2019 UT App 163

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

KIMBERLY BOWEN,

Appellant.

Opinion

No. 20160754-CA

Filed October 10, 2019

Third District Court, Salt Lake Department

The Honorable Randall N. Skanchy

No. 091900778

Emily Adams, Attorney for Appellant

Sean D. Reyes and John J. Nielsen, Attorneys

for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES GREGORY K. ORME and KATE APPLEBY concurred.

MORTENSEN, Judge:

¶1 Kimberly Bowen—a real estate agent and homebuilder—

was convicted on five counts of communications fraud and one

count of pattern of unlawful activity in connection with a failed

real estate development. Bowen sold residential lots to five

separate buyers. But there were problems: among other things,

the lots had no access to culinary water, and therefore the buyers

could not obtain building permits. The buyers who purchased

lots from Bowen consequently lost their investments and land in

foreclosure. Bowen argues that (1) she received ineffective

assistance of counsel and (2) the trial court erred in admitting

certain rebuttal testimony and denying Bowen’s motion to arrest

judgment. We reject Bowen’s ineffective assistance claim, and we 

affirm on the remaining points.
State v. Bowen

20160754-CA 2 2019 UT App 163

BACKGROUND1

¶2 In 2006, Bowen, Sandra Chapple, and Leon Harper set out

to become homebuilders. Their business model was to purchase

lots, get investors with good credit to buy those lots, have the

investors finance the residential construction, build homes at a

“reduced rate,” then sell the homes and split the profits with the

investors.

¶3 To carry out their business plan, Bowen, Chapple, and

Harper formed several corporate entities: Empire Alliance,

Empire Custom Homes, Sterling Mountain Properties, and

Mountain Lake Ventures (collectively, Empire Alliance

Companies). Empire Alliance was the corporate umbrella under

which the other entities would operate. Sterling Mountain

Properties would buy land from a developer; then Mountain

Lake Ventures would take title to the land and sell it to

investors. After investors secured construction loans, Empire

Custom Homes would build the homes.

¶4 Bowen was in charge of the Empire Alliance Companies.

She was listed as the president of Empire Alliance and Empire

Custom Homes and a manager of Sterling Mountain Properties.

Although Bowen was not a manager of Mountain Lake

Ventures, she was a signatory on all its accounts.2 Bowen also

provided the start-up capital—$200,000—to fund the Empire

Alliance Companies. And she authorized all expenses and

 

1. We recite the facts in the light most favorable to the jury’s 

verdict. State v. Nielsen, 2014 UT 10, ¶ 46, 326 P.3d 645.

2. Bowen was intentionally left out of the leadership of Mountain 

Lake Ventures, so she would not have to disclose an ownership 

interest when Mountain Lake Ventures sold lots to investors,

and she acted as real estate agent for both parties.
State v. Bowen

20160754-CA 3 2019 UT App 163

signed most checks on behalf of the companies. Bowen also

picked the location for their first venture: an undeveloped parcel

in Saratoga Springs, Utah, called Fox Hollow—specifically, a

portion of Fox Hollow called “neighborhood 3” (Neighborhood).

¶5 Next, Bowen negotiated with Richard Wolper, a

developer, to purchase lots in the Neighborhood. Wolper

informed Bowen from the outset that the lots in the

Neighborhood did not have access to culinary water. In fact,

Saratoga Springs (City) initially informed Wolper that he would

need to finish construction of the culinary water system before

the City would record the Neighborhood plat map and issue

building permits for Neighborhood lots. In the fall of 2006,

however, the City allowed Wolper to record the Neighborhood

plat despite not having finished building the culinary water

system.

¶6 With the Neighborhood plat recorded, Bowen began

selling lots. But because Bowen’s company did not have the

money to purchase the lots directly, she had to recruit investors.

Each time Bowen located an investor, Sterling Mountain

Properties would buy the lot, Mountain Lake Ventures would

then take title to it, and then sell it to an investor at a $65,000

mark up. Mountain Lake Ventures then sent that money to

Empire Custom Homes. In total, Bowen’s companies sold lots to

five investors.

¶7 To attract investors, Bowen misrepresented facts and

failed to disclose material information. In three sales from

Mountain Lake Ventures to investors, Bowen acted as the real

estate agent for both parties but she did not disclose her financial

interest in Mountain Lake Ventures or the other Empire Alliance

Companies. Bowen failed to disclose to the investors that the

City would not issue building permits until Wolper completed

the water system. Bowen also misrepresented that Empire

Custom Homes was ready to build. In the end, Wolper and
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20160754-CA 4 2019 UT App 163

Bowen were not able to raise enough money to finance the water

system. And as a result, the City did not issue building permits,

homes were not built, and the investors lost their money and

land through foreclosure.

Criminal Proceedings

¶8 The State charged Bowen with five counts of

communications fraud (one for each investor) and one count of

pattern of unlawful activity, all second degree felonies. At trial,

the State argued that Bowen (1) had a financial interest in her

companies that she did not disclose to investors, (2) created

Mountain Lake Ventures to “shield” her interests from being

exposed, (3) misrepresented to investors that Empire Custom

Homes “had subcontractors on notice ready to go,” (4) knew, but

failed to disclose, that the water system was incomplete and

therefore the City would not issue building permits, and

(5) caused one investor’s earnest money to be deposited into the

Empire Alliance company account rather than an escrow

account.

¶9 Over the course of a seven-day trial, the State called

twelve witnesses and introduced other evidence in support of its

theories that Bowen had failed to disclose, or misrepresented,

certain facts to investors. At least four witnesses—Wolper,

Wolper’s real estate agent, Harper, and one of the investors—

testified that Bowen knew that the water system was not

complete at the time the lots were sold to investors. And

although the trial court recognized that Wolper had credibility

issues,3 it acknowledged that the jury could choose whether to

believe him.

 

3. After Wolper testified, the parties had a discussion in 

chambers, and the trial court characterized Wolper as a “liar, 

(continued...)
State v. Bowen

20160754-CA 5 2019 UT App 163

¶10 After the State rested, Bowen’s defense counsel (Counsel)

moved for a directed verdict on two grounds: (1) Wolper had

been discredited on the water issue, without which there was not

a crime, and (2) Bowen could not be liable for not disclosing an

interest in Mountain Lake Ventures, because she was not a

manager of that company. The State opposed the motion,

arguing that the case involved more than the water; it was also

about Bowen’s undisclosed interest, her action of shielding her

undisclosed interest by forming Mountain Lake Ventures, the

lack of readiness to build, and one investor’s money going into

an improper account. The trial court denied Bowen’s motion for

a directed verdict and ruled that the State had presented

“believable evidence that a reasonable juror” could convict on

each of the charges.

¶11 In her defense, Bowen called several witnesses and

introduced evidence to support her theory that she reasonably

believed that the lots were buildable when she marketed and

sold them to investors. Several of Bowen’s witnesses testified

that it was reasonable for her to believe that the lots were

buildable due to the Neighborhood plat being recorded. Bowen

also introduced evidence showing that Empire Custom Homes

had an agreement with a licensed contractor (Contractor) to use

his license for construction.

¶12 On rebuttal, the State called Contractor, who testified that

he did have a license, but that Empire Custom Homes had

actually listed his son as their contractor and his son did not

have a contractor license. Counsel stated that he had no issue

with allowing Contractor to testify about the license, but he 

objected to Contractor differentiating himself from his son

 

(...continued)

liar, pants on fire,” somebody with “no credibility,” and an 

“absolute liar.”
State v. Bowen

20160754-CA 6 2019 UT App 163

because the State could have done that during its case-in-chief

and the defense had not “discussed that aspect or anything in

terms of its case-in-chief.” The trial court admitted the

testimony, ruling that “the door has been opened on this” and it

would “allow some leeway.”

¶13 Counsel proposed an instruction outlining an agent’s

“disclosure-of-interest” duties as contained in the chapter of the

Utah Administrative Code concerning real estate licensing

(Instruction 49). Instruction 49 informed the jury that a real

estate agent with interest in property has to disclose that interest

when selling that property:

A licensee shall not either directly or indirectly

buy, sell, lease or rent any real property as a

principal, without first disclosing in writing on the

purchase agreement or the lease or rental

agreement the licensee’s true position as principal

in the transaction. For the purposes of this rule, a

licensee will be considered to be a “principal in the

transaction” if the licensee: a) is the buyer or the

lessee in the transaction; b) has any ownership

interest in the property; c) has any ownership

interest in the entity that is the buyer, seller, lessor

or lessee; or d) is an officer, director, partner,

member, or employee of the entity that is the

buyer, seller, lessor, or lessee.

The State did not object to Instruction 49, and the court gave it to

the jury. Counsel later explained that he asked for Instruction 49

so the State would have to prove that Bowen had an ownership

interest before it could argue that she failed to disclose the

alleged interest.

¶14 The jury convicted Bowen on all counts. Before

sentencing, Bowen filed a motion to arrest judgment, arguing
State v. Bowen

20160754-CA 7 2019 UT App 163

that the State failed to show a false representation or material

omission regarding Bowen’s interest in Mountain Lake

Ventures. The trial court denied the motion, ruling that the State

presented sufficient evidence that Bowen had made false

representations or material omissions. The court imposed six

concurrent one-to-fifteen-year prison sentences, suspended

them, and placed Bowen on probation for three years. Bowen

appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Bowen argues that she received ineffective assistance

when Counsel submitted Instruction 49 without any explanation

that a violation of that rule did not carry criminal liability. “An

ineffective assistance of counsel claim raised for the first time on

appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6,

89 P.3d 162.

¶16 Next, Bowen argues that the trial court abused its

discretion when it allowed the State to offer Contractor’s rebuttal

testimony about the contractor license. “We review challenges to

the admission of rebuttal testimony for abuse of discretion.” 

Green v. Louder, 2001 UT 62, ¶ 19, 29 P.3d 638.

¶17 Finally, Bowen argues that the trial court erred when it

denied her motion to arrest judgment. A trial court “may arrest a

jury verdict when the evidence, viewed in the light most

favorable to the verdict, is so inconclusive or so inherently

improbable as to an element of the crime that reasonable minds

must have entertained a reasonable doubt as to that element.” 

State v. Black, 2015 UT App 30, ¶ 12, 344 P.3d 644 (cleaned up).

“Accordingly, we review the [trial] court’s decision to arrest

judgment for correctness.” Id.
State v. Bowen

20160754-CA 8 2019 UT App 163

ANALYSIS

I. Ineffective Assistance of Counsel

¶18 Bowen argues that she received ineffective assistance

when Counsel submitted Instruction 49 without explanation that

a violation of the referenced administrative rule did not create

criminal liability.4 To establish that her Counsel was ineffective,

Bowen must prove that Counsel performed deficiently and that

she was prejudiced as a result. Strickland v. Washington, 466 U.S.

668, 687 (1984). To prove the first prong of Strickland, Bowen

 

4. Bowen also argues that she received ineffective assistance 

when Counsel failed to file a separate motion to arrest judgment 

concerning one of the State’s theories—that Bowen deposited a 

buyer’s earnest money into the wrong account—which applied 

to only one of the five investors. Bowen, however, admits in her 

briefing that Counsel “moved to arrest judgment on the other 

theories that applied to all the buyers.” As discussed below, infra

¶¶ 29–31, that motion to arrest judgment was properly denied 

because there was sufficient evidence to convict Bowen as to all 

of the investors. Thus, even if Counsel filed a motion to arrest 

judgment concerning the theory that Bowen did not know that a 

single buyer’s earnest money had been deposited in the wrong 

account, there was still sufficient evidence to convict Bowen on 

any number of the State’s other theories—like Bowen’s failure to 

disclose her interest in the lots, the lack of access to culinary 

water, or Empire Custom Homes’ lack of readiness to build. 

Therefore, we conclude that Bowen’s counsel was not ineffective 

for declining to file a motion to arrest judgment that would have 

been denied. See State v. Garcia, 2017 UT App 200, ¶ 39, 407 P.3d 

1061 (“The failure of counsel to make motions that would be 

futile if raised does not constitute ineffective assistance, because 

the decision not to pursue a futile motion is almost always a 

sound trial strategy.” (cleaned up)).
State v. Bowen

20160754-CA 9 2019 UT App 163

“must overcome the strong presumption that [her] trial counsel

rendered adequate assistance by persuading the court that there

was no conceivable tactical basis for counsel’s actions.” State v.

Coombs, 2019 UT App 7, ¶ 20, 438 P.3d 967 (cleaned up); accord

State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. Our supreme court

stated in Gordon v. State that a tactical decision is “[a]ny decision

based on counsel’s purposeful analysis . . . whether or not it

turned out to be a bad tactic in hindsight.” 2016 UT 11, ¶ 32, 369

P.3d 1255. Accordingly, we give “trial counsel wide latitude in

making tactical decisions and will not question such decisions

unless there is no reasonable basis supporting them.” Coombs,

2019 UT App 7, ¶ 20 (cleaned up).

¶19 Here, Counsel’s submission of Instruction 49 was not

deficient performance. Counsel stated that he decided to request

Instruction 49 so he could argue that “Bowen complied with her

duties under the Administrative Rules governing Realtors.” In

other words, Counsel engaged in a purposeful and strategic

analysis in proposing Instruction 49 and believed that it

supported the defense theory that Bowen had no duty to

disclose because she did not have an ownership interest in

Mountain Lake Ventures. This amounts to a tactical decision.5

 

5. Bowen argues that State v. Mahoney—a case in which the 

Supreme Court of New Jersey held that admission of an 

administrative rule “without appropriate guidance from the 

court was error”—is instructive. 908 A.2d 162, 164 (N.J. 2006). 

But Mahoney is not this case. First, in Mahoney, the State offered 

an administrative rule as evidence and the defendant objected. 

Id. at 173. Consequently, the nature of our review is 

fundamentally different from the review in Mahoney. Here we 

look only to whether Counsel’s actions were objectively 

reasonable, see Honie v. State, 2014 UT 19, ¶ 32, 342 P.3d 182, 

rather than whether the “probative value of the [administrative 

(continued...)
State v. Bowen

20160754-CA 10 2019 UT App 163

¶20 Next, we conclude that Counsel’s tactical decision was not

objectively unreasonable, see Honie v. State, 2014 UT 19, ¶ 32, 342

P.3d 182 (“As to the first Strickland prong, [a defendant] must

show that trial counsel’s representation fell below an objective

standard of reasonableness when measured against prevailing

professional norms.” (cleaned up)), because Instruction 49

required a higher burden than what was actually required to

prove Bowen’s crimes. To prove that Bowen engaged in

communications fraud, the State was required to show, among

other things, that Bowen made “material omissions” in an

attempt to defraud others. See Utah Code Ann. § 76-10-1801(1)

(LexisNexis 2017)6 (listing the elements of communications

fraud). To satisfy this element, the State raised several theories,

one being that Bowen failed to disclose her financial interest in

the Neighborhood lots when representing both parties involved

in the lot sales. Instruction 49, however, heightened this

standard by instructing the jury that Bowen was obligated to

 

(...continued)

rule] was outweighed by its . . . prejudicial effect,” Mahoney, 908 

A.2d at 173. Second, the Mahoney court held that “the trial court’s 

failure to instruct the jury on how to consider and apply [the 

administrative rule] to the facts of th[e] criminal case” was 

unduly prejudicial and therefore warranted reversal. Id. at 174. 

In this case, however, unlike in Mahoney, the State specifically 

told the jury that Instruction 49 is “not a criminal code” and 

“[t]his is a criminal case.” Although the State’s statement is not 

considered in our ineffective assistance analysis, where our focus 

is on Counsel’s tactical decision, it serves to additionally 

differentiate this case from Mahoney. Accordingly, Mahoney is not 

instructive in this case.

6. Because the statutory provision in effect at the relevant time 

does not differ in any material way from that now in effect, we 

cite the current version of the Utah Code.
State v. Bowen

20160754-CA 11 2019 UT App 163

disclose only an ownership interest in Mountain Lake Ventures—

the entity that sold the lots to investors. Bowen argued that she

did not have an ownership interest in Mountain Lake Ventures

and therefore did not have a duty to disclose under Instruction

49. Thus, where Instruction 49 arguably stood to help Bowen, it

does not follow that inclusion of that instruction was objectively

unreasonable.7

¶21 Bowen’s Counsel made a reasonable tactical decision to

request Instruction 49. And Instruction 49 could have led the

jury to believe that Bowen made a material omission only if she

failed to disclose an ownership interest in Mountain Lake

Ventures, not if she failed to disclose a mere financial interest in

the Neighborhood lots.8 Accordingly, we conclude that 

 

7. At oral argument, Bowen conceded that if Counsel’s goal in 

submitting Instruction 49 was to coax the jury into believing that 

so long as Bowen had not violated the referenced rule, then she 

had not made a material omission sufficient for communications 

fraud, such a strategy would have been sound. It follows that 

had Counsel provided additional context and explanation 

minimizing Instruction 49 by clarifying its inapplicability in the 

criminal law setting—as Bowen suggests on appeal that Counsel 

should have done—that would have undermined Counsel’s 

overall strategy in requesting Instruction 49 in the first place.

8. In this same vein, we are hard-pressed to see how Bowen was 

prejudiced by inclusion of Instruction 49. Bowen argues that the 

jury could have convicted her based solely on a violation of the 

administrative rule stated in Instruction 49. We disagree. 

Bowen’s argument ignores that, when taken as a whole, the jury 

instructions correctly informed the jury of the elements of 

communications fraud, including the element that required a 

false representation or material omission. See State v. Beckering, 

2015 UT App 53, ¶ 23, 346 P.3d 672 (“To determine if jury 

(continued...)
State v. Bowen

20160754-CA 12 2019 UT App 163

Counsel’s performance was not deficient, and therefore Bowen’s

ineffective assistance claim fails. See Coombs, 2019 UT App 7, ¶ 19

(“It is not necessary to address both parts of the Strickland test

when the defendant makes an insufficient showing on one.” 

(cleaned up)).9

 

(...continued)

instructions correctly state the law, we look at the jury 

instructions in their entirety and will affirm when the 

instructions taken as a whole fairly instruct the jury on the law 

applicable to the case.” (cleaned up)). Instruction 49 does not 

detract, omit, conflict with, or otherwise change the elements 

instruction, including the element requiring a false 

representation or material omission. Cf. State v. Campos, 2013 UT 

App 213, ¶ 64, 309 P.3d 1160 (“Where instructions are in 

irreconcilable conflict, . . . the rule requiring instructions to be 

read together has no application.” (cleaned up)). To be sure, 

while Instruction 49 lists examples of when a real estate agent 

may have breached her duty to disclose, it is silent as to whether

such a breach does, or does not, amount to a “material 

omission.” Thus, we conclude that Bowen was not prejudiced by 

inclusion of Instruction 49 because it did not conflict with the 

elements instruction, and therefore the jury in this case was

correctly instructed on the law.

9. In a rule 23B motion filed simultaneously with her brief, 

Bowen seeks remand to the trial court to make findings and 

conclusions that her Counsel was ineffective for failing to (1) call 

a certain defense witness, (2) file a bill of particulars, and 

(3) raise “certain points” during closing argument. “A remand 

under rule 23B will only be granted upon a nonspeculative 

allegation of facts, not fully appearing in the record on appeal, 

which, if true, could support a determination that counsel was 

ineffective.” State v. Lee, 2014 UT App 4, ¶ 5, 318 P.3d 1164 

(continued...)
State v. Bowen

20160754-CA 13 2019 UT App 163

II. Rebuttal Testimony

¶22 Bowen next argues that the trial court abused its

discretion by permitting Contractor’s rebuttal testimony

concerning Empire Custom Homes’ lack of a contractor license.10

Specifically, Bowen argues that this testimony should not have

 

(...continued)

(cleaned up); see also Utah R. App. P. 23B. Bowen’s motion does 

not demonstrate nonspeculative facts that would support a 

determination that trial counsel was ineffective or that there was 

any resulting prejudice. The motion and accompanying affidavit 

make conclusory allegations concerning the issues raised, but 

Bowen does not demonstrate that calling an additional defense 

witness or filing a bill of particulars would have changed the 

outcome at trial. Further, Bowen fails to identify the “certain 

points” that Counsel was supposed to raise in closing. 

Accordingly, we deny Bowen’s rule 23B motion.

10. We note that Bowen objected only to “the State presenting 

testimony that [Contractor’s son]—who was listed in an exhibit 

as [Empire Custom Homes’] license-holder . . . was not 

licensed.” Thus, Bowen has preserved only this narrow issue. 

And to the extent that Bowen’s claim goes beyond this preserved 

issue, she may have invited any perceived error. When the State 

called Contractor as a rebuttal witness, Counsel stated that he 

did not “have an issue for the rebuttal aspect of the contract” 

and that the State was “certainly entitled to come and talk about 

that,” but Counsel did not want the State to be able to point out 

that the contractor license belonged to Contractor, not 

Contractor’s son. In any event, because we conclude that 

admission of Contractor’s testimony was not an abuse of the trial 

court’s discretion, we decline to reach the issue of whether 

Bowen invited any perceived error.
State v. Bowen

20160754-CA 14 2019 UT App 163

been permitted because she had not “opened the door” during

her defense. We disagree.

¶23 The purpose of rebuttal evidence is to “refute, modify,

explain, or otherwise minimize or nullify the effect of the

opponent’s evidence.” Green v. Louder, 2001 UT 62, ¶ 23, 29 P.3d

638 (cleaned up); see also Utah R. Crim. P. 17(f)(5) (stating that

after the defense’s case, “the parties may offer only rebutting

evidence unless the court, for good cause, otherwise permits”).

¶24 Here, the State, in its case-in-chief, presented evidence

that despite their representations to buyers, Bowen and Empire

Custom Homes were not prepared to build after buyers

purchased lots. In her defense, Bowen volunteered an exhibit

showing that Empire Custom Homes had a valid contractor

license and was therefore ready to build. On rebuttal, the State

called Contractor—whose license had been offered by Bowen in

her defense—who testified that although he had a license,

Empire Custom Homes had actually partnered with Contractor’s

son, who did not have a license. Simply put, when Bowen

offered the exhibit showing the contractor license, she opened

the door to rebuttal testimony to “explain or otherwise minimize

. . . the effect of [that] evidence.” Green, 2001 UT 62, ¶ 23 (cleaned 

up). Therefore, admitting Contractor’s rebuttal testimony was

not an abuse of the trial court’s discretion on evidentiary issues.

Id.

III. Motion to Arrest Judgment

¶25 Lastly, Bowen argues that the trial court’s denial of her

motion to arrest judgment was erroneous. A court may set aside

a jury verdict on a motion to arrest judgment only when “the

evidence is sufficiently inconclusive or inherently improbable

such that reasonable minds must have entertained a reasonable

doubt that the defendant committed the crime for which he or

she was convicted.” State v. Hand, 2016 UT App 26, ¶ 11, 367
State v. Bowen

20160754-CA 15 2019 UT App 163

P.3d 1052 (cleaned up). “In assessing a claim of insufficiency of

the evidence, we review the evidence and all inferences which

may reasonably be drawn from it in the light most favorable to

the verdict of the jury.” State v. Nielsen, 2014 UT 10, ¶ 30, 326

P.3d 645 (cleaned up).

¶26 To convict Bowen of communications fraud, the State was

required to prove that she (1) devised “any scheme or artifice to

defraud another or to obtain from another money, property, or

anything of value” (2) did so “by means of false or fraudulent

pretenses, representations, promises, or material omissions” and

(3) “communicate[d] directly or indirectly with any person by

any means for the purpose of executing or concealing the

scheme or artifice.” Utah Code Ann. § 76-10-1801(1) (LexisNexis

2017).

¶27 Here, Bowen focuses only on the second element of

communications fraud, arguing that her motion to arrest

judgment should have been granted because (1) there is

insufficient evidence showing that Bowen’s failure to disclose

her financial interest in the Neighborhood lots was material,

(2) there is insufficient evidence showing that Bowen lied about

the culinary water system being complete, and (3) the prosecutor

argued facts not in evidence.

¶28 As an initial matter, we note that Bowen has not

challenged all five of the State’s theories that go to the second

element of communications fraud, see supra ¶ 8, as grounds to

overturn the trial court’s denial of her motion to arrest judgment.

Specifically, Bowen has not argued that there was insufficient

evidence showing that she and Empire Custom Homes

misrepresented their readiness to build homes to buyers, and

this evidence, standing alone, would likely have been a sufficient

ground to deny Bowen’s motion. Nevertheless, we address each

of Bowen’s arguments in turn.
State v. Bowen

20160754-CA 16 2019 UT App 163

¶29 The State presented sufficient evidence showing that

Bowen’s failure to disclose her financial interest in the

Neighborhood lots was material. Bowen argues that certain

buyers in this case testified that whether Bowen had a financial

interest in sales did not affect their investment decision.

However, our supreme court has explained that the materiality

of statements or omissions turns on “whether they were likely to

influence a reasonable investor.” State v. Larsen, 865 P.2d 1355, 1362 

(Utah 1993) (emphasis added). Thus, subjective opinions of the

buyers in this particular case are not dispositive of the issue.

¶30 Rather, the State’s evidence that Bowen (1) was the

president or manager of all but one of the Empire Alliance

Companies, (2) was a signatory on the accounts of the other

company—Mountain Lake Ventures—and (3) stood to gain 

financially from all of the sales was sufficient evidence of a

material omission in the eyes of a reasonable investor.11 In other

words, any reasonable investor would want to know if the

person purportedly representing the investor’s interests in a

transaction stood to profit from the sale.

¶31 Next, the State presented evidence sufficient to show that

Bowen lied about the status of the water system to the buyers.

Bowen argues that Wolper’s and his real estate agent’s

testimonies were inherently improbable. This argument falls

short for two reasons. First, Bowen ignores that two additional

witnesses—Harper (Bowen’s business partner) and Pickering

 

11. Bowen also argues that her omission in this case was not 

material because “the buyers acknowledged in their real estate 

purchase contracts that they were not entitled to know how 

much” Bowen purchased the lots for. Again, this argument 

touches on only the subjective point of view of the particular 

investors in this case, not the reasonable investor. Thus, we also 

reject Bowen’s argument on this point.
State v. Bowen

20160754-CA 17 2019 UT App 163

(one of the investors)—testified that Bowen was aware that the

water system was not complete and failed to disclose that fact.

Thus, even without Wolper’s and his real estate agent’s

testimonies, there is sufficient evidence for a jury to find that

Bowen knew about and did not disclose the lack of a culinary

water system.

¶32 Second, Bowen has inadequately briefed her inherent

improbability argument and whether it applies to Wolper’s and

his real estate agent’s testimonies. State v. Garner, 2002 UT App

234, ¶ 8, 52 P.3d 467 (“It is well established that Utah appellate

courts will not consider claims that are inadequately briefed.”).

Simply put, Bowen merely points to the fact that the trial court

called Wolper a liar and said he has “no credibility.” Bowen goes

on to highlight that Wolper’s real estate agent “could not point

to anything in writing showing that he disclosed the water issue

to Bowen.” But these facts do nothing to show that the testimony

at issue was “inherently improbable.” See State v. Prater, 2017 UT

13, ¶ 38, 392 P.3d 398 (holding that to render testimony

inherently improbable a party must show that the testimony was

materially inconsistent, patently false, and lacking any

corroboration). Furthermore, in our view, this record

demonstrates only inconsistencies in Wolper’s and his real estate

agent’s testimonies, and inconsistencies “by themselves are

insufficient to invoke the inherent improbability [doctrine].” Id.

¶ 39 (cleaned up).

¶33 Lastly, Bowen argues that the trial court should have 

arrested judgment because the State engaged in prosecutorial 

misconduct by bringing in evidence of uncharged conduct.12 As 

an initial matter, we note that Bowen did not preserve this 

 

12. Bowen argued that the State also engaged in prosecutorial 

misconduct when it “argued matters not in evidence.” Bowen, 

however, withdrew this issue from appeal in her reply brief. 
State v. Bowen

20160754-CA 18 2019 UT App 163

issue—a point which Bowen concedes in her reply brief. See State 

v. Larrabee, 2013 UT 70, ¶ 16, 321 P.3d 1136 (holding that filing a 

motion to arrest judgment does not preserve an issue that could 

have been objected to at trial). Instead, Bowen argues that 

Counsel’s failure to object to the State “bringing in evidence of 

uncharged conduct” amounts to ineffective assistance of counsel. 

Bowen, however, dedicates a single paragraph to this issue, 

without citing any legal authority supporting her argument, and 

thus does not carry her burden of persuading us that defense 

counsel’s failure to object under these circumstances amounts to 

deficient performance.

¶34 Bowen has failed to carry her burden of showing that

there was insufficient evidence to convict her of the charged

crimes. Therefore, we affirm the trial court’s denial of her motion

to arrest judgment.

CONCLUSION

¶35 We reject Bowen’s claim for ineffective assistance because

Counsel’s performance—as related to Instruction 49—was not

objectively deficient. We further conclude that the court did not

err in allowing the State’s rebuttal testimony where Bowen had

opened the door to rebuttal testimony concerning her

companies’ readiness to build on the lots. Finally, we conclude

that the trial court’s denial of Bowen’s motion to arrest judgment

was not erroneous because the State presented evidence

sufficient for a jury to convict Bowen. Affirmed.