District Court, Ogden Department The Honorable Ernest W.
Jones No. 141902101
J. Bautista and Kelly Ann Booth, Attorneys for Appellant
D. Reyes and Tera J. Peterson, Attorneys for Appellee
Diana Hagen authored this Opinion, in which Judges Gregory K.
Orme and Ryan M. Harris concurred.
Defendant Jordan Jeffery Jack was convicted of seven counts
of exploitation of a vulnerable adult, third degree felonies,
see Utah Code Ann. § 76-5-111 (LexisNexis
2012), and one count of communications fraud, a second degree
felony, see id. § 76-10-1801. Jack appeals,
arguing that the trial court should have merged his
communications fraud conviction into his exploitation of a
vulnerable adult convictions under Utah Code section
76-1-402(3) and the double jeopardy clauses of the United
States and Utah constitutions. See U.S. Const.
amend. V; Utah Const. art. I, § 12. We affirm.
Jack worked as an associate director for Chrysalis, a
business that provides residential services for individuals
with traumatic brain injuries and other intellectual,
cognitive, and developmental impairments that cause the
individuals "to function at levels comparable to those
of teenagers, small children and even in some cases
infants." To be eligible to receive Chrysalis's
residential services, clients must be diagnosed with an
intellectual disability, and they must meet the poverty
guidelines for Medicaid.
Residential services consist of group homes-each housing
three or four clients-that are staffed twenty-four hours per
day. The staff teaches clients "adaptive and
habilitative skills" and assists them with daily living
activities, such as eating, bathing, dressing, toileting, and
Chrysalis also provides financial support, which includes
helping clients apply for Social Security benefits. Because
Chrysalis is the representative payee for approximately
"90 plus percent" of the clients it serves, the
company's representative payee supervisor manages the
Social Security funds upon receipt. Initially, clients'
funds are deposited into a collective bank account, which the
supervisor uses to pay for clients' rent, utilities, and
personal needs. If there is a remaining balance, those funds
are transferred to a pay card that Chrysalis's associate
directors may use to pay for the clients' additional
expenses, such as groceries, clothing, and entertainment.
As an associate director, Jack was "heavily
involved" in managing finances for clients who resided
in the eight to ten group homes that he oversaw. Jack's
duties included, among other things, purchasing items,
requesting funds, allocating expenses, and reviewing monthly
statements for clients.
Each month, Jack would send receipts and a ledger to the area
director and the supervisor. The ledger listed the items that
he had purchased and allocated those items to the
corresponding client. The supervisor then prepared statements
to maintain a monthly accounting of each client's
balance. Once finalized, the statements were returned to Jack
for review. Typically, if there was an error, associate
directors notified the area director who, in turn, asked the
supervisor to correct the charge and adjust the client's
balance. Finalized statements were then distributed to the
house managers and the clients' legal guardians.
In January 2014, Jack asked an administrative assistant to
send the original statements to him to fix before sending the
statements to the house managers and the clients' legal
guardians. Believing that "something was off" when
Jack sent the administrative assistant "corrected"
statements, she contacted the area director. After learning
that Jack had circumvented Chrysalis's procedure for
rectifying errors in statements on several prior occasions,
the area director became concerned. He reviewed Jack's
new statements, identified several discrepancies, and
subsequently notified Chrysalis's CEO. During a joint
review, the area director and CEO found multiple
discrepancies between the statements that the supervisor had
produced and the statements that were sent to the house
managers of the group homes that Jack oversaw and to the
clients' legal guardians.
When confronted with the allegations, Jack eventually
admitted that he had submitted altered receipts and changed
statements to conceal the fact that he had used client funds
for his own personal expenses. Among other things, his
unlawful purchases included a trip to Las Vegas, concert
tickets, multiple televisions, jewelry, and expensive shoes.
Jack was charged with seven counts of exploitation of a
vulnerable adult, one count of communications fraud, and one
count of theft by deception.
Prior to trial, Jack filed a motion to merge the
communications fraud charge into the exploitation of a
vulnerable adult charges under Utah Code section 76-1-402(3)
and the double jeopardy clauses of the United States and Utah
constitutions. The trial court denied the motion, reasoning
that there were "elements unique to each of the crimes
charged." Specifically, exploitation of a vulnerable
adult requires two elements that communications fraud does
not-(1) a victim that is "a vulnerable adult based on
age and impairment" and (2) a "defendant who is in
a position of trust or similar relationship." The trial
court also found that Jack's charged conduct did not
"constitute a single criminal episode."
After a bench trial, the trial court found Jack guilty of one
count of communications fraud and seven counts of
exploitation of a vulnerable adult. Jack again moved to merge
his communications fraud conviction into his exploitation of
a vulnerable adult convictions, arguing that
"communications fraud was the modus operandi by which
each exploitation offense was perpetrated." At the
sentencing hearing, the trial court denied Jack's motion,
noting that it was "critical" that although there
were fourteen ...