2018 UT App 18

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JORDAN JEFFERY JACK,

Appellant.

Opinion

No. 20150901-CA

Filed February 1, 2018

Second District Court, Ogden Department

The Honorable Ernest W. Jones

No. 141902101

Rudy J. Bautista and Kelly Ann Booth, Attorneys 

for Appellant

Sean D. Reyes and Tera J. Peterson, Attorneys 

for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES 

GREGORY K. ORME and RYAN M. HARRIS concurred.

HAGEN, Judge:

¶1 Defendant Jordan Jeffery Jack was convicted of seven 

counts of exploitation of a vulnerable adult, third degree 

felonies, see Utah Code Ann. § 76-5-111 (LexisNexis 2012), and 

one count of communications fraud, a second degree felony, see

id. § 76-10-1801.1 Jack appeals, arguing that the trial court should 

have merged his communications fraud conviction into his 

exploitation of a vulnerable adult convictions under Utah Code 

 

1. Jack was also convicted of one count of theft by deception, a 

class B misdemeanor, see Utah Code Ann. § 76-6-405 (LexisNexis

2012), which is unchallenged on appeal.
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20150901-CA 2 2018 UT App 18

section 76-1-402(3) and the double jeopardy clauses of the United 

States and Utah constitutions. See U.S. Const. amend. V; Utah 

Const. art. I, § 12. We affirm.

BACKGROUND2

¶2 Jack worked as an associate director for Chrysalis, a

business that provides residential services for individuals with 

traumatic brain injuries and other intellectual, cognitive, and 

developmental impairments that cause the individuals “to 

function at levels comparable to those of teenagers, small 

children and even in some cases infants.” To be eligible to 

receive Chrysalis’s residential services, clients must be

diagnosed with an intellectual disability, and they must meet the 

poverty guidelines for Medicaid.

¶3 Residential services consist of group homes—each 

housing three or four clients—that are staffed twenty-four hours 

per day. The staff teaches clients “adaptive and habilitative 

skills” and assists them with daily living activities, such as 

eating, bathing, dressing, toileting, and ambulating.

¶4 Chrysalis also provides financial support, which includes 

helping clients apply for Social Security benefits. Because 

Chrysalis is the representative payee for approximately “90 plus 

percent” of the clients it serves, the company’s representative 

payee supervisor manages the Social Security funds upon 

receipt. Initially, clients’ funds are deposited into a collective

bank account, which the supervisor uses to pay for clients’ rent, 

 

2. On appeal from a bench trial, we view and recite the evidence 

in the light most favorable to the trial court’s findings; we 

present additional evidence only as necessary to understand the 

issues on appeal. See, e.g., State v. Finlayson, 2014 UT App 282, 

¶ 2 n.4, 362 P.3d 926.
State v. Jack

20150901-CA 3 2018 UT App 18

utilities, and personal needs. If there is a remaining balance, 

those funds are transferred to a pay card that Chrysalis’s 

associate directors may use to pay for the clients’ additional 

expenses, such as groceries, clothing, and entertainment.

¶5 As an associate director, Jack was “heavily involved” in 

managing finances for clients who resided in the eight to ten 

group homes that he oversaw. Jack’s duties included, among 

other things, purchasing items, requesting funds, allocating 

expenses, and reviewing monthly statements for clients.

¶6 Each month, Jack would send receipts and a ledger to the 

area director and the supervisor. The ledger listed the items that 

he had purchased and allocated those items to the corresponding 

client. The supervisor then prepared statements to maintain a 

monthly accounting of each client’s balance. Once finalized, the 

statements were returned to Jack for review. Typically, if there 

was an error, associate directors notified the area director who, 

in turn, asked the supervisor to correct the charge and adjust the 

client’s balance. Finalized statements were then distributed to 

the house managers and the clients’ legal guardians.

¶7 In January 2014, Jack asked an administrative assistant to 

send the original statements to him to fix before sending the

statements to the house managers and the clients’ legal 

guardians. Believing that “something was off” when Jack sent 

the administrative assistant “corrected” statements, she

contacted the area director. After learning that Jack had 

circumvented Chrysalis’s procedure for rectifying errors in 

statements on several prior occasions, the area director became 

concerned. He reviewed Jack’s new statements, identified 

several discrepancies, and subsequently notified Chrysalis’s 

CEO. During a joint review, the area director and CEO found 

multiple discrepancies between the statements that the 

supervisor had produced and the statements that were sent to 

the house managers of the group homes that Jack oversaw and 

to the clients’ legal guardians.
State v. Jack

20150901-CA 4 2018 UT App 18

¶8 When confronted with the allegations, Jack eventually

admitted that he had submitted altered receipts and changed 

statements to conceal the fact that he had used client funds for 

his own personal expenses. Among other things, his unlawful 

purchases included a trip to Las Vegas, concert tickets, multiple 

televisions, jewelry, and expensive shoes. Jack was charged with 

seven counts of exploitation of a vulnerable adult, one count of 

communications fraud, and one count of theft by deception.

¶9 Prior to trial, Jack filed a motion to merge the 

communications fraud charge into the exploitation of a 

vulnerable adult charges under Utah Code section 76-1-402(3)

and the double jeopardy clauses of the United States and Utah 

constitutions. The trial court denied the motion, reasoning that 

there were “elements unique to each of the crimes charged.” 

Specifically, exploitation of a vulnerable adult requires two 

elements that communications fraud does not—(1) a victim that 

is “a vulnerable adult based on age and impairment” and (2) a 

“defendant who is in a position of trust or similar relationship.” 

The trial court also found that Jack’s charged conduct did not 

“constitute a single criminal episode.”

¶10 After a bench trial, the trial court found Jack guilty of one 

count of communications fraud and seven counts of exploitation 

of a vulnerable adult. Jack again moved to merge his 

communications fraud conviction into his exploitation of a 

vulnerable adult convictions, arguing that “communications 

fraud was the modus operandi by which each exploitation 

offense was perpetrated.” At the sentencing hearing, the trial 

court denied Jack’s motion, noting that it was “critical” that 

although there were fourteen victims, “the State chose to charge 

only seven on the exploitation, but all 14 were covered in the 

communications fraud.”

¶11 Jack now appeals the trial court’s denial of the motion to 

merge his convictions.
State v. Jack

20150901-CA 5 2018 UT App 18

ISSUE AND STANDARD OF REVIEW

¶12 The only issue on appeal is whether the trial court erred 

in denying the motion to merge Jack’s convictions for 

communications fraud and exploitation of a vulnerable adult.

“Merger is a question of law, which we review for correctness.” 

State v. Sanchez, 2015 UT App 27, ¶ 5, 344 P.3d 191.

ANALYSIS

¶13 In arguing that his convictions should have merged at 

sentencing, Jack refers to both the lesser included offense 

analysis codified in Utah Code section 76-1-402(3) and to the 

common law merger doctrine. Although both doctrines flow 

from the double jeopardy clauses of the state and federal 

constitutions and “may indeed overlap in certain circumstances, 

they are analytically distinct.” State v. Kerr, 2010 UT App 50, ¶ 2 

n.1, 228 P.3d 1255.

¶14 On one hand, “where the two crimes are such that the 

greater cannot be committed without necessarily having 

committed the lesser, then as a matter of law they stand in the 

relationship of greater and lesser offenses, and the defendant 

cannot be convicted or punished for both.” State v. Smith, 2005 

UT 57, ¶ 8, 122 P.3d 615 (citation and internal quotation marks 

omitted). This analysis “turns on the statutorily defined elements 

of the two crimes.” State v. Finlayson, 2000 UT 10, ¶ 16, 994 P.2d 

1243. Because the law barring punishment for both a greater 

and lesser included offenses is codified in Utah Code section

76-1-402(3), we refer to it as statutory merger.

¶15 The Utah Supreme Court has recognized “another 

conceptually distinct basis for finding that one set of facts may 

give rise to a merger of two or more separate crimes, despite 

each crime’s unique statutory elements, so as to preclude 

multiple convictions for essentially the same conduct.” State v. 
State v. Jack

20150901-CA 6 2018 UT App 18

Mecham, 2000 UT App 247, ¶ 30, 9 P.3d 777 (citation and internal 

quotation marks omitted). Under this common law merger 

doctrine, the facts establishing one offense must not be 

“incidental to” or “inherent in” the other offense and must have 

“some significance independent of the other crime.” Finlayson, 

2000 UT 10, ¶ 19 (citation and internal quotation marks omitted).

¶16 We conclude that Jack’s conviction for communications 

fraud does not merge into his convictions for exploitation of a 

vulnerable adult under either statutory or common law merger.

We analyze each doctrine in turn.

I. Statutory Merger

¶17 Jack contends that, under the Utah merger statute, his 

conviction for communications fraud must merge with his 

convictions for exploitation of a vulnerable adult because “both 

offenses are triggered by the same facts and established by the 

same proof at trial.” In response, the State contends that the 

statutes’ “unique elements” preclude the conclusion that either 

statute is a lesser included offense of the other. We agree with 

the State that because the two crimes have distinct statutory 

elements, neither crime is a lesser included offense of the other.

¶18 “A defendant may be convicted of an offense included in 

the offense charged but may not be convicted of both the offense 

charged and the included offense.” Utah Code Ann. § 76-1-402(3) 

(LexisNexis 2012). The statute lists several circumstances in 

which an offense will be deemed to be a lesser included offense,3

 

3. Under Utah Code section 76-1-402(3)(b), an offense may also 

be included when “[i]t constitutes an attempt, solicitation, 

conspiracy, or form of preparation to commit the offense 

charged.” Although Jack contends that communications fraud is 

a “form of” exploitation of a vulnerable adult, he inadequately 

briefs this issue. See Utah R. App. P. 24(a)(8). “[A]n issue is 

(continued...)
State v. Jack

20150901-CA 7 2018 UT App 18

including when an offense “is established by proof of the same 

or less than all the facts required to establish the commission of 

the offense charged.” Id. § 76-1-402(3)(a). But “[t]he Utah Supreme 

Court has made it abundantly clear . . . that section 76-1-402 

never applies to merge crimes that have distinct statutory 

elements.” State v. Mecham, 2000 UT App 247, ¶ 29, 9 P.3d 777; 

see also State v. Finlayson, 2000 UT 10, ¶ 16, 994 P.2d 1243

(“[W]hether one crime is a lesser included offense of a greater 

crime under section 76-1-402, turns on the statutorily defined 

elements of the two crimes.”). Accordingly, we begin our 

analysis by comparing the statutory elements of communications 

fraud and exploitation of a vulnerable adult.

¶19 To convict Jack of felony communications fraud, the State 

had to prove beyond a reasonable doubt that Jack

[1] devised any scheme or artifice to defraud 

another or to obtain from another money, property, 

or anything of value [2] by means of false or 

fraudulent pretenses, representations, promises, or 

material omissions, and . . . [3] communicate[d]

directly or indirectly with any person [4] by any 

means for the purpose of executing or concealing 

the scheme or artifice.

 

(...continued)

inadequately briefed when the overall analysis of the issue is so 

lacking as to shift the burden of research and argument to the 

reviewing court.” See State v. MacNeill, 2017 UT App 48, ¶ 83, 397 

P.3d 626 (citation and internal quotation marks omitted). 

Because Jack fails to provide any reasoned analysis explaining 

how communications fraud is a form of preparation to commit

the crime of exploitation of a vulnerable adult, we decline to 

further address this issue.
State v. Jack

20150901-CA 8 2018 UT App 18

Utah Code Ann. § 76-10-1801(1). Further, communications fraud 

is a second degree felony “when the value of the property, 

money, or thing obtained or sought to be obtained is or exceeds 

$5,000.” Id. § 76-10-1801(1)(d).

¶20 On the other hand, a person is guilty of exploitation of a 

vulnerable adult when that person

[1] is in a position of trust and confidence, or has a 

business relationship, with the vulnerable adult or 

has undue influence over the vulnerable adult and

[2] knowingly, [3] by deception or intimidation, 

[4] obtains or uses, or endeavors to obtain or use, 

[5] the vulnerable adult’s funds, credit, assets, or 

other property [6] with the intent to temporarily or 

permanently deprive the vulnerable adult of the 

use, benefit, or possession of the adult’s property, 

[7] for the benefit of someone other than the 

vulnerable adult.[4

]

Id. § 76-5-111(4)(a)(i).

¶21 Jack concedes that exploitation of a vulnerable adult 

cannot be construed as a lesser included offense of

communications fraud, because it requires at least two 

additional statutory elements that communications fraud does 

 

4. Because the State charged only one variant of exploitation of a 

vulnerable adult, it is unnecessary for us to look beyond the 

statutory elements to the facts to determine which variation was 

proved at trial. See State v. Ross, 951 P.2d 236, 241 (Utah Ct. App. 

1997) (“[W]here the two crimes have multiple variations, we 

must look beyond the statutory elements and consider the 

evidence to determine whether the greater-lesser relationship 

exists between the specific variations of the crimes actually 

proved at trial.” (citation and internal quotation marks omitted)).
State v. Jack

20150901-CA 9 2018 UT App 18

not: (1) that the property must belong to a vulnerable adult and 

(2) that the defendant must be in a position of trust and 

confidence or in a business relationship. Instead, Jack contends 

that communications fraud is a lesser included offense of

exploitation of a vulnerable adult. Even assuming that a more 

serious offense can merge into a lesser offense,5 the crimes in the 

present case do not merge because communications fraud

contains at least two distinct statutory elements beyond what is 

required for exploitation of a vulnerable adult. Unlike 

exploitation of a vulnerable adult, communications fraud

requires a scheme or artifice to defraud and a direct or indirect 

communication with any person for the purpose of executing or 

concealing the scheme or artifice. Thus, because exploitation of a 

vulnerable adult can be committed without necessarily having 

committed communications fraud, the two crimes do not stand 

in a relationship of greater and lesser offenses and therefore do 

not merge under Utah Code section 76-1-402(3). See State v. 

Smith, 2005 UT 57, ¶ 8, 122 P.3d 615.

II. Common Law Merger

¶22 Even if statutory merger does not apply, Jack contends 

that the common law merger doctrine requires merger of his 

 

5. Jack alleges that merging the greater offense, a second degree 

felony, with the lesser offenses, third degree felonies, would not 

be “without precedent.” He cites State v. Lopez, 2004 UT App 410, 

103 P.3d 153, where we noted that the trial court presumably 

would have merged the greater offense into the lesser offense—a 

departure from the general application of the merger doctrine. Id.

¶ 9 n.1. Because the case was remanded, however, the court did 

not address whether that would be a permissible application of 

Utah Code section 76-1-402(3). Likewise, because we can resolve 

the present case on other grounds, it is unnecessary for us to 

reach that issue here.
State v. Jack

20150901-CA 10 2018 UT App 18

convictions for communications fraud and exploitation of a 

vulnerable adult. Specifically, Jack alleges that because “the 

commission of communications fraud was inherent in each and 

every commission of exploitation of a vulnerable adult,” we 

would be punishing him multiple times for the same conduct. 

We disagree.

¶23 “The motivating principle behind the [common law] 

merger doctrine is to prevent violations of constitutional double 

jeopardy protection,” State v. Calvert, 2017 UT App 212, ¶ 24, 407 

P.3d 1098 (citation and internal quotation marks omitted), and to 

avoid convicting and punishing defendants multiple times for 

essentially the same conduct, State v. Sanchez, 2015 UT App 27, 

¶ 8, 344 P.3d 191. This doctrine “is most commonly applied to 

situations involving a defendant who has been charged with 

committing both a violent crime, in which a detention is 

inherent, and the crime of kidnaping based solely on the 

detention necessary to the commission of the companion crime.”

State v. Kerr, 2010 UT App 50, ¶ 2 n.1., 228 P.3d 1255 (citation and 

internal quotation marks omitted).

¶24 To address such factual scenarios, the Utah Supreme 

Court adopted a three-part test, which states:

[I]f a taking or confinement is alleged to have been 

done to facilitate the commission of another crime, 

to be kidnaping[,] the resulting movement or 

confinement:

(a) Must not be slight, inconsequential and 

merely incidental to the other crime;

(b) Must not be of the kind inherent in the 

nature of the other crime; and

(c) Must have some significance independent 

of the other crime in that it makes the other 
State v. Jack

20150901-CA 11 2018 UT App 18

crime substantially easier of commission or 

substantially lessens the risk of detection.

State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243 (alteration in 

original) (citation and internal quotation marks omitted).

¶25 Relying on State v. Zaragoza, 2012 UT App 268, 287 P.3d 

510, Jack contends that “the commission of communications 

fraud was inherent in each and every commission of exploitation 

of a vulnerable adult, and is not ‘independent of and not merely 

incidental to’ the exploitation offenses.” (Quoting id. ¶ 6). But he 

makes no attempt to explicitly lay out the three-part test and has 

not identified any cases that apply the Finlayson factors to 

charges other than kidnapping, rape, aggravated assault, and 

aggravated robbery, all of which focus on the extent of the 

victim’s detention.

¶26 Even assuming that the Finlayson factors are applicable to 

communications fraud and exploitation of a vulnerable adult, we 

nevertheless remain unconvinced that Jack’s convictions should 

merge under this doctrine. Jack’s convictions for exploitation of a 

vulnerable adult were supported by evidence that he made 

various unauthorized purchases for himself. On the other hand, 

his conviction for communications fraud was supported by 

evidence that Jack had altered numerous receipts and 

statements. Because Jack could have made the unauthorized 

purchases—thereby satisfying the elements of exploitation of a 

vulnerable adult—without concealing the unauthorized 

purchases through communications fraud, the conduct required 

to commit the two crimes was distinct. Creating false receipts 

and statements was not inherent in the crime of exploitation of a 

vulnerable adult. The false communications had independent 

significance in that those communications made it easier for him 

to continue exploiting the vulnerable adults without detection.

See State v. Lee, 2006 UT 5, ¶ 34, 128 P.3d 1179 (reasoning that 

aggravated kidnapping carried significance independent of 
State v. Jack

20150901-CA 12 2018 UT App 18

aggravated assault where dragging the victim into an alley 

substantially lessened the risk of detection).

¶27 Even if we accept Jack’s argument that the concealment

was inherent in exploitation of a vulnerable adult, the 

communications fraud conviction remains supported by 

independent evidence. Jack was charged with and convicted of 

exploiting only seven of the fourteen vulnerable adults.

However, the State included all fourteen vulnerable adults in the 

one count of communications fraud. At trial, the State presented 

separate evidence relating to the additional seven victims that 

independently supported Jack’s conviction for communications 

fraud. Because there was some significant factual independence

between communications fraud and exploitation of a vulnerable 

adult, the trial court did not err in denying Jack’s motion to 

merge offenses.

CONCLUSION

¶28 We conclude that communications fraud is not a lesser

included offense of exploitation of a vulnerable adult under 

statutory merger because both offenses contain unique statutory 

elements. Additionally, the common law merger doctrine does 

not apply in this case because Jack’s conduct in concealing the 

crime of exploitation of a vulnerable adult by forging receipts 

and altering statements independently supported the 

communications fraud conviction. Furthermore, the 

communications fraud conviction encompassed conduct toward 

seven additional victims that separately support the 

communications fraud charge.

¶29 Affirmed.