2015 UT App 170

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

DAVID M. RUSHTON,

Defendant and Appellant.

Opinion

No. 20120969-CA

Filed July 9, 2015

Third District Court, Salt Lake Department

The Honorable Robin W. Reese

No. 111903029

Joanna E. Landau, Attorney for Appellant

Sean D. Reyes, Ryan D. Tenney, and Mark W. Baer,

Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES

JAMES Z. DAVIS and J. FREDERIC VOROS JR. concurred.

ROTH, Judge:

¶1 David M. Rushton entered a conditional guilty plea to one 

misdemeanor and two felony offenses stemming from his failure 

to pay employee wages and remit retirement withholdings while 

he owned and operated Fooptube, LLC, a computer 

programming and design company. He argues that the district 

court should have granted his motion to dismiss the charges 

because they arose from the same criminal episode as charges to 

which he had previously pleaded guilty. We affirm Rushton’s 

convictions.
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BACKGROUND

¶2 In 2008, the Utah State Tax Commission began 

investigating Rushton and Fooptube on suspicion of tax evasion. 

On April 14, 2009, the State charged Rushton with six tax crimes 

alleged to have been committed during calendar years 2006, 

2007, and 2008 (the tax case). During the same time period, a 

number of Fooptube employees filed claims for unpaid wages 

with the Utah Labor Commission. Also at about this time, the 

United States Department of Labor’s Employee Benefits Security 

Administration was investigating whether Rushton had failed to 

remit employee retirement contributions. At a review hearing in 

the tax case on May 5, 2009, Fooptube employees personally 

notified the tax commission investigator and the prosecutor of 

the wage claims. Rushton was arraigned in the tax case in 

December 2009, and in June 2010, he pleaded guilty to two 

charges pursuant to a plea agreement.

¶3 On April 20, 2011, the State filed this second case (the 

wage case) against Rushton, charging him with two second 

degree felony counts of communications fraud; two second 

degree felony counts of unlawful dealing with property by a 

fiduciary; two second degree felony counts of theft of services or,

alternatively, twelve class A misdemeanor counts of failing to 

pay wages; and one second degree felony count of engaging in a 

pattern of unlawful activity for his failure to pay his employees 

an estimated $1.17 million in wages and his failure to remit an 

estimated $1.2 million in withheld retirement funds. Rushton 

moved to dismiss, arguing that his convictions in the tax case 

barred the State from prosecuting the wage case because the 

charges in the wage case were part of the same criminal episode 

as the charges in the tax case. The district court denied Rushton’s 

motion, concluding that the two cases did not arise from a single 

criminal episode. The court explained that although the charges 

in both cases were “closely related in time,” the conduct from 

which the respective charges arose was “not in furtherance of the 

same criminal objective.” The court reasoned that there was not 

a single criminal objective because the “victim in the [tax] case is 
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the state of Utah” and “[t]he issue is . . . tax laws,” while the 

wage case involves Rushton’s alleged “defraud[ing of] his 

employees.”1 After the district court denied his motion, Rushton 

entered Sery pleas2 to three counts. He now appeals the district 

court’s refusal to dismiss the wage case.

ISSUE AND STANDARD OF REVIEW

¶4 Rushton challenges the district court’s decision to deny 

his motion to dismiss the wage case. “A trial court’s decision to 

grant or deny a motion to dismiss presents a question of law, 

 

1. In the tax case, Rushton pleaded guilty to one count of failure 

to render personal tax returns and one count of engaging in a 

pattern of unlawful activity. The State of Utah is the victim of 

both of those crimes. Rushton’s failure to pay taxes resulted in 

the state being deprived of funds legitimately owed to it. The 

pattern of unlawful activity conviction was based in part on 

Rushton’s failure “to file or truthfully file corporate tax returns 

and remit employee withholding taxes” while operating 

Fooptube. But, in filing their own tax returns, Fooptube 

employees relied on Rushton’s representation that the taxes had 

been remitted to the state on their behalf. The state therefore 

“applied [credits] for the benefit of such employees” in the 

amount of “about $585,917.89.” Thus, the state shouldered the 

loss from the unpaid employee taxes.

In the wage case, the employees are the victims because 

they were not paid wages for which they had worked and their 

retirement withholdings were never remitted.

2. A guilty plea entered pursuant to State v. Sery, 758 P.2d 935 

(Utah Ct. App. 1988), is conditional. It permits a defendant to 

reserve the right to appeal an issue raised in the district court, 

such as the denial of the motion to dismiss in this case, and then 

to withdraw the plea if he or she is successful on appeal. See id.

at 938. 
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which we review for correctness.” State v. Selzer, 2013 UT App 3, 

¶ 14, 294 P.3d 617 (citation and internal quotation marks 

omitted).

ANALYSIS

¶5 Rushton argues that in denying his motion to dismiss, the 

district court wrongly determined that the charges in the wage 

case did not arise out of the same criminal episode as the charges 

in the tax case. We conclude that the district court correctly 

denied Rushton’s motion to dismiss.

¶6 Multiple charges arise from a single criminal episode if 

the conduct underlying the charges “is closely related in time 

and is incident to an attempt or an accomplishment of a single 

criminal objective.” Utah Code Ann. § 76-1-401 (LexisNexis 

2012).3 Except under certain circumstances not relevant here, 

separate offenses arising out of a single criminal episode must be 

tried together when “(a) [t]he offenses are within the jurisdiction 

of a single court; and (b) [t]he offenses are known to the 

prosecuting attorney at the time the defendant is arraigned on 

the first information or indictment.” Id. § 76-1-402(2). Failure to 

comply with this mandate may bar subsequent prosecution for 

conduct arising from the same criminal episode:

If a defendant has been prosecuted for one or more 

offenses arising out of a single criminal episode, a 

subsequent prosecution for the same or a different 

offense arising out of the same criminal episode is 

barred if:

 

3. We refer to the current version of the Utah Code because the 

pertinent statutes do not differ substantively from the versions 

in effect at the time of the underlying offenses.
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(a) the subsequent prosecution is for an offense 

that was or should have been tried under 

[section 402(2)] in the former prosecution; and

(b) the former prosecution:

(i) resulted in acquittal;

(ii) resulted in conviction;

(iii) was improperly terminated; or

(iv) was terminated by a final order or

judgment for the defendant that has not 

been reversed, set aside, or vacated and 

that necessarily required a determination 

inconsistent with a fact that must be 

established to secure conviction in the 

subsequent prosecution.

Id. § 76-1-403(1) (LexisNexis Supp. 2014). “The purpose of such 

compulsory joinder is twofold: (1) to protect a defendant from 

the governmental harassment of being subjected to successive 

trials for offenses stemming from the same criminal episode; and 

(2) to ensure finality without unduly burdening the judicial 

process by repetitious litigation.” Selzer, 2013 UT App 3, ¶ 22 

(citation and internal quotation marks omitted).

¶7 It is undisputed that the offenses in both the wage case 

and the tax case fell within the jurisdiction of the district court 

and that conduct supporting the wage case was known to the 

prosecuting attorney at the time that Rushton was arraigned on 

the tax case.4 See Utah Code Ann. § 76-1-402(2) (LexisNexis 

2012). It is also undisputed that the State’s prosecution in the tax 

case resulted in a conviction when Rushton entered his guilty 

pleas to two counts. See id. § 76-1-403(1)(b)(ii) (LexisNexis Supp. 

2014). Thus, the only point of contention here is whether the tax 

 

4. The State conceded the first factor in the district court, and the 

court made the latter finding in the face of the State’s opposition. 

The State, however, “does not contest” the finding on appeal.
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case charges and wage case charges arose out of a “single 

criminal episode” because they were closely related in time and 

were incident to the attempt or accomplishment of a single 

criminal objective. See id. § 76-1-401 (LexisNexis 2012).

¶8 The district court determined that the charges in each case 

did not arise from a single criminal episode because, although 

they were “closely related in time,” the conduct from which the 

two sets of charges arose was “not in furtherance of the same 

criminal objective” where “the offense[s] in each case involved 

different victims.” Rushton challenges the court’s latter 

determination, arguing that the offenses in both cases were 

“incident to one criminal purpose, that of misappropriating 

corporate money from Fooptube.” The State counters that the 

court correctly determined that the two sets of charges were not 

part of a single criminal episode because they had separate 

criminal objectives, that is, the offenses in the tax case were 

aimed at taking funds owed to the government while the 

offenses in the wage case were aimed at taking funds owed to

the Fooptube employees.5 The parties rely on a number of cases 

in support of their respective positions. Although all of these 

cases may help inform our decision, we consider it useful to first 

address the differing contexts in which they arose to explain 

why some are more useful than others in resolving the particular 

single criminal episode question here.

 

5. The State also argues that the charges were not closely related 

in time. In doing so, however, the State does not directly 

challenge the district court’s finding that they were. We do not 

specifically address the timing issue, however, other than to 

consider it as part of the context in which the crimes took place, 

because we affirm on the basis that Rushton did not have a 

single criminal objective in engaging in the conduct underlying 

each case.
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I. Categorization of Our Precedent

¶9 The cases cited by the parties seem to fit primarily into 

three categories: (1) cases that address whether a defendant’s 

conduct could be charged as more than one offense or amounted 

to only a single offense, see, e.g., State v. James, 631 P.2d 854 (Utah 

1981); State v. Rasabout, 2013 UT App 71, 299 P.3d 625, cert. 

granted, 308 P.3d 536 (Utah 2013); State v. Mane, 783 P.2d 61 (Utah 

Ct. App. 1989); see also State v. Bauer, 792 N.W.2d 825 (Minn. 

2011); (2) cases that address whether separate offenses arguably 

arising from a single criminal episode must be tried together, see, 

e.g., West Valley City v. Parkinson, 2014 UT App 140, 329 P.3d 833;

State v. Selzer, 2013 UT App 3, 294 P.3d 617; State v. Strader, 902 

P.2d 638 (Utah Ct. App. 1995); and (3) cases that address 

whether separate offenses arguably arising from a single 

criminal episode may be tried separately, see, e.g., State v. Mead, 

2001 UT 58, 27 P.3d 1115; State v. Lopez, 789 P.2d 39 (Utah Ct. 

App. 1990).

¶10 The first category of cases addresses the constitutional 

protection against double jeopardy. Strader, 902 P.2d at 642. 

Double jeopardy prevents “a defendant from being tried more 

than once for the same crime.” Id. Although the concepts of 

single criminal episode and double jeopardy are distinct, the 

double jeopardy issue has been addressed within the single 

criminal episode framework. This may be because the enactment 

of the single criminal episode statutes resulted in an “expan[sion 

of] the scope of offenses barred from multiple trials beyond the 

same offense focus in double jeopardy, to all offenses arising 

from a single criminal episode.” Id. at 641 (citation and internal 

quotation marks omitted); State v. Sommerville, 2013 UT App 40, 

¶ 7, 297 P.3d 665 (explaining that the single criminal episode 

statutes were primarily “designed to protect a defendant from 

multiple trials for offenses that are part of a single criminal 

episode” (citation and internal quotation marks omitted)). In 

other words, the single criminal episode statutes seem to extend 

the protection against multiple prosecutions encompassed 

within the double jeopardy doctrine from single offenses to 

separate offenses arising out a single criminal episode. It may be 
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20120969-CA 8 2015 UT App 170

because of this expansion that the single criminal episode 

statutes include a provision emphasizing that they are not 

intended to undermine double jeopardy protection:

A defendant may be prosecuted in a single 

criminal action for all separate offenses arising out 

of a single criminal episode; however, when the 

same act of a defendant under a single criminal 

episode shall establish offenses which may be 

punished in different ways under different 

provisions of this code, the act shall be punishable 

under only one such provision; an acquittal or 

conviction and sentence under any such provision 

bars a prosecution under any other such provision. 

Utah Code Ann. § 76-1-402(1) (LexisNexis 2012); see, e.g., Mane, 

783 P.2d at 63–65 (using this provision of the single criminal 

episode statutes in its analysis of whether there was one or more

crimes committed). In this first category of cases, where the 

primary focus is double jeopardy, the courts have taken “a very 

narrow perspective, focusing on whether a subsequent 

prosecution is for the same offense” as the first prosecution.6

Strader, 902 P.2d at 642 (emphasis omitted).

 

6. Though our courts have addressed single criminal episode 

concerns in cases raising double jeopardy issues, we are not 

convinced that this first category actually provides much 

guidance on single criminal episode questions such as the one 

presented here because, in the end, double jeopardy is not 

concerned with whether multiple offenses arose out of the same 

criminal episode but rather with whether particular conduct 

constitutes a single offense or multiple offenses. Because 

Rushton has relied on cases from this category and at times our 

decisions have used a single criminal episode framework as an 

analytical tool in the context of a double jeopardy issue, we 

include it within our categorization of case precedent.
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¶11 In the second category of cases, the appellate court’s focus 

is on the compulsory joinder requirement established in Utah 

Code section 76-1-402(2); these cases directly address whether 

separate offenses arising from a single criminal episode must be 

prosecuted together. In these cases, the defendant’s conduct 

constitutes more than one prosecutable offense and the issue is 

whether the offenses arose from a single criminal episode so as 

to bar separate prosecutions in the interest of judicial economy 

and finality for the defendant. See, e.g., Selzer, 2013 UT App 3, 

¶ 22. We have concluded that this type of claim is “comparable 

to asserting double jeopardy.” Strader, 902 P.2d at 642. Thus, “‘it 

is appropriate to take a narrow, rather than an expansive, view 

of what [a single criminal episode] entails.’” Selzer, 2013 UT App 

3, ¶ 26 (alteration in original) (quoting Strader, 902 P.2d at 642).

¶12 Finally, in the third category of cases, appellate courts are 

concerned with whether the mandatory joinder of multiple 

charges in a single prosecution deprives one or both parties of a 

fair trial. See, e.g., Lopez, 789 P.2d at 42 (noting that severance is 

available if trying charges together would prejudice either the 

prosecution or the defense). Consequently, there are two related 

issues that arise in these cases. The first is whether the offenses 

occurred as part of a single criminal episode so that they should 

ordinarily be tried together, and the second, which arises only if 

they did, is whether trying the charges together in the particular 

case would result in undue prejudice to either party. Strader, 902 

P.2d at 641 n.6. In this context then, “[a]n expansive 

interpretation of ‘single criminal episode’ is appropriate.” Id. at 

641.

¶13 There are sound reasons for employing a narrow 

interpretation of single criminal episode in the first two 

categories while using a more expansive interpretation in the 

third category. The single criminal episode statutes serve to 

“expand the scope of offenses barred from multiple trials 

beyond the same offense focus in double jeopardy to all offenses 

arising from a single criminal episode.” Id. (citation and internal 

quotation marks omitted). In doing this, the legislature sought to 

promote judicial economy and to protect defendants by 
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20120969-CA 10 2015 UT App 170

requiring joinder into a single trial any charges arising from 

conduct that was close in time and done in furtherance of the 

same criminal objective. Id.; accord Selzer, 2013 UT App 3, ¶ 22. 

But these same concerns for judicial economy and protection of 

defendants simply do not arise when the conduct is not part of a 

single criminal episode because the offenses do not share an 

intertwined factual or legal history that makes separate 

prosecutions inefficient or repetitive. A narrow perspective thus 

serves to ensure that the joinder requirement does not unduly 

preclude prosecution for charges that do not arise out of a single 

criminal episode.

¶14 On the other hand, when one of the parties challenges 

joinder for trial, that party is concerned about the prejudice that 

may inure to the party’s position if the charges are heard 

together. An expansive view of single criminal episode allows 

the trial court to more readily balance the interest in judicial 

economy that the joinder requirement serves with the 

defendant’s constitutional right to a fair trial and the State’s 

interest in a fair prosecution. See State v. Strader, 902 P.2d 638, 641 

n.6 (Utah Ct. App. 1995). Moreover, “because appellate courts 

review decisions regarding joinder or severance of offenses only 

for abuse of discretion, it follows that the reviewing court would, 

as a practical matter, take a broad view of what constitutes a 

single criminal episode in that context.” Id. at 641–42 (citations 

omitted).

¶15 Given the question before us in this case—whether the tax 

offenses and wage offenses all arise from a single criminal 

episode so as to bar the prosecution in the wage case—cases in 

the second category are the most useful because they are directly 

on point. The first category of cases provides only limited 

guidance because although the cases use the same narrow 

standard for determining whether conduct arises from a single 

criminal episode, they are more directly focused on the double 

jeopardy-related question of whether the conduct constitutes a 

single offense or can legitimately be prosecuted as different

offenses. Here, there is no dispute that Rushton’s conduct 

constituted more than one offense that could be punished under 
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20120969-CA 11 2015 UT App 170

multiple code provisions. The severance-related cases in the 

third category are even less instructive as they employ a much 

broader standard for assessing whether offenses arise from the 

same criminal episode because the focus is on prejudice at trial.7

We therefore rely primarily on the second category of cases in 

assessing whether Rushton’s charges arose from a single 

criminal episode so as to warrant compulsory joinder.

II. Single Criminal Objective

¶16 The only issue before us in assessing whether the tax case 

and the wage case arose from a single criminal episode is 

whether the conduct underlying those charges was “incident to 

 

7. While no prior case appears to have explicitly categorized the 

existing case law as we have done here, Utah appellate courts 

have long utilized these categories in analyzing the questions 

that arise under the single criminal episode statutes. See West 

Valley City v. Parkinson, 2014 UT App 140, ¶¶ 6–8, 329 P.3d 833 

(relying on multiple-prosecution cases to determine whether a 

separate crime arose out of the same criminal episode as an 

earlier prosecuted offense so as to bar a subsequent prosecution); 

State v. Strader, 902 P.2d 638, 642 n.7 (Utah Ct. App. 1995) 

(observing that the defendant’s reliance on severance cases was 

unpersuasive where the question presented for appeal involved 

whether multiple prosecutions were appropriate); id. at 642 n.5 

(noting that “cases considering whether offenses are separate for 

double jeopardy purposes are not applicable in single criminal 

episode cases contesting the court’s decision to join offenses” 

(citation and internal quotation marks omitted)); State v. Lopez, 

789 P.2d 39, 44 (Utah Ct. App. 1990) (stating that “the line of 

cases relied upon by defendant to establish that the present 

circumstances were not part of a single criminal episode are not 

applicable because they do not deal with the issues of joinder 

and severance of charges, but with determining if criminal acts 

are separate for double jeopardy purposes”).
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20120969-CA 12 2015 UT App 170

an attempt or an accomplishment of a single criminal objective.” 

Utah Code Ann. § 76-1-401 (LexisNexis 2012). “Whether or not 

there is a single criminal objective ‘depends on the specific facts 

of the case viewed under . . . the totality of the circumstances.’” 

State v. Selzer, 2013 UT App 3, ¶ 26, 294 P.3d 617 (omission in 

original) (quoting Strader, 902 P.2d at 642). In assessing the 

circumstances, a court must “focus[] more on a defendant’s 

actions,” and not on external factors that may link the charges 

together, to determine whether “objectively” the conduct is 

“incident to an attempt or an accomplishment of a single 

criminal objective.” West Valley City v. Parkinson, 2014 UT App 

140, ¶ 7, 329 P.3d 833 (citation and internal quotation marks 

omitted).

¶17 In applying the definition of single criminal episode, case 

law within the second category suggests that a recurring concern

is whether the commission of one crime is aimed at furthering 

the accomplishment of the other crime. For example, in West 

Valley City v. Parkinson, 2014 UT App 140, 329 P.3d 833, police 

responded to a call of domestic violence to find that the 

defendant was no longer at the home. Id. ¶ 2. While one officer 

was interviewing the victim, the officer saw the defendant drive 

by the house. Id. Based on his interview with the victim, the 

officer believed that the defendant had a child in the car, and he 

therefore attempted to stop the vehicle through hand gestures 

and verbal commands. Id. The defendant failed to stop, and 

the officer pursued by vehicle, eventually apprehending the 

defendant. Id. After being charged with four misdemeanor 

domestic violence charges in justice court, the defendant pleaded 

guilty to misdemeanor domestic violence assault. Id. ¶ 3. About

one week after the defendant’s guilty plea, the City filed an 

information in district court charging the defendant with crimes 

related to the police chase. Id. ¶ 4. On the defendant’s motion, 

the district court concluded that the new charges were part of 

the same criminal episode as the domestic violence charges and 

dismissed them. Id. The City appealed, and we reversed, 

concluding that “the domestic violence charges filed with the 

justice court and the conduct for which charges were filed in 
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the district court did not share a common criminal objective.” Id.

¶ 7. We reasoned that, viewing the circumstances in an objective 

manner and with a narrow view of “single criminal episode,” 

the defendant’s actions in leaving the scene once the police had 

been called were “not incident to the accomplishment of his 

domestic violence objectives,” which were to “harm[] or 

frighten[]” the victim, but rather were “motivated by [the 

defendant]’s objective of eluding police.” Id. ¶ 9. 

¶18 Likewise, in State v. Strader, 902 P.2d 638 (Utah Ct. App.

1995), we concluded that the defendant’s actions in stealing a 

circular saw, providing false identification, and possessing drugs 

did not have a single criminal objective. Id. at 639, 643. There, an 

officer pulled over the defendant’s vehicle after the officer saw 

the defendant enter a construction site and return to his car 

carrying an object. Id. at 639. When asked for identification, the 

defendant gave his correct name but provided the officer with a 

clearly altered license that had a false name on it. Id. The officer 

arrested the defendant for false identification and, in a search 

incident to impounding the car, discovered methamphetamine 

as well as the object (a stolen circular saw) that the officer had 

seen the defendant carrying from the construction site. Id. The 

defendant pleaded guilty to the false identification charge. Id. at 

640. Later that month, the State filed charges for all three 

offenses: theft, false identification, and possession of a controlled 

substance. Id. The defendant moved to dismiss, arguing that the 

conduct arose from a single criminal episode for which he had 

already been prosecuted. Id. The district court denied the 

defendant’s motion, except as to the false identification charge to 

which the defendant had already pleaded guilty. Id. The 

defendant then entered a plea agreement under which he would 

plead guilty to the possession charge in exchange for the 

dismissal of the theft charge and the right to appeal the denial of 

the motion to dismiss. Id.

¶19 On appeal, we affirmed the district court’s denial of the 

motion to dismiss. Id. at 643–44. Again taking a narrow view of 

what constituted a single criminal episode, we reasoned that the 

“only possible nexus between the crimes was [the defendant’s]
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intent to avoid arrest on the [theft and possession] charges by 

giving false identification.” Id. Yet the defendant’s provision of 

“a forged driver’s license [that he had] at hand seem[ed] to 

indicate that obscuring his identity was an ongoing and routine 

course of conduct” and was “not specifically done to somehow 

further his theft or drug possession activities.” Id.; see also Selzer, 

2013 UT App 3, ¶¶ 3–5, 26 (concluding that a sexual assault 

followed by a physical assault on the same victim nearly three 

hours later did not share a criminal objective because the acts 

were conducted for “very different purpose[s]” in that the 

physical assault, which was an act of “rage,” did not further 

the defendant’s purpose in committing the earlier sexual assault, 

which was done to fulfill the defendant’s desire for “sexual 

gratification and domination of the victim in a sexual act”

(internal quotation marks omitted)).

¶20 Considering the totality of the circumstances of this case, 

we conclude that as in Parkinson and Strader, Rushton’s actions 

in the wage case and the tax case were not incident to the 

accomplishment of a single criminal objective. Rather, the crimes 

in each case are entirely separate. In the tax case, Rushton’s 

actions involved taking funds owed to the government by failing 

to pay taxes and falsifying withholding-tax statements and W-2s, 

while in the wage case, he took funds owed to employees when he 

failed to pay earned wages and to remit withheld retirement 

savings to the designated retirement funds. And although 

Rushton contends that the activities underlying each case had 

the common purpose of keeping Fooptube afloat, keeping a 

company financially stable is a lawful objective, not a criminal

one. Rather, his criminal objective in each case was to steal 

money to which he was not entitled. 

¶21 Moreover, Rushton’s actions in stealing from employees 

did not further his objective of stealing from the government, 

even if it did advance his ultimate goal of keeping Fooptube 

financially viable. And Rushton’s argument that the crimes were 

linked by his ultimate goal of unlawfully appropriating the 

money of others views his “objective” from too elevated a 

vantage point. The narrow label of single criminal objective is 
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not meant to encompass such a broad criminal goal because if it 

did, then almost any series of crimes committed for the purpose 

of illegally obtaining money, say to feed a drug habit, could be 

described as “single.”8 Rather, the fact that the thefts ultimately 

benefitted the same company is merely an external factor that 

provides some link between the offenses, but it does not 

appropriately “focus[] more on the defendant’s actions” or his 

purpose in committing the acts.9 See Parkinson, 2014 UT App 140, 

¶ 7.

 

8. Indeed, from this viewpoint, a defendant’s entering an 

apartment building first to steal dimes from its laundry room 

and then to steal money or other items of value from an 

apartment unit ought to meet the single criminal objective 

requirement. See State v. Porter, 705 P.2d 1174, 1176–78 (Utah 

1985). Yet, the Utah Supreme Court concluded that these 

activities constituted two separate burglary offenses despite the 

defendant’s apparent common objective of stealing as much as 

possible from a single building. Id. at 1178 (considering whether 

the defendant could be prosecuted for more than one crime for 

activities arising out a single criminal episode); cf. State v. Bauer, 

792 N.W.2d 825, 830 (Minn. 2011) (explaining, in the context of 

determining that the State’s decision to charge the defendant 

with both the sale of a controlled substance and failure to affix 

tax stamps to a controlled substance did not punish the same 

conduct twice, that “the criminal plan of obtaining as much 

money as possible is too broad an objective to constitute a single 

criminal goal” (citation and internal quotation marks omitted)).

9. That conclusion is underscored by the fact that Rushton’s 

actions in stealing from the government and stealing from the 

employees, though characterized by the district court as 

occurring “close in time” due to the overlap in their commission, 

also had some temporal distinctions. Rushton falsified tax 

documents and failed to pay taxes from 2006 until June 2008, 

which was about the time that the state tax commission began 

(continued...)
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20120969-CA 16 2015 UT App 170

¶22 We are unpersuaded by Rushton’s other arguments for 

treating the wage case and the tax case as having the same 

criminal objective. For instance, Rushton argues that less 

emphasis should be placed on the number of victims because 

even when there are multiple victims, the underlying actions can 

still arise from a single criminal episode. In support of his 

position, Rushton cites several cases where the defendant was 

tried on multiple charges resulting from his actions toward 

multiple victims.

¶23 The cases Rushton relies on, which fall into category one, 

do not support his contention. In the cited cases, the defendants 

had already been prosecuted (in one trial) for multiple offenses 

and were appealing on the basis that the convictions constituted 

multiple punishments for the same conduct. Thus, the analysis 

on appeal focused on whether the defendant was properly 

convicted for multiple offenses, not on the issue presented 

here—whether the defendant’s actions against multiple victims 

were aimed at the accomplishment of a single criminal objective

so as to mandate their prosecution together. For example, in

State v. James, 631 P.2d 854 (Utah 1981), the defendant was 

convicted on five counts of aggravated kidnapping for taking 

five people hostage during a drugstore robbery. Id. at 855. On 

appeal, the defendant argued that “his actions constituted a 

 

(...continued)

investigating him on suspicion of tax evasion. Although Rushton 

also stopped paying employees their wages and remitting their 

retirement withholdings sometime in 2008, that conduct 

continued through 2009, well after Rushton had ceased his taxrelated crimes. That Rushton stopped his tax scheme and turned 

to stealing money owed to his employees around that same time 

supports a determination that these two sets of criminal 

activities were not part of a single criminal objective but rather 

were two separate illegal means for achieving the ultimate goal 

of keeping the business afloat.
State v. Rushton

20120969-CA 17 2015 UT App 170

single criminal act, hence his constitutional right to not be twice 

placed in jeopardy for the same offense was violated.” Id. The 

Utah Supreme Court concluded that double jeopardy did not 

preclude multiple convictions because “offenses committed 

against multiple victims are not the same.” Id. at 856; see also 

State v. Rasabout, 2013 UT App 71, ¶¶ 10, 12, 33, 299 P.3d 625 

(stating, in the course of reversing the trial court’s merger of 

twelve discharge of a firearm convictions, that whether the 

charges arose out of a single criminal episode “does not resolve 

the question” because the issue presented in the case “was one of 

multiplicity and double jeopardy”), cert. granted, 308 P.3d 536 

(Utah 2013); State v. Mane, 783 P.2d 61, 63 (Utah Ct. App. 1989) 

(addressing “whether a single criminal act resulting in multiple 

victims constitutes a single offense or multiple offenses”). 

¶24 In short, Rushton has not shown that the district court 

erred in deciding as it did. See State v. Selzer, 2013 UT App 3, 

¶ 27, 294 P.3d 617 (affirming the district court’s denial of a 

motion to dismiss because although “other possible 

interpretations of [the defendant’s] actions may be possible, the 

district court could certainly have accepted the State’s argument 

and determined that the sexual assaults and [the physical] 

assault did not share a single criminal objective”); cf. State v. 

Ireland, 570 P.2d 1206, 1207 (Utah 1977) (concluding that 

although the defendant made a plausible argument that “all [his] 

acts were directed toward escape,” “the facts adequately 

support[ed] the trial court’s determination that two separate and 

distinct offenses were committed”).

¶25 For these reasons, we affirm the district court’s 

determination that Rushton’s actions in the wage case were not 

incident to or in furtherance of his purpose in the tax case

because the two sets of charges did not share a single criminal 

objective. Accordingly, the district court correctly denied 

Rushton’s motion to dismiss.
State v. Rushton

20120969-CA 18 2015 UT App 170

CONCLUSION

¶26 We conclude that there was a basis for the district court’s 

decision that the actions underlying the wage case were not 

incident to the accomplishment of the criminal objective in the 

tax case. Consequently, the two sets of charges could properly be 

prosecuted in two separate actions and denial of the motion to 

dismiss was correct. We therefore affirm Rushton’s convictions.