author: AOYAGI, J.

text:
    In the MATTER OF the Suspension of the Driving Privileges of Joseph Andrew NELSON.
    Joseph Andrew Nelson, Petitioner-Appellant, v. Driver and Motor Vehicle Services (DMV), a Division of the Department of Transportation, Respondent-Respondent.
    A166526
    Court of Appeals of Oregon.
    Submitted November 29, 2018. August 14, 2019
    Thaddeus Betz filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   AOYAGI, J.

Petitioner was arrested for driving under the influence of intoxicants (DUII) and violating a restraining order. The arrest took place in petitioner's bedroom in a house where he was temporarily residing. After arresting him, the police asked petitioner to consent to a breath test, which he refused. As a result of that refusal, the Driver and Motor Vehicle Services Division of the Department of Transportation (DMV) proposed to suspend petitioner's driving privileges for three years. Petitioner requested a hearing before an administrative law judge (ALJ). After the hearing, the DMV ordered the proposed suspension. The circuit court affirmed the DMV's order. On appeal, petitioner raises a single assignment of error. As he did below, petitioner argues that the police violated his rights under Article I, section 9, of the Oregon Constitution by entering his bedroom without a warrant and without valid consent and that, therefore, the suspension is invalid. The state counters that the police had valid consent from the homeowner. For the following reasons, we reverse.

FACTS

We summarize the relevant historical facts consistently with the unchallenged findings in the final order. Brown v. DMV , 157 Or. App. 167, 169, 967 P.2d 919 (1998).

On a June night, the police received reports that petitioner had visited his wife's home in violation of a restraining order and that he was visibly intoxicated and driving. Around 1:00 a.m., Officer Voll located petitioner's parked car outside the home of Nisbet. Nisbet lived in the two-story, five-bedroom house with his wife and four children, and petitioner was living there temporarily. Voll and a cover officer, Officer Emile, approached the house together.

After about 15 minutes, the officers made contact with Nisbet's 18-year-old daughter, who let them into the house.

After entering the house, Voll asked to talk to Nisbet. In Voll's words, he wanted Nisbet to be "aware, number one, that we were in the home, so that we continued to essentially have that consent from the homeowner" and also wanted "to help make that transition in making contact with [petitioner] a little bit easier." The daughter, accompanied by the officers, went upstairs and knocked on the closed door of the master bedroom. Nisbet woke up, opened the door, and found his daughter and two police officers with flashlights in the hallway. Voll recalled that another young girl also came out of one of the bedrooms.

Voll wanted Nisbet's consent to remain in the house but did not affirmatively request consent; rather, he "operate[d] on the assumption" that, once Nisbet was awake and aware of the officers' presence, "by not kicking [them] out he was consenting [for them to be] in the residence." The officers explained to Nisbet that they "needed to speak to know where [petitioner] was located." In response, Nisbet pointed to the guest bedroom, which was located next to the master bedroom. As the ALJ found, the officers then "asked [Nisbet] to go in and get [petitioner], probably to avoid confrontation and keep things peaceful." According to Voll, the officers expressed concern to Nisbet about petitioner's "level of hostility" and "asked [Nisbet] to kind of let [petitioner] know to keep cool and hopefully kind of ease things-ease that transition between talking to [Nisbet] to talking to [the police]."

Nisbet walked into the guest bedroom, woke up petitioner, and spoke with him. After about three minutes, Voll "popped [his] head" into the room and asked Nisbet, "Are we good?" Nisbet responded something like "yeah."

At that point, the two officers walked into the bedroom, advised petitioner of his Miranda rights, and questioned him as he sat on the bed. Voll informed petitioner that he was under arrest for violating the restraining order and for DUII.

After his arrest, petitioner refused several requests to submit to a breath test. Upon receiving notice of petitioner's refusal to submit to a breath test in connection with a DUII arrest, the DMV proposed to suspend petitioner's driving privileges for three years, pursuant to ORS 813.100 and ORS 813.410. Petitioner requested a hearing. Among other things, petitioner argued that he was unlawfully arrested because the police entered his home without a warrant or a valid exception to the warrant requirement, in violation of Article I, section 9, of the Oregon Constitution.

The ALJ rejected petitioner's constitutional argument, ruling that Nisbet's daughter had voluntarily consented to the officers' initial entry into the house and that Nisbet had voluntarily consented to the officers' entry into petitioner's bedroom.

For the entry into the bedroom, the ALJ found that, on the night of his arrest, petitioner had been staying in Nisbet's guest bedroom for approximately two weeks. While he was staying there, Nisbet stayed out of the guest bedroom to respect petitioner's privacy. Nisbet's wife, however, would go into the room from time to time to vacuum and make the bed. Based on those facts, the ALJ concluded that Nisbet had authority to consent to the police entering the guest bedroom:

"[B]y allowing Petitioner to stay in his guest bedroom temporarily, Mr. Nisbet did not surrender his common authority and control over the room. Petitioner was a guest in Mr. Nisbet's home and, as evidenced by Mrs. Nisbet's access to the room, retained the freedom to allow anyone else access to the room at any time. The entry into the home and guest room was lawful."

Further, the ALJ concluded that Nisbet had voluntarily consented to the police entering the guest bedroom. The ALJ reasoned:

"The Court of Appeals' decision in State v. Briggs , 257 Or. App. 738 [, 307 P.3d 564, rev. den. , 354 Or. 386, 314 P.3d 964] (2013) is helpful in resolving this case. In Briggs , police pursued a suspected drunk driver to a hotel room. Police knocked on the door and a young woman answered. A police officer stated, 'I need to talk to the person that just ran in here.' He then asked whose room it was and she replied it was hers. Police then said, 'Well, where's the gentleman * * * that just ran in?' The woman stepped aside and motioned to the back of the room, 'He's in the back.' Police entered. The Court of Appeals held [that] the woman voluntarily consented to a search of the hotel room stating, 'Although [the officer's] statement, "I need to talk to the person who just ran in," was a declaration and not a question or a request, it was not a statement that would, in "ordinary social intercourse" convey to a listener that her only alternative was to permit the officer to enter.' Id . at 742 [307 P.3d 564].
"Here, according to the testimony of Mr. Nisbet, police told him 'they needed to know where [petitioner] was located' and he pointed to the guest bedroom door. Then, again according to Mr. Nisbet, 'They asked me to go in and get him' and he did so. As in Briggs , a listener in 'ordinary social intercourse' would not in these circumstances understand that entry into the guest bedroom was inevitable. Mr. Nisbet's going to the room, walking in, and then informing the officers that 'we're good' was a voluntary consent for police to enter the room."

On appeal, the circuit court affirmed the DMV's order. Petitioner now appeals to us. See ORS 813.450(1) - (3) (providing for appeal of an order of the Department of Transportation to the circuit court, which shall conduct its review without a jury and based on the record of the department's hearing, and further providing that "[a]ny party to the proceedings before the circuit court may appeal from the judgment of the court to the Court of Appeals").

ANALYSIS

Although this is an appeal from a judgment of the circuit court, we review the DMV's order.

Brown , 157 Or. App. at 172, 967 P.2d 919. We are bound by any factual findings supported by evidence. State v. Jepson , 254 Or. App. 290, 294, 292 P.3d 660 (2012). "Whether those facts establish that the consent was voluntary, however, is a legal issue that we review independently." Id . If we conclude that the DMV "erroneously interpreted a provision of law and that a correct interpretation compels a particular action," we may set aside or modify the order, or we may remand to the DMV for further action under a correct interpretation of the law. ORS 813.450(4)(a).

Article I, section 9, of the Oregon Constitution protects people against unreasonable searches and seizures of their persons, houses, papers, and effects. A warrantless search violates Article I, section 9, unless it is justified by an exception to the warrant requirement, and consent is one such exception. State v. Dunlap , 215 Or. App. 46, 53, 168 P.3d 295 (2007). "[W]hen the state relies on the consent of a third party to justify a search * * *, the third party must have actual authority to consent." State v. Ready , 148 Or. App. 149, 152-53, 939 P.2d 117, rev. den. , 326 Or. 68, 950 P.2d 892 (1997). It is the state's burden to prove "that someone having the authority to do so voluntarily consented to the entry." State v. Stanley , 287 Or. App. 399, 406, 404 P.3d 1100 (2017), rev. den. , 362 Or. 508 (2018). Consent may be manifested by words, conduct, or a combination of the two. See Briggs , 257 Or. App. at 742, 307 P.3d 564. "The test for voluntariness is whether, under the totality of the circumstances, the consent was given by an act of a [person's] free will, as opposed to resulting from express or implied coercion." Jepson , 254 Or. App. at 294, 292 P.3d 660 ; see also State v. Powell , 288 Or. App. 660, 668, 406 P.3d 1111 (2017) (the state must prove that, "under the totality of the circumstances, the consent was the product of the [person's] free will").

In determining whether a person voluntarily consented to a police search, "courts pay close attention to the words used by the officer requesting consent." Stanley , 287 Or. App. at 407, 404 P.3d 1100. "When [the officer's] words do not provide the listener with a reasonable opportunity to choose to consent, or when those words leave the listener with the impression that a search is inevitable, absent strong countervailing factors, we have consistently found acquiescence rather than consent." Briggs , 257 Or. App. at 742-43, 307 P.3d 564. "A defendant's 'mere acquiescence' to police authority does not constitute voluntary consent." Stanley , 287 Or. App. at 407, 404 P.3d 1100 (quoting State v. Berg , 223 Or. App. 387, 392, 196 P.3d 547 (2008), adh'd to as modified on recons. , 228 Or. App. 754, 208 P.3d 1006, rev. den. , 346 Or. 361, 211 P.3d 930 (2009) ).

In this case, petitioner argues that the police entered his bedroom without a warrant or valid consent and thereby violated his rights under Article I, section 9. Specifically, petitioner argues that Nisbet did not have actual authority to consent to the officers' entry into the bedroom or, alternatively that, even if he did, Nisbet did not voluntarily consent but merely acquiesced. In response, the state argues that Nisbet had actual authority as the homeowner and that he voluntarily consented to the officers' entry into petitioner's bedroom. The state argues that the officers' conduct-including asking for Nisbet's assistance in retrieving petitioner, waiting in the hallway for several minutes, Voll poking his head through the doorway without stepping into the bedroom, and getting verbal confirmation that they were "all good" before entering the bedroom-conveyed that the officers would not enter without Nisbet's consent. And, the state asserts, Nisbet gave that consent when he responded affirmatively to Voll's question, "Are we good?"

We assume without deciding that Nisbet had actual authority to consent to the officers' entry into petitioner's bedroom and, because it is dispositive, proceed directly to the second question: whether the state proved voluntary consent.

Briggs illustrates a voluntary-consent situation. In that case, officers responded to an anonymous report that a "highly intoxicated" male was "driving erratically" in the parking lot of a hotel. Briggs , 257 Or. App. at 740, 307 P.3d 564. When the officers arrived at the hotel and tried to talk to the defendant, he ran to a nearby room, "banged on the door, and then went inside and closed the door." Id. at 741, 307 P.3d 564. The officers knocked on the door, and a woman answered. An officer said, "I need to talk to the person that just ran in here." Id. The officer then asked whose room it was, and the woman explained that she had rented it for a party. The officer asked, "Well, where's the gentleman * * * that just ran in?" Id. (ellipsis in original). "The woman stepped aside, motion[ed] to the back of the room, and said, 'He's in the back.' " Id. An officer entered the room, located the defendant, and took him outside for questioning and field sobriety tests.

In concluding that the woman had voluntarily consented to the officer entering her hotel room, we recognized that the officer's first statement-"I need to talk to the person that just ran in here"-was a declaration, not a question or request. Id. at 743, 307 P.3d 564. We concluded that it was nonetheless not a statement that, "in ordinary social intercourse," would convey to a listener that the only alternative was to permit the officer to enter the room. Id. at 743-44, 307 P.3d 564 (internal quotation marks omitted). Rather, the woman had a choice: she could invite the officer in, or she could leave him outside and go tell the defendant that the officer wanted to speak to him. Id. at 744, 307 P.3d 564. The latter was "the more typical response" that one might expect "from the host of a crowded social occasion when a police officer expresses a desire to have a conversation with a guest," but she voluntarily chose the former and invited the officers to enter. Id.

By contrast, in Jepson , officers were investigating a child-abuse report. 254 Or. App. at 292, 292 P.3d 660. During a conversation at the home of the defendant and his girlfriend, the girlfriend admitted that they had two guns in the house. An officer questioned whether they were allowed to have firearms, ultimately saying that she would check and come back if there was a problem. An hour later, the officer returned and told the defendant and his girlfriend that they were not allowed to have guns. Id. at 292-93, 292 P.3d 660. The officer said, "[W]e're going to have to take the firearms," and another officer asked where the guns were located. Id. at 293, 292 P.3d 660 (brackets in original). The girlfriend gave detailed instructions for finding the guns in the bedroom. The defendant was later charged and convicted of two counts of felon in possession of a firearm. On appeal, we held that the officers had not received voluntary consent to search the house. Id. at 296, 292 P.3d 660. The officer's statement that "we're going to have to take the firearms" was not a request for consent but, rather, an unconditional statement that did not invite a response other than acquiescence. Id. And the girlfriend telling the police where the guns were located did not establish voluntary consent to enter the house, because nothing about asking "where the guns were" conveyed that the officers "would not, and could not," enter the house without consent. Id .

Similarly, in State v. Freund , 102 Or. App. 647, 649, 796 P.2d 656 (1990), the sheriff's office got an anonymous tip about the defendant growing marijuana. When officers arrived at the house, one of them told the defendant that he "was there to pick up the marijuana plants that she was growing." Id . The defendant seemed shocked and did not say anything. The officer repeated what he had said and added that he "wanted to do it as calmly [and] efficiently as possible." Id. (brackets in original). The defendant "pointed to an area behind the house as she replied that she had some marijuana plants growing there for her personal use." Id . The officer then asked her "if she would take [the officers] to them to show [the officers] where they were." Id. The defendant agreed and "walked up behind the house." Id . She showed the officers nine marijuana plants in her yard. Id .

The defendant was charged with manufacturing, possessing, and delivering marijuana. She moved to suppress the marijuana plants (and other subsequently found evidence). The trial court denied the motion, and the defendant was convicted. We reversed. Recognizing that "the case stands or falls on the issue of defendant's consent to the search of her yard," we concluded that the state had not established voluntary consent. Id . at 650, 652, 796 P.2d 656. Although the officers knew that they needed consent and intended to obtain it, their words did not convey that they were requesting consent that the defendant could deny. Id. at 652, 796 P.2d 656. The officer's initial statement that he was there to pick up the marijuana plants "[could] not be characterized as a request for consent." Id . That statement "[did] not invite a response other than acquiescence." Id. "In contrast," the officer's next statement, that he wanted to do it calmly, was "supplicatory and [did] invite a response," but, taken in conjunction with the first statement, "told defendant that she had no choice whether a search would occur; her only option was whether the search and seizure was to be 'calm and efficient.' " Id . In that context, the "[d]efendant merely chose the option favoring calmness and efficiency when she pointed to where marijuana could be found." Id . The same was true of the defendant agreeing to show the officers where the plants were located and leading them to that part of her yard. "Again, defendant was likely to conclude that the choice merely was between cooperating or not cooperating with a search that was bound to occur." Id .

This case is more like Freund and Jepson than it is like Briggs . The state did not meet its burden to prove that, under the totality of the circumstances, Nisbet's affirmative response to the question "Are we good?" constituted voluntary consent for the officers to enter petitioner's bedroom. At most, the state established mere acquiescence to police authority. That is because the officers' words and conduct did not provide Nisbet with "a reasonable opportunity to choose to consent"-or not-to the officers' entry into petitioner's bedroom. Briggs , 257 Or. App. at 742, 307 P.3d 564. In reaching that conclusion, we "pay close attention to the words used by the officer requesting consent." Stanley , 287 Or. App. at 407, 404 P.3d 1100. We also must consider the context in which the officer said those words. See id. at 406, 404 P.3d 1100 (test for voluntariness requires consideration of the totality of the circumstances); Jepson , 254 Or. App. at 296, 292 P.3d 660 (evaluating alleged request for consent in context of the officer's preceding statement).

Here, Nisbet's interaction with the police began outside his bedroom door, on the second floor of his house, in the middle of the night, when he was awakened from sleep by his 18-year-old daughter and two police officers with flashlights standing in the hallway. The officers did not ask Nisbet for his consent to be in the house; rather, Voll "assumed" that Nisbet would "kick[ them] out" if he objected to their presence.

Once the officers contacted Nisbet, they made three specific statements of record to him. Voll first told Nisbet that he and Emile needed to know where petitioner was located in the house. The state does not contend that that was a request for consent to search, and we agree that it was not. Voll's second statement to Nisbet was his request that Nisbet "go in and get" petitioner. Nisbet understood that request to have been made-and the ALJ found that request to have been made-"probably to avoid confrontation and keep things peaceful." That finding is consistent with Voll's testimony that he told Nisbet that the officers were concerned about petitioner's "level of hostility" and wanted Nisbet to tell petitioner "to keep cool and hopefully kind of ease things-ease that transition between talking to [Nisbet] to talking to [the officers]." In other words, Voll's second statement was intended and understood as a request for Nisbet's assistance to "go in and get" petitioner and to "keep things peaceful," not as a request for consent for the officers to enter petitioner's bedroom.

The last statement that Voll made was when Voll "popped [his] head" into petitioner's bedroom and asked, "Are we good?" while Nisbet was talking with petitioner. That happened about three minutes after Nisbet entered petitioner's room. It is the third statement on which the state relies, arguing that "Are we good?" was a request for consent for the officers to enter petitioner's bedroom that Nisbet granted by responding something like "yeah." But Voll's question did not provide Nisbet with a reasonable opportunity to choose freely whether to allow police officers into petitioner's bedroom. By the time that Voll asked "Are we good?" two officers were already in a private part of Nisbet's house, without having requested any consent from Nisbet. As soon as the officers had determined petitioner's location, they expressed concern that he might react hostilely to police-thus indicating their intent to contact him-and requested Nisbet's assistance to keep the situation "calm"-further indicating that contact was inevitable and that it was just a question of whether it would be "calm." Finally, the officers asked only that Nisbet "go in and get" petitioner. But, after several minutes passed, Voll "popped [his] head" into petitioner's room uninvited and asked, "Are we good?"

Under those circumstances, a listener likely would understand Voll to be seeking confirmation that petitioner was calm, not requesting consent to enter his bedroom-something that had not been discussed up to that point.

But, even if a listener would understand the question "Are we good?" as a predicate to Voll and Emile entering the room, the phrasing and timing of the question failed to give Nisbet a reasonable opportunity to choose whether to consent. Nothing about "Are we good?" conveys that the listener is free to grant or deny entry into the room, especially when Voll had already "popped [his] head" in. Voll's words and conduct carried an impression of inevitability and invited no response but acquiescence. Indeed, as a practical matter, given that the officers had voiced concern to Nisbet about petitioner's "hostility level" and had tasked Nisbet with "calming" him to keep the situation "peaceful," it is difficult to imagine that anyone in Nisbet's position would feel free to respond, "No, we're not good."

This case is distinguishable from Briggs , because, when the officers in that case told the woman who opened the door that they needed to talk to the man who had just run into her room, and inquired where he was, the officers did nothing to indicate that they intended to enter the room regardless of her response. 257 Or. App. at 743-44, 307 P.3d 564. It was the woman who invited them into her room by stepping aside, motioning, and saying, "He's in the back." Id. at 741, 744, 307 P.3d 564. Under the circumstances, she easily could have said that she would go get him, if she did not want the officers in her room, and indeed that would have been the "more typical" response. Id. at 744, 307 P.3d 564. Instead, she chose to invite them in. Id.

Here, by contrast, the officers' words and conduct conveyed that they intended to talk to petitioner and that the only question was whether petitioner would be "calm" when they did so. This case is similar to Freund in that regard. Like the officers in this case, the officers in Freund realized that they needed consent to search the defendant's property. 102 Or. App. at 652, 796 P.2d 656. However, their words and conduct failed to communicate that the defendant had a choice whether to give it. Id . Rather, in context, their words and conduct conveyed to the defendant that "her only option was whether the search and seizure was to be 'calm and efficient.' " Id . And, in that context, when the defendant pointed and led the officers to her marijuana plants, she did not do so voluntarily of her own free will but "merely chose the option favoring calmness and efficiency." Id . She chose "between cooperating or not cooperating with a search that was bound to occur." Id . The same is true here. As in Jepson and Freund , nothing about the officers' words or conduct would suggest to a listener that the officers "would not, and could not," enter petitioner's bedroom without voluntary consent from Nisbet. Jepson , 254 Or. App. at 296, 292 P.3d 660. Rather, as in Freund , the officers presented the situation as one in which they intended to contact petitioner, and it was only a question of whether the encounter would be "calm" or "hostile." That was a particularly stark choice for Nisbet when it was the middle of the night and his wife and four children had bedrooms on the same floor as petitioner's room.

In sum, the officers never asked Nisbet directly for consent to enter petitioner's bedroom; Nisbet did nothing of his own accord to invite the officers into petitioner's bedroom; and, under the totality of the circumstances, Voll's question "Are we good?" did not provide Nisbet with a reasonable opportunity to choose whether to allow or deny the officers entry into the bedroom. Because the state failed to meet its burden to prove the consent exception to the warrant requirement, petitioner's arrest violated Article I, section 9, of the Oregon Constitution and the breath test requests were invalid. Accordingly, we conclude that the DMV erred in suspending petitioner's driving privileges, and we therefore set aside petitioner's license suspension.

Reversed.

      A request for a breath test is invalid if the underlying arrest is unconstitutional, and the DMV may not suspend a person's driving privileges based on the results or refusal of an invalid breath test request. See Pooler v. MVD , 88 Or. App. 475, 478, 746 P.2d 716 (1987), aff'd , 306 Or. 47, 755 P.2d 701 (1988) (decided under former ORS 487.805(1) (1983), renumbered as ORS 813.100 (1985), and former ORS 482.541 (1983), renumbered as ORS 813.410(4) (1985) ).

      On appeal, petitioner does not contest that the officers' initial entry into the house was lawful.

      Under ORS 813.100(1), anyone "who operates a motor vehicle upon premises open to the public or the highways of this state shall be deemed to have given consent, subject to the implied consent law, to a chemical test of the person's breath * * *." If a person refuses a breath test under qualifying circumstances, "the person's driving privileges are subject to suspension under ORS 813.410." ORS 813.100(3) ; see ORS 813.410(6)(c) (providing for suspension of a person's driving privileges when "[t]he person refused a test under ORS 813.100").

      Although expressly recognizing that the question before the court-whether Nisbet voluntarily consented to the officers' entry into petitioner's bedroom or merely acquiesced to it-is a question of law, the state asserts briefly in a footnote that the ALJ made a finding of fact regarding Nisbet's subjective intent in answering affirmatively to the question "Are we good?" The state cites the statement in the DMV's order that "Mr. Nisbet's going to the room, walking in, and then informing the officer's that 'we're good' was a voluntary consent for police to enter the room." That statement is in the opinion section of the order, not the findings of fact, and is plainly a legal conclusion that the state had proved voluntary consent, not a factual finding. The ALJ applied the established case law cited by the parties, and, consistently with that case law, made no findings regarding Nisbet's subjective intent.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    In the MATTER OF N. D. M., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. N. D. M., Appellant.
    A170035
    Court of Appeals of Oregon.
    Submitted July 5, 2019. September 11, 2019
    Joseph R. DeBin and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and Powers, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing him to the custody of the Mental Health Division for a period not to exceed 180 days under ORS 426.005(1)(f)(A) on the ground that he suffered from a mental disorder that made him dangerous to himself. He challenges the sufficiency of the state's evidence that he was dangerous to himself. The state concedes that the record is legally insufficient in that regard and that the judgment of commitment should be reversed. We agree and accept the state's concession.

Reversed.


text:
    In the MATTER OF K. L. K., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. K. L. K., Appellant.
    A170078
    Court of Appeals of Oregon.
    Submitted July 5, 2019. September 11, 2019
    Joseph R. DeBin and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jordan R. Silk, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and Powers, Judge.
   PER CURIAM

Appellant seeks reversal of an order committing him to the Mental Health Division for a period not to exceed 180 days under ORS 426.005(1)(f)(B). He argues that the trial court plainly erred by postponing the commitment hearing-on the court's own motion "due to court unavailability"-to a date that was more than five judicial days after appellant was taken into custody for involuntary treatment. See State v. J. O. B. , 296 Or App 153, 154, 436 P.3d 91 (2019) ("[A]lthough ORS 426.095(2)(c) permits a 'good cause' postponement of a commitment hearing past the five-judicial-day deadline, the court is not statutorily permitted to request postponement."). The state concedes that, in light of J. O. B. , the trial court had no authority to postpone the hearing on its own motion and plainly erred in doing so. We agree, accept the concession, and, in light of the gravity of the error, exercise our discretion to correct it by reversing the commitment order. See State v. E. R. , 283 Or App 282, 283, 387 P.3d 497 (2016) (exercising discretion to correct plain error "because holding appellant eight judicial days longer than what was permissible was a grave error").

Reversed.


text:
    Michael DEYETTE and Arlen Porter Smith, Petitioners, v. PORTLAND COMMUNITY COLLEGE, Respondent.
    A168323
    Court of Appeals of Oregon.
    September 11, 2019
    P.K. Runkles-Pearson and Miller Nash Graham & Dunn LLP for motion and reply.
    Harrison Latto for response.
    Before DeVore, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Reconsideration allowed; previous order entered February 26, 2019, vacated; judicial review dismissed. Deyette v. Portland Community College (A168322) , 299 Or. App. 305, --- P.3d ---- (2019).


text:
    STATE of Oregon, Plaintiff-Respondent, v. Tyler Scott KINSTLER, Defendant-Appellant.
    A167035
    Court of Appeals of Oregon.
    Submitted August 9, 2019. September 11, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sarah De La Cruz, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.
   PER CURIAM

Affirmed. State v. Payne (A166061) , 298 Or. App. 438, 447 P.3d 71 (2019).


text:
    Michael DEYETTE and Arlen Porter Smith, Petitioners, v. PORTLAND COMMUNITY COLLEGE, Respondent.
    A168325
    Court of Appeals of Oregon.
    September 11, 2019
    P.K. Runkles-Pearson and Miller Nash Graham & Dunn LLP for motion and reply.
    Harrison Latto for response.
    Before DeVore, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Reconsideration allowed; previous order entered February 26, 2019, vacated; judicial review dismissed. Deyette v. Portland Community College (A168322) , 299 Or. App. 305, --- P.3d ---- (2019).


text:
    Michael DEYETTE and Arlen Porter Smith, Petitioners, v. PORTLAND COMMUNITY COLLEGE, Respondent.
    A168324
    Court of Appeals of Oregon.
    September 11, 2019
    P.K. Runkles-Pearson and Miller Nash Graham & Dunn LLP for motion and reply.
    Harrison Latto for response.
    Before DeVore, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Reconsideration allowed; previous order entered February 26, 2019, vacated; judicial review dismissed. Deyette v. Portland Community College (A168322) , 299 Or. App. 305, --- P.3d ---- (2019).


text:
    Michael DEYETTE and Arlen Porter Smith, Petitioners, v. PORTLAND COMMUNITY COLLEGE, Respondent.
    A168326
    Court of Appeals of Oregon.
    September 11, 2019
    P.K. Runkles-Pearson and Miller Nash Graham & Dunn LLP for motion and reply.
    Harrison Latto for response.
    Before DeVore, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Reconsideration allowed; previous order entered February 26, 2019, vacated; judicial review dismissed. Deyette v. Portland Community College (A168322) , 299 Or. App. 305, --- P.3d ---- (2019).


text:
    Michael DEYETTE and Arlen Porter Smith, Petitioners, v. PORTLAND COMMUNITY COLLEGE, Respondent.
    A168328
    Court of Appeals of Oregon.
    September 11, 2019
    P.K. Runkles-Pearson and Miller Nash Graham & Dunn LLP for motion and reply.
    Harrison Latto for response.
    Before DeVore, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Reconsideration allowed; previous order entered February 26, 2019, vacated; judicial review dismissed. Deyette v. Portland Community College (A168322) , 299 Or. App. 305, --- P.3d ---- (2019).


author: CHRISTIANSEN FORSTER, Judge:

text:
    STATE of Utah, Appellee, v. Julio Alphonso DOMINGUEZ, Appellant.
    No. 20170618-CA
    Court of Appeals of Utah.
    Filed July 5, 2019
    Troy L. Booher and Freyja R. Johnson, Salt Lake City, Attorneys for Appellant
    Sean D. Reyes and Jeffrey D. Mann, Salt Lake City, Attorneys for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 Julio Alphonso Dominguez appeals his conviction of aggravated burglary. We affirm.

BACKGROUND

¶2 Dominguez went to a club with three male friends-his eventual codefendants Eric Duran, Davy Ray Martinez (D. Martinez), and Jaime Martinez (J. Martinez)-and two female friends. The group met Victim for the first time at the club. Victim had been drinking heavily. Victim invited the group, along with another woman (Witness) and her two male friends to come to his apartment to continue drinking.

¶3 While walking to Victim's apartment from the car, Victim put his arm around one of Dominguez's female friends and touched her breast. This upset J. Martinez, who told Victim not to touch his "girl." Victim made some form of apology, which apparently diffused the situation, and the group continued to Victim's apartment.

¶4 When the group arrived at Victim's apartment, they continued drinking. Victim was pushy with Dominguez and his friends, insisting that they "sit down" when they did not want to and telling them they could not play music on their phones. According to Dominguez, Victim then began goading them, stating, "You guys think you're so bad. I bet I could take all four of you on." He then pushed Duran, who retaliated by punching Victim. The fight escalated, and all four codefendants attacked Victim, punching and kicking him in the face and body. At some point, the fighting stopped long enough for Victim to run into his bedroom and lock the door.

¶5 When the fight between the men first began, and before Victim escaped to his bedroom, Dominguez's two female friends were in the bedroom. At some point during the fighting, they left the bedroom and apparently saw the fight going on in the hallway. Dominguez and one of the women testified that the two women ran back into the bedroom when they saw the fighting and were inside the room when Victim ran in and locked the door behind him. In contrast, Victim and Witness testified that the women did not go back into the bedroom and were outside the room when Victim locked himself inside. And another witness, one of Witness's male friends, testified that he did not see anyone else in the bedroom when Victim shut the door.

¶6 After Victim locked himself in his bedroom, the codefendants broke down the door. According to Dominguez, their purpose for breaking down the door was to rescue the two women because they could hear the women screaming and were worried about their safety due to Victim's earlier aggressiveness and his touching one of the women. When the door gave way, the codefendants rushed in and began punching and kicking Victim again.

¶7 Eventually, the codefendants finished beating Victim and ran out of the apartment. When they left, Witness went into the bedroom to check on Victim. While she was there, Duran returned to the apartment. According to Witness, Duran held up Victim's keys and told him, "We've got your keys. Give me your wallet." Victim began to pull out his wallet, and Witness stood in the door and told Duran to leave. He responded, "Move, bitch, I'm going to stab this fool." Witness told him, "Nobody's stabbing nobody," at which point D. Martinez "walked up ... behind" Duran and punched Witness in the face. Witness fell to the floor and blacked out. When she regained consciousness, Dominguez was in the room, and she saw him punch Victim three more times.

¶8 All four codefendants were charged with aggravated burglary based on the allegation that they broke into the bedroom for the purpose of assaulting Victim, along with lesser included offenses of assault. Duran and D. Martinez were also charged with aggravated robbery, and D. Martinez was charged with an additional assault in connection with the allegation that he hit Witness.

¶9 Following the incident, Witness gave a statement to police regarding the location of Dominguez's two female friends during the fighting. She stated, "The girls were in the back bedroom and ran out when the boys went in the bedroom." At trial, defense counsel confronted Witness with this statement, attempting to impeach her trial testimony that the women left the room before Victim locked himself inside. Witness explained the discrepancy by clarifying, "What I meant by 'running out,' is running out of the apartment."

¶10 Prior to trial, the court granted a motion in limine to exclude Dominguez's criminal record from the State's case-in-chief. Nevertheless, at one point in the trial, one of the police officers who investigated the case (Officer) was asked, "[D]id you run Julio Dominguez's history and access his driver's license photograph?" Officer responded, "I don't remember exactly how I was able to identify him. I believe it was through his mug shot that we have on file." Defense counsel objected, and the court conducted a discussion at the bench off the record. The prosecutor then continued with a different line of questioning. Defense counsel subsequently moved for a mistrial. The court denied the motion, concluding that although the statement was clearly inadmissible and potentially prejudicial, Officer's statement was inadvertent and any damage was mitigated because defense counsel did not draw attention to it and the prosecution moved to a different line of inquiry.

¶11 Dominguez's counsel requested a jury instruction on defense of others, and the primary defense asserted at trial was that Dominguez and his codefendants were justified in breaking down Victim's bedroom door because they did so with the purpose of protecting the women, who were locked in the room with Victim. Counsel approved the following jury instruction:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that force is necessary to defend himself or a third person against such other's imminent use of unlawful force.
In determining imminence or reasonableness, the trier of fact may consider, but is not limited to, any of the following factors:
(1) the nature of the danger;
(2) the immediacy of the danger;
(3) the probability that the unlawful force would result in death or serious bodily injury;
(4) the other's prior violent acts or violent propensities; and
(5) any patterns of abuse or violence in the parties' relationship.
A person does not have a duty to retreat from the force or threatened force stated above in a place where that person has lawfully entered or remained.
A person is not justified in using force if the person was the aggressor or was engaged in a combat by agreement, unless the person withdraws from the encounter and effectively communicates to the other person his intent to do so and, notwithstanding, the other person continues or threatens to continue the use of unlawful force.
The defendant is not required to prove that the defense applies. Rather, the State must prove beyond a reasonable doubt that the defense does not apply. The State has the burden of proof at all times. If the State has not carried this burden, the jury should find the defendant not guilty.

Counsel also approved the placement of the defense-of-others instruction at the end of the instructions providing definitions for various terms rather than within the instructions setting forth the elements of the crime with which Dominguez was charged.

¶12 Following a three-day trial, in which the codefendants were tried together, the jury found all four codefendants guilty of aggravated burglary but acquitted Duran and D. Martinez of the other charges. Dominguez was sentenced to ten years to life in prison for aggravated burglary. He now appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Dominguez first argues that his counsel provided ineffective assistance by failing to request a jury instruction explicitly linking the defense-of-others instruction to the aggravated burglary charge. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Perry , 2009 UT App 51, ¶ 9, 204 P.3d 880 (quotation simplified).

¶14 Dominguez next asserts that counsel was ineffective for inaccurately quoting Witness's police statement when attempting to impeach her and for failing to confront her with her recorded police statement. Because the record on appeal does not contain the recorded statement, Dominguez has requested that we remand the case pursuant to rule 23B of the Utah Rules of Appellate Procedure to permit the trial court to supplement the record with additional findings. In determining whether rule 23B remand is appropriate, we must assess whether Dominguez has made " 'a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.' " See State v. Griffin , 2015 UT 18, ¶ 17, 441 P.3d 1166 (quoting Utah R. App. P. 23B(a) ).

¶15 Finally, Dominguez challenges the trial court's denial of his motion for mistrial. "A trial court's denial of a motion for a mistrial will not be reversed absent an abuse of discretion." State v. Wach , 2001 UT 35, ¶ 45, 24 P.3d 948.

ANALYSIS

I. Counsel Was Not Ineffective for Not Objecting to the Defense-of-Others Jury Instruction.

¶16 Dominguez first argues that his counsel was ineffective for failing to request jury instructions-or at least better placement of jury instructions-that would explicitly link the defense-of-others affirmative defense to the aggravated burglary charge. To prevail on grounds of ineffective assistance of counsel, 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).

¶17 "It is fundamental that the State carries the burden of proving beyond a reasonable doubt each element of an offense, including the absence of an affirmative defense once the defense is put into issue." State v. Low , 2008 UT 58, ¶ 45, 192 P.3d 867 (quotation simplified). Nevertheless, we have previously rejected the argument that the State's burden to disprove an affirmative defense must be incorporated into the elements instruction as opposed to being listed in a separate instruction. See State v. Painter , 2014 UT App 272, ¶¶ 7-8, 339 P.3d 107 ; State v. Lee , 2014 UT App 4, ¶ 24, 318 P.3d 1164.

¶18 Dominguez asserts that this case is distinguishable from Painter and Lee because this case involves multiple defendants charged with different combinations of crimes. In Lee , although the defendant was charged with several crimes, the separate self-defense instruction specifically linked the affirmative defense to the murder charge and lesser-included manslaughter charge. See Lee , 2014 UT App 4, ¶¶ 1, 24, 318 P.3d 1164. And in Painter , the defendant was charged with only one crime-aggravated assault-so there was no danger of the jury confusing which crime the affirmative defense applied to. See Painter , 2014 UT App 272, ¶¶ 3, 9, 339 P.3d 107.

¶19 Here, there is no language explicitly linking the defense-of-others instruction to the aggravated burglary charge. The instruction simply informs the jury of the legal standard for a defense-of-others affirmative defense as well as the State's burden of proof with respect to that defense. Dominguez claims that the instruction's failure to explicitly link defense of others to the aggravated burglary charge left the jury with no information as to how to apply the defense. He further asserts that defense of others does not intuitively apply to the elements of burglary and that there was therefore a danger that the jury would apply the defense to one of the other charges-aggravated robbery or assault-and not believe that defense of others is a defense to aggravated burglary.

¶20 In reviewing the adequacy of jury instructions, "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." Lee , 2014 UT App 4, ¶ 23, 318 P.3d 1164 (quotation simplified). We must also "consider a reasonable jury's understanding in the context of the jury instructions and the record as a whole." State v. Crowley , 2014 UT App 33, ¶ 13, 320 P.3d 677 (quotation simplified). "Even if one or more of the instructions, standing alone, are not as full or accurate as they might have been, counsel is not deficient in approving the instructions as long as the trial court's instructions constituted a correct statement of the law." Lee , 2014 UT App 4, ¶ 23, 318 P.3d 1164 (quotation simplified).

¶21 There is no dispute that the defense-of-others instruction accurately instructed the jury regarding the applicable law, including the State's burden to disprove the defense beyond a reasonable doubt. Additionally, as in Lee , the jury was instructed that "[a]ll the instructions are important," to "consider them as a whole," and that the "order in which [they] are given" had no bearing on their importance. Cf. id. ¶ 25. While the defense-of-others instruction was given in the context of multiple charges without specifying the charge to which it applied, we have no basis for concluding that the jury would have interpreted this lack of specificity to mean that the defense did not apply to the aggravated burglary charge. Rather, the lack of language linking the instruction to a specific charge would most logically have been read as an instruction that the State was required to disprove defense of others with respect to all of the charges, including aggravated burglary.

¶22 Further, even assuming, as Dominguez asserts, that defense of others is not intuitively linked to an aggravated burglary charge, the link was apparent in the context of this case. Indeed, as in Lee , this affirmative defense was "the central theme of [Dominguez's] defense at trial." See id. The entire trial focused on the question of the defendants' motivation for entering Victim's room-was it for the purpose of protecting two women trapped in the room with Victim, or was it for the purpose of continuing to assault Victim? If there was any question as to the applicability of defense of others to the aggravated burglary charges, it was cleared up by the codefendants' counsel in closing arguments, each of whom clearly argued that their clients should be acquitted of aggravated burglary based on defense of others. Dominguez's counsel stated,

So if that's the purpose of their breaking down the door and going in there ... it's a defense of others. ... They had a right to defend those young ladies. They did what they should have done.
....
.... [I]n order to find ... any of the [defendants] guilty of the aggravated burglary, ... the prosecution has to prove beyond a reasonable doubt that the intent when they broke in that door was to assault, and not to save these girls.
....
So at the end of the day I'm asking you to find [Dominguez] not guilty of aggravated burglary.

Duran's counsel likewise explained that it was "right" for the defendants to "break down the door to come to the aid of" the two women, and J. Martinez's counsel explained that the defendants entered the room for the purpose of "get[ting] the gals out." Finally, D. Martinez's attorney explicitly linked the defense-of-others instruction to the aggravated burglary charge:

Instruction No. 60 is ... about defense of self or others. ...
Just be clear that we're not talking about these four individuals defending themselves against [Victim]. We're talking about them going into the bedroom to defend the two ladies from [Victim], okay?
....
So that's what this instruction has to do with. ...
.... [T]his instruction talks about the bedroom and the girls in there.

Thus, "defense counsel's arguments ma[d]e it abundantly clear" that defense of others applied to the aggravated burglary charges. See State v. Lambdin , 2017 UT 46, ¶ 48, 424 P.3d 117.

¶23 In context, there is not "a reasonable likelihood that the jurors were misled or confused as to the correct legal standard." See id. ¶ 47. Thus, counsel did not perform deficiently by not objecting to the instructions as written.

II. Remand Under Rule 23B of the Utah Rules of Appellate Procedure Is Not Appropriate, Because Dominguez's Proffered Facts Cannot Support a Determination That Counsel Was Ineffective.

¶24 Dominguez next asserts that counsel was ineffective because he incorrectly quoted Witness's police statement when impeaching Witness. Because the record does not contain the purportedly "accurate" version of the police statement, we are unable to fully review Dominguez's claim on appeal. See State v. Griffin , 2015 UT 18, ¶ 16, 441 P.3d 1166 ("[A] defendant cannot bring an ineffective assistance of counsel claim on appeal without pointing to specific instances in the record demonstrating both counsel's deficient performance and the prejudice it caused the defendant.").

¶25 In light of the inadequate record, Dominguez has asked that we remand this case to the trial court under rule 23B of the Utah Rules of Appellate Procedure "for entry of findings of fact, necessary for ... determination of a claim of ineffective assistance of counsel" on appeal. See Utah R. App. P. 23B(a). To obtain such a remand, Dominguez must make "a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." Id. The State opposes Dominguez's motion, asserting that the additional facts were insufficient to support a determination that counsel was ineffective, because the complete quoted statement would have done little more to undermine Witness's testimony than counsel's paraphrase at trial of her police statement.

¶26 Apart from Victim, Witness was the only person to definitively testify at trial that the women were not in the room when the defendants broke down the door. She testified that the two women were in the bedroom when the fight initially broke out in the hallway but that they came out of the bedroom when "the defendants were fighting" and were no longer in the bedroom when Victim locked himself in. At trial, defense counsel attempted to undermine Witness's credibility on this point by confronting her with a prior statement she made to police in which she appeared to be stating that the women were in the room when the defendants broke in. On cross-examination, defense counsel asked Witness whether she had previously told police, "The girls were in the back bedroom and ran out when the boys went in the bedroom" (the paraphrased statement). Witness did not deny making the statement but pointed out that while she had stated that the girls "ran out," she did not "specify where from." She then clarified, "What I meant by 'running out,' is running out of the apartment."

¶27 In the affidavit supporting his rule 23B motion, Dominguez's counsel averred that she had listened to the audio recording of Witness's police statement and that Witness actually stated, "They were in the back of the bedroom, and then once the boys all got in the bedroom, the girls ran out and went out probably to the car, I'm guessing" (the recorded statement). In his rule 23B motion, Dominguez asserts that had counsel confronted Witness with the recorded statement, the jury would have been more likely to discount her testimony.

¶28 Dominguez argues that the statement that "the girls ran out and went out probably to the car," identifies two instances of leaving such that had the jury been presented with the actual recorded statement, it would have had no choice but to conclude that the first instance-"the girls ran out"-described their running out of the bedroom while the second instance-the girls "went out"-described their leaving the apartment. Because the paraphrased statement described only one instance of leaving-the girls "ran out"-Dominguez maintains that the jury was more likely to accept Witness's explanation that she meant that the girls "ran out" of the apartment than it would have been had it been confronted with the recorded statement. He also asserts that the phrase "in the back of the bedroom," used in the recording, undermines Witness's explanation more than the phrase "in the back bedroom," as paraphrased by defense counsel at trial, because being in the back of the bedroom as opposed to simply being in the bedroom "supports more fully the testimony that the women were stuck in the bedroom with [Victim] and were afraid of him-they were in the back of the bedroom to get as far away from [Victim] as they could." Finally, he asserts that the recorded statement, "once the boys all got in the bedroom, the girls ran out," is more supportive of the idea that the girls were in the bedroom when the defendants broke in than the paraphrase, "The girls were in the back bedroom and ran out when the boys went in the bedroom."

¶29 We agree with the State that the distinctions drawn by Dominguez between the recorded statement and the paraphrased statement are too subtle to have likely impacted the outcome of the trial. The jury was required to rely on its memory as to the precise wording of the statement and was unlikely to have recalled this language so vividly that it would have parsed the individual phrases in the way that appellate counsel has done. And even if it had done so, the recorded statement is still ambiguous, just as the paraphrased statement was. Neither statement explicitly states whether the women "ran out" of the bedroom or whether they "ran out" of the apartment. There is no reason to believe that Witness would have responded any differently if confronted with the recorded statement than she did when confronted with the paraphrased statement. That is, she still would have offered her explanation that she meant that the women left the apartment when the defendants broke down the door, not that they left the bedroom, and the jury would have been left to determine which explanation it believed. We are not convinced that the jury was likely to have found Witness measurably less credible had it been presented with the recorded statement rather than the paraphrased statement.

III. The Trial Court Did Not Err in Denying Dominguez's Motion for Mistrial, Because Officer's Reference to Dominguez's Mug Shot Was Harmless.

¶30 Finally, Dominguez asserts that the trial court erred in denying his motion for mistrial because he was unfairly prejudiced by Officer's reference to his mug shot. The State does not contest Dominguez's assertion that Officer's statement was improper but argues that it is not reversible error because "a mistrial is not required where an improper statement is not intentionally elicited, is made in passing, and is relatively innocuous in light of all the testimony presented." State v. Allen , 2005 UT 11, ¶ 40, 108 P.3d 730.

¶31 Here, Officer indicated that he had identified Dominguez "through his mug shot that we have on file," in response to the prosecutor's question, "[D]id you run Julio Dominguez's history and access his driver's license photograph?" Dominguez asserts that the prosecutor's reference to running his "history" is equivalent to the prosecutor asking about his criminal history and that the prosecutor therefore "elicited" the improper testimony. We disagree. The question about running Dominguez's history was explicitly linked to Officer accessing his driver license photo as a means of identification. Thus, the question is more properly interpreted as a reference to Dominguez's driving history than a reference to his criminal history. Further, the single reference to the mug shot in the course of a three-day trial was innocuous, the discussion regarding Dominguez's objection was held off the record, and the prosecutor quickly moved on to different topics. See State v. Butterfield , 2001 UT 59, ¶¶ 45, 47, 27 P.3d 1133 (upholding a denial of a motion for mistrial based on an officer's statement that he had obtained a photograph of the defendant "that was used in the photo array from the 'Salt Lake County Jail' " because the court considered the reference to be a " 'vague,' 'fleeting' remark that was not elicited by the prosecutor"); see also Allen , 2005 UT 11, ¶ 40, 108 P.3d 730 ; State v. Wach , 2001 UT 35, ¶ 46, 24 P.3d 948.

¶32 Further, even if we were to agree with Dominguez that the reference to his mug shot was so serious as to warrant a mistrial under normal circumstances, it ultimately did not warrant a mistrial under the circumstances of this case, because after Dominguez decided to testify, the State was permitted to impeach his testimony by asking him whether he had previously been convicted of a third-degree felony and two second-degree felonies. The fact that the jury was explicitly informed of Dominguez's criminal history obviated any likelihood that Officer's erroneous reference to Dominguez's mug shot affected the outcome of the trial.

CONCLUSION

¶33 We conclude that counsel did not perform deficiently by not requesting a jury instruction explicitly linking the defense-of-others instruction to the aggravated burglary charge. Further, Dominguez has failed to show that remand under rule 23B of the Utah Rules of Appellate Procedure has the potential to establish facts that could support a determination that counsel was ineffective for using the paraphrased statement rather than the recorded statement to impeach Witness. Finally, because Dominguez's criminal record was admitted as impeachment evidence, the trial court did not exceed its discretion in denying his motion for mistrial based on Officer's innocuous reference to Dominguez's mug shot. Accordingly, we deny Dominguez's request for rule 23B remand and affirm his conviction.

      Testimony at trial conflicted as to whether the touching was intentional or unintentional.

      We quote the statement as recited by defense counsel in his questioning of Witness, since that is the statement contained in the record on appeal. But we acknowledge, as discussed further below, see infra ¶¶ 26-29, that there is a question as to the accuracy of the statement. According to Dominguez's appellate counsel, the recording of the statement demonstrates that Witness's actual statement to police was, "They were in the back of the bedroom, and then once the boys all got in the bedroom, the girls ran out and went out probably to the car, I'm guessing." Dominguez seeks a remand pursuant to rule 23B of the Utah Rules of Appellate Procedure to have the recording be made part of the appellate record. See infra ¶ 14.

      There is conflicting precedent from our supreme court on the question of whether the lack of an affirmative defense should be considered an element of the crime. See State v. Painter , 2014 UT App 272, ¶ 8 n.2, 339 P.3d 107 (comparing our supreme court's conflicting holdings in State v. Knoll , 712 P.2d 211 (Utah 1985), and State v. Low , 2008 UT 58, 192 P.3d 867 ). Regardless of the answer to this question, however, jury instructions are to be read together to assess whether the jury was properly instructed, see id. , and "all of the elements of the charged crime" need not "necessarily be contained in one instruction," State v. Laine , 618 P.2d 33, 35 (Utah 1980). Thus, our ultimate inquiry concerns whether the jury instructions "taken as a whole" adequately instructed the jury. See State v. Lee , 2014 UT App 4, ¶ 23, 318 P.3d 1164 (quotation simplified).

      We also find it noteworthy that not one, but four separate defense attorneys, representing four separate clients, approved the instructions as written. While not dispositive, this bolsters our conclusion that, in context, the applicability of the defense-of-others instruction to the aggravated burglary charges was clear to the jury.

      The State also asserts that the jury was likely to have convicted the defendants of aggravated burglary based on their "remaining" in the room, regardless of its determination as to the purpose of the defendants' initial entry into the room. We are not persuaded by this assertion. Although the jury was instructed that an element of the crime was whether the defendant "[e]ntered or remained unlawfully in a building, or any separately secured or occupied portion of a building," (emphasis added), the State never articulated to the jury the theory it now asserts-that the defendants may have abandoned their action of defending others when they remained in the room to assault Victim after discovering that the women were unharmed. While this is a viable theory of the case, the fact that it was not explained to the jury gives us pause in concluding, as the State urges, that the jury was likely to have convicted the defendants of aggravated burglary on a "remaining" theory even if it believed that the defendants initially entered the room to defend the women. We ultimately need not address this question, however, because we agree with the State that the subtle variation between the quoted language of Witness's police statement and the paraphrased language was not significant enough to have prejudiced the defense.

      While Dominguez did not raise this argument, his codefendants initially asserted in the appeals of their convictions that trial counsel also erred in failing to seek the admission of the recording into evidence so that the jury could review the recording during deliberations. However, they ultimately abandoned that claim, conceding that "the audio clip would not have been allowed into the jury deliberation room because it was testimonial evidence." (Citing State v. Cruz , 2016 UT App 234, ¶¶ 36-41, 387 P.3d 618.)

      There is nothing in the record indicating that Dominguez's decision to take the stand and open himself to being impeached based upon his criminal history was somehow influenced by Officer's earlier reference to his mug shot.

      On appeal, Dominguez also asked us to reverse on grounds of cumulative error. But because we discern no error with respect to the defense-of-others jury instruction or the trial court's denial of Dominguez's motion for mistrial, Dominguez cannot establish cumulative error. See State v. Jones , 2015 UT 19, ¶ 74, 345 P.3d 1195 ("If the claims are found on appeal to not constitute error, or the errors are found to be so minor as to result in no harm, the doctrine will not be applied." (quotation simplified)).


author: MORTENSEN, Judge:

text:
    STATE of Utah, Appellee, v. Dee Allen RANDALL, Appellant.
    No. 20170836-CA
    Court of Appeals of Utah.
    Filed July 11, 2019
    Nathalie S. Skibine and Wojciech S. Nitecki, Attorneys for Appellant
    Sean D. Reyes and Nathan D. Anderson, Salt Lake City, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.
    Opinion
   MORTENSEN, Judge:

¶1 For many years Dee Allen Randall cheated investors out of millions of dollars in a classic Ponzi scheme. Financial carnage for Randall's victims followed. The ill-gotten money is gone. On balance, the victims and their families will suffer from the burden and effects of Randall's fraud forever. After Randall was charged with a number of crimes, he pled guilty to four counts of securities fraud and one count of engaging in a pattern of unlawful activity. He was sentenced to prison. Months later, the sentencing court held a hearing and determined that both complete and court-ordered restitution should be set at $10.2 million, although the record reflected that investors may have been fleeced out of over $36.8 million. Randall appeals the restitution determination. We affirm.

BACKGROUND

The Crime

¶2 Over about a ten-year period, Randall ran a Ponzi scheme that defrauded more than 500 investors out of over $36.8 million. He sold investors private placement securities in one of his several companies (Horizon Entities). These securities (Horizon Notes), on which Randall promised a return of nine to seventeen percent annually, were promissory notes issued by Horizon Entities. But the companies composing Horizon Entities were failing; financial audits revealed that they had been operating at a loss for years and were not expected to survive another. To keep Horizon Entities afloat, Randall commingled funds among his companies and used new investor money to pay old investors. In fact, Randall admitted to running a "legal Ponzi scheme" during his bankruptcy proceedings. The director of the Utah Division of Securities described Randall's scheme as "probably one of the two or three most egregious cases of securities fraud that [he had] seen in the state." The State charged Randall with eighteen counts of securities fraud and one count of a pattern of unlawful activity.

The Plea Agreement

¶3 Just weeks before trial, Randall pled guilty to four counts of securities fraud and one count of engaging in a pattern of unlawful activity. The State dismissed the remaining counts. The victims of the securities fraud counts to which Randall pled guilty-two individuals and two couples-were named in the plea agreement. The pattern of unlawful activity count to which Randall pled guilty did not identify specific victims but stated that "commencing on or about June 2009 and continuing through at least April 2011, [Randall] engaged in conduct which constituted the commission of at least three episodes of unlawful activity" involving securities fraud. Randall acknowledged that he "may be ordered to make restitution to any victim or victims of [his] crimes, including any restitution that may be owed on charges that are dismissed as part of a plea agreement." The plea agreement further specified,

[Randall] agrees to an order of "complete" restitution pertaining to all victims, whether named or unnamed , in an amount to be determined by the Court. The defendant acknowledges that the State will seek restitution in the approximate amount of $36.8 million for investors listed in the attached spreadsheet[ ] .... The State acknowledges that the defendant may dispute restitution for investors listed therein, and the parties agree that the Court shall determine whether the Pattern of Unlawful Activity statute, [ Utah Code sections 76-10-1601 to -1609], permits restitution pertaining to all such investors. ... [Randall's] "court-ordered" restitution shall be determined in accordance with [ Utah Code section] 77-38a-302(2)(c).[ ]

(Emphasis added.)

¶4 At the plea hearing, Randall admitted that he "recklessly made ... material omissions" in representing the investments he offered to the defrauded investors and that he "engaged in a pattern of activity which involved ... paying ... old investments with new invested money in at least three instances." Randall's counsel, however, noting that there was no agreement regarding restitution, asked for a post-sentencing hearing.

Sentencing

¶5 At the sentencing hearing, Randall asked the court to suspend any prison sentence and place him on probation so that he could "work to repay what ... he took unlawfully." He submitted a repayment plan that contemplated the distribution of $1.4 million to defrauded investors over a period of fifteen years. Randall further stated, "Look, I'm guilty. ... I did this. Investors lost money, because of my actions, my omissions."

He admitted that he did not disclose to investors how poorly his businesses were doing, because "people would not have invested" had they known the truth. He further stated, "I am so deeply sorry for every single investor, not only those who are sitting here, but others that are not ." (Emphasis added.) He added, "I am committed to work every day of my life. ... I am determined to do whatever I can to see that they all get as much money as they can before the day I die." While admitting that he would be unlikely to "pay the entire restitution," Randall noted that he could "at least pay the restitution to begin with to the people who were named in the information." Nevertheless, Randall acknowledged that his responsibility to pay restitution "doesn't stop with just the investors who are listed in the information."

¶6 The State asked that Randall be sentenced to prison, stating,

You don't defraud people out of $36.8 million and get probation. You don't destroy hundreds and hundreds of lives and get probation. ... [H]undreds of people have to suffer emotional and physical pain, possibly early deaths, family conflict, loss of house, business, et cetera, but he gets to stay in his house and stay with his family? If that's how things work, something is wrong.

The court agreed with the State and sentenced Randall to three to fifteen years on the securities counts and one to fifteen years in prison on the pattern of unlawful activity count.

Restitution

¶7 At the restitution hearing, the State asked for complete restitution in the amount of $36.8 million to repay all those Randall had defrauded. Randall disputed this amount. He first argued that the plea agreement limited his pattern of unlawful activity to the period between June 2009 and April 2011. Citing Utah Code section 77-38a-302(5)(a), Randall then argued that the State had not proved all the investors in that time period were "directly harmed" by Randall's criminal conduct "in the course of a scheme, conspiracy or pattern," thus greatly limiting the amount of complete restitution the court should impose. The sentencing court agreed with Randall on the first argument and limited the restitution he owed to the victims he had defrauded between June 2009 and April 2011. But the court disagreed with Randall on the second argument, finding that the "victims were directly harmed" by Randall's criminal conduct. Accordingly, the court set complete restitution at $10.2 million.

¶8 Regarding court-ordered restitution, Randall argued that the amount should be set at $31,000-the amount held in Randall's trust account with the court. Randall argued that in light of his circumstances-namely, he had no financial resources, he was going to prison for at least nine years, he was sixty-seven years old and would be seventy-five when released-there was "no reason to impose additional court-ordered restitution in this case." The State, while agreeing that Randall lacked the financial resources to pay complete restitution, argued that court-ordered restitution should be set at $10.2 million, given the "overwhelming amount of loss" and the "enormous fraud" visited upon the victims.

¶9 The sentencing court responded by stating that it had considered the restitution factors listed in Utah Code section 77-38a-302(5)(a)-(b) and determined that "these victims listed here were directly harmed ... by [Randall's] actions, and there's an absolute nexus there." The court noted that Randall had taken the life savings of many of his victims and left them with nothing. In applying section 77-38a-302(5)(c), the court acknowledged that, given the lack of financial resources, court-ordered restitution imposed a burden on Randall. Although it found his inability to pay "problematic," the court weighed this burden against "the fact that [Randall] took [money] from other people." After "seriously looking at all of those factors," the court set court-ordered restitution at $10.2 million, the same as complete restitution. Randall appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Randall first asserts that the sentencing court erred when it set the amount of complete restitution at $10.2 million based on the combined net losses of the 156 people who invested with Randall from June 2009 until April 2011. Second, Randall claims that the sentencing court erred, after it considered but rejected Randall's arguments, in calculating court-ordered restitution as the same amount as complete restitution.

¶11 "[I]n the case of restitution, a reviewing court will not disturb a [sentencing] court's determination unless the court exceeds the authority prescribed by law or abuses its discretion." State v. Laycock , 2009 UT 53, ¶ 10, 214 P.3d 104. "A court will be deemed to have abused its discretion only if no reasonable person would take the view adopted by the [sentencing] court." State v. England , 2017 UT App 170, ¶ 9, 405 P.3d 848 (cleaned up).

ANALYSIS

I. Complete Restitution

A. Scope of Complete Restitution

¶12 Randall argues on appeal that the sentencing court erred when it considered the losses suffered by 156 investors and set complete restitution at $10.2 million. Randall contends that at most the charges to which he pled guilty encompassed twelve victims and resulted in about $1.2 million in losses. Thus, this issue requires us to determine whether the sentencing court correctly included 156 investors as Randall's victims. We conclude that it did.

¶13 "When a person is convicted of criminal activity that has resulted in pecuniary damages, ... the court shall order that the defendant make restitution to the victims, or for conduct for which the defendant has agreed to make restitution as part of a plea agreement." Utah Code Ann. § 76-3-201(4)(a) (LexisNexis 2017). The Crime Victims Restitution Act (Restitution Act), see generally id. §§ 77-38a-101 to -601, defines a victim as "any person ... who the court determines has suffered pecuniary damages as a result of the defendant's criminal activities," id. § 77-38a-102(14)(a) (emphasis added). Furthermore, "[a] victim of an offense that involves as an element a scheme, a conspiracy, or a pattern of criminal activity, includes any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern." Id. § 77-38a-302(5)(a) (emphasis added). "According to the plain language of the statute, restitution can include payment for crimes not listed in the information so long as a defendant admits responsibility or agrees to pay restitution." State v. Bickley , 2002 UT App 342, ¶ 9, 60 P.3d 582. But "a defendant cannot be ordered to pay restitution for criminal activities for which the defendant did not admit responsibility, was not convicted, or did not agree to pay restitution." Id.

¶14 Here, Randall claims that he did not agree to pay restitution to all 156 investors. But the plain language of his plea agreement leads us to arrive at a contrary conclusion. The plea agreement stated that Randall "agrees to an order of 'complete' restitution pertaining to all victims, whether named or unnamed, in an amount to be determined by the [sentencing court]." Furthermore, the plea agreement stated that Randall and the State "agree that the [sentencing court] shall determine whether the Pattern of Unlawful Activity statute, [ Utah Code sections 76-10-1601 to -1609], permits restitution pertaining to all such investors." And the court made such a determination in Randall's case. Before the sentencing court, the State argued that the words "all victims" in Randall's plea agreement required him to pay restitution in the amount of $36.8 million to the more than 500 investors he defrauded. Randall disputed this claim and argued that the pool of investors should be more limited. The court agreed with Randall and limited the victim pool to those defrauded between June 2009 and April 2011, namely 156 investors.

¶15 Randall also argues that the pool of defrauded investors encompassed by the plea agreement should be further limited to the twelve victims he admitted harming, resulting in complete restitution of $1.1 million. But Randall ignores some key parts of the record establishing that he admitted to defrauding more than the twelve named victims. At the sentencing hearing he stated, "I am so deeply sorry for every single investor, not only those who are sitting here, but others that are not ." (Emphasis added.) Randall admitted his responsibility to pay restitution "doesn't stop with just the investors who are listed in the information." (Emphasis added.) And while acknowledging he would be unlikely to repay all those he defrauded, Randall offered that he could "at least pay the restitution to begin with to the people who were named in the information." (Emphasis added.) Finally, Randall stated, "I am determined to do whatever I can to see that they [i.e., the investors] all get as much money as they can before the day I die." To this end, he presented a $1.4 million repayment plan. If Randall were admitting that he had defrauded twelve investors of only $1.1 million, we are at loss as to why he would present a repayment plan in excess of that amount that would only "begin" to repay investors. The obvious reason is that Randall himself acknowledged that his fraud extended beyond the twelve named individuals.

¶16 Even if Randall did not explicitly admit that he defrauded more than twelve victims, the sentencing court still retained discretion to order restitution for the 156 victims who were defrauded by Randall's pattern of unlawful activity covered by the plea agreement. In State v. Hight , 2008 UT App 118, 182 P.3d 922, a defendant pled guilty to the "broad offense" of burglary and stealing marijuana. Id. ¶ 4. Although he never admitted to stealing a watch, a set of keys, and a silver dollar collection, which were missing from the burglarized premises, the trial court ordered that the defendant pay restitution for those items. Id. The defendant claimed that the trial court erred in ordering restitution for the missing items because "his responsibility for any particular missing items must be firmly established before the court [could] order restitution for them." Id. (cleaned up). We affirmed the trial court: "Once [the defendant pled] guilty to burglary, the trial court acted within its broad discretion, after reviewing the evidence presented at the restitution hearing, in ordering restitution for any pecuniary damages clearly resulting from the burglary." Id. ¶ 5.

¶17 Here, Randall pled guilty to "engag[ing] in conduct which constituted the commission of at least three episodes of unlawful activity as defined in [the Pattern of Unlawful Activity Act]." And Randall agreed to allow the sentencing court to determine the amount of restitution owed to all investors, "whether named or unnamed," harmed by his pattern of unlawful activity. As in Hight , Randall pled guilty to the broad offense of engaging in a pattern of unlawful activity between June 2009 and April 2011 through which he defrauded named and unnamed investors. Once Randall pled guilty to a pattern of unlawful activity during the period in question, the sentencing court "acted within its broad discretion ... in ordering restitution for any pecuniary damages" suffered by the 156 victims Randall defrauded during that time. See id.

¶18 We conclude that the sentencing court correctly determined that the plea agreement Randall signed included his admission that he defrauded 156 investors of $10.2 million between June 2009 and April 2011.

B. Causation

¶19 Randall also argues that the State failed to establish that Randall's crimes caused the losses suffered by the investors. We find this argument unpersuasive.

¶20 "Proximate cause is required to find that a criminal activity has resulted in pecuniary damages." State v. Ogden , 2018 UT 8, ¶ 48, 416 P.3d 1132 (cleaned up). "Proximate cause has two elements. First, but-for causation must be present; indeed, proximate cause is that cause which, in a natural and continuous sequence, unbroken by any new cause, produced the injury, and without which the injury would not have occurred. Second, the harm must be foreseeable." State v. Oliver , 2018 UT App 101, ¶ 21, 427 P.3d 495 (cleaned up).

¶21 The record indicates that Randall's actions proximately caused pecuniary damage to the investors. Randall sold investors private placement securities in his companies. He induced victims to hand over their money by promising annual returns of nine to seventeen percent. All the while, Randall knew his companies were failing and had been for years. Randall engaged in the reckless practice of keeping his companies afloat by commingling funds among them and using new investor money to pay old investors-a classic Ponzi scheme. Indeed, Randall's lies caused people who trusted him to transfer their life savings into his care. As Randall's counsel admitted, had these trusting souls known the truth, they "would not have invested." Thus, by failing to disclose essential information to investors, Randall's conduct was a "substantial causative factor" leading to the losses they incurred. See McCorvey v. Utah State Dep't of Transp. , 868 P.2d 41, 45 (Utah 1993). Furthermore, given Randall's knowledge of the precarious financial health of his companies, the potential for harm to investors was entirely foreseeable, if not inevitable.

¶22 Thus, we conclude that the sentencing court properly determined that Randall's conduct proximately caused the losses of the 156 investors.

II. Court-Ordered Restitution

¶23 Randall argues that the sentencing court erred in calculating court-ordered restitution identical in amount to complete restitution. Court-ordered restitution is the "restitution the court having criminal jurisdiction orders the defendant to pay as a part of the criminal sentence." Utah Code Ann. § 77-38a-302(2)(b) (LexisNexis 2017). The amount of court-ordered restitution is determined by the court after it has calculated complete restitution under the Restitution Act. The factors for court-ordered restitution include (1) the factors for complete restitution, including the loss to the victim, (2) "the financial resources of the defendant," (3) "the burden that payment of restitution will impose, with regard to the other obligations of the defendant," (4) "the ability of the defendant to pay restitution on an installment basis," (5) "the rehabilitative effect on the defendant," and (6) "other circumstances that the court determines may make restitution inappropriate." Id. § 77-38a-302(5)(b)-(c) ; see also State v. Thomas , 2016 UT App 79, ¶ 4, 372 P.3d 87 (per curiam). "Court-ordered restitution may be identical in amount to complete restitution, but it need not be so." State v. Laycock , 2009 UT 53, ¶ 30, 214 P.3d 104. "Additionally, in the case of restitution, a reviewing court will not disturb a [sentencing] court's determination unless the court exceeds the authority prescribed by law or abuses its discretion." Id. ¶ 10. Finally, "a restitution order will be overturned for abuse of discretion only if no reasonable person would take the view adopted by the [sentencing] court." Thomas , 2016 UT App 79, ¶ 4, 372 P.3d 87 (cleaned up).

¶24 The analysis on this issue requires us to determine whether the sentencing court adequately considered the factors for complete and court-ordered restitution. See Utah Code Ann. § 77-38a-302(5)(a)-(c). The record indicates that it did. Making explicit reference to Utah Code section 77-38a-302(5)(a)-(b), the court determined that Randall directly harmed the victims when he took their life savings and left them with nothing. The court described one defrauded couple in poignant terms: "[T]hey are both sick now and they both now somehow have to go back out and get work, and they are in their 60s and they aren't healthy, and they had no idea where to turn." Referencing Utah Code section 77-38a-302(5)(c), the sentencing court then considered Randall's financial resources, acknowledging that restitution imposed a heavy burden on Randall. It noted that Randall was old, going to prison, and may never get out. Although the court found Randall's circumstances "problematic," it weighed the burden that restitution imposed on him against the harm inflicted on his victims. After "seriously looking at all of those factors," the court set court-ordered restitution at $10.2 million.

¶25 Randall "essentially argues that because the court-ordered restitution amount was not lower than the complete restitution amount, the [sentencing] court must have failed to consider the required factors and, therefore, it abused its discretion." See Thomas , 2016 UT App 79, ¶ 5, 372 P.3d 87. But the record shows that the sentencing court considered all required factors and found that they weighed in favor of substantial court-ordered restitution. The Restitution Act requires only that the sentencing court "consider" the financial resources of a defendant in imposing restitution. See Utah Code Ann. § 77-38a-302(5)(c). This statute in no way requires that Randall's crime-induced, self-inflicted financial straits be given dispositive effect in determining court-ordered restitution. The fact that Randall will most likely never pay the $10.2 million court-ordered restitution "does not, standing alone, demonstrate that the [sentencing] court failed to consider the statutorily required factors." See Thomas , 2016 UT App 79, ¶ 6, 372 P.3d 87. As our supreme court has pointed out, restitution has a two-fold purpose. "One purpose is to compensate the victim for pecuniary damages. The other purpose, as a part of a criminal sanction, is to rehabilitate and deter the defendant, and others, from future illegal behavior." Laycock , 2009 UT 53, ¶ 18, 214 P.3d 104. Rehabilitation refers to the "process of seeking to improve a criminal's character and outlook so that he or she can function in society without committing other crimes." Rehabilitation , Black's Law Dictionary (11th ed. 2019). Thus, "restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. ... The direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine." Laycock , 2009 UT 53, ¶ 18, 214 P.3d 104 (cleaned up). From this perspective, the imposition of $10.2 million in restitution will arguably have the most impact on Randall and others. This restitution order will make Randall and other potential fraudsters more sensitive to greed's cost and the real harm caused. Finally, if there is any remote possibility that Randall can pay anything, his victims should remain first in line to claim any funds to which Randall may have access, even to the end of his days. This approach acknowledges how devastating financial crimes like these are to the lives of so many.

¶26 We conclude that the sentencing court properly considered the statutory factors and did not abuse its discretion in imposing $10.2 million in court-ordered restitution.

CONCLUSION

¶27 The sentencing court correctly determined that Randall admitted in his plea agreement to defrauding 156 investors of $10.2 million between June 2009 and April 2011. Randall's fraud caused the losses suffered by these 156 investors, and the sentencing court did not abuse its discretion in setting court-ordered restitution at $10.2 million.

¶28 Affirmed.

      A Ponzi scheme is a "fraudulent investment scheme in which money contributed by later investors generates artificially high dividends or returns for the original investors, whose example attracts even larger investments." Ponzi Scheme , Black's Law Dictionary (11th ed. 2019). "Money from the new investors is used directly to repay or pay interest to earlier investors, [usually] without any operation or revenue-producing activity other than the continual raising of new funds." Id.

      " 'Complete restitution' means restitution necessary to compensate a victim for all losses caused by the defendant," while " '[c]ourt-ordered restitution' means the restitution the court having criminal jurisdiction orders the defendant to pay as a part of the criminal sentence." Utah Code Ann. § 77-38a-302(2)(a)-(b) (LexisNexis 2017). "Court-ordered restitution is therefore a subset of complete restitution that, among other things, takes into account the defendant's circumstances." State v. Hamilton , 2018 UT App 202, ¶ 28, 437 P.3d 530 (cleaned up).

      A private placement security is an "offering exempt from registration with the SEC .... Generally speaking, private placements are not subject to some of the laws and regulations that are designed to protect investors, such as the comprehensive disclosure requirements that apply to registered offerings." U.S. Sec. & Exch. Comm'n, Investor Bulletin: Private Placements Under Regulation D (Sept. 24, 2014), https://www.sec.gov/oiea/investor-alerts-bulletins/ib_privateplacements.html [https://perma.cc/VC9W-MU48].

      Horizon Entities consisted of companies involved in real estate development and issuing automobile loans to people with poor credit.

      The attached spreadsheet identified more than 500 investors and their respective losses, totaling over $36.8 million.

      This section of the code points to the factors a sentencing court is to consider in determining complete and court-ordered restitution.

      The court determined that Randall's conduct harmed 156 investors during this period.

      Because the statutory provisions in effect at the relevant time do not differ in any material way from the provisions now in effect, we cite the current version of the Utah Code.