2006).
But Mahoney is not this case. First, in Mahoney, the State offered
an administrative rule as evidence and the defendant objected.
Id. at 173. Consequently, the nature of our review is
fundamentally different from the review in Mahoney. Here we
look only to whether Counsel’s actions were objectively
reasonable, see Honie v. State, 2014 UT 19, ¶ 32, 342 P.3d 182,
rather than whether the “probative value of the [administrative
(continued…)
20160754-CA 9 2019 UT App 163State v. Bowen
¶20 Next, we conclude that Counsel’s tactical decision was not
objectively unreasonable, see Honie v. State, 2014 UT 19, ¶ 32, 342
P.3d 182 (“As to the first Strickland prong, [a defendant] must
show that trial counsel’s representation fell below an objective
standard of reasonableness when measured against prevailing
professional norms.” (cleaned up)), because Instruction 49
required a higher burden than what was actually required to
prove Bowen’s crimes. To prove that Bowen engaged in
communications fraud, the State was required to show, among
other things, that Bowen made “material omissions” in an
attempt to defraud others. See Utah Code Ann. § 76-10-1801(1)
(LexisNexis 2017) 6 (listing the elements of communications
fraud). To satisfy this element, the State raised several theories,
one being that Bowen failed to disclose her financial interest in
the Neighborhood lots when representing both parties involved
in the lot sales. Instruction 49, however, heightened this
standard by instructing the jury that Bowen was obligated to
(…continued)
rule] was outweighed by its . . . prejudicial effect,” Mahoney, 908
A.2d at 173. Second, the Mahoney court held that “the trial court’s
failure to instruct the jury on how to consider and apply [the
administrative rule] to the facts of th[e] criminal case” was
unduly prejudicial and therefore warranted reversal. Id. at 174.
In this case, however, unlike in Mahoney, the State specifically
told the jury that Instruction 49 is “not a criminal code” and
“[t]his is a criminal case.” Although the State’s statement is not
considered in our ineffective assistance analysis, where our focus
is on Counsel’s tactical decision, it serves to additionally
differentiate this case from Mahoney. Accordingly, Mahoney is not
instructive in this case.
6. Because the statutory provision in effect at the relevant time
does not differ in any material way from that now in effect, we
cite the current version of the Utah Code.
20160754-CA 10 2019 UT App 163State v. Bowen
disclose only an ownership interest in Mountain Lake Ventures—
the entity that sold the lots to investors. Bowen argued that she
did not have an ownership interest in Mountain Lake Ventures
and therefore did not have a duty to disclose under Instruction
49. Thus, where Instruction 49 arguably stood to help Bowen, it
does not follow that inclusion of that instruction was objectively
unreasonable. 7
¶21 Bowen’s Counsel made a reasonable tactical decision to
request Instruction 49. And Instruction 49 could have led the
jury to believe that Bowen made a material omission only if she
failed to disclose an ownership interest in Mountain Lake
Ventures, not if she failed to disclose a mere financial interest in
the Neighborhood lots. 8 Accordingly, we conclude that
7. At oral argument, Bowen conceded that if Counsel’s goal in
submitting Instruction 49 was to coax the jury into believing that
so long as Bowen had not violated the referenced rule, then she
had not made a material omission sufficient for communications
fraud, such a strategy would have been sound. It follows that
had Counsel provided additional context and explanation
minimizing Instruction 49 by clarifying its inapplicability in the
criminal law setting—as Bowen suggests on appeal that Counsel
should have done—that would have undermined Counsel’s
overall strategy in requesting Instruction 49 in the first place.
8. In this same vein, we are hard-pressed to see how Bowen was
prejudiced by inclusion of Instruction 49. Bowen argues that the
jury could have convicted her based solely on a violation of the
administrative rule stated in Instruction 49. We disagree.
Bowen’s argument ignores that, when taken as a whole, the jury
instructions correctly informed the jury of the elements of
communications fraud, including the element that required a
false representation or material omission. See State v. Beckering,
2015 UT App 53, ¶ 23, 346 P.3d 672 (“To determine if jury
(continued…)
20160754-CA 11 2019 UT App 163State v. Bowen
Counsel’s performance was not deficient, and therefore Bowen’s
ineffective assistance claim fails. See Coombs, 2019 UT App 7, ¶ 19
(“It is not necessary to address both parts of the Strickland test
when the defendant makes an insufficient showing on one.”
(cleaned up)). 9
(…continued)
instructions correctly state the law, we look at the jury
instructions in their entirety and will affirm when the
instructions taken as a whole fairly instruct the jury on the law
applicable to the case.” (cleaned up)). Instruction 49 does not
detract, omit, conflict with, or otherwise change the elements
instruction, including the element requiring a false
representation or material omission. Cf. State v. Campos, 2013 UT
App 213, ¶ 64, 309 P.3d 1160 (“Where instructions are in
irreconcilable conflict, . . . the rule requiring instructions to be
read together has no application.” (cleaned up)). To be sure,
while Instruction 49 lists examples of when a real estate agent
may have breached her duty to disclose, it is silent as to whether
such a breach does, or does not, amount to a “material
omission.” Thus, we conclude that Bowen was not prejudiced by
inclusion of Instruction 49 because it did not conflict with the
elements instruction, and therefore the jury in this case was
correctly instructed on the law.
9. In a rule 23B motion filed simultaneously with her brief,
Bowen seeks remand to the trial court to make findings and
conclusions that her Counsel was ineffective for failing to (1) call
a certain defense witness, (2) file a bill of particulars, and
(3) raise “certain points” during closing argument. “A remand
under rule 23B will only be granted upon a nonspeculative
allegation of facts, not fully appearing in the record on appeal,
which, if true, could support a determination that counsel was
ineffective.” State v. Lee, 2014 UT App 4, ¶ 5, 318 P.3d 1164(continued…)
20160754-CA 12 2019 UT App 163State v. Bowen
II. Rebuttal Testimony
¶22 Bowen next argues that the trial court abused its
discretion by permitting Contractor’s rebuttal testimony
concerning Empire Custom Homes’ lack of a contractor license. 10
Specifically, Bowen argues that this testimony should not have
(…continued)
(cleaned up); see also Utah R. App. P. 23B. Bowen’s motion does
not demonstrate nonspeculative facts that would support a
determination that trial counsel was ineffective or that there was
any resulting prejudice. The motion and accompanying affidavit
make conclusory allegations concerning the issues raised, but
Bowen does not demonstrate that calling an additional defense
witness or filing a bill of particulars would have changed the
outcome at trial. Further, Bowen fails to identify the “certain
points” that Counsel was supposed to raise in closing.
Accordingly, we deny Bowen’s rule 23B motion.
10. We note that Bowen objected only to “the State presenting
testimony that [Contractor’s son]—who was listed in an exhibit
as [Empire Custom Homes’] license-holder . . . was not
licensed.” Thus, Bowen has preserved only this narrow issue.
And to the extent that Bowen’s claim goes beyond this preserved
issue, she may have invited any perceived error. When the State
called Contractor as a rebuttal witness, Counsel stated that he
did not “have an issue for the rebuttal aspect of the contract”
and that the State was “certainly entitled to come and talk about
that,” but Counsel did not want the State to be able to point out
that the contractor license belonged to Contractor, not
Contractor’s son. In any event, because we conclude that
admission of Contractor’s testimony was not an abuse of the trial
court’s discretion, we decline to reach the issue of whether
Bowen invited any perceived error.
20160754-CA 13 2019 UT App 163State v. Bowen
been permitted because she had not “opened the door” during
her defense. We disagree.
¶23 The purpose of rebuttal evidence is to “refute, modify,
explain, or otherwise minimize or nullify the effect of the
opponent’s evidence.” Green v. Louder, 2001 UT 62, ¶ 23, 29 P.3d
638 (cleaned up); see also Utah R. Crim. P. 17(f)(5) (stating that
after the defense’s case, “the parties may offer only rebutting
evidence unless the court, for good cause, otherwise permits”).
¶24 Here, the State, in its case-in-chief, presented evidence
that despite their representations to buyers, Bowen and Empire
Custom Homes were not prepared to build after buyers
purchased lots. In her defense, Bowen volunteered an exhibit
showing that Empire Custom Homes had a valid contractor
license and was therefore ready to build. On rebuttal, the State
called Contractor—whose license had been offered by Bowen in
her defense—who testified that although he had a license,
Empire Custom Homes had actually partnered with Contractor’s
son, who did not have a license. Simply put, when Bowen
offered the exhibit showing the contractor license, she opened
the door to rebuttal testimony to “explain or otherwise minimize
. . . the effect of [that] evidence.” Green, 2001 UT 62, ¶ 23 (cleaned
up). Therefore, admitting Contractor’s rebuttal testimony was
not an abuse of the trial court’s discretion on evidentiary issues.
Id.III. Motion to Arrest Judgment
¶25 Lastly, Bowen argues that the trial court’s denial of her
motion to arrest judgment was erroneous. A court may set aside
a jury verdict on a motion to arrest judgment only when “the
evidence is sufficiently inconclusive or inherently improbable
such that reasonable minds must have entertained a reasonable
doubt that the defendant committed the crime for which he or
she was convicted.” State v. Hand, 2016 UT App 26, ¶ 11, 367
20160754-CA 14 2019 UT App 163State v. Bowen
P.3d 1052 (cleaned up). “In assessing a claim of insufficiency of
the evidence, we review the evidence and all inferences which
may reasonably be drawn from it in the light most favorable to
the verdict of the jury.” State v. Nielsen, 2014 UT 10, ¶ 30, 326
P.3d 645 (cleaned up).
¶26 To convict Bowen of communications fraud, the State was
required to prove that she (1) devised “any scheme or artifice to
defraud another or to obtain from another money, property, or
anything of value” (2) did so “by means of false or fraudulent
pretenses, representations, promises, or material omissions” and
(3) “communicate[d] directly or indirectly with any person by
any means for the purpose of executing or concealing the
scheme or artifice.” Utah Code Ann. § 76-10-1801(1) (LexisNexis
2017).
¶27 Here, Bowen focuses only on the second element of
communications fraud, arguing that her motion to arrest
judgment should have been granted because (1) there is
insufficient evidence showing that Bowen’s failure to disclose
her financial interest in the Neighborhood lots was material,
(2) there is insufficient evidence showing that Bowen lied about
the culinary water system being complete, and (3) the prosecutor
argued facts not in evidence.
¶28 As an initial matter, we note that Bowen has not
challenged all five of the State’s theories that go to the second
element of communications fraud, see supra ¶ 8, as grounds to
overturn the trial court’s denial of her motion to arrest judgment.
Specifically, Bowen has not argued that there was insufficient
evidence showing that she and Empire Custom Homes
misrepresented their readiness to build homes to buyers, and
this evidence, standing alone, would likely have been a sufficient
ground to deny Bowen’s motion. Nevertheless, we address each
of Bowen’s arguments in turn.
20160754-CA 15 2019 UT App 163State v. Bowen
¶29 The State presented sufficient evidence showing that
Bowen’s failure to disclose her financial interest in the
Neighborhood lots was material. Bowen argues that certain
buyers in this case testified that whether Bowen had a financial
interest in sales did not affect their investment decision.
However, our supreme court has explained that the materiality
of statements or omissions turns on “whether they were likely to
influence a reasonable investor.” State v. Larsen, 865 P.2d 1355, 1362
(Utah 1993) (emphasis added). Thus, subjective opinions of the
buyers in this particular case are not dispositive of the issue.
¶30 Rather, the State’s evidence that Bowen (1) was the
president or manager of all but one of the Empire Alliance
Companies, (2) was a signatory on the accounts of the other
company—Mountain Lake Ventures—and (3) stood to gain
financially from all of the sales was sufficient evidence of a
material omission in the eyes of a reasonable investor. 11 In other
words, any reasonable investor would want to know if the
person purportedly representing the investor’s interests in a
transaction stood to profit from the sale.
¶31 Next, the State presented evidence sufficient to show that
Bowen lied about the status of the water system to the buyers.
Bowen argues that Wolper’s and his real estate agent’s
testimonies were inherently improbable. This argument falls
short for two reasons. First, Bowen ignores that two additional
witnesses—Harper (Bowen’s business partner) and Pickering
11. Bowen also argues that her omission in this case was not
material because “the buyers acknowledged in their real estate
purchase contracts that they were not entitled to know how
much” Bowen purchased the lots for. Again, this argument
touches on only the subjective point of view of the particular
investors in this case, not the reasonable investor. Thus, we also
reject Bowen’s argument on this point.
20160754-CA 16 2019 UT App 163State v. Bowen
(one of the investors)—testified that Bowen was aware that the
water system was not complete and failed to disclose that fact.
Thus, even without Wolper’s and his real estate agent’s
testimonies, there is sufficient evidence for a jury to find that
Bowen knew about and did not disclose the lack of a culinary
water system.
¶32 Second, Bowen has inadequately briefed her inherent
improbability argument and whether it applies to Wolper’s and
his real estate agent’s testimonies. State v. Garner, 2002 UT App
234, ¶ 8, 52 P.3d 467 (“It is well established that Utah appellate
courts will not consider claims that are inadequately briefed.”).
Simply put, Bowen merely points to the fact that the trial court
called Wolper a liar and said he has “no credibility.” Bowen goes
on to highlight that Wolper’s real estate agent “could not point
to anything in writing showing that he disclosed the water issue
to Bowen.” But these facts do nothing to show that the testimony
at issue was “inherently improbable.” See State v. Prater, 2017 UT
13, ¶ 38, 392 P.3d 398 (holding that to render testimony
inherently improbable a party must show that the testimony was
materially inconsistent, patently false, and lacking any
corroboration). Furthermore, in our view, this record
demonstrates only inconsistencies in Wolper’s and his real estate
agent’s testimonies, and inconsistencies “by themselves are
insufficient to invoke the inherent improbability [doctrine].” Id.
¶ 39 (cleaned up).
¶33 Lastly, Bowen argues that the trial court should have
arrested judgment because the State engaged in prosecutorial
misconduct by bringing in evidence of uncharged conduct. 12 As
an initial matter, we note that Bowen did not preserve this
12. Bowen argued that the State also engaged in prosecutorial
misconduct when it “argued matters not in evidence.” Bowen,
however, withdrew this issue from appeal in her reply brief.
20160754-CA 17 2019 UT App 163State v. Bowen
issue—a point which Bowen concedes in her reply brief. See State
v. Larrabee, 2013 UT 70, ¶ 16, 321 P.3d 1136 (holding that filing a
motion to arrest judgment does not preserve an issue that could
have been objected to at trial). Instead, Bowen argues that
Counsel’s failure to object to the State “bringing in evidence of
uncharged conduct” amounts to ineffective assistance of counsel.
Bowen, however, dedicates a single paragraph to this issue,
without citing any legal authority supporting her argument, and
thus does not carry her burden of persuading us that defense
counsel’s failure to object under these circumstances amounts to
deficient performance.
¶34 Bowen has failed to carry her burden of showing that
there was insufficient evidence to convict her of the charged
crimes. Therefore, we affirm the trial court’s denial of her motion
to arrest judgment.
CONCLUSION
¶35 We reject Bowen’s claim for ineffective assistance because
Counsel’s performance—as related to Instruction 49—was not
objectively deficient. We further conclude that the court did not
err in allowing the State’s rebuttal testimony where Bowen had
opened the door to rebuttal testimony concerning her
companies’ readiness to build on the lots. Finally, we conclude
that the trial court’s denial of Bowen’s motion to arrest judgment
was not erroneous because the State presented evidence
sufficient for a jury to convict Bowen. Affirmed.
20160754-CA 18 2019 UT App 163