2016 UT App 90

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

GREGORY KENT HOWELL,

Appellant.

Memorandum Decision

No. 20120204-CA

Filed April 28, 2016

Third District Court, Salt Lake Department

The Honorable Judith S.H. Atherton

No. 091902210

B. Kent Morgan and Benjamin R. Dyer, Attorneys

for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision, 

in which JUDGE STEPHEN L. ROTH and SENIOR JUDGE PAMELA T.

GREENWOOD concurred.

1

ORME, Judge:

¶1 Gregory Kent Howell (Defendant) appeals his conviction 

and sentence on three counts of securities fraud and one count of

pattern of unlawful activity, for which the trial court sentenced 

him to four concurrent prison terms of one to fifteen years. We 

affirm.

 

1. Senior Judge Pamela T. Greenwood sat by special assignment 

as authorized by law. See generally Utah R. Jud. Admin. 11-

201(6).
State v. Howell

20120204-CA 2 2016 UT App 90

¶2 In 2006, Defendant and his former colleague 

(Codefendant) sought to buy and complete a large residential 

development known as the Fruitland Project. They solicited 

investors by overstating their experience and understating the

risk, and Codefendant funneled investor funds to an undisclosed

side project called Alpha Bay. After the Fruitland Project failed

and investors complained, the State investigated and ultimately 

charged both Defendant and Codefendant. Codefendant entered

into a plea agreement which, among other things, required him

to testify against Defendant in exchange for a reduced sentence. 

After a jury trial in which Codefendant testified against him, 

Defendant was convicted. Defendant now argues that the trial 

court erred in convicting him under Utah’s Pattern of Unlawful 

Activity Act, that he received ineffective assistance from his trial 

counsel, that the State failed to show that he acted willfully and 

therefore did not prove every element of securities fraud, that 

the prosecution withheld material evidence, and that his 

sentence was unconstitutionally disproportionate to that of

Codefendant.

2 Each of Defendant’s five arguments fails.

 

2. Defendant articulated a sixth argument: a challenge to the 

definition of ‚security‛ as used in this case. But Defendant has 

not developed that argument. Instead, Defendant addressed the 

issue in one sentence, without citing any authority, in his 

statement of the issues. While ‚adequate briefing . . . is not a 

‘hard-and-fast default notion,’‛ State v. Roberts, 2015 UT 24, ¶ 18, 

345 P.3d 1226 (quoting State v. Nielsen, 2014 UT 10, ¶ 40, 326 P.3d 

645), rule 24 of the Utah Rules of Appellate Procedure sets out 

substantive requirements that parties must satisfy or risk having 

their briefs ‚disregarded or stricken,‛ Utah R. App. P. 24(k). An 

opening brief ‚shall contain the contentions and reasons of the 

appellant with respect to the issues presented . . . with citations 

to the authorities, statutes, and parts of the record relied on.‛ Id.

R. 24(a)(9). ‚[A]ppellants who fail to follow [those] requirements 

will likely fail to persuade the court of the validity of their 

(continued...)
State v. Howell

20120204-CA 3 2016 UT App 90

¶3 Defendant’s first argument is that his conduct did not fall 

within Utah’s Pattern of Unlawful Activity Act. Defendant 

claims that criminal conduct spanning only a few weeks or 

months, with no threat of future criminal conduct, ‚do*es+ not 

constitute a pattern of unlawful activity.‛ He argues that the 

relevant events occurred in the span of about one month, which 

he contends was too short to constitute a ‚pattern‛ under the 

statute. We do not reach the merits of Defendant’s claim, 

however, because he has not complied with our preservation 

requirement. See Utah R. App. P. 24(a)(5) (requiring all opening 

briefs to include a ‚citation to the record showing that the issue 

was preserved in the trial court . . . or . . . a statement of grounds 

for seeking review of an issue not preserved in the trial court‛).

Defendant’s opening brief provides no preservation citation for 

this issue. Only after the State pointed out his lack of 

preservation did Defendant, in his reply brief, claim that the 

plain error exception to our preservation rule applies.

¶4 But dealing with preservation in the reply brief is too late. 

‚[W]e have consistently refused to consider arguments of plain 

error raised for the first time in an appellant’s reply brief, even if 

the plain error argument is in response to a dispute over 

preservation raised for the first time in the appellee’s brief.‛ 

Marcroft v. Labor Comm’n, 2015 UT App 174, ¶ 4, 356 P.3d 164 

(citation and internal quotation marks omitted). Because

Defendant made no mention of the plain error exception until 

the reply brief, we will not consider whether this alleged error 

was plain. See id.

 

(...continued)

position.‛ Roberts, 2015 UT 24, ¶ 18. Because this potential sixth 

issue is inadequately briefed, we are wholly unpersuaded and 

simply assume for purposes of this appeal that the transactions 

in question involved securities.
State v. Howell

20120204-CA 4 2016 UT App 90

¶5 Defendant’s second argument is that he received 

ineffective assistance from his trial counsel. A defendant 

claiming ineffective assistance of counsel must show both ‚that 

counsel’s performance was deficient‛ and ‚that the deficient 

performance prejudiced the defense.‛ Strickland v. Washington, 

466 U.S. 668, 687 (1984). See also State v. Hards, 2015 UT App 42, 

¶ 18, 345 P.3d 769 (‚*F+ailure to prove either element defeats the 

claim.‛). ‚Performance is deficient when it falls below an 

objective standard of reasonableness. . . . A defendant suffers 

prejudice when, absent the deficiencies of counsel’s 

performance, there is a reasonable likelihood that the defendant 

would have received a more favorable result at trial.‛ Hards, 

2015 UT App 42, ¶ 18. To determine if prejudice occurred, we 

‚must consider the totality of the evidence‛ and ask if the 

alleged error ‚had a pervasive‛ or ‚an isolated, trivial effect.‛ 

Strickland, 466 U.S. at 695–96.

¶6 Defendant claims that trial counsel’s performance was 

deficient because counsel did not impeach Codefendant’s 

testimony during cross-examination by asking about the terms 

of Codefendant’s plea agreement, which failure Defendant says 

was prejudicial given the importance of Codefendant’s 

testimony to the State’s case. But even assuming that counsel’s 

performance was objectively deficient, Defendant has not shown 

that any such deficiency prejudiced the defense. Trial counsel’s 

decision not to impeach Codefendant did not deprive Defendant 

of a fair trial when Codefendant would have testified that the 

only plea agreement in effect at that time called for him to plead 

guilty and testify against Defendant, when that plea and ensuing 

conviction would put Codefendant at risk of deportation, and 

that no subsequent, more favorable deal had been finalized as of 

that time.

¶7 Further, the totality of the evidence would weigh in favor 

of guilt even if Defendant’s trial counsel had successfully 

impeached Codefendant’s testimony by highlighting his plea 

agreement because of the investors’ testimony regarding
State v. Howell

20120204-CA 5 2016 UT App 90

Defendant’s deceptive statements and Defendant’s own 

admissions. Thus, we conclude that Defendant’s trial counsel did 

not render constitutionally ineffective assistance by failing to 

question Codefendant about the terms of his plea agreement

because Defendant has not demonstrated that any errors in this 

regard prejudiced him.

¶8 Defendant’s third argument is that the State did not prove 

every element of securities fraud because it did not prove 

willfulness. When reviewing the sufficiency of evidence

following a jury trial, ‚we review the evidence and all inferences 

which may reasonably be drawn from it in the light most 

favorable to the verdict.‛ State v. Shumway, 2002 UT 124, ¶ 15, 63 

P.3d 94. And we will reverse ‚only when the evidence is 

sufficiently inconclusive or inherently improbable that 

reasonable minds must have entertained a reasonable doubt‛ as 

to Defendant’s guilt. Id.

¶9 The requisite mental state for securities fraud is 

willfulness, see Utah Code Ann. § 61-1-21 (LexisNexis 2011),

3

which requires proof that a defendant ‚desire[d] to engage in the 

conduct or cause the result,‛ id. § 76-2-103 (2012), and ‚act*ed] 

deliberately and purposefully, as distinguished from merely 

accidentally or inadvertently,‛ State v. Larsen, 865 P.2d 1355, 1358 

n.3 (Utah 1993). ‚Willful does not require an intent to violate the 

law or to injure another or acquire any advantage.‛ Id.

¶10 Defendant contends that he could not have acted willfully 

because he did not know at the outset about Codefendant’s plan 

to funnel money away from the Fruitland Project and into Alpha 

Bay and because he was never a signatory on the accounts or an 

 

3. Although various statutes at issue in this case have been 

amended or renumbered since 2006, the changes are 

inconsequential in the context of this case. Therefore, for ease of 

reference, we cite the most recent codification of these statutes.
State v. Howell

20120204-CA 6 2016 UT App 90

active participant in the scheme that ultimately defrauded the 

investors. The fraudulent conduct, however, did not consist only 

of Codefendant’s diversion of the funds but also included 

Defendant’s withholding information regarding the diversion 

from the investors. Codefendant told Defendant of his plan to 

divert some funds away from the Fruitland Project and to 

temporarily use that money to fund Alpha Bay before Defendant 

began soliciting investor funds. Instead of informing potential 

investors about the Alpha Bay plan, however, Defendant 

expressed concern to Codefendant about the plan. But 

Codefendant apparently convinced Defendant that the transfer 

would be short term and might actually benefit the Fruitland 

Project. In any event, Defendant failed to notify the investors of 

Codefendant’s expressed plan and his own misgivings about it.

4

¶11 Furthermore, the investors testified to several instances in 

which Defendant made fraudulent statements: (1) Defendant 

falsely represented that he and Codefendant had been involved 

in ‚projects,‛ causing investors to believe that Defendant ‚had 

been involved in several large-scale commercial projects‛; (2) 

Defendant told one investor that ‚fifty percent of the lots were 

already under contract,‛ but failed to disclose that these

‚contracts‛ were not legally binding and instead represented 

only reservations of particular lots; and (3) Defendant told other 

investors that lots in the development already had deposits on 

them, totaling $12 million, when in fact there were no such 

 

4. Defendant contends that the only evidence of his dishonesty 

comes from Codefendant’s testimony, in violation of Utah law. 

See State v. Christean, 533 P.2d 872, 876 (Utah 1975) (conviction 

may not rest solely on testimony of accomplice). But as 

explained above, see infra ¶ 11, Codefendant’s testimony is not 

the only evidence that Defendant willfully misled the investors. 

See id. (‚Although a conviction may not rest solely upon the 

testimony of an accomplice, all of the circumstances may be 

viewed together to determine the facts.‛).
State v. Howell

20120204-CA 7 2016 UT App 90

deposits. Investors also testified that Defendant never clarified 

that neither Defendant nor Codefendant had previously 

participated in a large real estate development project. Evidence 

of each of these statements and omissions was before the jury, 

and the evidence shows that the jury’s conclusion that 

Defendant acted willfully in misleading the investors is not 

inconclusive or inherently improbable such that reasonable 

minds would necessarily have entertained reasonable doubts

about Defendant’s guilt.

¶12 Defendant’s fourth argument is that the State failed to 

turn over material evidence that would have affected the 

outcome if Defendant had known about it. He claims that the 

State failed to timely disclose that Codefendant was a Canadian 

citizen facing deportation and that the State would eventually 

agree to a further reduced sentence to help Codefendant avoid 

deportation.5 At the time of trial, Codefendant’s plea deal had 

not changed, but Defendant alleges that the fact of 

Codefendant’s Canadian citizenship made it inevitable that the 

State would offer Codefendant a new, improved deal to limit the 

risk of his deportation. Thus, Defendant argues that the State’s 

withholding of that evidence necessitates a new trial under Brady 

v. Maryland, 373 U.S. 83 (1963), and its progeny, especially Giglio 

v. United States, 405 U.S. 150 (1972). But Defendant has not 

shown that he properly preserved this issue, and he has not 

shown that the plain error doctrine applies and warrants our 

review of the issue.

¶13 ‚To preserve an issue, counsel must raise the issue in the 

trial court ‘in such a way that the trial court has an opportunity 

 

5. At Defendant’s trial, Codefendant testified that there had been 

no promises other than those made in the first plea agreement.

Defendant’s argument assumes that the State must surely have 

known what it would eventually do and that he was entitled to 

have that knowledge shared with him before trial. 
State v. Howell

20120204-CA 8 2016 UT App 90

to rule on that issue.’‛ State v. Bird, 2015 UT 7, ¶ 10, 345 P.3d 

1141 (quoting Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366). We 

consider whether the issue was raised in a timely and specific 

manner along with ‚supporting evidence or relevant legal 

authority‛ in assessing whether the trial court had a legally 

sufficient opportunity to rule on the issue. Pratt, 2007 UT 41, ¶ 15

(citation and internal quotation marks omitted). Defendant 

argues that he preserved the issue in his rule 60(b) motion for a 

new trial. As the State notes, however, Defendant failed to timely 

file for a new trial, and the trial court dismissed the motion on 

jurisdictional grounds.6 Therefore, the rule 60(b) motion did not 

provide the trial court with an opportunity to rule on the merits 

of the Brady issue so as to preserve it for appeal. And while the 

trial court noted that Defendant had filed a timely appeal, such 

knowledge would ordinarily reflect, at most, that the trial court 

knew of Defendant’s dissatisfaction with the verdict against him, 

not that it had the opportunity to rule on any particular issue.

7

 

6. ‚If the trial court refuses to address the merits of the newly 

advanced argument, the issue remains unpreserved for appellate 

review and may be addressed only if the challenging party can 

show plain error or exceptional circumstances.‛ State v. Pinder, 

2005 UT 15, ¶ 46, 114 P.3d 551.

7. This case is in a somewhat unique posture. The parties and the 

trial court engaged in an extensive discussion of the alleged 

Brady violation during oral argument on Defendant’s rule 27 

motion to stay the sentence pending appeal. Rule 27 of the Utah 

Rules of Criminal Procedure requires a defendant who is seeking 

to avoid incarceration pending appeal to ‚file a written motion‛ 

and memorandum with the trial court that, among other things, 

‚identif[ies] the issues to be presented on appeal and support[s]

the defendant’s position that those issues raise a substantial 

question of law or fact reasonably likely to result in a reversal.‛ 

Utah R. Crim. P. 27(b)(2)(A). The trial court then determines 

whether to issue a certificate of probable cause. See id.

(continued...)
State v. Howell

20120204-CA 9 2016 UT App 90

Because the motion was not timely and the trial court was not 

legally bound to address the merits, including the Brady issue, 

Defendant’s Brady claim is not preserved.

¶14 Therefore, our review of Defendant’s Brady claim is 

limited to the review for plain error alternatively sought by 

Defendant. See State v. Gailey, 2015 UT App 249, ¶ 7, 360 P.3d 

805. Plain error applies only when an appellant shows that ‚(i) 

[a]n error exists; (ii) the error should have been obvious to the 

trial court; and (iii) the error is harmful, i.e., absent the error, 

there is a reasonable likelihood of a more favorable outcome for 

the appellant, or phrased differently, our confidence in the 

verdict is undermined.‛ State v. Dunn, 850 P.2d 1201, 1208–09 

(Utah 1993). Even assuming Defendant has met the first two 

elements of plain error—and it is difficult to see how the 

requirement of obviousness to the trial court would have been 

met—he cannot prove that the State’s failure to provide evidence 

of Codefendant’s Canadian citizenship (and the possible 

deportation implications) was a harmful error such that it 

undermines our confidence in the jury verdict. The mere 

possibility of a more favorable deal for Codefendant would not 

substantially affect Codefendant’s credibility as a witness. 

Indeed, if counsel had questioned Codefendant on the issue and 

he had testified truthfully, he would have said that the only deal 

then agreed upon was Codefendant’s initial plea agreement,

which ultimately may have bolstered Codefendant’s credibility 

because he was willing to testify against Defendant even though 

the guilty plea entailed the risk of deportation. Thus, even if this

 

(...continued)

R. 27(b)(1)(A)–(b)(3)(B). Although the Brady issue was addressed 

in this context, the court only had authority to assess the 

strength of Defendant’s issues for appeal in the process of 

deciding whether Defendant should remain incarcerated during 

appeal—not to rule on whether to grant a new trial. (The trial 

court denied Defendant’s Rule 27 motion.)
State v. Howell

20120204-CA 10 2016 UT App 90

was an error and even if the error was plain, Defendant has not 

shown that the State’s failure to turn over this information was 

prejudicial. Because Defendant has not established prejudice, we 

cannot conclude that the plain error exception to preservation 

applies.

¶15 Defendant’s final argument is that his sentence violates 

the ban on ‚cruel and unusual punishment‛ set forth in Article

1, section 9 of the Utah Constitution.8 We determine whether a 

sentence is unconstitutionally cruel and unusual by asking if 

‚the sentence imposed in proportion to the offense committed is 

such as to shock the moral sense of all reasonable men as to what 

is right and proper under the circumstances.‛ State v. Nance, 438 

P.2d 542, 544 (Utah 1968). Accord Monson v. Carver, 928 P.2d 1017, 

1024 (Utah 1996). Defendant, in contrast, asserts that his sentence 

was cruel and unusual because it was disproportionate to 

Codefendant’s sentence. And he argues, based on the Utah 

Supreme Court’s plurality opinion in State v. Gardner, 947 P.2d 

630 (Utah 1997), that the trial court should have considered the 

proportionality of his sentence to Codefendant’s sentence as well 

as to the severity of the crime itself. But in Gardner, a majority of 

 

8. Defendant cited only the Utah Constitution in his opening 

brief, but he referenced the Eighth Amendment to the United 

States Constitution in his reply brief. Although we focus our 

analysis on the Utah Constitution because that is how the issue 

was framed for us in Defendant’s opening brief, see supra ¶ 4, we 

note that the outcome would be no different under the U.S. 

Constitution. See State v. Houston, 2015 UT 40, ¶ 145, 353 P.3d 55

(Lee, J., concurring) (‚[N]o majority of [the Utah Supreme Court] 

has ever adopted an independent standard of proportionality 

under article 1, section 9 of the Utah Constitution. For the most 

part we have simply conflated the state and federal standards 

and treated them as indistinguishable. . . . And the sole exception 

to that rule is Gardner, in which a majority of the court refused to 

embrace any independent state standard.‛).
State v. Howell

20120204-CA 11 2016 UT App 90

the Court compared the defendant’s sentence only to the 

defendant’s offense, which is the traditional method of assessing 

proportionality. See id. at 652. Further, the Utah Supreme Court 

has expressly rejected arguments that proportionality review 

includes comparing a defendant’s sentence to that of a defendant 

in an already decided case who was convicted of the same crime. 

State v. Carter, 888 P.2d 629, 656 (Utah 1995), superseded by statute 

on other grounds as recognized by Archuleta v. Galetka, 2011 UT 73, 

¶ 70, 267 P.3d 232.

¶16 Given the Utah Supreme Court’s refusal to compare for 

proportionality the sentences of defendants in different cases 

who are guilty of the same crime, we see no obvious reason why 

a different rule would apply in the case of codefendants. And 

Defendant has not persuaded us otherwise.9It is true that 

 

9. Indeed, disparate sentences among codefendants are not 

uncommon in our jurisprudence, and they have been upheld by 

other appellate courts. See, e.g., United States v. Kuhrt, 788 F.3d 

403, 408, 424–25 (5th Cir. 2015) (affirming defendant’s disparate 

sentence even though defendant was merely an employee of his 

coconspirator who orchestrated a multi-billion-dollar Ponzi 

scheme when defendant’s sentence fell within the 

federal guidelines and the coconspirator ‚plead*ed+ guilty, 

accept*ed+ responsibility and testif*ied+ at multiple trials‛); 

United States v. McKinney, 53 F.3d 664, 678 (5th Cir. 1995) 

(affirming defendant’s disparate sentence when defendant’s 

sentence was within the federal sentencing guidelines and his 

only challenge was based on the lesser sentence of his moreculpable codefendant); United States v. Rackstraw, 7 F.3d 1476, 

1482 (10th Cir. 1993) (holding ‚that the sentencing disparity 

[did] not violate the Eighth Amendment‛ when coconspirators 

in the transport of crack cocaine received roughly equal 

sentences despite one coconspirator transporting 1,040 ounces 

during a two-year period while the other transported ‚only 

sixteen-and-one-half . . . ounces on one occasion‛).
State v. Howell

20120204-CA 12 2016 UT App 90

Defendant faces between one and fifteen years in prison in 

addition to his obligation to pay restitution to the investors while 

Codefendant, who testified against him but arguably played a 

more important role in the scam, is obligated only to serve 

probation and pay restitution. Although these sentences are 

disparate, Defendant’s only challenge to the legality of his 

sentence is to point out the disparity of the two sentences and 

Codefendant’s greater culpability. And as explained above, 

proportionality review does not turn on such a comparison.10

¶17 Affirmed.

 

10. Defendant also argues on appeal that the trial court 

improperly considered his refusal to admit guilt as a factor in its 

sentencing decision, an argument he supports by alleging, 

without record citations, that the State raised his refusal to admit 

guilt during sentencing. Even assuming that the State made an 

improper remark about Defendant’s refusal to admit guilt in 

support of its argument for incarceration, ‚the trial court is 

presumed to have disregarded the prosecutor’s commentary.‛ 

State v. Phillips, 2012 UT App 286, ¶ 25, 288 P.3d 310. Thus,

‚‘there will not be a reversal unless it affirmatively appears that 

the court was misled or improperly influenced by such 

remarks.’‛ Id. (quoting People v. Myatt, 384 N.E.2d 85, 88 (Ill. 

App. Ct. 1978)). Defendant has pointed to no affirmative 

evidence that the trial court considered the State’s alleged 

improper remark. Thus, we will not disturb the sentence the trial 

court imposed on that ground.