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State v. Rushton

Supreme Court of Utah

April 7, 2017

State of Utah, Respondent,
v.
David M. Rushton, Petitioner.

         On Certiorari to the Court of Appeals Third District, Salt Lake The Honorable Robin W. Reese No. 111903029

          Sean D. Reyes, Att'y Gen., Marian Decker, Asst. Att'y Gen., Salt Lake City, for respondent

          Joanna E. Landau, Salt Lake City, for petitioner

          Justice Himonas authored the opinion of the Court, in which Justice Durham and Justice Pearce joined. Associate Chief Justice Lee filed a concurring opinion, in which Chief Justice Durrant joined.

          Himonas Justice

         INTRODUCTION

         ¶ 1 This case clarifies the interpretation of the phrase "single criminal objective" in the context of the mandatory joinder statute, Utah Code § 76-1-401, which prohibits the State from prosecuting a defendant in separate actions for "conduct [that] may establish separate offenses under a single criminal episode, " id. § 76-1-402(2). A "single criminal episode" is defined as "all conduct which is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective." Id. § 76-1-401 (emphasis added).

         ¶ 2 The Petitioner, David Rushton, argues that the State violated the mandatory joinder statute by prosecuting him from 2011 to 2012 for wage crimes after having prosecuted and convicted him in 2009 and 2010 for tax crimes. Interpreting the phrase "single criminal objective" broadly, Mr. Rushton asserts that the conduct underlying both prosecutions was part of a single criminal episode because it was "closely related in time and . . . incident to an attempt or an accomplishment of [the] single criminal objective" of misappropriation of money in his business setting. Id. Therefore, Mr. Rushton argues, the court of appeals erred when it affirmed the district court's denial of his motion to dismiss the wage crimes prosecution as barred by the mandatory joinder statute. He appealed that denial, and we granted certiorari to consider the merits of his position.

         ¶ 3 We affirm the decision of the court of appeals, albeit along a somewhat different line of reasoning. If we were to read the phrase "single criminal objective" as broadly as Mr. Rushton urges us to, the permissive joinder statute, Utah Code section 77-8a-1, would be rendered inoperative. Instead, we consider the totality of the circumstances that bear on whether conduct aims at a single criminal objective, focusing in particular on the location where the crimes were committed, the nature of the offenses (both the similarity in conduct and, as suggested by the concurrence, the extent to which one offense advances the accomplishment of another), whether the crimes involved different victims, and whether the defendant had the opportunity to deliberately engage in the next-in-time offense. We determine that Mr. Rushton's conduct did not have a single criminal objective and thus did not constitute a single criminal episode.[1] Therefore, the mandatory joinder statute did not require the State to charge the tax crimes and wage crimes in a single prosecution, and the court of appeals correctly concluded that dismissal of the wage case based on the mandatory joinder statute was not warranted.

         BACKGROUND

         ¶ 4 Mr. Rushton started Fooptube LLC, a computer programming and design company in 2005. A few years later, the Utah State Tax Commission began investigating him due to allegations that he had withheld personal and corporate taxes while serving as an owner and officer of Fooptube. On April 14, 2009, the State charged Mr. Rushton with six tax crimes committed between 2005 and 2008.[2]Mr. Rushton was arraigned for the tax crimes on December 14, 2009. In June 2010, pursuant to a plea agreement, Mr. Rushton pleaded guilty to counts five and six, and the remaining counts were dismissed.

         ¶ 5 In May 2009, several former Fooptube employees approached the prosecutor and informed him of the wage claims they had against Mr. Rushton. The State then launched an investigation into these crimes. During that investigation, the investigator was contacted by the Utah Labor Commission, which informed him that Mr. Rushton had failed to pay wages to approximately eighty-four former Fooptube employees between October 2008 and October 2009. By 2011, ninety-five employees had reported unpaid wages for services provided to Fooptube. The claims for unpaid wages totaled $1, 170, 164.07. The investigator also learned that the United States Department of Labor's Employee Benefits Security Administration was investigating allegations that Mr. Rushton had failed to remit Fooptube employees' contributions to retirement funds in the amount of $107, 000.00.

         ¶ 6 On April 20, 2011, the State filed the wage case against Mr. Rushton, charging him with seven second-degree felonies. The State amended its charges against Mr. Rushton on November 3, 2011, to include thirteen charges of class A misdemeanors as possible alternatives to two of the previously charged felonies.[3] Mr. Rushton moved to dismiss the wage case, arguing that under the mandatory joinder statute, his wage crimes and tax crimes were part of a single criminal episode, and that because the tax case had already resulted in a conviction when he entered his guilty plea, he could not be prosecuted for the wage crimes.

         ¶ 7 The district court concluded that the conduct at issue in the tax case and in the wage case did not constitute a single criminal episode under the mandatory joinder statute. While the district court found that Mr. Rushton's conduct at issue in both cases was closely related in time, it concluded that the conduct at issue in the wage case was not committed in furtherance of the same criminal objective as the conduct at issue in the wage case. According to the district court, although the cases are factually similar, they involve different victims, issues, laws, and jury instructions. As a result, the district court held that the conduct did not constitute a single criminal episode.

         ¶ 8 After the court denied Mr. Rushton's motion to dismiss, Mr. Rushton entered a conditional guilty plea to count 3 (amended to a third-degree felony of attempted unlawful dealing with property), count 7, and count 20. Mr. Rushton then appealed the district court's decision, and the court of appeals affirmed the district court's ruling, holding that Mr. Rushton's tax crimes and his wage crimes did not constitute a single criminal episode under the mandatory joinder statute. State v. Rushton, 2015 UT App 170, ¶¶ 5-6, 354 P.3d 223. Mr. Rushton then petitioned for a writ of certiorari asking that we review the court of appeals' decision against him. We granted the writ and, therefore, exercise jurisdiction under Utah Code section 78A-3-102(3)(a).

         STANDARDS OF REVIEW

         ¶ 9 "On certiorari, we review the court of appeals' decision for correctness, focusing on whether that court correctly reviewed the trial court's decision under the appropriate standard of review." Hansen v. Eyre, 2005 UT 29, ¶ 8, 116 P.3d 290 (internal quotation marks omitted). A trial court's denial of a motion to dismiss presents a question of law, which is also reviewed for correctness. See State v. Arave, 2011 UT 84, ¶ 25, 268 P.3d 163.

         ANALYSIS

         ¶ 10 We affirm the court of appeals' denial of Mr. Rushton's motion to dismiss. In so doing, we clarify the interpretation of the phrase "single criminal objective" in the context of the mandatory joinder statute. Under the mandatory joinder statute, the State is prohibited from prosecuting a defendant in separate actions for conduct that "is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective." Utah Code § 76-1-401, 402(2).[4]

         ¶ 11 When we tackle questions of statutory construction, our overarching goal is to implement the intent of the legislature. Marion Energy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, ¶ 14, 267 P.3d 863 ("It is well settled that when faced with a question of statutory interpretation, 'our primary goal is to evince the true intent and purpose of the Legislature.'" (citation omitted)). Our first undertaking in this regard is to assess the language and structure of the statute. Id. ("The best evidence of the legislature's intent is 'the plain language of the statute itself.'" (citation omitted)); In re Reinhart, 2012 UT 82, ¶ 17, 291 P.3d 228 (reviewing a "statute's plain language and structure"). "Often, statutory text may not be plain when read in isolation, but may become so in light of its linguistic, structural, and statutory context.- Id. The reverse is equally true: words or phrases may appear unambiguous when read in isolation, but become ambiguous when read in context. This is why

we read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters[, ] . . . avoid[ing] any interpretation which renders parts or words in a statute inoperative or superfluous in order to give effect to every word in the statute.

Monarrez v. Utah Dep't of Transp., 2016 UT 10, ¶ 11, 368 P.3d 846 (internal quotation marks omitted). Indeed, ―it is a 'fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.'" Reno v. Koray, 515 U.S. 50, 56 (1995) (citation omitted). This is why we look to context when, as here, "both sides offer conceivable constructions of the language in question." Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465.

         ¶ 12 With this legal backdrop in mind, we turn first to Mr. Rushton's argument that the phrase "single criminal objective" is broad enough to encompass an objective as broad as misappropriation of any money he had power over through Fooptube. We conclude that such a broad interpretation of the phrase "single criminal objective" would render the permissive joinder statute inoperative, which would violate our principles of statutory interpretation. Rather, we consider the totality of the circumstances, focusing in particular on the location where the crimes were committed, the nature of the offenses, whether the crimes involved different victims, and whether the defendant had the opportunity to deliberately engage in the next-in-time offense. Based on our analysis of those factors, we determine that Mr. Rushton's conduct at issue in the tax case and in the wage case did not have a single criminal objective and thus was not part of a single criminal episode mandating joinder of the charges against him in a single prosecution.

         I. MR. RUSHTON'S INTERPRETATION OF SINGLE CRIMINAL OBJECTIVE

         ¶ 13 Mr. Rushton argues that under a plain language analysis "single criminal objective" means all conduct that is "connected by a single criminal purpose, goal, or target[] that the defendant's conduct is intended to attain." He further argues that misappropriating "money in the context of Fooptube, " no matter how or from whom, satisfies this definition.

         ¶ 14 We reject Mr. Rushton's claim that his misappropriation qualifies as a single criminal objective for purposes of the mandatory joinder statute. Under our plain language principles of statutory construction, it is necessary to consider both the permissive joinder statute and the mandatory joinder statute when interpreting the phrase "single criminal objective." We conclude that Mr. Rushton's characterization of his behavior as a single criminal objective of misappropriation is too broad and would render the permissive joinder statute inoperative.

         ¶ 15 As the State correctly points out, when interpreting the phrase "single criminal objective, " we must consider both the permissive joinder statute and the mandatory joinder statute in order to ensure that our interpretation does not render the permissive joinder statute inoperative. See State, in re J.M.S., 2011 UT 75, ¶ 22, 280 P.3d 410 (stating that we interpret statutory provisions "in harmony with other statutes in the same and related chapters" (citation omitted)).

         ¶ 16 The relevant statutory provisions are as follows: The permissive joinder statute states that offenses "may be charged in the same indictment or information" if the offenses are "based on the same conduct or are otherwise connected together in their commission . . . or . . . alleged to have been part of a common scheme or plan." Utah Code § 77-8a-1(1). The mandatory joinder statute states that "[w]henever conduct may establish separate offenses under a single criminal episode . . . a defendant shall not be subject to separate trials for multiple offenses." Id. § 76-1-402(2). The phrase "single criminal episode" in the mandatory joinder statute is statutorily defined as "all conduct which is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective." Id. § 76-1-401. Based on our principles of statutory construction, we cannot interpret the language "single criminal objective" under the mandatory joinder statute to simply mean the same thing as conduct that is "connected together [with other conduct] in its commission" or "alleged to have been part of a common scheme or plan" under the permissive joinder statute. Id. § 77-8a-1(1); see also State v. Martinez, 2002 UT 80, ¶ 8, 52 P.3d 1276 ("When examining the statutory language . . . . we avoid interpretations that will render portions of a statute superfluous or inoperative." (internal quotation marks omitted)).

          ¶ 17 Mr. Rushton's characterization of misappropriation as his single criminal objective conflates offenses that are "connected together in their commission" or are "part of a common scheme or plan" with offenses that are "closely related in time" and have a "single criminal objective." Utah Code §§ 76-1-401, 77-8a-1(1). For example, [5] if we were to apply Mr. Rushton's interpretation of misappropriation as a single criminal objective[6] to a situation where a bank robber robs multiple banks in a single day, the State would be required to join all the bank robbery charges in a single prosecution. Joinder would be mandatory despite the crimes having been committed in different locations, despite the crimes involving different victims, despite none of the crimes having been committed in order to advance the accomplishment of any of the others, and despite the robber likely having the opportunity to make conscious and knowing decisions between the commission of each of the different robberies-all of which are factors in the single criminal objective analysis we lay out below. In the case at hand, "the facts adequately support the trial court's determination that . . . separate and distinct offenses were committed. To adopt [Mr. Rushton's] interpretation of the statute would serve only to torture its clear wording to afford him the advantage of a single . . . conviction." State v. Ireland, 570 P.2d 1206, 1207 (Utah 1977).[7] Thus, we cannot read the phrase "single criminal objective" under the mandatory joinder statute so broadly without rendering the permissive joinder statute inoperative.

         ¶ 18 In addition, we reject the following arguments Mr. Rushton makes about the interpretation of statutes, and, in particular, the interpretation of the mandatory joinder statute. First, Mr. Rushton argues that interpreting statutes "in harmony with other statutes in the same chapter and related chapters" is a secondary rule of statutory interpretation, rather than part of a court's plain language interpretation. State v. Harker, 2010 UT 56, ¶ 12, 240 P.3d 780 (citation omitted). As a result, he argues, since "the state has not suggested any debate about the plain meaning of the language, " we do not need to rely on "other interpretative tools, " like the so-called secondary rule of interpreting statutes in harmony with related chapters. We strongly disagree with Mr. Rushton on this point. Interpreting a statute "in harmony with other statutes in the same chapter and related chapters" is part of our plain language analysis. See id. ("[W]e read the plain language of [a] statute as a whole and interpret its provisions in harmony with other statutes in the same chapter and related chapters." (second alteration in original) (citation omitted)). Consequently, reading the "single criminal objective" language under the mandatory joinder statute in harmony with the permissive joinder statute constitutes a plain language interpretation of the mandatory joinder statute.

         ¶ 19 Mr. Rushton also argues that the permissive joinder statute is not a related chapter to the mandatory joinder statute. Therefore, he argues, the mandatory joinder statute does not need to be read in harmony with the permissive joinder statute. He bases this argument on the fact that the mandatory joinder statute, which is found under title 76, is not under the same title as the permissive joinder statute, which is found under title 77. We reject this argument. There is no requirement that related chapters, which must be interpreted in harmony with one another, be found under the same title of the Utah Code. Mr. Rushton himself points out nine different statutes in the Utah Code that use the same definition of single criminal episode, many of which are found under different titles. Using his logic, we would have to declare those statutes that use the same definition of single criminal episode not related. This would be a real stretch. As a result, we conclude that even though the mandatory and permissive joinder statutes "do not share a common statutory title, " they are related chapters and must be interpreted in harmony with one another.

         ¶ 20 Finally, we disagree with Mr. Rushton's assertion that the legislature wanted us to interpret the mandatory and permissive joinder statutes separately or in isolation from one another. We read the language in Utah Code section 76-1-401 that "[n]othing in this part shall be construed to limit or modify the effect of Section 77-8a-1" differently than Mr. Rushton. He reads this language as prohibiting a narrow interpretation of the mandatory joinder statute. We, on the other hand, read this language to support our conclusion that we may not read the mandatory joinder statute so broadly as to render the permissive joinder statute inoperative. We may not construe or limit the effect of the permissive joinder statute, rendering it a nullity, by interpreting the "single criminal objective" language as broadly as Mr. Rushton wishes us to do. As a result, we reject the idea that Utah Code section 76-1-401 somehow prevents us from considering the permissive joinder statute in our plain language analysis of what "single criminal objective" means under the mandatory joinder statute.

         ¶ 21 We must interpret the mandatory joinder statute in harmony with the permissive joinder statute. Using a plain language analysis, we determine that Mr. Rushton's interpretation of single criminal objective is overly broad and would render the permissive joinder statute inoperative. This result is contrary to our rules of statutory interpretation and thus we reject Mr. Rushton's characterization of his single criminal objective.

         II. THE CONCURRENCE'S INTERPRETATION OF THE MANDATORY JOINDER STATUTE

         ¶ 22 We also disagree with the interpretation of "incident to an attempt or accomplishment of a single criminal objective" proffered by the concurring opinion. The concurrence equates a "single criminal episode" with a single "crime." Infra ¶ 59. The concurrence accordingly reads this language to cover only conduct that is "directly and immediately relat[ed] to . . . an attempt or accomplishment" of another offense. Infra ¶ 62. The concurrence prefers its interpretation to a totality of the circumstances test for two reasons: (1) because it better respects the "operative language" of the statutory text and (2) because it is more predictable than a test requiring a district court to weigh multiple factors in deciding whether joinder is required. Infra ¶¶ 48-49. We disagree.

         ¶ 23 First, we do not believe that the concurrence's test comports with the plain meaning of the statutory text. See Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 12, 248 P.3d 465 (in interpreting the plain meaning of statutory text "[o]ur task . . . is to determine the meaning of the text given the relevant context of the statute (including, particularly, the structure and language of the statutory scheme)" (citation omitted)). In interpreting statutes, "[w]e presume the Legislature uses each word advisedly." Meza v. State, 2015 UT 70, ¶ 18, 359 P.3d 592. Thus, we presume that if the legislature had intended the reading that the concurrence prefers, it would have defined a "single criminal episode" as "all conduct which is . . . incident to an attempt or an accomplishment of a single offense"-using a term that it specifically defined in the Utah Criminal Code. Cf. Utah Code § 76-1-601(7) ("'Offense' means a violation of any penal statute of this state."). Instead, the legislature used the term "single criminal objective"-a term that connotes the goal or purpose of the offender's criminal conduct, not merely another offense.[8] Id. § 76-1-401.

         ¶ 24 We are also doubtful that the concurrence's proposed test is any more predictable than the totality of the circumstances test that we adopt-indeed, it may well be less predictable. The concurrence would have courts focus on whether one offense was "incident" to another, where "incident" is defined as "dependent on or appertaining to another thing: directly and immediately relating to or involved in something else though not an essential part of it." Infra ¶ 60 n.6. But consider, for example, how this test would apply to a case where a defendant writes a computer program that in quick succession steals $30, 000 from ten separate accounts belonging to ten separate clients of the same bank.

         ¶ 25 To make the hypothetical even more vivid, imagine that this defendant keeps a diary in which he specifically states that his objective was to steal $30, 000 in small enough increments that (in his view) they were less likely to immediately trigger the bank's anti-fraud measures and more likely to go undetected.

         ¶ 26 This should be an easy case. The state should not be allowed to bring serial prosecutions against a bank robber who has written a single computer program to steal from multiple bank accounts, and who admittedly has a single criminal purpose underlying each almost identical crime. (This example is not farfetched, and it can be multiplied. Imagine a hacker who simultaneously acquires unauthorized access to one million computers. The concurrence's logic would in theory allow one million trials. We would not.)

         ¶ 27 But under the concurrence's test it is not easy to predict whether each act of theft need be joined in the same trial. On the one hand, each act is a "choate crime" and each is logically independent of the other. This militates in favor of finding that each act need not be joined under the mandatory joinder statute. And the concurrence appears to believe that, under its test, the separate crimes need not be joined. See infra ¶¶ 67-69. But this is not obvious from the language of the concurrence's test. Instead, it is arguable that each act of theft was "directly and immediately relat[ed]" to the others (though not "essential" to them); after all, the bank robber admitted as much. Or imagine that the evidence conclusively shows (or the indictment pleads) that the bank robber pursued any of the individual robberies only because he could pursue them all simultaneously (perhaps because if he had not been able to pursue them all he would have decided that the reward was not worth the risk). Under this hypothetical, it seems perfectly possible for a reasonable court to conclude that each robbery was not only "directly and immediately ...


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