author: Toomey, Judge:

text:
    STATE of Utah, Appellee, v. Dean HAMILTON, Appellant.
    No. 20170115-CA
    Court of Appeals of Utah.
    Filed October 25, 2018
    Herschel Bullen, Salt Lake City, Attorney for Appellant
    Sean D. Reyes, Salt Lake City, and William M. Hains, Attorneys for Appellee
    Judge Kate A. Toomey authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.
    Opinion
   Toomey, Judge:

¶1 Dean Hamilton pleaded guilty to one count of attempted securities fraud. As part of the plea agreement, the State agreed to dismiss the remaining charges and to stipulate to complete and court-ordered restitution in the amount of $38,000. The district court accepted Hamilton's plea but did not accept the amount of restitution stipulated to by the parties. Instead, the court ordered Hamilton to pay $382,085 in complete and court-ordered restitution. Hamilton appeals the restitution order, contending the court abused its discretion in departing from the parties' stipulation and failing to consider his ability to pay and the rehabilitative effect of the restitution amount. Hamilton further contends the court violated his constitutional right "to be free from the imposition of excessive fines." We conclude Hamilton has inadequately briefed his constitutional argument and therefore do not address the merits of that claim. We further conclude the district court was not bound by the parties' stipulated restitution agreement and did not exceed its authority when it ordered Hamilton to pay restitution for criminal offenses for which he admitted guilt. Accordingly, we affirm.

BACKGROUND

¶2 For nearly two years, Hamilton sold securities for a company called Galileo Financial LLC (Galileo). Hamilton was a licensed insurance agent, but he was not licensed to sell securities for most of the time he worked as an independent contractor for Galileo. Hamilton sold securities in the form of promissory notes, purporting to "offer private placement securities investments in commercial and residential property development and rentals, as well as an automobile loan business for individuals with poor credit." These promissory notes were issued by various companies "owned and operated by Dee Allen Randall." Randall operated these various companies as a Ponzi scheme, "comingling investor funds and transferring them among [the companies], using investor funds to pay interest to prior investors or to pay commissions, and using investor funds for private use." Randall eventually declared bankruptcy, but "he continued to raise capital for [the companies] ... through agents such as Hamilton."

¶3 Between 2009 and early 2011, Hamilton sold the securities to four investors, who lost a total of $512,242. Hamilton did not know that Randall was running a Ponzi scheme and, according to the State, "had [nothing] to do with comingling funds or with using new investor money to pay old investors back." But Hamilton was dishonest about his qualifications and misrepresented to the investors that he was a financial advisor who was properly licensed to sell securities. He also represented that the "investment companies were sound with a 15 year history" and that there was "next to no risk."

¶4 Following an investigation into Randall, his companies, and Hamilton, the State charged Hamilton with three counts of securities fraud, three counts of transacting business as an unlicensed broker-dealer or agent, three counts of sale of an unregistered security, and one count of pattern of unlawful activity.

¶5 Based in large part on Hamilton's cooperation with the State's investigation of Randall, the State offered Hamilton a plea deal. In exchange for pleading guilty to one count of attempted securities fraud, a class A misdemeanor, the State agreed to dismiss all remaining charges and recommend that Hamilton not serve a jail sentence but instead be placed on probation for thirty-six months and pay restitution. Hamilton admitted in his plea statement that he "attempted to make untrue statements of material facts or omitted to state material facts necessary in order to make the statements made ... not misleading" and that these statements or omissions were made "in connection with the offer or sale of a security, directly or indirectly," to one explicitly named victim (Victim) "and othe[r]s." Hamilton agreed "that the acts described in the applicable sections of the Affidavit of Probable Cause describe [his] conduct for which [he is] criminally liable." He 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 [the] plea agreement." He further acknowledged that "any charge or sentencing concession or recommendation of probation or suspended sentence ... made or sought by either defense counsel or the prosecuting attorney are not binding on the judge."

¶6 Attached to Hamilton's plea statement was the plea agreement, which included the parties' stipulation for restitution. The stipulation required Hamilton to pay $38,000 in " 'complete' and 'court ordered' restitution" during his thirty-six month probationary period. The stipulation included that Hamilton would pay $5,000 at the time he entered his plea and would pay $500 per month for thirty-six months with a "balloon payment for any balance remaining" at the end of his probation. The plea agreement also provided that Hamilton "agree[d] to abide by any other terms and conditions as may be imposed upon him by the [district court]."

¶7 At a preliminary hearing, the State and Hamilton asked the court to accept Hamilton's guilty plea. In reciting the facts supporting the plea, the State described Hamilton's conduct toward the named Victim only, without reference to the other investors. The State said that Hamilton met with Victim "several times, reviewed her financial situation and documents, and recommended an investment" that he was not authorized to sell, and that he misrepresented that he had "researched the investment and found it to be a solid company and a safe investment." The district court accepted his guilty plea, finding that it was knowing and voluntary. But the court concluded it would need a presentence report before it could determine Hamilton's sentence and restitution obligation.

¶8 Adult Probation and Parole (AP&P) prepared a presentence report, which recounted that Hamilton sold securities without a license while working for Galileo, but that he represented that he had all necessary qualifications. Hamilton met with four individuals at credit unions, and they invested a total of $512,242. He "used the credit union platform to gain the trust and confidence of credit union members to sell the [securities] in order to make a commission." Hamilton earned $33,000 in commissions from his securities sales. The State requested Hamilton pay the amount he earned in commissions for those sales, with an additional $5,000 to be paid to Randall's Bankruptcy Trustee for the fees incurred while handling the bankruptcy proceedings related to Galileo. AP&P recommended that Hamilton serve "15 days in jail with work release" and pay the stipulated amount of restitution consistent with the plea agreement. It also recommended, consistent with the plea agreement, that Hamilton "not work in securities."

¶9 At the sentencing hearing, Hamilton stated he did not agree with the presentence report's statement that he "represented himself to investors as a financial advisor properly licensed and trained to sell the securities." But he did "agree with ... the basic big picture ... that [he] worked in credit unions and he did sell products that [Randall] was advertising and selling." Hamilton stated, "There hasn't been a day in the last five years that I haven't fallen asleep thinking about the people that have been hurt by my actions."

¶10 The prosecutor spoke next and stated, "The State stands by its recommendation as set forth in the plea agreement that [Hamilton] not be incarcerated, but that he be placed on court probation for 36 months. During which time he'll make payments for restitution in the total amount of $33,000." Hamilton had paid $6,000 toward restitution by the time of the hearing.

¶11 The prosecutor asked if he "could just add some context" to the State's recommendation. He explained that Hamilton's cooperation in the civil investigation against Randall was "helpful" in reaching a resolution and that "one of the purposes of filing charges against [Hamilton] was possibly obtaining his cooperation against [Randall]." The State was "not asserting that [Hamilton] had anything to do with comingling funds or with using new investor money to pay old investors back .... That really [fell] more on [Randall]." The State further stated that Hamilton's testimony at Randall's trial that Randall's "instruction [to] some of his subordinates to destroy paperwork that could be incriminating ... was really one of the key pieces of evidence that ... resulted in [Randall] deciding ... [to] plead guilty." The State also explained that, after considering Hamilton's ability to pay, it "certainly wanted the victims to get something back rather than nothing. There is ... somebody who is going to pay a price for this, and that's [Randall]. A very heavy price." Randall was "the more culpable party."

¶12 The district court was not persuaded by either parties' statements. It stated that Hamilton "took the money from the victims," in an amount greater than $500,000, and that "[w]hether [Hamilton] was working for somebody else, it doesn't make any difference." The court explained that, if it followed the State's recommendation, there would be "no punishment here." Instead, the court determined it would sentence Hamilton to 365 days in jail, and would suspend that sentence and place him on court probation for thirty-six months, but only after he served 250 days in jail on work release. The court also stated its intent to impose $512,242 in restitution as a condition of probation, but it set a restitution hearing for a later date.

¶13 At the restitution hearing, the court received exhibits containing supporting documents of Hamilton's financial declaration. The court also heard testimony from Hamilton about his income and expenses. It took the matter under advisement and issued a memorandum decision.

¶14 The court found that the victims lost $512,242 as a result of Hamilton's conduct, but that the statute of limitations barred the recovery of restitution for securities sold five years before Hamilton was charged. After subtracting the amount outside of the statute of limitations and considering Hamilton's ability to pay, the court ordered $382,085 in restitution. The court explained that, although the parties agreed to a restitution amount, Hamilton agreed in his plea statement that the court was not bound by the sentencing recommendations. The court also addressed Hamilton's motion to reconsider his jail sentence and denied it, finding "no legal basis to reconsider the sentence." Hamilton appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Hamilton first contends the district court exceeded its authority when it ordered him to pay restitution greater than the amount stipulated to by the parties because it was "bound by the stipulation." Second, Hamilton contends the district court abused its discretion by ordering $382,085 in restitution without considering all legally relevant factors for restitution. "We will not disturb a [district] court's restitution order unless it exceeds that prescribed by law or otherwise abused its discretion." State v. Bickley , 2002 UT App 342, ¶ 5, 60 P.3d 582 (quotation simplified). But "we review a [district] court's interpretation of restitution statutes for correctness." Id.

¶16 Third, Hamilton contends the "court's restitution order violates [his] right to be free from the imposition of excessive fines" under the federal and state constitutions. See U.S. Const. amend. VIII ; Utah Const. art. 1, § 9. But Hamilton concedes this issue was not raised before the district court and is therefore unpreserved. He states that the issue "qualifies ... for appellate review under the doctrines of ineffective assistance of counsel, plain error, manifest injustice[, ] and exceptional circumstances." See State v. Johnson , 2017 UT 76, ¶¶ 18-19, 416 P.3d 443. He refers this court to a different section of his brief that articulates the elements of each of those doctrines, but fails to apply any of them to his constitutional argument. See Wilson v. Educators Mutual Ins. Ass'n , 2018 UT App 155, ¶ 12, 436 P.3d 144 ("An appellant must cite the legal authority on which its argument is based and then provide reasoned analysis of how that authority should apply in the particular case, including citations to the record where appropriate." (quotation simplified) ); see also id. ¶ 14 ("An appellate court is not a depository in which a party may dump the burden of argument and research." (quotation simplified) ). Hamilton's argument is therefore inadequately briefed and we do not address whether his constitutional rights were violated. See State v. Padilla , 2018 UT App 108, ¶ 19, 427 P.3d 542.

ANALYSIS

I. The Scope of the District Court's Authority

¶17 Hamilton contends the district court exceeded its authority when it ordered restitution in an amount that included all four victims' losses, asserting that he pleaded guilty with regard to conduct connected only to Victim. Relatedly, he argues that the district court was bound to accept the amount of restitution to which the parties stipulated. We address each argument in turn.

A. Hamilton Admitted to Harming Four Victims

¶18 "When a defendant enters into a plea disposition or is convicted of criminal activity that has resulted in pecuniary damages, in addition to any other sentence ... it may impose, the court shall order that the defendant make restitution" to the victims of his criminal offense, "or for conduct for which the defendant has agreed to make restitution as part of a plea disposition." Utah Code Ann. § 77-38a-302(1) (LexisNexis 2017). And when the district court determines restitution for an offense, "the offense shall include any criminal conduct admitted by the defendant to the sentencing court or to which the defendant agrees to pay restitution." Id. § 77-38a-302(5)(a) ; see also State v. Ruiz , 2013 UT App 166, ¶ 9, 305 P.3d 223 ("[A] defendant may be ordered to pay restitution only for pecuniary loss resulting from a crime he either was convicted of or admitted responsibility for."), overruled on other grounds by State v. Ogden , 2018 UT 8, 416 P.3d 1132.

¶19 Here, Hamilton pleaded guilty to one count of attempted securities fraud. The plea statement and the amended information to which the plea statement referred stated that Hamilton "attempted to make untrue statements of material facts or omitted to state material facts necessary in order to make the statements made ... not misleading" and that these statements or omissions were made "in connection with the offer or sale of a security, directly or indirectly," to Victim "and others." Hamilton also stated in his plea statement that he understood 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 [the] plea agreement."

¶20 In addition, at the sentencing hearing, Hamilton did not dispute the information with respect to the four victims or the amount they lost-other than to challenge the losses outside of the statute of limitations-and instead stated that he agreed with the "big picture" of the presentence report's recitation of facts. He also told the court, "There hasn't been a day in the last five years that I haven't fallen asleep thinking about the people that have been hurt by my actions." The presentence report "explicitly referred to all four victims by name and listed the amount of losses they incurred 'in this case.' " And the plea agreement, attached to the plea statement, stated that Hamilton's restitution would be paid to the "Trustee for the Dee Randall bankruptcy action, to be disbursed by the Trustee to the victims identified." (Emphasis added.)

¶21 The record before us therefore shows that Hamilton admitted to causing financial harm to more than one victim and the district court did not exceed its discretion when it ordered restitution to compensate all of them. See Ruiz , 2013 UT App 166, ¶¶ 9-11, 305 P.3d 223 ; State v. Bickley , 2002 UT App 342, ¶¶ 9-10, 60 P.3d 582.

B. The District Court Was Not Bound by the Parties' Stipulation

¶22 Hamilton contends the district court was bound to follow the parties' stipulation with respect to restitution because (1) the plea statement and agreement are contracts and therefore "court[s] should be held ... bound by the stipulation of the parties" to those contracts, and (2) the plea agreement should be interpreted consistent with Hamilton's expectations. We reject both arguments.

¶23 First, "plea agreements are like contracts, [but] they are not contracts, and therefore contract doctrines do not always apply to them." State v. Francis , 2017 UT 49, ¶ 11, 424 P.3d 156 (quotation simplified). Plea agreements are negotiated between the defendant and the State; the district court is not a party to the plea agreement. See Utah R. Crim. P. 11(i)(1) ("The judge shall not participate in plea discussions prior to any plea agreement being made by the prosecuting attorney."); cf. State v. Thurston , 781 P.2d 1296, 1300 (Utah Ct. App. 1989) ("The imposition of [a] sentence is entirely a responsibility of the trial judge, who must not be involved in any advance understandings between the prosecutor and the defendant." (quotation simplified) ). Thus, the court is not required to accept a plea agreement and is not bound by its terms. See State v. Stringham , 2001 UT App 13, ¶ 14, 17 P.3d 1153 ("Even where the [State] and the defendant reach a plea agreement, the court is not required to accept it." (quotation simplified) ).

¶24 Second, it is irrelevant that Hamilton expected to pay only $38,000 in restitution because only the State was bound to uphold its end of the bargain. We agree with the State's assertion that "[t]he furthest that contract principles can carry Hamilton is to ... construe the agreement in a way that requires the State to perform in compliance with Hamilton's reasonable expectations." The State upheld its end of the bargain by arguing at the sentencing hearing and the restitution hearing that Hamilton should pay only $38,000 in restitution.

¶25 The language of the plea statement and the plea agreement further support our conclusion that the district court was not bound by the parties' stipulation. Hamilton acknowledged in his plea statement that "any charge or sentencing concession or recommendation of probation or suspended sentence ... [is] not binding on the judge."

Under Utah law, the district court "shall order that the defendant make restitution to the victims" "in addition to any other sentence it may impose." Utah Code Ann. § 76-3-201(4)(a) (LexisNexis 2017) (emphasis added); see also id. § 77-38a-302(1) ("[I]n addition to any other sentence ..., the court shall order that the defendant make restitution ... as part of a plea disposition."). A stipulation to the restitution amount is encompassed in a "sentencing concession or recommendation," as provided in Hamilton's plea statement, and Hamilton was therefore aware that the stipulated restitution recommendation was "not binding on the judge." Further, the plea agreement, attached to the plea statement, stated that "[Hamilton] agree[d] to abide by any other terms and conditions as may be imposed upon him by the [c]ourt."

¶26 We therefore conclude the district court was not bound by the parties' stipulated restitution amount and did not exceed its authority in ordering Hamilton to pay restitution.

II. The District Court's Discretion to Order Restitution

¶27 Hamilton contends the district court abused its discretion by ordering restitution when it had not considered the factors listed under Utah Code section 77-38a-302(5)(c). We disagree.

¶28 Under the Crime Victims Restitution Act, district courts are required to make "two separate restitution determinations, one for complete restitution and a second for court-ordered restitution." State v. Mooers , 2017 UT 36, ¶ 8, 424 P.3d 1 (quotation simplified); see also Utah Code Ann. § 77-38a-302(2)(a)-(b) (LexisNexis 2017). Complete restitution is "the restitution necessary to compensate a victim for all losses caused by the defendant." Utah Code Ann. § 77-38a-302(2)(a). In determining the amount of complete restitution, the court shall consider, as relevant here, "the cost of the ... loss if the offense resulted in ... loss or destruction of property of a victim of the offense." Id. § 77-38a-302(5)(b)(i). Court-ordered restitution is "the restitution the court having criminal jurisdiction orders the defendant to pay as a part of the criminal sentence." Id. § 77-38a-302(2)(b). Court-ordered restitution is therefore "a subset of complete restitution that, among other things, takes into account the defendant's circumstances." Mooers , 2017 UT 36, ¶ 11, 424 P.3d 1 (quotation simplified). Under this statutory framework, the district court is "require[d] ... to 'determine' complete restitution[ ] but [has] discretion with regard to the imposition of court-ordered restitution." State v. Ogden , 2018 UT 8, ¶ 42, 416 P.3d 1132 (quotation simplified).

¶29 District courts are afforded "wide latitude and discretion in sentencing," see State v. Helms , 2002 UT 12, ¶ 8, 40 P.3d 626 (quotation simplified), which includes ordering restitution, see Utah Code Ann. § 76-3-201(4)(a) (LexisNexis 2017). "As a general rule, we presume that the district court made all the necessary considerations when making a sentencing and restitution decision[.]" State v. Beckstrom , 2013 UT App 186, ¶ 19, 307 P.3d 677 (quotation simplified). When a district court determines the monetary sum of court-ordered restitution, it "shall consider:"

(i) the factors listed [under consideration of complete restitution];
(ii) the financial resources of the defendant, as disclosed in the financial declaration described in Section 77-38a-204;
(iii) the burden that payment of restitution will impose, with regard to the other obligations of the defendant;
(iv) the ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court;
(v) the rehabilitative effect on the defendant of the payment of restitution and the method of payment; and
(vi) other circumstances that the court determines may make restitution inappropriate.

Utah Code Ann. § 77-38a-302(5)(c).

¶30 Here, the district court relied on the presentence report to determine the amount of complete restitution. At the sentencing and restitution hearings, Hamilton did not challenge the total number of victims or their financial losses-other than to challenge the amount outside of the statute of limitations. The court agreed that the statute of limitations had run on some of the losses and determined that complete restitution on the remaining losses amounted to $382,085. In addition, Hamilton argued to the court that it needed to consider all of the factors under Utah Code section 77-38a-302(5)(c) and explained that some of those factors weigh in favor of imposing less than the full amount of complete restitution. Further, the State argued that court-ordered restitution of $38,000 was appropriate based on the circumstances of the case-including that Hamilton was less culpable, provided substantial cooperation in the case against Randall, pleaded guilty only to attempted securities fraud, and received only the commission for his sales.

¶31 In its restitution order, the district court rejected the parties' stipulation and explained that, "[a]fter the restitution hearing, the court still [did] not agree with the restitution of $38,000." The court further found that Hamilton "has the ability to pay restitution as ordered," given his net income as provided in his financial documents and his testimony at the restitution hearing. See id. § 77-38a-302(5)(c)(ii). Although the restitution payment "may be a hardship on [Hamilton] because his expenses" are about equal to his net income, he is still in a position to pay restitution, "but maybe needs to reassess his expenses." See id. § 77-38a-302(5)(c)(iii). The court also determined that Hamilton had the ability to pay restitution in monthly installments of $500 per month, and denied Hamilton's request to reduce the monthly payments for the period of his work release. See id. § 77-38a-302(5)(c)(iv).

¶32 We conclude the district court acted within its discretion when it ordered restitution in an amount greater than what the parties' stipulated to and that the court properly considered the relevant legal factors under Utah Code section 77-38a-302(5)(c).

CONCLUSION

¶33 We conclude the district court had authority to reject the parties' stipulation in the plea agreement to the amount of complete and court-ordered restitution. We further conclude the district court properly interpreted Utah Code section 77-38a-302(5)(c) and did not abuse its discretion when it ordered Hamilton to pay restitution in the amount equal to complete restitution because Hamilton admitted to harming multiple victims. Accordingly, we affirm.

      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 (10th ed. 2014). Under these types of schemes, "[m]oney 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.

      Given that the plea statement expressly anticipates restitution arising from dismissed charges, we struggle to see how the record could be much clearer.

      Although the court is not a party to the plea negotiations, rule 11 of the Utah Rules of Criminal Procedure provides a mechanism by which "the judge, upon request of the parties, may permit the disclosure of the tentative agreement and the reasons for it," and the judge "may then indicate to the prosecuting attorney and defense counsel whether the proposed disposition will be approved."Utah R. Crim. P. 11(i)(2). If the judge "decides that final disposition should not be in conformity with the plea agreement, the judge shall advise the defendant and then call upon the defendant to either affirm or withdraw the plea." Id. R. 11(i)(3). This procedure was not used in this case, which suggests that the plea agreement was not intended to be contingent on the court agreeing to sentence Hamilton in accordance with the parties' stipulation.

      Hamilton also argues that he did not understand that restitution was encompassed in the language contained in the plea statement that "any charge or sentencing concession or recommendation of probation or suspended sentence ... [is] not binding on the judge." He asserts that this language was ambiguous with respect to whether the court could reject the stipulation of restitution and "led [Hamilton] to believe that any agreement between him and the State with regard to restitution was a settled matter." To the extent Hamilton argues that he would not have entered the guilty plea had he known the court was not bound to accept the restitution stipulation, that argument goes to the validity of his guilty plea, not to the district court's discretion to reject the stipulation. See State v. Gibson , 2009 UT App 108, ¶ 10, 208 P.3d 543 (providing that "the longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant" (quotation simplified) ). Because Hamilton did not move to withdraw his guilty plea, we do not have jurisdiction to address that argument. See State v. Ott , 2010 UT 1, ¶ 18, 247 P.3d 344.

      Hamilton argues that the district court did not consider the "rehabilitative effect" of restitution imposed against him. But his argument fails because, throughout the record, Hamilton placed the court on notice of Utah Code section 77-38a-302(5)(c) and its requirements. Hamilton also stated in his Memorandum in Support of His Position on Restitution that he "agree[d] that there is a rehabilitative effect by ordering the defendant to pay some restitution." Although he challenged the amount of restitution below and provided mitigating circumstances with respect to the rehabilitative effect of the amount of restitution ordered, he cannot show that the court failed to consider the "rehabilitative effect" factor. See State v. Beckstrom , 2013 UT App 186, ¶ 19, 307 P.3d 677 ("As a general rule, we presume that the district court made all the necessary considerations when making a sentencing and restitution decision[.]" (quotation simplified) ). Instead, his arguments amount to a disagreement with the district court's conclusion about the rehabilitative effect of imposing a greater amount of restitution than anticipated in the plea agreement. But he has not shown that the district court's "actions [were] inherently unfair" or that "no reasonable person would take the view adopted by the [district] court," see State v. Montiel , 2005 UT 48, ¶ 24, 122 P.3d 571 (quotation simplified), especially considering that Hamilton acknowledged he "may be ordered to make restitution to any victim or victims of [his] crimes, including restitution that may be owed on charges that are dismissed as part of [the] plea agreement" and he admitted to harming multiple victims.


source: Caselaw Access Project

author: TOOMEY, Judge:

license: Public Domain

text:
    PIONEER BUILDERS COMPANY OF NEVADA INC., Appellee, v. K D A CORPORATION, Appellant.
    No. 20170312-CA
    Court of Appeals of Utah.
    Filed November 1, 2018
    N. George Daines and Jonathan E. Jenkins, Logan, Attorneys for Appellant
    Gary N. Anderson and R. Christian Hansen, Logan, Attorneys for Appellee
    Judge Kate A. Toomey authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.
    Opinion
   TOOMEY, Judge:

¶1 K D A Corporation (K D A) appeals the district court's order that denied its Motion to Enforce Redemption Right and granted Pioneer Builders Company of Nevada Inc.'s (Pioneer) Motion to Enforce Settlement Agreement. K D A argues the court erred in ruling K D A waived the statutory right of redemption under the terms of a settlement agreement (the Agreement) between K D A and Pioneer. We conclude K D A did not waive its right of redemption because the Agreement did not contain a clear and unmistakable waiver of that right. We therefore reverse and remand this case to the district court for further proceedings consistent with this opinion.

BACKGROUND

¶2 In October 2000, K D A sold approximately forty acres of real property (the Property) to a buyer through an installment contract and secured by trust deed. The buyer financed the purchase with a loan from Pioneer, and Pioneer's loan was also secured by trust deed. When the buyer defaulted, Pioneer sought to foreclose. The foreclosure resulted in a dispute concerning the relative priority of the parties' trust deeds. After several years of litigation, Pioneer and K D A entered into the Agreement to "resolv[e] all differences between them, subject to the terms and conditions of [the] Agreement."

¶3 The Agreement included multiple provisions that subordinated K D A's trust deeds to Pioneer's trust deeds. Specifically, K D A agreed that Pioneer's trust deeds "attached to, affect, and encumber [the Property] ... ahead of, superior to, and not subject to KDA's [trust deeds]." The parties reiterated that priority by including a formal subordination agreement, stating:

[A]s part of a settlement of various claims and disputes between and among them, KDA and Pioneer have agreed ... to the subordination of KDA's [trust deeds] and its other claimed estates, rights, titles, liens, and encumbrances, and other interests in, on, and/or to the Property ... to Pioneer's [trust deeds].

K D A further agreed "that pursuant to [the subordination agreement] Pioneer's [trust deeds] ... have priority over KDA's [trust deeds], and any and all other liens, encumbrances, and other interests of KDA in, on, and to the Property," and that the priority of Pioneer's trust deeds over K D A's trust deeds "shall be respected in the presently pending judicial foreclosure."

¶4 The Agreement also contained stipulations, releases, and reservations of claims. In one provision, K D A agreed that

Pioneer is entitled to foreclose upon [the Property], ... including, but without limitation, foreclosing out, terminating, and extinguishing any and all estates, rights, titles, liens, encumbrances, and other interests ... that KDA may have or claim in, on, or to [the Property], including, without limitation, KDA's [trust deeds.]

K D A did not expressly reserve the right of redemption as a subordinate lienholder on the Property.

¶5 After executing the Agreement, Pioneer continued with the foreclosure. At a sheriff's sale, Pioneer was the only bidder and purchased the Property for $200,000. Less than six months later, K D A attempted to redeem the Property as a subordinate lien holder, serving Pioneer with an exercise of redemption and a cashier's check for $212,000. Pioneer rejected the redemption attempt and returned the check, claiming that K D A waived the right of redemption when it signed the Agreement.

¶6 K D A filed a Motion to Enforce Redemption Right with the district court. In that motion, K D A denied waiving the right of redemption and asserted its rights as a " 'creditor having a lien on the property junior to that on which the property was sold.' " (Quoting Utah R. Civ. P. 69C(b).) To that end, K D A asked the court to interpret the Agreement as merely subordinating the priority of its trust deeds to those of Pioneer.

¶7 Pioneer opposed K D A's motion and filed its own motion to enforce the Agreement as a waiver of K D A's right of redemption. It argued that the Agreement's language of the agreement "clearly demonstrates KDA waived any and all interest it had in" the Property. Pioneer also noted that, although the Agreement expressly reserved K D A's "existing and ongoing rights," it did not reserve the right of redemption.

¶8 After considering the arguments, the district court concluded that K D A "freely and validly waived its right of redemption and was not entitled to redeem the Property." The court stated that the "Agreement clearly provides Pioneer is entitled to foreclosure upon the Property, thus foreclosing out, terminating, and extinguishing any and all estates, rights, titles, liens, encumbrances, and other interests ... that KDA may have or claim in ... [the Property]." (Quotation simplified.) Based on that language, the court concluded that "when Pioneer foreclosed upon the Property, any right or title KDA had was extinguished." "Therefore, when KDA attempted to redeem the Property, ... it was no longer a 'creditor having a lien on the property' or 'a creditor having a right of redemption.' " (Quoting Utah R. Civ. P. 69C(b).) After the district court ruled in favor of Pioneer, K D A stipulated to Pioneer's award of attorney fees as the prevailing party, but reserved the right to challenge that award and seek its own attorney fees if successful on appeal.

¶9 K D A appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 K D A argues the district court erred in interpreting the Agreement to waive its statutory right of redemption. "Settlement agreements are governed by the rules applied to general contract actions." Bodell Constr. Co. v. Robbins , 2009 UT 52, ¶ 19, 215 P.3d 933 (quotation simplified). "Questions of contract interpretation not requiring resort to extrinsic evidence are matters of law," which we review for correctness. Zions First Nat'l Bank, NA v. National Am. Title Ins. Co. , 749 P.2d 651, 653 (Utah 1988). "[W]hether the [district] court employed the proper standard of waiver" is also a matter of law reviewed for correctness. Pledger v. Gillespie , 1999 UT 54, ¶ 16, 982 P.2d 572.

¶11 K D A also challenges the district court's award of attorney fees to Pioneer. We review the district court's award of attorney fees for correctness. See Jones v. Riche , 2009 UT App 196, ¶ 1, 216 P.3d 357.

ANALYSIS

I. Waiver

¶12 K D A argues the district court erred in ruling that it waived the statutory right of redemption when it entered into the Agreement. We agree. A waiver of any statutorily guaranteed right must be "explicitly stated," so that the parties' intent is "clear and unmistakable." See Larsen Beverage v. Labor Comm'n , 2011 UT App 69, ¶ 11, 250 P.3d 82 (quotation simplified). In our view, this principle applies to potential waivers of the right of redemption, and the Agreement includes no such waiver.

¶13 "Settlement agreements are governed by the rules applied to general contract actions." Bodell Constr. Co. v. Robbins , 2009 UT 52, ¶ 19, 215 P.3d 933. "The cardinal rule in contract interpretation is to give effect to the intentions of the parties as they are expressed in the plain language of the [agreement] itself." New York Ave. LLC v. Harrison , 2016 UT App 240, ¶ 21, 391 P.3d 268 (quotation simplified). We examine "the entire [agreement] and all of its parts in relation to each other, giving an objective and reasonable construction to the [agreement] as a whole." G.G.A., Inc. v. Leventis , 773 P.2d 841, 845 (Utah Ct. App. 1989). Our goal is to interpret the agreement "so as to harmonize all of its terms and provisions, and all of its terms should be given effect if possible." Id.

¶14 Waiver is "the intentional relinquishment of a known right." Soter's, Inc. v. Deseret Fed. Sav. & Loan Ass'n , 857 P.2d 935, 942 (Utah 1993) (quotation simplified). For waiver to occur, "there must be an existing right, benefit or advantage, a knowledge of its existence, and an intention to relinquish it." Id. (quotation simplified). The waiving party's conduct "must evince unequivocally an intent to waive, or must be inconsistent with any other intent." Medley v. Medley , 2004 UT App 179, ¶ 7, 93 P.3d 847 (quotation simplified).

¶15 Further, the right of redemption is a statutory right. Pyper v. Bond , 2011 UT 45, ¶ 14, 258 P.3d 575 ; see also Utah Code Ann. § 78B-6-906 (LexisNexis 2012) ; Utah R. Civ. P. 69C. To waive a statutory right, the waiver must be "clear and unmistakable." Medley , 2004 UT App 179, ¶ 10, 93 P.3d 847 (quotation simplified). This court "will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is explicitly stated." Larsen Beverage , 2011 UT App 69, ¶ 11, 250 P.3d 82 (quotation simplified).

¶16 Here, the Agreement does not establish a "clear and unmistakable" waiver of the right of redemption. See Medley , 2004 UT App 179, ¶ 10, 93 P.3d 847 (quotation simplified). Under the relevant provision, K D A agreed that "Pioneer is entitled to foreclose upon" the Property, including "foreclosing out, terminating, and extinguishing" all of K D A's rights and interests, including K D A's trust deeds. Although this provision is very broad, it does not mention redemption, nor refer to the statutory provisions that provide the right to redeem. See Utah Code Ann. § 78B-6-906(1) (LexisNexis 2012) ("Sales of real estate under judgments of foreclosure of mortgages and liens are subject to redemption...."); Utah R. Civ. P. 69C(b) ("Real property subject to redemption may be redeemed ... by a creditor having a lien on the property junior to that on which the property was sold....").

¶17 Pioneer argues that "the all-encompassing language in [that provision] leaves no doubt that K D A's right of redemption was terminated." But "such a restrictive reading of [that provision] is not supported by [this court's] prior decisions." Larsen Beverage , 2011 UT App 69, ¶ 10, 250 P.3d 82 ; see also id. ¶¶ 4, 11-12 (determining that an employer's stipulation to pay "all medical expenses" resulting from an employee's work-place accident did not waive the employer's statutory right to seek reimbursement because the stipulation in the contract provision "made no reference to the statutory right" (quotation simplified) ); Medley , 2004 UT App 179, ¶¶ 4, 10, 93 P.3d 847 (determining that an agreement for payments "[in] lieu of and as satisfaction of any claim either party ha[d] to alimony" did not waive the statutory right to future alimony (quotation simplified) ). Parties wishing to waive the right of redemption must make that waiver "clear and unmistakable" by explicitly stating their intention. See Medley , 2004 UT App 179, ¶ 10, 93 P.3d 847 (quotation simplified).

¶18 Here, the Agreement "contains neither a mention of the statute at issue nor even a reference to the general concept of [redemption]." Larsen Beverage , 2011 UT App 69, ¶ 11, 250 P.3d 82. Granted, K D A did not expressly reserve the right of redemption in the Agreement. But failure to reserve a statutorily protected right is not the equivalent of a waiver of that right. See id. (determining there was no waiver when the agreement was "entirely silent concerning" the statutory right at issue). We will not infer from the Agreement's general provisions that the parties intended to waive the right of redemption. See id.

¶19 Indeed, the broad language cited by the district court does not expressly waive any of K D A's rights. It acknowledges Pioneer's right to foreclose on the Property, and it recognizes that K D A's rights and interests will be "foreclosed out," "terminated," and "extinguished" upon that foreclosure. In Utah, the foreclosure process includes not only the sale of the relevant property but also the statutory time for redemption. See Utah R. Civ. P. 69C(d), (h) (establishing that "[t]he property may be redeemed within 180 days after the sale" and "[t]he purchaser or last redemptioner is entitled to conveyance upon the expiration of the time permitted for redemption"). And during the time for redemption, "a creditor having a lien on the property junior to that on which the property was sold" may redeem the property by paying to the purchaser "the sale price plus six percent." Id. R. 69C(b), (e).

¶20 Considering the foreclosure process, it is fair to interpret the Agreement's broad language to express that K D A's rights in the Property would not "terminate" until expiration of the time for redemption. Thus, not only does the Agreement fail to explicitly state the parties' intent to waive the right of redemption, but its language is consistent with a contrary interpretation. For waiver to occur, "the party's actions or conduct must evince unequivocally an intent to waive, or must be inconsistent with any other intent." Mont Trucking, Inc. v. Entrada Indus., Inc. , 802 P.2d 779, 781 (Utah Ct. App. 1990) (quotation simplified). The Agreement does not meet that standard.

¶21 K D A asserts that the Agreement merely was intended to subordinate K D A's trust deeds, giving Pioneer's trust deeds first priority in the pending foreclosure. This interpretation is reasonable because it "harmoniz[es] all of [the Agreement's] terms and provisions" and gives "an objective and reasonable construction to the [Agreement] as a whole." See G.G.A., Inc. v. Leventis , 773 P.2d 841, 845 (Utah Ct. App. 1989). Interpreting the Agreement to subordinate K D A's interests in the Property gives effect to provisions that would be superfluous if the parties intended to waive the right of redemption. For example, the Agreement expressly recognizes the continued validity of K D A's trust deeds, specifying that Pioneer's trust deeds are "ahead of, superior to, and not subject to" K D A's trust deeds. And, "as part of [the Agreement]," the parties entered into a separate subordination agreement to reiterate Pioneer's priority over K D A in the "pending judicial foreclosure." If K D A intended to waive the right of redemption, it is difficult to understand why the parties also executed a subsequent formal subordination agreement. Instead, the Agreement suggests that K D A intended to maintain its rights as a subordinate lien holder, including the right of redemption. See Utah R. Civ. P. 69C(b).

¶22 Further, the broad language of the Agreement that Pioneer claims "leaves no doubt that KDA's right of redemption was terminated" is consistent with the mere subordination of K D A's interests in the Property. As K D A notes in its brief, that language simply describes what happens to a subordinated lien holder upon foreclosure. That is, the first priority lien holder is entitled to "foreclose out" and "terminate" the second priority lien holder's rights in the relevant property. But those rights are not terminated until the foreclosure process is complete-that is, when the redemption period expires. See Utah Code Ann. § 78B-6-906(1) (LexisNexis 2012); Utah R. Civ. P. 69C(b), (d). Thus, an examination of the Agreement "as a whole," see G.G.A., Inc. , 773 P.2d at 845, supports our conclusion that K D A did not make a "clear and unmistakable" waiver of the right of redemption, see Medley , 2004 UT App 179, ¶ 10, 93 P.3d 847 (quotation simplified).

¶23 In sum, the Agreement does not show K D A's clear and unmistakable intent to waive its statutory right of redemption. See id . We therefore conclude the district court erred in ruling that K D A waived the right of redemption.

II. Attorney Fees

¶24 K D A asks us to vacate the district court's award of attorney fees to Pioneer. "In Utah, attorney fees are awardable only if authorized by statute or by contract." Jones v. Riche , 2009 UT App 196, ¶ 1, 216 P.3d 357 (quotation simplified). "If the legal right to attorney fees is established by contract, Utah law clearly requires the court to apply the contractual attorney fee provision and to do so strictly in accordance with the contract's terms." Id. ¶ 2.

¶25 Here, the Agreement provides for an award of costs and reasonable attorney fees to the prevailing party in litigation regarding enforcement of any of the Agreement's terms. After the district court ruling in favor of Pioneer, K D A stipulated to Pioneer's award of attorney fees as the prevailing party but reserved the right to challenge that award and seek its own attorney fees if successful on appeal. Because we reverse the district court's ruling and remand for further proceedings, we vacate the award of attorney fees to Pioneer as the prevailing party and instruct the district court on remand to determine whether K D A should be awarded attorney fees as the prevailing party.

CONCLUSION

¶26 The district court erred in ruling that K D A waived its statutory right of redemption under the terms of the Agreement. We therefore reverse and remand this case for further proceedings consistent with this opinion.

      Redemption is "the regaining of property by satisfaction of an obligation." Redemption , Webster's Third New Int'l Dictionary 1902 (1993). In Utah, "[s]ales of real estate under judgments of foreclosure of mortgages and liens are subject to redemption," Utah Code Ann. § 78B-6-906(1) (LexisNexis 2012), "by a creditor having a lien on the property junior to that on which the property was sold,"Utah R. Civ. P. 69C(b). To redeem, the creditor must, within 180 days of the sale, pay the purchaser of the property the amount of the purchase at the sale plus six percent. See id. R. 69C(b), (e).

      We note that close scrutiny on behalf of the district court is particularly appropriate in cases dealing with an alleged waiver of the right of redemption. As this court has noted, the right of redemption is designed to "provide a check on bids that are well below market value." Brockbank v. Brockbank , 2001 UT App 251, ¶ 12, 32 P.3d 990. Allowing a debtor or a subordinate lien holder to contractually waive the right of redemption without expressing clear and unmistakable intent is inconsistent with that purpose. See id. To that end, K D A asks us to determine that waivers of the statutory right of redemption will never be enforced. But because we conclude the Agreement did not establish a "clear and unmistakable" waiver, we need not address that argument further.


author: HAGEN, Judge:

text:
    STATE of Utah, Appellee, v. Vratislav Roger BILEK, Appellant.
    No. 20160991-CA
    Court of Appeals of Utah.
    Filed November 1, 2018
    Nathalie S. Skibine and Heather J. Chesnut, Attorneys for Appellant
    Sean D. Reyes and Marian Decker, Salt Lake City, Attorneys for Appellee
    Judge Diana Hagen authored this Opinion, in which Judges Kate A. Toomey and Jill M. Pohlman concurred.
    Opinion
   HAGEN, Judge:

¶ 1 Probation officers discovered Vratislav Roger Bilek in a motel room with drugs, drug paraphernalia, and a disoriented woman (E.C.). A search of Bilek's cell phone revealed numerous nude photographs and video recordings of E.C. in which she appeared to be unconscious. Subsequently, Bilek was convicted of two counts of voyeurism, one count of distribution of a controlled substance, and one count of possession of drug paraphernalia.

¶ 2 With respect to his voyeurism convictions, Bilek argues that the State presented insufficient evidence to prove that he used a "concealed or disguised" electronic device to secretly or surreptitiously record or view E.C. Specifically, Bilek argues that the "concealed or disguised" element of class A misdemeanor voyeurism cannot be satisfied by proving only that he provided E.C. with drugs to render her unconscious. We hold that evidence that E.C. was unconscious is sufficient to prove that Bilek secretly or surreptitiously made the recordings, but it does not satisfy the separate element that requires the use of a concealed or disguised electronic device. Accordingly, we vacate his voyeurism convictions.

¶ 3 Bilek also argues for reversal of his other convictions because the State wrongfully admitted evidence that he was on probation at the time of the offenses and because the district court denied his right to self-representation. We reject these challenges and affirm Bilek's convictions for distribution of a controlled substance and possession of drug paraphernalia.

BACKGROUND

¶ 4 In December 2015, Bilek was sentenced to sixty months of probation after pleading guilty to felony kidnapping. As a condition of probation, Bilek agreed that no women would stay overnight with him without his probation officer's approval and that he would abstain from illegal use or possession of drugs or drug paraphernalia.

¶ 5 Less than two months later, two probation officers conducted a routine check and discovered Bilek in a motel room with E.C. When they entered Bilek's room, the officers saw that E.C. was wearing a tank top, sweatpants, and no shoes. According to the officers, it "appeared like she had just woke[n]

up" and she "seemed a little bit out of it." They also observed heroin, crystal methamphetamine, crack cocaine, syringes, a spoon, a metal pipe, and plastic paper next to the bed. After speaking with Bilek and E.C., the officers searched the contents of Bilek's cell phone and discovered 179 photographs and 9 videos of E.C. in Bilek's motel room. In most of the photographs and videos, E.C. was nude, either alone or in compromising positions with Bilek, and appeared to be unconscious or asleep. After reviewing the photographs and speaking with E.C., the officers allowed her to leave, but they placed Bilek under arrest for violating his probation.

¶ 6 Based on E.C.'s statements and the drugs, drug paraphernalia, photographs, and videos discovered in the motel room, the State charged Bilek with one count of forcible sexual abuse, a second degree felony, see Utah Code Ann. § 76-5-404 (LexisNexis 2014) ; one count of distribution of or arranging to distribute a controlled substance, a second degree felony, see id. § 58-37-8(1)(a)(ii) (2016); two counts of voyeurism, class A misdemeanors, see id. § 76-9-702.7(2) (2014); and one count of possession of drug paraphernalia, a class B misdemeanor, see id. § 58-37a-5(1) (2016).

¶ 7 The district court appointed counsel to represent Bilek. On five occasions before trial, Bilek requested to substitute counsel. Bilek complained that his attorney refused to provide him with the discovery he requested, to file the motions he asked be filed, to subpoena witnesses he identified, and to "excuse herself as ineffective counsel." After addressing the matter with Bilek and his attorney, the district court denied Bilek's requests, finding that there was no conflict that necessitated a change in counsel.

¶ 8 Before trial, Bilek filed a motion in limine to exclude evidence of his prior convictions and probation status. The district court granted the motion with respect to Bilek's prior convictions, but it declined to exclude evidence that Bilek was on probation. The court explained that excluding evidence that the officers were conducting a probation check "would subject the jury to wondering and speculating in improper areas" and that it would be "a better result, a less prejudicial result by actually just saying who [the officers] are and why they [were in Bilek's motel room]."

¶ 9 At trial, E.C. testified that she met Bilek in December 2015. Since then, they had many sexual encounters in which Bilek agreed to pay her money or drugs in exchange for oral sex.

¶ 10 Two days before Bilek was arrested in this case, he had paid to bail E.C. out of jail. When Bilek met her at the police station, E.C. told him she was feeling sick from withdrawal, so Bilek offered her methamphetamine and "a place to shower and sleep." E.C. went to Bilek's motel room, "injected [the] meth" that he provided, and then drove with him to another location where he purchased heroin and crack cocaine. E.C. also went with Bilek to purchase supplies to assemble a crack pipe.

¶ 11 After purchasing the supplies, the two returned to Bilek's motel room where E.C. injected methamphetamine and heroin and smoked crack cocaine. E.C. testified that the methamphetamine Bilek provided that night made her feel "cold and sick and tired" when "[m]eth usually makes [her] feel the opposite." E.C. also testified that she witnessed Bilek inject methamphetamine, but that the drugs he used appeared to come from a separate stash.

¶ 12 During the time she remained in Bilek's motel room, E.C. was "mostly asleep." On the first night, E.C. performed oral sex on Bilek as payment for the drugs. The only other sexual activity she recalled occurred when she awoke to Bilek rubbing lotion near her genitals and when Bilek requested she inject his penis with methamphetamine. E.C. testified that she removed her clothes only twice in Bilek's motel room, on the first night when she performed oral sex on Bilek and the single time she took a shower. In both instances, she recalled re-dressing immediately afterward.

¶ 13 E.C. also testified that she had not consented to being photographed or video recorded. E.C. acknowledged that she had allowed Bilek to photograph her nude in exchange for money during a prior sexual encounter, but she maintained that she had not consented to additional nude photographs and never agreed to allow Bilek to photograph or film her while she was unconscious.

¶ 14 In addition to E.C.'s testimony, the State presented the photographs and videos found on Bilek's cell phone and introduced expert testimony about the physical effects of the drugs E.C. ingested. The probation officers also testified about their observations. The officers explained that they went to Bilek's motel room to conduct a routine probation check, but they did not disclose that Bilek was on probation for a kidnapping conviction or that Bilek was on felony probation. During one officer's testimony, the jury submitted two questions asking for more information about why Bilek was on probation. In response, the district court instructed the jurors that it could not provide an answer to their question and that they were not to consider "any thoughts [they] might have about that or about the subject of that question in [their] deliberations."

¶ 15 When the State rested, Bilek moved for a directed verdict as to the forcible sexual abuse, distribution of a controlled substance, and voyeurism charges. Before the district court could rule, Bilek objected to the statements his attorney made in her argument in support of the motion. The district court explained that it had already instructed Bilek that it was not going to recognize objections unless they came from his attorney but would construe Bilek's objection as a request for "an opportunity for [him] to speak with counsel." Bilek's attorney explained to the court that Bilek was "agitated about what's happening" and would like to "argue about the facts," despite counsel's assessment that those facts "would be harmful to his case." Bilek again objected and stated that he was "firing" his attorney. The district court asked whether Bilek was requesting to represent himself, and Bilek confirmed that he was. The court ruled that it was "not going to allow that to happen at this point." Bilek's defense counsel continued to represent him through the duration of the trial.

¶ 16 After denying Bilek's request for self-representation, the district court denied the motion for a directed verdict. As to the voyeurism charges, the court ruled that providing "a controlled substance that would render a person unaware as to what's going on" was sufficient evidence of "concealment or disguise to secretly or surreptitiously videotape, film, photograph or record." The district court also found that E.C.'s testimony along with the drugs and paraphernalia discovered in Bilek's motel room provided sufficient evidence of forcible sexual abuse and distribution of a controlled substance.

¶ 17 The jury convicted Bilek of two counts of voyeurism, one count of distribution of a controlled substance, and one count of possession of drug paraphernalia. The jury acquitted him of forcible sexual abuse. Bilek appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 18 Bilek raises three issues on appeal. First, he contends that the State presented insufficient evidence to support his convictions for class A misdemeanor voyeurism. Specifically, Bilek contends that the State's evidence that E.C. was unconscious when he used his phone to take photographs and videos of her was insufficient to prove that he "concealed or disguised" his phone while doing so. To assess claims of insufficient evidence, "we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict." State v. Robertson , 2018 UT App 91, ¶ 20, 427 P.3d 361 (quotation simplified). "We will reverse the jury's verdict only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted." Mackin v. State , 2016 UT 47, ¶ 20, 387 P.3d 986 (quotation simplified).

¶ 19 Second, Bilek contends that the district court erred when it allowed the officers to testify that he was on probation. We recognize that "[t]he trial judge is in a better position than we are to assess the avowed basis for evidence of prior misconduct." State v. Thornton , 2017 UT 9, ¶ 56, 391 P.3d 1016. As such, we review the question of "whether the prior misconduct evidence at issue was properly admitted at trial" for an abuse of discretion. Id. Even if the evidence was improperly admitted, we will not overturn a conviction unless a "reasonable likelihood exists that the error affected the outcome of the proceedings." State v. Calvert , 2017 UT App 212, ¶ 38, 407 P.3d 1098 (quotation simplified).

¶ 20 Finally, Bilek contends that the district court erred when it denied his request for self-representation after the State rested. "When [a] defendant does not assert [the right to self-representation] before trial, we review the district court's decision whether to allow defendant to proceed pro se for an abuse of discretion." United States v. Beers , 189 F.3d 1297, 1303 (10th Cir. 1999).

ANALYSIS

I. Sufficiency of the Evidence Supporting Class A Misdemeanor Voyeurism

¶ 21 Bilek contends that we should reverse his conviction for voyeurism because the "State never proved that [he] used a 'concealed or disguised' camera, a requirement under the [voyeurism] statute." The State disagrees but argues in the alternative that, if we determine that the evidence was insufficient to support Bilek's class A misdemeanor voyeurism convictions, we should order the district court to enter convictions for class B misdemeanor voyeurism. We first address whether the State presented sufficient evidence to satisfy the elements of class A misdemeanor voyeurism. We conclude that it did not and then turn to the appropriate remedy.

A. Evidence Supporting the "Concealed or Disguised" Element

¶ 22 When Bilek committed the acts charged, a person committed class A misdemeanor voyeurism by

(1) intentionally us[ing] a camcorder, motion picture camera, photographic camera of any type, or other equipment that is concealed or disguised to secretly or surreptitiously videotape, film, photograph, record, or view by electronic means an individual:
(a) for the purpose of viewing any portion of the individual's body regarding which the individual has a reasonable expectation of privacy, whether or not that portion of the body is covered with clothing;
(b) without the knowledge or consent of the individual; and
(c) under circumstances in which the individual has a reasonable expectation of privacy.

Utah Code Ann. § 76-9-702.7(1), (2) (LexisNexis 2014) (emphasis added). The State contends, as it argued at trial, that Bilek's actions met the "concealed or disguised" element of the voyeurism statute because he "concealed his phone when he used it to take nude photographs and videos of his victim after the drugs he gave her left her unconscious or otherwise unaware." The State's argument relies on the photographs and videos the officers discovered on Bilek's phone, including a video that seems to depict Bilek hiding his phone when E.C. begins to stir from her unconscious state. The State also relies on E.C.'s testimony that she had not consented to being photographed or recorded nude, that she had been rendered unconscious by the narcotics Bilek provided, and that she was unaware that Bilek had photographed and recorded her nude while she was unconscious.

¶ 23 Assuming that E.C. was unconscious and did not consent to being photographed and recorded nude, Bilek argues that her unconscious state cannot support a finding that he concealed or disguised his phone camera. Rather, Bilek contends that all of the photographs and videos of E.C. were taken while he "was using the phone openly" and that "concealment should focus on 'ordinary observation,' not the subjective observation of the person being photographed." Because the State relied solely on E.C. being unconscious to prove the device was concealed or disguised, Bilek contends there was insufficient evidence to support that element.

¶ 24 Ultimately, whether photographing an unconscious person qualifies as using "concealed or disguised" equipment is a question of statutory interpretation. "When interpreting a statute, we rely first on the statute's plain language as the best evidence of the legislature's intent." State v. Liti , 2015 UT App 186, ¶ 14, 355 P.3d 1078. "We interpret statutes to give meaning to all parts, and avoid rendering portions of the statute superfluous." LeBeau v. State , 2014 UT 39, ¶ 20, 337 P.3d 254 (quotation simplified). "To do so, we read the plain language of the statute as a whole[.]" Id. (quotation simplified). "We presume that the Legislature used each word advisedly and give effect to each term according to its ordinary and accepted meaning." Id. (quotation simplified).

¶ 25 The voyeurism statute in effect at the time of Bilek's offense made it a class A misdemeanor to violate subsection (1). See Utah Code Ann. § 76-9-702.7(1). That subsection prohibits using "a camcorder, motion picture camera, photographic camera of any type, or other equipment that is concealed or disguised to secretly or surreptitiously videotape, film, photograph, record, or view by electronic means an individual." Id. The adjectives "concealed or disguised" and the adverbs "secretly or surreptitiously" modify separate elements of the statute. While "concealed or disguised" is a postpositive modifier that applies to the noun sequence "camcorder, motion picture camera, photographic camera of any type, or other equipment," "secretly or surreptitiously" is a prepositive modifier that applies to the verb sequence "videotape, film, photograph, record, or view." See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012) (explaining the series-qualifier cannon of statutory construction). Although both sequences and their modifiers require that the perpetrator act generally to prevent the victim from recognizing that he or she is being recorded or viewed with electronic equipment, the requirement that the perpetrator conceal or disguise the equipment is separate and in addition to the requirement that the perpetrator secretly or surreptitiously record or view the victim. Here, evidence that E.C. was unconscious at the time is sufficient to prove that the photographs and videos were "secretly or surreptitiously" taken. But it does not prove that Bilek's phone camera was "concealed or disguised" under the ordinary and accepted meaning of those words.

¶ 26 Adopting the State's position-that Bilek concealed or disguised his phone camera by waiting to take illicit photographs and video recordings of E.C. until she was unconscious-would render superfluous the "secretly or surreptitiously" element of the statute. Because we must interpret the statute "to give meaning to all parts," both the noun and verb sequences and their modifiers must be given individual meaning. LeBeau , 2014 UT 39, ¶ 20, 337 P.3d 254 (quotation simplified).

¶ 27 Such an interpretation does not produce unintended absurd results. See Bagley v. Bagley , 2016 UT 48, ¶ 28, 387 P.3d 1000 (explaining that the absurdity doctrine allows a court to read a statute contrary to its plain language only if the legislature could not have reasonably intended the statute to operate in such a manner). Voyeuristic conduct that fails to meet the elements set forth in subsection (1) may still be subject to criminal penalty under subsection (4), which proscribes viewing or attempting "to view an individual, with or without the use of any instrumentality ... under circumstances not amounting to a violation of Subsection (1)." Utah Code Ann. § 76-9-702.7(4). Under this statutory scheme, perpetrators who do not use concealed or disguised equipment do not necessarily escape criminal liability, but are subject to a lesser penalty under subsection (4). The legislature could have reasonably intended the statute to operate in this manner, punishing the use of concealed or disguised equipment more severely than other voyeuristic conduct.

¶ 28 Accordingly, the evidence the State presented at trial was insufficient to prove beyond a reasonable doubt that Bilek concealed or disguised his phone camera to photograph and record E.C. as Utah Code section 76-9-702.7(1) requires.

B. The Remedy

¶ 29 Because we have determined that the State's evidence was insufficient to sustain a conviction under subsection (1) of Utah Code section 76-9-702.7, we address the State's contention that we should direct the district court to enter convictions for class B misdemeanor voyeurism pursuant to subsection (4) of that statute. At the time of Bilek's conviction, subsection (4) provided:

(4) A person is guilty of voyeurism who, under circumstances not amounting to a violation of Subsection (1), views or attempts to view an individual, with or without the use of any instrumentality:
(a) with the intent of viewing any portion of the individual's body regarding which the individual has a reasonable expectation of privacy, whether or not that portion of the body is covered with clothing;
(b) without the knowledge or consent of the individual; and
(c) under circumstances in which the individual has a reasonable expectation of privacy.

Utah Code Ann. § 76-9-702.7(4) (LexisNexis 2014).

¶ 30 If a defendant's conviction must be vacated because of an error that occurred in the district court, "we have the power to enter judgment for a lesser included offense if (i) the trier of fact necessarily found facts sufficient to constitute the lesser offense, and (ii) the error did not affect these findings." State v. Bair , 2012 UT App 106, ¶ 65, 275 P.3d 1050 (quotation simplified); see also State v. Dunn , 850 P.2d 1201, 1209-10 (Utah 1993) ("Numerous state and federal courts have concluded that ... a court has the power to enter judgment for a lesser included offense [and] ... [w]e conclude that we have the same power."). To determine whether it is appropriate to enter convictions for a lesser included offense, we "compar[e] the elements" of the crime of conviction and the lesser included offense. Dunn , 850 P.2d at 1211. We may direct the district court to enter judgment for a lesser offense only if we determine that the jury necessarily found each element of the lesser included offense and "the record shows [that the defendant] would not be unfairly prejudiced" by entering a conviction for that lesser offense. State v. Carruth , 947 P.2d 690, 694 (Utah Ct. App. 1997).

¶ 31 Although subsections (1) and (4) have similar elements, the difference in the proscribed conduct is important under the facts of this case. Specifically, when read as a whole, subsection (1) requires, in relevant part, that the perpetrator intentionally use some form of equipment that is "concealed or disguised to secretly or surreptitiously ... view by electronic means an individual ... under circumstances in which the individual has a reasonable expectation of privacy." See Utah Code Ann. § 76-9-702.7(1)(c) (emphasis added). In contrast, subsection (4) applies when the perpetrator "views or attempts to view an individual ... under circumstances in which the individual has a reasonable expectation of privacy." See id. § 76-9-702.7(4)(c) (emphasis added). In other words, subsection (1) requires proof that E.C.-under the circumstances of this case-had a reasonable expectation of privacy in not having portions of her body viewed with some form of electronic equipment, whereas subsection (4) requires proof that E.C. had a reasonable expectation of privacy in not having portions of her body viewed at all.

¶ 32 Here, the distinction is significant. The jury could have credited E.C.'s testimony that she never consented to Bilek using his phone to photograph or videotape her, while at the same time believing that she consented to Bilek viewing her body without the use of equipment based on her testimony that she voluntarily disrobed before performing oral sex on Bilek. Moreover, because subsection (4) was not charged, Bilek's defense strategy focused on disproving only the elements of subsection (1), specifically whether he used "concealed or disguised" equipment to commit the offense. And, because the jury was not instructed on a lesser included offense under subsection (4), Bilek was not on notice that he needed to address whether E.C. consented to him viewing her body without the assistance of equipment. See State v. Baker , 671 P.2d 152, 156 (Utah 1983) (holding that a defendant has a "constitutional right to protection from instructions to the jury which might subject him to a conviction of a crime against which he has had no opportunity to defend" (quotation simplified) ).

¶ 33 Under the facts of this case, Bilek would be unfairly prejudiced by entry of class B misdemeanor convictions. We therefore vacate Bilek's convictions for class A misdemeanor voyeurism and remand to the district court for further proceedings.

II. Bilek's Other Claims of Error

¶ 34 Although we have already determined that we must vacate Bilek's voyeurism convictions for lack of sufficient evidence, we now address Bilek's additional claims of error because they potentially affect the validity of his convictions for distribution of a controlled substance and possession of drug paraphernalia.

A. Admissibility of the Rule 404(b) Evidence

¶ 35 First, Bilek contends the district court erred when it allowed the State to admit testimony that Bilek was on probation when he committed the offenses. Rule 404(b)(1) of the Utah Rules of Evidence prohibits the admission of "a crime, wrong, or other act" committed by an individual to show "that on a particular occasion the person acted in conformity with the character." On the other hand, "when past misconduct evidence is offered for any other purpose-other than to suggest action in conformity with the bad character suggested by his prior bad acts-such evidence is admissible so long as it satisfies" the relevance and prejudice requirements of rules 402 and 403. State v. Thornton , 2017 UT 9, ¶ 36, 391 P.3d 1016 (quotation simplified). In addition, "[e]ven if the admission of rule 404(b) evidence by the [district] court was in error, reversal on appeal is not appropriate unless [the defendant] demonstrates that the error materially affected the fairness or outcome of the trial." State v. Calvert , 2017 UT App 212, ¶ 38, 407 P.3d 1098 (quotation simplified). We will overturn a conviction based on the improper admission of evidence only if a "reasonable likelihood exists that the error affected the outcome of the proceedings." Id. (quotation simplified).

¶ 36 Here, we do not determine whether Bilek's probation status was properly admitted because there is no reasonable probability that the admission of this evidence affected the jury's verdict on the distribution and paraphernalia charges. The challenged rule 404(b) evidence was limited to the officers' testimony that they were conducting a routine probation check when they found E.C. in Bilek's motel room. During his opening statement and closing argument, the prosecutor also briefly mentioned that Bilek was on probation. The district court did not admit evidence that Bilek was on probation for the crime of felony kidnapping or evidence of the facts giving rise to his prior conviction. And when the jury asked about Bilek's probation, the district court properly instructed the jurors that they were not to consider his probation status in their deliberations. We presume the jury followed such instructions and did not consider Bilek's probation status in reaching its verdict. See State v. Beckering , 2015 UT App 53, ¶ 24, 346 P.3d 672.

¶ 37 Moreover, the evidence of guilt as to the drug charges was overwhelming. The State's evidence included testimony from E.C. that she had no money to purchase drugs for herself when Bilek bailed her out of jail, that he supplied narcotics for her use, and that she spent days in his motel room using drugs with him. The State also introduced testimony of the probation officers and photographs of the drug paraphernalia and drugs they recovered from Bilek's motel room. And, to support the defense theory that E.C. consented to being photographed and video recorded, Bilek argued that his relationship with E.C. involved providing drugs in exchange for sexual acts and explicit photographs. In closing argument, Bilek's defense counsel expressly argued that E.C. "had consented to injecting [Bilek] in the penis with this drug," that Bilek and E.C. "had a prostitute-client relationship," and that E.C. and Bilek were "in [the hotel room] doing drugs." In fact, defense counsel made no argument at closing for acquittal on the drug charges.

¶ 38 In sum, the evidence admitted at trial supporting Bilek's drug distribution and possession of drug paraphernalia convictions was overwhelming. Bilek's own defense counsel acknowledged and argued that he had used narcotics with E.C. over the course of their stay in his motel room. Thus, without deciding whether the rule 404(b) evidence was properly admitted, "we agree with the State that any error in admitting the evidence was harmless under the facts of this case." See Calvert , 2017 UT App 212, ¶ 36, 407 P.3d 1098.

B. Self-Representation

¶ 39 Finally, Bilek contends that the district court violated his right to self-representation when it denied his midtrial request to "fire" his attorney and represent himself. The United States Constitution, the Utah Constitution, and Utah statutory law guarantee criminal defendants the right to self-representation. See U.S. Const. amend. VI ; Utah Const. art. 1, § 12 ; Utah Code Ann. § 77-1-6(1)(a) (LexisNexis 2017). Because "the right to defend oneself is a personal, constitutional right," the district court must ordinarily honor the defendant's choice unless it "appropriately finds that a defendant has not knowingly and intelligently chosen self-representation." State v. Bakalov , 849 P.2d 629, 634 (Utah Ct. App. 1993).

¶ 40 However, the right to self-representation "is not absolute." United States v. Akers , 215 F.3d 1089, 1097 (10th Cir. 2000). The defendant must "clearly and unequivocally" invoke the right of self-representation "in a timely manner." State v. Bakalov , 1999 UT 45, ¶ 16, 979 P.2d 799 (quotation simplified). "A motion for self-representation is timely if it is made before the jury is impaneled[.]" United States v. Simpson , 845 F.3d 1039, 1053 (10th Cir. 2017) (quotation simplified).

¶ 41 Here, Bilek's only clear and unequivocal request for self-representation occurred mid-trial, after the State rested. During defense counsel's argument on Bilek's motion for a directed verdict, Bilek interjected that he was "firing [defense counsel] right now." The district court clarified that Bilek was requesting to represent himself and Bilek confirmed that he was. The court ruled it was "not going to allow that to happen at [that] point."

¶ 42 The constitutional "right to self-representation is unqualified only if demanded before trial." United States v. Beers , 189 F.3d 1297, 1303 (10th Cir. 1999) (quotation simplified). When a defendant fails to assert this right in a timely manner, the district court has discretion to deny his or her request. See id. Because Bilek waited until midtrial to invoke his right to self-representation, the court acted within its discretion in denying his request at that time.

¶ 43 Having determined that Bilek was not prejudiced by the admission of evidence of his probation status at trial and that the district court did not err in denying Bilek's mid-trial request to proceed pro se, we affirm his convictions for possession of drug paraphernalia and distribution of a controlled substance.

CONCLUSION

¶ 44 We conclude that the State presented insufficient evidence to prove beyond a reasonable doubt that Bilek concealed or disguised his phone when he photographed and recorded E.C. nude, and we therefore vacate Bilek's convictions for class A misdemeanor voyeurism and remand for further proceedings. With respect to the remaining counts, we conclude that Bilek was not prejudiced by the admission of testimony regarding his probation status and that the district court acted within its discretion by denying Bilek's untimely request for self-representation. Accordingly, we affirm Bilek's convictions for distribution of a controlled substance and possession of drug paraphernalia.

      "On review of a jury verdict, we recite the evidence, and all the reasonable inferences that flow from the evidence, in the light most favorable to the verdict." State v. Wilder , 2018 UT 17, ¶ 4 n.1, 420 P.3d 1064.

      In that case, the State alleged that Bilek "lured women to his apartment, detained them for several days, and assaulted them." State v. Bilek , 2017 UT App 37, ¶ 3, 392 P.3d 990 (per curiam).

      Utah Code section 76-9-702.7(1) has been amended since Bilek's arrest, eliminating the language at issue in this case. See Utah Code Ann. § 76-9-702.7 (LexisNexis 2017).

      In addition to the charges the State filed in this case, Adult Probation and Parole filed violations in Bilek's 2015 case. The district court found by a preponderance of the evidence that Bilek violated the terms of his probation by purchasing and using illegal drugs, possessing drugs and drug paraphernalia, and allowing a woman to stay overnight in his motel room without permission. Bilek challenged the district court's findings on appeal and this court affirmed. See Bilek , 2017 UT App 37, ¶ 12, 392 P.3d 990.

      In response to this argument, the State contends that Bilek invited error at trial when defense counsel responded to the district court's request for argument on Bilek's motion in limine to exclude evidence of his probation status by stating: "I certainly sympathize with the State's conundrum if nothing is admitted about the role of the probation officer, so with that in mind I would submit on the brief." Recognizing that application of the doctrine of "invited error precludes appellate review of an issue," we decline to apply the doctrine here. State v. Oliver , 2018 UT App 101, ¶ 27, 427 P.3d 495 (quotation simplified). Far from inviting error, defense counsel's statement at the hearing on Bilek's motion in limine reinforced the position advocated for in his briefing on the motion, which in itself was a properly made objection to the evidence at issue. Furthermore, after the district court ruled on the motion, it noted that Bilek objected to the ruling and stated that his objection had been preserved.

      Bilek contends that his motion was timely because he filed two pro se letters with the district court before his mid-trial request in which he claimed that defense counsel was "ineffective" and requested "substitution of ineffective counsel." We are not persuaded by this argument, because an invocation of the right to self-representation must be clear and unequivocal. See State v. Bakalov , 1999 UT 45, ¶ 16, 979 P.2d 799. None of the letters Bilek filed with the court contain such an invocation.