This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 21

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Respondent,

v.

DAVID M. RUSHTON,

Petitioner.

No. 20150737

Filed April 7, 2017

On Certiorari to the Court of Appeals

Third District, Salt Lake

The Honorable Robin W. Reese

No. 111903029

Attorneys:

Sean D. Reyes, Att’y Gen., Marian Decker, Asst. Att’y Gen., 

Salt Lake City, for respondent

Joanna E. Landau, Salt Lake City, for petitioner

JUSTICE HIMONAS authored the opinion of the Court, 

in which JUSTICE DURHAM and JUSTICE PEARCE joined.

ASSOCIATE CHIEF JUSTICE LEE filed an opinion concurring in the 

judgment, in which CHIEF JUSTICE DURRANT joined.

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶ 1 This case clarifies the interpretation of the phrase “single 

criminal objective” in the context of the mandatory joinder statute,

UTAH CODE § 76-1-401, which prohibits the State from prosecuting a 

defendant in separate actions for “conduct [that] may establish separate 

offenses under a single criminal episode,” id. § 76-1-402(2). A “single 

criminal episode” is defined as “all conduct which is closely related in 
STATE v. RUSHTON

Opinion of the Court

2

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

criminal objective.” Id. § 76-1-401 (emphasis added).

¶ 2 The Petitioner, David Rushton, argues that the State violated 

the mandatory joinder statute by prosecuting him from 2011 to 2012 for 

wage crimes after having prosecuted and convicted him in 2009 and 

2010 for tax crimes. Interpreting the phrase “single criminal objective” 

broadly, Mr. Rushton asserts that the conduct underlying both 

prosecutions was part of a single criminal episode because it was 

“closely related in time and . . . incident to an attempt or an 

accomplishment of [the] single criminal objective” of misappropriation

of money in his business setting. Id. Therefore, Mr. Rushton argues, the 

court of appeals erred when it affirmed the district court’s denial of his 

motion to dismiss the wage crimes prosecution as barred by the 

mandatory joinder statute. He appealed that denial, and we granted 

certiorari to consider the merits of his position.

¶ 3 We affirm the decision of the court of appeals, albeit along a 

somewhat different line of reasoning. If we were to read the phrase 

“single criminal objective” as broadly as Mr. Rushton urges us to, the 

permissive joinder statute, Utah Code section 77-8a-1, would be 

rendered inoperative. Instead, we consider the totality of the 

circumstances that bear on whether conduct aims at a single criminal 

objective, focusing in particular on the location where the crimes were 

committed, the nature of the offenses (both the similarity in conduct 

and, as suggested by the concurrence, the extent to which one offense 

advances the accomplishment of another), whether the crimes involved 

different victims, and whether the defendant had the opportunity to 

deliberately engage in the next-in-time offense. We determine that 

Mr. Rushton’s conduct did not have a single criminal objective and thus 

did not constitute a single criminal episode.1 Therefore, the mandatory 

joinder statute did not require the State to charge the tax crimes and 

wage crimes in a single prosecution, and the court of appeals correctly 

concluded that dismissal of the wage case based on the mandatory 

joinder statute was not warranted.

 

1 Because there was no single criminal objective, we need not and 

do not reach the issue regarding whether the conduct was “closely 

related in time.” UTAH CODE § 76-1-401. The lack of a single criminal 

objective alone is dispositive of whether the conduct constituted a 

single criminal episode for purposes of the mandatory joinder statute.
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Opinion of the Court

3

BACKGROUND

¶ 4 Mr. Rushton started Fooptube LLC, a computer 

programming and design company in 2005. A few years later, the Utah 

State Tax Commission began investigating him due to allegations that 

he had withheld personal and corporate taxes while serving as an 

owner and officer of Fooptube. On April 14, 2009, the State charged 

Mr. Rushton with six tax crimes committed between 2005 and 2008.2

Mr. Rushton was arraigned for the tax crimes on December 14, 2009. In 

June 2010, pursuant to a plea agreement, Mr. Rushton pleaded guilty to 

counts five and six, and the remaining counts were dismissed. 

¶ 5 In May 2009, several former Fooptube employees approached 

the prosecutor and informed him of the wage claims they had against 

Mr. Rushton. The State then launched an investigation into these 

crimes. During that investigation, the investigator was contacted by the 

Utah Labor Commission, which informed him that Mr. Rushton had 

failed to pay wages to approximately eighty-four former Fooptube 

employees between October 2008 and October 2009. By 2011, ninetyfive employees had reported unpaid wages for services provided to 

Fooptube. The claims for unpaid wages totaled $1,170,164.07. The 

investigator also learned that the United States Department of Labor’s 

Employee Benefits Security Administration was investigating 

allegations that Mr. Rushton had failed to remit Fooptube employees’ 

contributions to retirement funds in the amount of $107,000.00. 

¶ 6 On April 20, 2011, the State filed the wage case against 

Mr. Rushton, charging him with seven second-degree felonies. The 

State amended its charges against Mr. Rushton on November 3, 2011, to

include thirteen charges of class A misdemeanors as possible 

 

2 The State charged Mr. Rushton with failing to file Fooptube’s 

quarterly tax returns for 2007 and the first two quarters of 2008 

(count 1); co-mingling funds or creating false documents with the intent 

to evade tax withholding obligations for 2007 through 2008 (count 2); 

failing to remit employee taxes for 2007 and the first two quarters of 

2008 (count 3); issuing fraudulent W-2 forms and withholding tax 

statements from employees in 2008 (count 4); failing to “file personal 

income tax returns for the tax year(s) 2005, 2006 and/or 2007” (count 5); 

and, based on the foregoing predicate offenses, engaging in a pattern of 

unlawful activity in violation of Utah Code section 76-10-1603 (count 6). 
STATE v. RUSHTON

Opinion of the Court

4

alternatives to two of the previously charged felonies.3 Mr. Rushton 

moved to dismiss the wage case, arguing that under the mandatory 

joinder statute, his wage crimes and tax crimes were part of a single

criminal episode, and that because the tax case had already resulted in 

a conviction when he entered his guilty plea, he could not be 

prosecuted for the wage crimes.

¶ 7 The district court concluded that the conduct at issue in the 

tax case and in the wage case did not constitute a single criminal

episode under the mandatory joinder statute. While the district court 

found that Mr. Rushton’s conduct at issue in both cases was closely 

related in time, it concluded that the conduct at issue in the tax case 

was not committed in furtherance of the same criminal objective as the 

conduct at issue in the wage case. According to the district court, 

although the cases are factually similar, they involve different victims, 

issues, laws, and jury instructions. As a result, the district court held 

that the conduct did not constitute a single criminal episode.

¶ 8 After the court denied Mr. Rushton’s motion to dismiss, 

Mr. Rushton entered a conditional guilty plea to count 3 (amended to a 

third-degree felony of attempted unlawful dealing with property), 

count 7, and count 20. Mr. Rushton then appealed the district court’s 

decision, and the court of appeals affirmed the district court’s ruling, 

holding that Mr. Rushton’s tax crimes and his wage crimes did not 

constitute a single criminal episode under the mandatory joinder 

statute. State v. Rushton, 2015 UT App 170, ¶¶ 5–6, 354 P.3d 223. 

Mr. Rushton then petitioned for a writ of certiorari asking that we 

review the court of appeals’ decision against him. We granted the writ 

and, therefore, exercise jurisdiction under Utah Code section 78A-3-

102(3)(a).

 

3 The State charged Mr. Rushton with the following twenty counts, 

all of which are allegedly related to Fooptube employee compensation 

or retirement arrangements and based on conduct that took place in 

2008 or 2009: communications fraud (counts 1 and 2); unlawful dealing 

of property by a fiduciary (counts 3 and 4); theft of services (counts 5 

and 6); failure to pay wages (counts 7 through 19, as alternatives to 

counts 5 and 6); and engaging in a pattern of unlawful activity, in 

violation of Utah Code section 76-10-1603 (count 20). 
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Opinion of the Court

5

STANDARDS OF REVIEW

¶ 9 “On certiorari, we review the court of appeals’ decision for 

correctness, focusing on whether that court correctly reviewed the trial

court’s decision under the appropriate standard of review.” Hansen v. 

Eyre, 2005 UT 29, ¶ 8, 116 P.3d 290 (internal quotation marks omitted).

A trial court’s denial of a motion to dismiss presents a question of law, 

which is also reviewed for correctness. See State v. Arave, 2011 UT 84, 

¶ 25, 268 P.3d 163.

ANALYSIS

¶ 10 We affirm the court of appeals’ denial of Mr. Rushton’s 

motion to dismiss. In so doing, we clarify the interpretation of the 

phrase “single criminal objective” in the context of the mandatory 

joinder statute. Under the mandatory joinder statute, the State is 

prohibited from prosecuting a defendant in separate actions for 

conduct that “is closely related in time and is incident to an attempt or 

an accomplishment of a single criminal objective.” UTAH CODE § 76-1-

401, 402(2).4

¶ 11 When we tackle questions of statutory construction, our 

overarching goal is to implement the intent of the legislature. Marion 

Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (“It is 

well settled that when faced with a question of statutory interpretation, 

‘our primary goal is to evince the true intent and purpose of the 

Legislature.’” (citation omitted)). Our first undertaking in this regard is 

to assess the language and structure of the statute. Id. (“The best 

evidence of the legislature’s intent is ‘the plain language of the statute 

itself.’” (citation omitted)); In re Reinhart, 2012 UT 82, ¶ 17, 291 P.3d 228 

(reviewing a “statute’s plain language and structure”). “Often, 

statutory text may not be plain when read in isolation, but may become 

so in light of its linguistic, structural, and statutory context.” Id. The 

reverse is equally true: words or phrases may appear unambiguous 

 

4 For the mandatory joinder statute to operate as a bar, the offenses 

must also be “within the jurisdiction of a single court . . . and . . . known 

to the prosecuting attorney at the time the defendant is arraigned on 

the first information or indictment.” UTAH CODE § 76-1-402(2). In 

addition, the trial court retains the authority to order separate trials “to 

promote justice.” Id. These circumstances are not at issue here and we

therefore do not discuss them further.
STATE v. RUSHTON

Opinion of the Court

6

when read in isolation, but become ambiguous when read in context.

This is why 

we read the plain language of the statute as a whole, and 

interpret its provisions in harmony with other statutes in 

the same chapter and related chapters[,] . . . avoid[ing] 

any interpretation which renders parts or words in a 

statute inoperative or superfluous in order to give effect 

to every word in the statute.

Monarrez v. Utah Dep’t of Transp., 2016 UT 10, ¶ 11, 368 P.3d 846

(internal quotation marks omitted). Indeed, “it is a ‘fundamental 

principle of statutory construction (and, indeed, of language itself) that 

the meaning of a word cannot be determined in isolation, but must be 

drawn from the context in which it is used.’” Reno v. Koray, 515 U.S. 50, 

56 (1995) (citation omitted). This is why we look to context when, as 

here, “both sides offer conceivable constructions of the language in 

question.” Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465. 

¶ 12 With this legal backdrop in mind, we turn first to 

Mr. Rushton’s argument that the phrase “single criminal objective” is 

broad enough to encompass an objective as broad as misappropriation 

of any money he had power over through Fooptube. We conclude that 

such a broad interpretation of the phrase “single criminal objective”

would render the permissive joinder statute inoperative, which would 

violate our principles of statutory interpretation. Rather, we consider 

the totality of the circumstances, focusing in particular on the location 

where the crimes were committed, the nature of the offenses, whether 

the crimes involved different victims, and whether the defendant had 

the opportunity to deliberately engage in the next-in-time offense. 

Based on our analysis of those factors, we determine that Mr. Rushton’s 

conduct at issue in the tax case and in the wage case did not have a 

single criminal objective and thus was not part of a single criminal 

episode mandating joinder of the charges against him in a single 

prosecution.

I. MR. RUSHTON’S INTERPRETATION OF 

SINGLE CRIMINAL OBJECTIVE

¶ 13 Mr. Rushton argues that under a plain language analysis 

“single criminal objective” means all conduct that is “connected by a 

single criminal purpose, goal, or target[] that the defendant’s conduct is 

intended to attain.” He further argues that misappropriating “money in 
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Opinion of the Court

7

the context of Fooptube,” no matter how or from whom, satisfies this 

definition. 

¶ 14 We reject Mr. Rushton’s claim that his misappropriation 

qualifies as a single criminal objective for purposes of the mandatory 

joinder statute. Under our plain language principles of statutory 

construction, it is necessary to consider both the permissive joinder 

statute and the mandatory joinder statute when interpreting the phrase 

“single criminal objective.” We conclude that Mr. Rushton’s 

characterization of his behavior as a single criminal objective of 

misappropriation is too broad and would render the permissive joinder 

statute inoperative.

¶ 15 As the State correctly points out, when interpreting the 

phrase “single criminal objective,” we must consider both the 

permissive joinder statute and the mandatory joinder statute in order to 

ensure that our interpretation does not render the permissive joinder 

statute inoperative. See State, in re J.M.S., 2011 UT 75, ¶ 22, 280 P.3d 410

(stating that we interpret statutory provisions “in harmony with other 

statutes in the same and related chapters” (citation omitted)).

¶ 16 The relevant statutory provisions are as follows: The 

permissive joinder statute states that offenses “may be charged in the 

same indictment or information” if the offenses are “based on the same 

conduct or are otherwise connected together in their commission . . . or

. . . alleged to have been part of a common scheme or plan.” UTAH CODE

§ 77-8a-1(1). The mandatory joinder statute states that “[w]henever 

conduct may establish separate offenses under a single criminal 

episode . . . a defendant shall not be subject to separate trials for 

multiple offenses.” Id. § 76-1-402(2). The phrase “single criminal 

episode” in the mandatory joinder statute is statutorily defined as “all 

conduct which is closely related in time and is incident to an attempt or 

an accomplishment of a single criminal objective.” Id. § 76-1-401. Based 

on our principles of statutory construction, we cannot interpret the 

language “single criminal objective” under the mandatory joinder 

statute to simply mean the same thing as conduct that is “connected 

together [with other conduct] in its commission” or “alleged to have 

been part of a common scheme or plan” under the permissive joinder 

statute. Id. § 77-8a-1(1); see also State v. Martinez, 2002 UT 80, ¶ 8, 52 P.3d 

1276 (“When examining the statutory language . . . . we avoid 

interpretations that will render portions of a statute superfluous or 

inoperative.” (internal quotation marks omitted)).
STATE v. RUSHTON

Opinion of the Court

8

¶ 17 Mr. Rushton’s characterization of misappropriation as his 

single criminal objective conflates offenses that are “connected together 

in their commission” or are “part of a common scheme or plan” with 

offenses that are “closely related in time” and have a “single criminal 

objective.” UTAH CODE §§ 76-1-401, 77-8a-1(1). For example,5 if we were 

to apply Mr. Rushton’s interpretation of misappropriation as a single 

criminal objective6 to a situation where a bank robber robs multiple 

banks in a single day, the State would be required to join all the bank 

robbery charges in a single prosecution. Joinder would be mandatory 

despite the crimes having been committed in different locations, 

despite the crimes involving different victims, despite none of the 

crimes having been committed in order to advance the accomplishment 

of any of the others, and despite the robber likely having the 

opportunity to make conscious and knowing decisions between the 

commission of each of the different robberies—all of which are factors 

in the single criminal objective analysis we lay out below. In the case at 

hand, “the facts adequately support the trial court’s determination that 

. . . separate and distinct offenses were committed. To adopt 

[Mr. Rushton’s] interpretation of the statute would serve only to torture 

its clear wording to afford him the advantage of a single . . . 

conviction.” State v. Ireland, 570 P.2d 1206, 1207 (Utah 1977).7 Thus, we 

 

5 For the purposes of this hypothetical example, we assume that the 

offenses meet the “closely related in time” factor, another necessary 

component for concluding that conduct was part of a single criminal 

episode. See UTAH CODE § 76-1-401.

6 Mr. Rushton quotes the definition of “misappropriation” from 

Black’s Law Dictionary as “[t]he application of another’s property or 

money dishonestly to one’s own use.” Alternatively, he states that 

misappropriation is “steal[ing] money to which [a person] was not 

entitled.”

7 See also People v. Perez, 591 P.2d 63, 68 (Cal. 1979) (en banc)

(“Assertion of a sole intent and objective to achieve sexual gratification 

is akin to an assertion of a desire for wealth as the sole intent and 

objective in committing a series of separate thefts. To accept such a 

broad, overriding intent and objective to preclude punishment for 

otherwise clearly separate offenses would violate the statute’s purpose 

to insure that a defendant’s punishment will be commensurate with his 

culpability. It would reward the defendant who has the greater 

(cont.)
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Opinion of the Court

9

cannot read the phrase “single criminal objective” under the mandatory 

joinder statute so broadly without rendering the permissive joinder 

statute inoperative.

¶ 18 In addition, we reject the following arguments Mr. Rushton 

makes about the interpretation of statutes, and, in particular, the 

interpretation of the mandatory joinder statute. First, Mr. Rushton 

argues that interpreting statutes “in harmony with other statutes in the 

same chapter and related chapters” is a secondary rule of statutory 

interpretation, rather than part of a court’s plain language 

interpretation. State v. Harker, 2010 UT 56, ¶ 12, 240 P.3d 780 (citation 

omitted). As a result, he argues, since “the state has not suggested any 

debate about the plain meaning of the language,” we do not need to 

rely on “other interpretative tools,” like the so-called secondary rule of 

interpreting statutes in harmony with related chapters. We strongly 

disagree with Mr. Rushton on this point. Interpreting a statute “in 

harmony with other statutes in the same chapter and related chapters” 

is part of our plain language analysis. See id. (“[W]e read the plain 

language of [a] statute as a whole and interpret its provisions in 

harmony with other statutes in the same chapter and related chapters.” 

(second alteration in original) (citation omitted)). Consequently, 

reading the “single criminal objective” language under the mandatory 

joinder statute in harmony with the permissive joinder statute 

constitutes a plain language interpretation of the mandatory joinder 

statute.

¶ 19 Mr. Rushton also argues that the permissive joinder statute is 

not a related chapter to the mandatory joinder statute. Therefore, he 

argues, the mandatory joinder statute does not need to be read in 

harmony with the permissive joinder statute. He bases this argument 

on the fact that the mandatory joinder statute, which is found under 

title 76, is not under the same title as the permissive joinder statute, 

which is found under title 77. We reject this argument. There is no 

requirement that related chapters, which must be interpreted in 

harmony with one another, be found under the same title of the Utah 

 

criminal ambition with a lesser punishment.” (citation omitted)); State 

v. Bauer, 792 N.W.2d 825, 830 (Minn. 2011) (“Our case law recognizes 

that ‘the criminal plan of obtaining as much money as possible is too 

broad an objective to constitute a single criminal goal . . . .’” (citation 

omitted)).
STATE v. RUSHTON

Opinion of the Court

10

Code. Mr. Rushton himself points out nine different statutes in the 

Utah Code that use the same definition of single criminal episode, 

many of which are found under different titles. Using his logic, we 

would have to declare those statutes that use the same definition of 

single criminal episode not related. This would be a real stretch. As a 

result, we conclude that even though the mandatory and permissive 

joinder statutes “do not share a common statutory title,” they are 

related chapters and must be interpreted in harmony with one another. 

¶ 20 Finally, we disagree with Mr. Rushton’s assertion that the 

legislature wanted us to interpret the mandatory and permissive 

joinder statutes separately or in isolation from one another. We read the 

language in Utah Code section 76-1-401 that “[n]othing in this part shall

be construed to limit or modify the effect of Section 77-8a-1” differently 

than Mr. Rushton. He reads this language as prohibiting a narrow 

interpretation of the mandatory joinder statute. We, on the other hand, 

read this language to support our conclusion that we may not read the 

mandatory joinder statute so broadly as to render the permissive 

joinder statute inoperative. We may not construe or limit the effect of 

the permissive joinder statute, rendering it a nullity, by interpreting the 

“single criminal objective” language as broadly as Mr. Rushton wishes 

us to do. As a result, we reject the idea that Utah Code section 76-1-401 

somehow prevents us from considering the permissive joinder statute 

in our plain language analysis of what “single criminal objective”

means under the mandatory joinder statute.

¶ 21 We must interpret the mandatory joinder statute in harmony 

with the permissive joinder statute. Using a plain language analysis, we 

determine that Mr. Rushton’s interpretation of single criminal objective 

is overly broad and would render the permissive joinder statute 

inoperative. This result is contrary to our rules of statutory 

interpretation and thus we reject Mr. Rushton’s characterization of his 

single criminal objective. 

II. THE CONCURRENCE’S INTERPRETATION OF 

THE MANDATORY JOINDER STATUTE

¶ 22 We also disagree with the interpretation of “incident to an 

attempt or accomplishment of a single criminal objective” proffered by 

the concurring opinion. The concurrence equates a “single criminal 

episode” with a single “crime.” Infra ¶ 59. The concurrence accordingly

reads this language to cover only conduct that is “directly and 

immediately relat[ed] to . . . an attempt or accomplishment” of another 
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Opinion of the Court

11

offense. Infra ¶ 62. The concurrence prefers its interpretation to a 

totality of the circumstances test for two reasons: (1) because it better 

respects the “operative language” of the statutory text and (2) because 

it is more predictable than a test requiring a district court to weigh 

multiple factors in deciding whether joinder is required. Infra ¶¶ 48–49.

We disagree.

¶ 23 First, we do not believe that the concurrence’s test comports 

with the plain meaning of the statutory text. See Olsen v. Eagle Mountain 

City, 2011 UT 10, ¶ 12, 248 P.3d 465 (in interpreting the plain meaning 

of statutory text “[o]ur task . . . is to determine the meaning of the text 

given the relevant context of the statute (including, particularly, the 

structure and language of the statutory scheme)” (citation omitted)). In 

interpreting statutes, “[w]e presume the Legislature uses each word 

advisedly.” Meza v. State, 2015 UT 70, ¶ 18, 359 P.3d 592. Thus, we 

presume that if the legislature had intended the reading that the 

concurrence prefers, it would have defined a “single criminal episode” 

as “all conduct which is . . . incident to an attempt or an 

accomplishment of a single offense”—using a term that it specifically 

defined in the Utah Criminal Code. Cf. UTAH CODE § 76-1-601(7) 

(“‘Offense’ means a violation of any penal statute of this state.”). 

Instead, the legislature used the term “single criminal objective”—a 

term that connotes the goal or purpose of the offender’s criminal 

conduct, not merely another offense.8 Id. § 76-1-401.

¶ 24 We are also doubtful that the concurrence’s proposed test is 

any more predictable than the totality of the circumstances test that we 

 

8 The concurrence maintains that we “misstate[] [its] standard” 

because, on its interpretation of the mandatory joinder statute, “[t]he 

use of the term ‘objective’ has significance that is not as clearly 

conveyed by the term ‘offense.’” Infra ¶ 53 n.1. Specifically, the word is 

supposed to convey that “[t]he conduct at issue must be incident to the 

acts undertaken in attempting or accomplishing the relevant ‘objective’ 

crime.” Id. We fail to see how the phrase “the relevant ‘objective’ crime” 

is meaningfully different, or any different, from the term “offense.” 

Indeed, the concurrence appears to agree with us, noting elsewhere 

that, under its test, “[e]ither of two crimes could be the ‘objective.’” 

Infra ¶ 61 n.8. In any event, the plain meaning of a “single criminal 

objective” connotes a criminal aim or purpose that is broader than a 

single criminal offense.
STATE v. RUSHTON

Opinion of the Court

12

adopt—indeed, it may well be less predictable. The concurrence would 

have courts focus on whether one offense was “incident” to another, 

where “incident” is defined as “dependent on or appertaining to 

another thing: directly and immediately relating to or involved in 

something else though not an essential part of it.” Infra ¶ 60 n.6. But 

consider, for example, how this test would apply to a case where a 

defendant writes a computer program that in quick succession steals 

$30,000 from ten separate accounts belonging to ten separate clients of 

the same bank.

¶ 25 To make the hypothetical even more vivid, imagine that this 

defendant keeps a diary in which he specifically states that his objective 

was to steal $30,000 in small enough increments that (in his view) they

were less likely to immediately trigger the bank’s anti-fraud measures 

and more likely to go undetected.

¶ 26 This should be an easy case. The state should not be allowed 

to bring serial prosecutions against a bank robber who has written a 

single computer program to steal from multiple bank accounts, and 

who admittedly has a single criminal purpose underlying each almost 

identical crime. (This example is not farfetched, and it can be 

multiplied. Imagine a hacker who simultaneously acquires 

unauthorized access to one million computers. The concurrence’s logic 

would in theory allow one million trials. We would not.)

¶ 27 But under the concurrence’s test it is not easy to predict 

whether each act of theft need be joined in the same trial. On the one 

hand, each act is a “choate crime” and each is logically independent of 

the other. This militates in favor of finding that each act need not be 

joined under the mandatory joinder statute. And the concurrence 

appears to believe that, under its test, the separate crimes need not be 

joined. See infra ¶¶ 67–69. But this is not obvious from the language of 

the concurrence’s test. Instead, it is arguable that each act of theft was 

“directly and immediately relat[ed]” to the others (though not 

“essential” to them); after all, the bank robber admitted as much. Or 

imagine that the evidence conclusively shows (or the indictment 

pleads) that the bank robber pursued any of the individual robberies

only because he could pursue them all simultaneously (perhaps 

because if he had not been able to pursue them all he would have 

decided that the reward was not worth the risk). Under this 

hypothetical, it seems perfectly possible for a reasonable court to 

conclude that each robbery was not only “directly and immediately 

relat[ed]” to the others, but, arguably, even “depend[ent]” on them, too.
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Opinion of the Court

13

Infra ¶ 60 n.6. But it is equally possible for a reasonable court applying 

the concurrence’s test to conclude that the robberies still were not 

“incident to” each other.

¶ 28 This is doubly troubling. As we have explained, the bankrobber hypothetical should be an easy case. But the concurrence’s test is 

challenged by it. Even worse, its outcome is unpredictable. And this 

unpredictability is not just going to arise at the periphery; it is a core 

feature of a test that requires a court to assess the degree to which one 

offense is “relat[ed]” to another. As a practical matter, we cannot see 

how courts can do this without ultimately considering a variety of 

factors that bear on the tightness of the nexus between the offenses. The 

ironic upshot, then, is that in seeking to promote predictability by 

eschewing a multi-factor test, the concurrence has articulated a 

standard that courts cannot implement without considering a 

multiplicity of factors—but, unlike the majority, the concurrence leaves 

courts without any guidance on what those factors should be. 

¶ 29 The concurrence also faults our test for yielding “problematic 

results” in a solicitation case. It offers as an example “a bank robbery 

preceded by solicitation of an accomplice,” and it suggests that the 

totality of the circumstances test that we adopt might not require 

joinder of the solicitation and the bank robbery if, for example, the 

defendant and accomplice reside in different states. For then “the 

offenses could be said to arise in a ‘different geographic location[],’ . . .

the solicitation offense is ‘substantively different’ in ‘nature’ from bank 

robbery, . . . and the defendant,” we may imagine, “had ‘the 

opportunity to make a conscious and knowing decision to engage in 

the next-in-time offense.’” Infra ¶ 65.

¶ 30 We are not as troubled by the possibility that the mandatory 

joinder statute might not require the solicitation to be joined with the 

bank robbery in this case, although we think that in many cases it 

will—especially given that, absent significant differences in the 

evidence that a prosecutor would otherwise introduce, a solicitation 

will often be similar in nature, and bound up with, the crime being 

solicited. 

¶ 31 Moreover, it is not clear that the concurrence’s proposed test 

fares particularly well under this example either. Consider a variant on 

the concurrence’s solicitation example. A would-be bank robber draws 

up plans to rob a bank, which include the assistance of an accomplice. 

He solicits one of his friends to help him. Then, after further thought, 
STATE v. RUSHTON

Opinion of the Court

14

the bank robber decides he will go it alone. He dismisses his friend and 

replans the bank robbery as a one-man job. Was the solicitation 

“incident to” the bank robbery under the concurrence’s test? Not 

obviously. It is far from clear that the solicitation “directly and 

immediately relat[ed] to” the bank robbery; after all, the bank robber 

changed his plans after the solicitation and decided to pursue the bank 

robbery alone. This is yet another example where the concurrence’s test 

fails to live up to its promise of predictability.

¶ 32 A final problem with the concurrence’s reading is that, in 

circumstances where it does clearly yield a single outcome, it reaches 

the wrong result. Consider this example:

Defendant was stopped by a highway patrolman in 

Beaver County for speeding. He pulled a gun, threatened 

the patrolman, relieved him of his revolver, locked him in 

the trunk of the patrol vehicle, shot holes in its two front 

tires, and left the scene in his own vehicle. He 

subsequently picked up two hitchhikers, showed them 

the revolver, and advised them of his having taken it from 

the patrolman. He further advised them that they need 

not stay in the car with him.

Defendant proceeded on to the adjoining County of 

Sevier, stopped to purchase fuel, and shortly thereafter

police began following him at which time he informed the 

hitchhikers they were his hostages and held a gun on 

them. He was ultimately apprehended at a roadblock, 

tried and convicted in Sevier County for aggravated 

kidnapping of the hitchhikers, and was subsequently 

convicted in Beaver County of this offense of aggravated 

robbery for the taking of the patrolman’s revolver.

State v. Ireland, 570 P.2d 1206, 1206 (Utah 1977).

¶ 33 Under the concurrence’s logic, the aggravated kidnapping 

was plainly incident to the objective of successfully accomplishing the 

aggravated robbery and, therefore, the mandatory joinder statute 

required that the two offenses be joined. Yet we rightly held otherwise. 

Id. at 1207 (“In this case there was a distinct difference in time [and]

location . . . and the criminal objective of robbery was entirely different 

than that of kidnapping which was totally disconnected in time, place 

or purpose.”); see State v. Germonto, 868 P.2d 50, 60 (Utah 1993) (“We . . . 

[take] care to avoid a rigid rule mandating joinder whenever a 
Cite as: 2017 UT 21

Opinion of the Court

15

defendant commits a crime to avoid arrest for prior criminal activity 

. . .” (citation omitted)); State v. Cornish, 571 P.2d 577, 578 (Utah 1977)

(per curiam) (declining to hold that a failure to stop and an automobile 

theft were part of a single criminal episode because “[t]o treat them as a 

single criminal episode would mean that any crime a defendant 

commits to avoid arrest for prior criminal activity would be part of the 

same criminal episode”).

¶ 34 As we explain below, we believe there is a place for the 

concurrence’s test in the mandatory joinder analysis. But, for the 

foregoing reasons, we do not believe it should be the exclusive focus.

III. TOTALITY OF THE CIRCUMSTANCES

¶ 35 We have concluded that neither Mr. Rushton’s nor the 

concurrence’s interpretation respects the plain language of the joinder 

statutes. Mr. Rushton’s assertion that “single criminal objective” is so 

broad as to encompass the objective of misappropriation does violence 

to the statutory scheme by rendering the permissive joinder statute 

inoperative, and the concurrence’s contention that a “single criminal 

objective” is nothing more than a criminal “offense” assumes that the 

legislature chose to use a term it has not defined to mean a term it 

specifically defined in the criminal code. We therefore consider the 

totality of the circumstances, focusing on factors from our case law,9 to 

determine whether Mr. Rushton’s conduct at issue in the tax case and 

in the wage case had a single criminal objective.10 See State v. Selzer, 

 

9 Many of the cases that we cite in the following footnotes discuss a 

previous version of our mandatory joinder statute. UTAH CODE § 76-1-

402 (1978). That statute used the same statutory definition of single 

criminal episode as the current mandatory joinder statute, including 

the “single criminal objective” language. See UTAH CODE § 76-1-401.

10 The concurrence faults us for failing “to connect [our] multifactored test with the language of the statute.” Infra ¶ 53 n.1. It is true 

that our test does not merely mirror the language of the statute. But it is 

nonetheless more faithful to the text and structure of the statute than 

the alternatives; it harmonizes the structure of the mandatory and 

permissive joinder statutes without assuming that the legislature chose 

to use a unique phrase to mean the same thing as a single term that it 

had already defined. And it is faithful to longstanding precedent in a 

way the concurrence’s test is not. See, e.g., supra ¶¶ 32–33.

(cont.)
STATE v. RUSHTON

Opinion of the Court

16

2013 UT App 3, ¶ 26, 294 P.3d 617 (“Whether or not there is a single 

criminal objective depends on the specific facts of the case viewed 

under . . . the totality of the circumstances.” (alteration in original) 

(internal quotation marks omitted)). In making this determination, we 

consider, among other things, the location where the crimes were 

committed, the nature of the offenses (both the similarity in conduct 

and the extent to which one offense advances the accomplishment of 

another), whether the crimes involved different victims, and whether

the defendant had the opportunity to deliberately engage in the nextin-time offense.11 While they are certainly not the only factors relevant 

to the mandatory joinder analysis, these factors are well-suited to 

 

The concurrence also worries that the test we announce today will 

be misapplied in the same way as the test this court announced in State 

v. Shickles, 760 P.2d 291, 295–96 (Utah 1988), where we identified factors 

courts should consider in evaluating the admissibility of evidence 

under rule 403 of the Utah Rules of Evidence. Infra ¶ 53 n.2. But the 

problem with the test we announced in Shickles is that it was partially 

inconsistent with the language of rule 403 and purported to replace rule 

403’s own balancing test with a different test. By contrast, the test we 

announce today is not inconsistent with the mandatory joinder statute 

nor does it replace a statutory test with another test of our own making. 

Instead, it gives the trial courts guidance on how to determine whether 

two offenses are “incident to an attempt or an accomplishment of a 

single criminal objective.” UTAH CODE § 76-1-401.

11 Other jurisdictions also consider these same factors in 

confronting similar issues. See, e.g., State v. Bauer, 792 N.W.2d 825, 828 

(Minn. 2011) (considering the “different locations” of the crimes in 

determining whether conduct constituted a single behavioral incident);

State v. Condo, 182 P.3d 57, 61 (Mont. 2008) (considering the substantive 

nature of a negligent vehicular homicide charge and a DUI charge in 

determining the crimes “[did] not share the same purpose, motivation, 

and criminal objective”); State v. Stevens, 900 N.E.2d 1037, 1040–41 

(Ohio Ct. App. 2008) (considering the presence of “multiple victims” in 

determining whether a robbery of several people in a single home 

constituted a single objective); State v. Nguyen, 771 P.2d 279, 281 (Or. Ct. 

App. 1989) (rejecting the argument that a defendant’s acts constituted a 

single criminal episode because “[a]lthough the charges were identical, 

they did not arise from ‘continuous and uninterrupted’ conduct”).
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Opinion of the Court

17

advancing the twin purposes of the mandatory joinder statute: “(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 omitted). Applying our totality of the circumstances test, 

we conclude that Mr. Rushton’s conduct did not have a single criminal 

objective and we therefore affirm the court of appeals’ decision.

¶ 36 First, we consider “whether the offenses arose in different 

geographic locations.” United States v. Letterlough, 63 F.3d 332, 335 (4th 

Cir. 1995).12 Unfortunately, there is insufficient evidence in the record 

to determine where Mr. Rushton’s tax crimes and wage crimes 

occurred. Mr. Rushton’s conduct may have occurred within the four 

walls of the business or where the payments were due. Regardless, this 

factor is not dispositive. Courts in other jurisdictions have found 

offenses to constitute separate offenses based on the defendant’s having 

had time between the offenses and the opportunity to make a 

conscious, knowing decision to commit each offense, despite the 

offenses having been committed in the same location. See, e.g., United 

States v. Thomas, 381 F. App’x 495, 505–08 (6th Cir. 2010). We agree. So 

even if we assume that Mr. Rushton committed both his tax crimes and 

his wage crimes at the same location, that factor is not dispositive. 

Therefore, we turn to the other factors to make our ultimate decision.

¶ 37 Second, we consider “whether the nature of the offenses was 

substantively different.” Letterlough, 63 F.3d at 335–36.13 The tax crimes 

 

12 See, e.g., State v. Ireland, 570 P.2d 1206, 1207 (Utah 1977) (“In this 

case there was a distinct difference in . . . location, (two separate 

counties) and the . . . kidnapping . . . was totally disconnected in . . . 

place.”).

13 See, e.g., State v. Germonto, 868 P.2d 50, 60–61 (Utah 1993) (holding 

that “the offenses [of murder, robbery, and forgery] were similar in 

nature [and] design” as “part of an effort to acquire [the victim’s] 

property”); State v. McGrath, 749 P.2d 631, 633 (Utah 1988) (noting a 

“similarity of the offenses charged” and concluding joinder was 

proper); Hupp v. Johnson, 606 P.2d 253, 254 (Utah 1980) (holding that the 

“separate, independent offenses . . . were entirely unrelated to each 

other” and thus “were not committed to accomplish a ‘single criminal 

objective’”); State v. Cornish, 571 P.2d 577, 578 (Utah 1977) (concluding 

(cont.)
STATE v. RUSHTON

Opinion of the Court

18

and the wage crimes were plainly different in nature. Each set of 

offenses involved different financial concepts and bodies of proof. For 

example, the tax offenses involved issues such as whether Mr. Rushton 

had improperly “co-mingle[d] funds,” whether he had prepared 

fraudulent tax returns, and whether he failed to file his personal 

income taxes. By contrast, the wage offenses involved whether 

Mr. Rushton had kept wages and retirement benefits he owed to his 

employees for himself. Similarly, Mr. Rushton’s tax crime charges arose 

out of an investigation by the Utah State Tax Commission, and 

Mr. Rushton’s wage crimes were independently under investigation by 

the Utah Labor Commission and the United States Department of 

Labor. Moreover, the prosecutor in Mr. Rushton’s tax case was 

apparently unaware of the wage crimes until after Mr. Rushton pleaded 

guilty to the tax offenses. And while there was some overlap in the 

statutes under which Mr. Rushton was charged in the wage and tax 

cases, the same statute may cover substantively different kinds of 

conduct.14 For example, in State v. Gibson, 2009 UT App 108, 208 P.3d 

543 and State v. Winward, 907 P.2d 1188 (Utah Ct. App. 1995), the 

defendants were both charged under Utah Code section 76-6-513, but 

their conduct was very different. In Gibson, the defendant was charged 

for opening fraudulent credit card accounts in her grandmother’s 

name, 2009 UT App 108, ¶ 2, while in Winward, the defendant was 

charged for writing a fraudulent offer on a home, 907 P.2d at 1189–90. 

Thus, the fact that two charges are based on a single statute is not 

necessarily indicative of conduct of a similar nature. Given such

differences in conduct, we are not troubled by the minor overlap in the 

statutory charges between the cases and do not see it as evidence of 

 

that “although the testimony given may overlap, the offenses are 

different and . . . distinct” and that “the proof requirements are 

different”); Ireland, 570 P.2d at 1207 (holding that “[the] robbery was 

entirely different than . . . [the] kidnapping which was totally 

disconnected in . . . purpose”).

14 The tax crimes Mr. Rushton was charged with fall under Utah 

Code sections 76-8-1101, 76-6-513, 76-10-1801, and 76-10-1603. The wage 

crimes Mr. Rushton was charged with fall under Utah Code sections 

76-10-1801, 76-10-1603, 76-2-202, 76-6-513, 76-6-409, and 34-28-12.
Cite as: 2017 UT 21

Opinion of the Court

19

conduct constituting a single criminal objective.15 We conclude that 

Mr. Rushton’s wage crimes are substantively different from 

Mr. Rushton’s tax crimes.

¶ 38 Third, we consider whether each offense involved “different 

victims.” Letterlough, 63 F.3d at 336.16 Mr. Rushton’s tax crimes and 

Mr. Rushton’s wage crimes clearly involved different victims. The 

victim of Mr. Rushton’s tax crimes was the government of the state of 

Utah, and the victims of Mr. Rushton’s wage crimes were the former 

employees of Fooptube. Because the victims in the two cases are 

completely different, this factor weighs strongly in favor of a finding 

that Mr. Rushton’s conduct did not have a single criminal objective.

¶ 39 The final factor we consider is whether Mr. Rushton had “the 

opportunity to make a conscious and knowing decision to engage in”

the next-in-time offense.17 Id. at 337. There is some overlap in the time 

 

15 We agree with the concurrence that whether one offense furthers 

the accomplishment of another is one, but not the only, important 

factor in the mandatory joinder analysis. Cf. infra ¶¶ 58, 60, 64

(explaining how to assess whether one offense advances the 

accomplishment of another). Here, because the wage offenses were not 

undertaken in furtherance of the tax offenses, nor vice versa, neither 

advanced the accomplishment of the other.

16 See, e.g., Germonto, 868 P.2d at 60 (finding a single criminal 

objective when the separate offenses “involved the same victim”).

17 The concurrence contends that this factor “double-count[s] the 

timing element.” Infra ¶ 65 n.9 (noting that the statute defines a “single 

criminal episode” as comprising two components: the offenses must be 

“closely related in time” and they must be “incident to an attempt or an 

accomplishment of a single criminal objective” (quoting UTAH CODE

§ 76-1-401)). We disagree. The threshold requirement that the offense be 

“closely related in time” must be satisfied even if application of the 

totality of the circumstances test otherwise indicates that the offenses 

are incident to an attempt or accomplishment of a single criminal 

objective. The “closely related in time” element serves one purpose: 

preventing the mandatory joinder of any offenses, no matter how 

otherwise related they are, that occurred too far apart. The factor we 

discuss here—whether the defendant had the opportunity to deliberate 

on whether to engage in the next-in-time offense—on the other hand, 

(cont.)
STATE v. RUSHTON

Opinion of the Court

20

Mr. Rushton committed his tax crimes and the time he committed his 

wage crimes.18 However, taxes are paid quarterly, and the paychecks 

for Fooptube employees were due monthly. See UTAH CODE § 34-28-

3(1)(a) (“An employer shall pay the wages earned by an employee at 

regular intervals, but in periods no longer than semimonthly on days to 

be designated in advance by the employer as the regular payday.”). 

Thus, each crime would have been committed at a different point in 

time, and, therefore, Mr. Rushton would have had “the opportunity to 

make a conscious and knowing decision to engage in” the next-in-time 

offense, even if he committed some of his tax crimes in the same month 

as some of his wage crimes. Letterlough, 63 F.3d at 337. We conclude 

that the periods of time between Mr. Rushton’s quarterly commission 

of his tax crimes and Mr. Rushton’s commission of his wage crimes 

gave Mr. Rushton adequate opportunity to “make a conscious and 

knowing decision to engage in” the next-in-time offense. Id.

¶ 40 Having conducted this fact-intensive analysis, we determine, 

based on the totality of the circumstances, that Mr. Rushton’s tax crimes 

and wage crimes did not have a single criminal objective. Id. at 336 

(“Courts have applied these factors independently, or in conjunction, to 

decide that a defendant’s similar offenses are actually separate and 

distinct from one another. In essence, if any one of the factors has a 

 

helps the court determine whether the two offenses have the same 

criminal objective. While there will no doubt often be overlap between 

the “closely related in time” analysis and this factor, a degree of overlap 

is not the same thing as double-counting. Indeed, overlap is often a 

feature of legal tests. See, e.g., Doggett v. United States, 505 U.S. 647, 651–

52 (1992) (describing the “delay before trial” element of the test for 

whether a defendant’s constitutional right to a speedy trial has been 

violated as “a double enquiry”: “[s]imply to trigger a speedy trial 

analysis, an accused must allege that the interval between accusation 

and trial has crossed the threshold dividing ordinary from 

‘presumptively prejudicial’ delay. . . . If the accused makes this 

showing, the court must then consider, as one factor among several, the 

extent to which the delay stretches beyond the bare minimum needed 

to trigger judicial examination of the claim.” (citing Barker v. Wingo, 407 

U.S. 514, 530–34 (1972))).

18 Mr. Rushton’s tax crimes took place from 2005 to 2008, and 

Mr. Rushton’s wage crimes took place during 2008 and 2009. 
Cite as: 2017 UT 21

Opinion of the Court

21

strong presence, it can dispositively segregate an extended criminal 

enterprise into a series of separate and distinct episodes.” (footnote 

omitted)). Three of the four factors weigh against a finding of a single 

criminal objective, and the only other factor (the location where the 

crimes were committed) is not dispositive. See supra ¶ 36. Moreover, no 

other considerations argue in favor of finding a single criminal 

objective in this case. We accordingly hold that Mr. Rushton’s conduct 

at issue in the tax case and in the wage case did not have a single 

criminal objective and that the State therefore was not required to join 

the charges for Mr. Rushton’s tax crimes and the charges for his wage 

crimes in a single prosecution.

¶ 41 We close with a note on the appropriateness of a totality of 

the circumstances test in this case. For policy reasons, the concurrence 

takes us to task for adopting a totality of the circumstances test in the 

mandatory joinder context. Infra ¶¶ 71–73. It points out that multifactor tests are not as predictable as bright-line legal rules, and it notes 

that the policy consequences of a misapplication of our multi-factor test 

could potentially be “drastic”— if a prosecutor fails to join a count that 

was subject to mandatory joinder, the result will be “the preclusion of a 

criminal claim without any consideration of the merits.” Infra ¶¶ 71–72.

¶ 42 While we are hesitant to conclude that predictability is the 

overriding value in law—other important values are fidelity to text and 

ensuring that the law does not purchase precision at the cost of 

anomalous or unjust results—we agree with the concurrence that courts 

must always be attuned to the risk that a test might prove difficult to 

apply. But we think the risk of unpredictability is low here. Many other 

jurisdictions use multi-factor tests to determine whether mandatory 

joinder is required, see supra ¶ 35 n.11, and we have been given no 

reason to think that the law in those jurisdictions is unpredictable. 

Moreover, as we have explained, it is not clear that the concurrence’s 

test would be any more predictable than ours—indeed, it could well be 

less predictable. See supra ¶ 24.

¶ 43 As for the concurrence’s concern about the “drastic 

consequence[]” of criminal claim preclusion due to a prosecutor’s 

failure to join counts, infra ¶ 72, it is fair as far as it goes, but the 

analysis is fatally incomplete. The policy question in this case is not 

simply whether we should make it harder or easier for prosecutors to 

prosecute all the offenses that a defendant might fairly be charged with. 

Instead, the policy question is comparative: whether it is more 

important to prevent the “drastic consequence[]” of criminal claim 
STATE v. RUSHTON

Opinion of the Court

22

preclusion due to the prosecutor’s failure to join counts or to prevent 

the “drastic consequence[]” of serial prosecutions when claims 

otherwise ought to have been joined. While this consideration is 

secondary to the textual and doctrinal factors that have persuaded us to 

adopt the test we announce, we think that it will generally be less costly 

for a prosecutor to over-join counts than it is for a defendant to defend 

against serial prosecutions.

¶ 44 As a final note, litigants in a criminal case—both prosecutor 

and defendant—may always move the district court to join counts that 

the law does not require be joined and to sever counts that are 

otherwise subject to mandatory joinder. See UTAH R. CRIM. P. 34 

(allowing motions to consolidate criminal cases); UTAH R. CRIM. P. 

9.5(1)(b) (allowing separation of offenses otherwise required to be 

joined “for good cause shown”). Thus, neither the concurrence’s nor 

our test is liable to change the ultimate joinder determination in the 

vast majority of criminal cases. We agree with the concurrence that “the 

practical effect of [its] test is not . . . sweeping.” Infra ¶ 69. Nor, for that 

matter, is the practical effect of ours. But, at the margin, the test for 

mandatory joinder that we adopt today will yield results that are not 

only more faithful to text and structure, but fairer and more rational as 

well. 

CONCLUSION

¶ 45 In conclusion, we reject Mr. Rushton’s characterization of 

misappropriation as his single criminal objective because such a 

definition is too broad and would render the permissive joinder statute 

inoperative. Instead, we consider the totality of the circumstances to 

determine whether Mr. Rushton’s conduct had a single criminal 

objective. Because Mr. Rushton’s tax crimes and wage crimes were 

substantively different and involved different victims, and because 

Mr. Rushton had the “opportunity to make a conscious and knowing 

decision to engage” in the next-in-time offense, we conclude that 

Mr. Rushton’s criminal conduct did not have a single criminal 

objective. See United States v. Letterlough, 63 F.3d 332, 337 (4th Cir. 1995). 

Because Mr. Rushton’s conduct did not have a single criminal objective, 

it was not a single criminal episode under the mandatory joinder 

statute. Therefore, we hold that the mandatory joinder statute did not 

require joinder of Mr. Rushton’s tax crimes and wage crimes in a single 

prosecution, and we affirm the court of appeals’ decision upholding the 

denial of Mr. Rushton’s motion to dismiss.
Cite as: 2017 UT 21

LEE, A.C.J., concurring in the judgment

23

ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment:

¶ 46 Utah Code section 76-1-403 prescribes a rule of criminal claim 

preclusion. It states that the prosecution of “one or more offenses 

arising out of a single criminal episode” may bar the “subsequent 

prosecution for the same or a different offense arising out of the same 

criminal episode” if certain conditions are met. UTAH CODE § 76-1-

403(1).

¶ 47 Here we are asked to define the scope of a “single criminal 

episode.” The majority does so by articulating a “totality of the 

circumstances” test turning on at least four factors—“the location 

where the crimes were committed, the nature of the offenses, whether 

the crimes involved different victims, and whether the defendant had 

the opportunity to deliberately engage in the next-in-time offense.” 

Supra ¶ 12. Applying this test, the court concludes that a prior 

prosecution of David Rushton on criminal tax charges does not 

foreclose the present prosecution on charges arising out of his failure to 

pay earned wages to employees. Because “[t]hree of the four factors” 

identified by the court “weigh against a finding of a single criminal 

objective,” the majority holds “that Mr. Rushton’s tax crimes and wage 

crimes did not have a single criminal objective.” Supra ¶ 40. And it 

therefore affirms the court of appeals’ decision allowing the 

prosecution on the wage offenses to move forward.

¶ 48 I agree with the judgment of the court—its affirmance of the 

court of appeals’ decision allowing the wage case to move forward. But 

I disagree with the majority’s analysis. I would not define the statutory 

terms by reference to a multi-factored balancing test. Instead, I would 

articulate a test based on the operative terms of the controlling statute. 

The operative language precludes subsequent prosecution for criminal 

“conduct” that is “closely related in time” and “incident to an attempt 

or an accomplishment of a single criminal objective.” UTAH CODE 

§ 76-1-401. The phrase “incident to an attempt or an accomplishment of 

a single criminal objective” is controlling here. I would affirm on the 

ground that Rushton’s wage offenses were not incident to the attempt or 

accomplishment of the earlier-charged tax offenses. Accordingly, I 

would hold that the statute does not preclude prosecution for the wage 

offenses.

¶ 49 In the paragraphs below I first present the textual basis for 

the operative test as I see it. Next I identify a significant shortcoming of 

the majority’s “totality” test—the fact that it will not cover some 
STATE v. RUSHTON

LEE, A.C.J., concurring in the judgment

24

conduct that is clearly “incident to an attempt or accomplishment” of a 

principal “criminal objective.” Last I close with some observations 

about the appropriate domain of balancing tests and the importance of 

predictability in a field like claim preclusion.

I

¶ 50 The majority rejects Rushton’s formulation of “single 

criminal episode.” It says that the wage offenses and tax offenses 

cannot be deemed to stem from a “single criminal objective” simply 

because they advance a nefarious “objective” framed at a high level of 

generality. Supra ¶ 16. Quite right. If the identification of an overarching 

bad purpose were enough to sweep in all charges deemed to advance it, 

the single criminal episode provision would be all-encompassing. Or at 

least it could potentially be so for a defendant whose lawyers are 

creative enough to formulate a nefarious purpose at a high level of 

generality. And that is not hard to do. 

¶ 51 In this case, Rushton asserts that the relevant “single criminal 

objective” is to prop up his business through general 

“misappropriation.” That is certainly a nefarious objective; and it 

would encompass both the wage offenses and the tax offenses in this 

case. But why stop at this level of generality? An alternative 

formulation would be the purpose of advancing Rushton’s interests by 

engaging in criminal activity. And that criminal objective would sweep 

in all conceivable crimes—even crimes as diverse as a sexual assault 

committed on one day and a count of securities fraud committed three 

weeks later. 

¶ 52 All of this tells us that “single criminal objective” cannot be 

defined in the abstract. If it were, the preclusive effect of section 76-1-

402 would be all-encompassing. And, as the majority notes, this 

approach would eviscerate the permissive joinder statute, Utah Code 

section 77-8a-1(1), which permits joinder for offenses that are “based on 

the same conduct or are otherwise connected together in their 

commission” or “alleged to have been part of a common scheme or 

plan.” See supra ¶ 16. If all crimes said to advance a general purpose of 

criminality must be charged jointly because they are part of a single 

criminal episode, then joinder would never be permissive. That cannot 

be if we are to preserve meaning for the permissive joinder provision.

¶ 53 And that means that we must embrace a narrower notion of 

“single criminal objective.” The majority does so by considering the 

“totality of the circumstances,” meaning the series of considerations 
Cite as: 2017 UT 21

LEE, A.C.J., concurring in the judgment

25

that the court deems relevant to this inquiry—the location of the two 

crimes, the nature of the offenses, the identity of the victims, and the 

opportunity to “deliberately engage in the next-in-time offense.” Supra

¶ 12. Yet the court proffers no linkage between the factors it includes in 

its balancing test and the operative terms of the statute.1 Instead, the 

 1 The majority professes general obeisance to the “plain meaning” 

of the statutory text. See supra ¶ 23. But, tellingly, the court nowhere 

seeks to connect its multi-factored test with the language of the statute. 

That test is weaved of whole cloth having nothing to do with the terms 

of section 76-1-401. So the majority is in no position to claim the high 

ground of “plain meaning” textualism.

The majority’s criticism, moreover, is rooted in a faulty premise. It 

says that “if the legislature had intended” the standard I propose, it 

“would have” done so explicitly. Supra ¶ 23. But we have rejected such 

syllogisms repeatedly. We have noted that “the legislature’s failure to 

speak more clearly tells us little or nothing about its intent in using 

terms that are less clear.” Irving Place Assocs. v. 628 Park Ave., LLC, 2015 

UT 91, ¶ 16, 362 P.3d 1241. And we have observed that “[i]n any matter 

of statutory construction of any consequence, it will almost always be 

true that the legislature could have more clearly repudiated one party’s 

preferred construction.” Id. (quoting Hill v. Nakai (In re Estate of 

Hannifin), 2013 UT 46, ¶ 25, 311 P.3d 1016). We have also explained that 

“‘the converse is almost always true as well.’” Id. (alteration in original) 

(citation omitted). For that reason, we have said that “‘[t]he legislature’s 

failure to speak more clearly’ yields no basis for interpreting the 

ambiguous terms it voted into law.” Id.; see also Craig v. Provo City, 2016 

UT 40, ¶ 38, 389 P.3d 423 (“It is usually quite beside the point that the 

legislature ‘knows how’ to speak more explicitly. That is another way 

of saying that the legislature could have spoken more clearly. And 

typically that gets us nowhere.” (footnote omitted)). That is all the 

majority is saying here. And in any event the legislature’s failure to 

adopt a clearer standard does not mean that it preferred the multifactored balancing approach favored by the majority. Again, nothing in 

the text supports the factors articulated by the court. 

The court’s argument also misstates my standard. I am not simply 

“equat[ing] a ‘single criminal episode’ with a single ‘crime.’” Supra

¶ 22. The use of the term “objective” has significance that is not as 

clearly conveyed by the term “offense.” The word “objective” identifies 

(cont.)
STATE v. RUSHTON

LEE, A.C.J., concurring in the judgment

26

court imports a test set forth in a federal court of appeals decision 

under a federal statute that bears little resemblance to the operative 

Utah provisions. See supra ¶¶ 36–39.2

¶ 54 The cited federal case is United States v. Letterlough, 63 F.3d 

332 (4th Cir. 1995). Letterlough is a case arising under the federal Armed 

Career Criminal Act, 18 U.S.C. § 924(e)(1). The cited statute provides for 

a sentencing enhancement—a mandatory minimum of fifteen years to 

life—for a person convicted of unlawful possession of a firearm under 

18 U.S.C. § 922(g) who “has three previous convictions . . . for a violent 

felony or serious drug offense, or both, committed on occasions 

different from one another.” 18 U.S.C. § 924(e)(1). The Letterlough court 

articulated factors of relevance to the determination whether past 

crimes were “committed on occasions different from one another.” Id. 

Citing cases from other circuits, the Letterlough court held that “a 

multiplicity of factors” help to indicate “when more than one 

conviction constitutes a separate and distinct criminal episode.” 63 F.3d 

at 335. And the cited factors include those embraced by the majority in 

 

the reference point for a court’s “incident to” analysis. The conduct at 

issue must be incident to the acts undertaken in attempting or 

accomplishing the relevant “objective” crime. The term “objective” thus 

aids—rather than hinders—a proper understanding of the analysis 

required by the statute.

2 I see a parallel between the majority opinion here and that in State 

v. Shickles, 760 P.2d 291, 295 (Utah 1988). Shickles identified factors to 

guide decisions weighing evidence under rule 403 of the Utah Rules of 

Evidence. Id. at 295–96. Yet the Shickles factors were not rooted in the 

text of the operative rule; they were “drawn from” the McCormick on 

Evidence treatise. State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841. And in 

time we were forced to repudiate the Shickles factors—identifying 

unforeseen consequences arising from an attempt to formulate factors 

not rooted in the text of the governing law, and backing away from the 

Shickles factors and pointing the courts back to rule 403. Id.

I foresee a similar path ahead under the single criminal objective 

statute. The Rushton factors seem destined to be applied in unforeseen 

ways in future cases, leading to results that cannot be squared with the 

operative text of the statute. When that happens we will be forced to 

formulate a test more tied to the terms of the statute. 
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LEE, A.C.J., concurring in the judgment

27

this case—“whether the offenses arose in different geographic 

locations; whether the nature of the offenses was substantively 

different; and whether the offenses involved multiple victims or 

multiple criminal objectives.” Id. at 335–36 (footnote omitted). In 

addition, the Letterlough court also considered whether the defendant 

had “the opportunity to make a conscious and knowing decision to 

engage in [the next-in-time offense.]” Id. at 337.

¶ 55 These factors may well be appropriate in assessing whether a 

series of crimes were “committed on occasions different from one 

another.” But the quoted language comes from 18 U.S.C. § 924(e)(1). 

And those terms appear nowhere in the operative Utah provision, Utah 

Code section 76-1-401. 

¶ 56 The question under section 401 is not whether a later-charged 

crime was committed on an occasion different from that of an earliercharged offense. It is whether the two sets of offenses are “closely 

related in time” and are “incident to an attempt or an accomplishment 

of a single criminal objective.” UTAH CODE § 76-1-401. Thus, so long as 

the time-relatedness element is met,3 subsequent prosecution is barred 

only if it arises out of conduct that is “incident to an attempt or an 

accomplishment of a single criminal objective.” Id. 

¶ 57 The statutory phrase “incident to” modifies or extends to 

both “an attempt . . . of a single criminal objective” and “an 

accomplishment of a single criminal objective.” It accordingly defines 

the scope of “conduct” that comprises a “single criminal episode.” 

Conduct that is not “incident to” an “attempt” or “accomplishment” of 

a “single criminal objective” may be charged separately because it does 

not comprise a “single criminal episode” under the statute.

¶ 58 The words “attempt” and “accomplishment” have welldefined meanings in the criminal law. An “attempt” is itself a crime 

involving conduct that is a “substantial step toward commission of [a 

specified] crime” wherein the defendant “intend[ed] to commit the 

 

3 I would consider the time-relatedness factor separately. That is an 

independent element of a “single criminal episode.” And it confuses 

the matter—and double-counts the time element—to consider time as a 

factor of relevance to the requirement of a “single criminal objective.” 

See infra ¶ 65 n.9. 
STATE v. RUSHTON

LEE, A.C.J., concurring in the judgment

28

[specified] crime.” UTAH CODE § 76-4-101(1).4 And the term 

“accomplishment” or “accomplish” refers to the completion of all the 

elements of a crime identified in the criminal code.5 Because this statute 

appears in the criminal code, speaks in terms of a criminal objective, and 

identifies timing requirements for criminal prosecutions, I would give 

these terms their criminal law meanings. See In re Adoption of Baby E.Z., 

2011 UT 38, ¶ 109, 266 P.3d 702 (Lee, J., concurring) (“‘Words of art 

bring their art with them,’ and courts have commonly assumed that 

‘where [a legislature] borrows terms of art . . . , it presumably knows 

and adopts the cluster of ideas that were attached to each borrowed 

word in the body of learning from which it was taken and the meaning 

its use will convey to the judicial mind unless otherwise instructed.’” 

(second alteration in original) (footnote and citations omitted)).

¶ 59 In their criminal law senses, both attempt and 

accomplishment are used in relationship to an identifiable offense in 

the criminal code. They refer, in other words, to a specific crime that 

was attempted or accomplished. Accordingly, in the context of the 

statutory definition of “single criminal episode,” these terms have 

reference to the “objective” of either attempting or accomplishing a 

specific offense. So the “objective” referenced in the statute is not, as 

 

4 See also BLACK’S LAW DICTIONARY 146 (10th ed. 2014) (defining

“attempt” as “1. The act or an instance of making an effort to 

accomplish something, esp. without success. 2. Criminal law. An overt 

act that is done with the intent to commit a crime but that falls short of 

completing the crime.”).

5 See, e.g., State v. Castonguay, 663 P.2d 1323, 1326 (Utah 1983) 

(stating in an attempted murder case that “it must be borne in mind 

that an attempt transcends intent, yet fails to culminate in its planned 

accomplishment”); State v. Musser, 175 P.2d 724, 731 (Utah 1946) 

(stating that “a criminal conspiracy . . . consists of an unlawful 

agreement plus some overt act or acts done to further or to accomplish 

the object of such an agreement”; also noting that “[a]n act done in 

furtherance of an agreement need not succeed in accomplishing its 

objective in order to fulfill the requirements of the statute”) (emphases 

added), vacated and remanded on other grounds in Musser v. Utah, 333 U.S. 

95 (1948); State v. Mortensen, 83 P.2d 261, 262–63 (Utah 1938) (reversing 

attempted rape conviction on the ground that there was “no act which 

can be said to be designed to accomplish the act of intercourse”). 
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LEE, A.C.J., concurring in the judgment

29

Rushton asserts, some hazy nefarious purpose. Nor is it an unlawful 

purpose defined vaguely by a totality of the circumstances. It has 

reference, rather, to a particular crime—a “single” “objective” crime 

that the defendant either “attempt[ed]” or “accomplish[ed].” See UTAH 

CODE § 76-1-401. Thus, for the prosecution of a crime to be barred by 

the statute, the conduct underlying that crime must have been “incident 

to” the attempt or accomplishment of the identified objective crime.

¶ 60 The “incident to” element is the language of connection or 

causation.6 One event or act is “incident to” another if it arises out of it 

or is otherwise connected to it—as in a risk “incident to” employment 

or a search “incident to” an arrest. I would interpret the statutory 

reference to an offense “incident to an attempt or an accomplishment” 

of the objective crime in this sense. I would require proof of some 

connection or relationship between the two offenses.7

 

6 See BLACK’S LAW DICTIONARY 146 (10th ed. 2014) (defining 

“incident” as “[d]ependent on, subordinate to, arising out of, or 

otherwise connected with (something else, usu. of greater importance) 

<the utility easement is incident to the ownership of the tract>”); 

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1142 (3d ed. 2002) 

(setting forth the “law” definition of the word “incident” when used as 

an adjective: “dependent on or appertaining to another thing: directly 

and immediately relating to or involved in something else though not 

an essential part of it.”).

7 Perhaps this inquiry will introduce some uncertainty. That is one 

of the majority’s complaints about my approach. See supra ¶ 24. But the 

“incident to” element is an explicit component of the statutory test. If 

we are concerned about the fuzziness of the inquiry then we should do 

our best to bring clarity to the analysis; we are in no position to write it 

out of the law (as the majority does in its test). See supra ¶ 45 (“Because 

Mr. Rushton’s conduct did not have a single criminal objective, it was not a 

single criminal episode under the mandatory joinder statute.” 

(emphasis added)). I would bring clarity to “incident to” by drawing 

upon analogies in other areas of the law, which treat “incident to” as 

the language of connection or causation. Our cases can iron out any 

wrinkles in this formulation in due time.

The majority, moreover, is in no position to make the plea for 

certainty. Its “totality of the circumstances” test requires uncertainty 

(cont.)
STATE v. RUSHTON

LEE, A.C.J., concurring in the judgment

30

¶ 61 The statutory test accordingly consists of two steps. First, the 

court must identify the “single criminal objective”—the objective 

crime—at issue.8 Second, the court must determine whether the 

defendant’s other criminal conduct was incident to the attempt or 

accomplishment of the objective crime. 

¶ 62 Because the statute prohibits successive “prosecution” for 

offenses that are part of a single criminal episode, see UTAH CODE 

§ 76-1-403, I would conduct this analysis by reference to the documents 

setting forth the basis for the prosecution (the criminal information or 

indictment). And I would hold that Rushton’s wage offenses were not 

incident to an attempt or accomplishment of his tax offenses. Rushton 

made no effort to show any relationship between the conduct 

underlying his tax offenses and the conduct underlying his wage 

offenses—let alone one that could be described as “incident to,” under 

the statute. He argued only that both the tax offenses and the wage 

offenses fall under the same general objective of misappropriating 

funds. That is plainly insufficient. To fall within the preclusive sweep of 

the statute, Rushton’s tax offenses would have to be shown to be 

incident to—or directly and immediately relating to—an attempt or 

accomplishment of his wage offenses. No such showing was made 

here, and Rushton’s argument should fail on that basis.

II

¶ 63 The majority takes a completely different tack. It adopts 

instead a multi-factored balancing test. But that test is completely 

disconnected from the operative statutory language. And it will also 

lead to problematic results.

¶ 64 An inchoate offense, in my view, is clearly “incident to an 

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

CODE § 76-1-401. Surely a conspiracy to commit bank robbery, for 

example, is “incident to an attempt or an accomplishment” of the bank 

robbery. So if such offense is “closely related in time” to the principal 

 

from case to case. See infra ¶¶ 71–72 (noting further concerns about the 

unpredictability of the majority’s test).

8 Either of two crimes could be the “objective.” The analysis would 

turn on whether the conduct underlying one of the crimes at issue was 

incident to the attempt or accomplishment of another crime. 
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LEE, A.C.J., concurring in the judgment

31

offense it is aimed at facilitating, it must necessarily be barred if not 

included in the prosecution of the principal offense.

¶ 65 Yet the majority’s multi-factored balancing test could easily 

lead to the opposite conclusion. Consider a case involving a bank 

robbery preceded by solicitation of an accomplice. The act of 

solicitation is undoubtedly “incident to” the “accomplishment” of the 

“criminal objective” of bank robbery. So the crime of solicitation should 

be foreclosed if closely related in time and not charged in connection 

with an initial prosecution for the bank robbery. But that crime may not 

be barred under the majority’s test. If, for example, the accomplice 

resides in a different state, the majority’s factors could easily weigh 

against a requirement of joinder in the initial bank robbery case, since 

the offenses could be said to arise in a “different geographic location[],” 

supra ¶ 36; the solicitation offense is “substantively different” in 

“nature” from bank robbery, supra ¶ 37; and the defendant “had ‘the 

opportunity to make a conscious and knowing decision to engage in’

the next-in-time offense,” supra ¶ 39.9 That makes three of four factors 

 

9 The majority’s test also seems problematic for an additional 

reason: Even if we assume the propriety of a multi-factored test, the 

majority’s standard seems to double-count the timing element. The 

operative statute tells us that time-relatedness is an inquiry distinct 

from the “single criminal objective” element. See UTAH CODE § 76-1-401 

(defining “single criminal episode” as one involving two sets of 

offenses that are “closely related in time” and “incident to an attempt 

or an accomplishment of a single criminal objective”). So the 

assessment of “opportunity to make a conscious and knowing 

decision” seems to amount to double-counting.

I have no quarrel with the notion that “overlap is often a feature of 

legal tests.” Supra ¶ 39 n.17. But my point is not to raise a general 

objection to “overlap” in all circumstances; it is to suggest that the 

separate existence of a “closely related in time” test calls into question 

the statutory basis for a time component of the “single criminal 

objective” test. Thus, the existence of overlap in legal tests formulated 

in other areas of the law tells us nothing about the appropriate standard 

for analyzing a “single criminal objective.” And the separate nature of 

the “closely related in time” standard undermines the existence of a 

time component for assessing “single criminal objective.”
STATE v. RUSHTON

LEE, A.C.J., concurring in the judgment

32

that cut against the conclusion that these offenses are “incident to” the 

“accomplishment” of the “criminal objective” of bank robbery. 

¶ 66 This is troubling. If the factors we identify fail to sweep in 

classic crimes “incident to an attempt or accomplishment of a single 

criminal objective,” then it’s time to go back to the drawing board. I 

would do so by giving the terms attempt, accomplishment, and 

criminal objective the meaning those terms have in the criminal law. 

And I would hold that Rushton’s wage offenses are not precluded here 

because he has made no effort to identify any relationship between the 

conduct underlying the two distinct sets of crimes. 

¶ 67 The majority objects to my test as underinclusive, citing an 

example of a series of thefts “from ten separate accounts belonging to 

ten separate clients of the same bank,” brought about by a “computer 

program” written by a defendant who admits to a goal of stealing 

“small enough increments that (in his view) were less likely to 

immediately trigger the bank’s anti-fraud measures.” Supra ¶¶ 24–25. 

In the court’s view, these offenses “ha[ve] a single criminal purpose 

underlying” them, as witnessed by the defendant’s contemporaneous 

admission of his intent. Id. ¶ 26. And because my test would allow 

“serial prosecutions” of these multiple choate offenses, the majority 

insists that my approach must be dismissed as underinclusive. Id.

¶ 68 I disagree for several reasons. For one thing, the court’s 

conclusions are premised on its own take-our-word-for-it sense of the 

scope of “single criminal episode.” It confidently announces its belief 

that “[t]he state should not be allowed to bring serial prosecutions 

against” a defendant in these circumstances. Id. But it offers no basis in 

the words of the statute for that conclusion. So the court’s criticism (of 

the underinclusiveness of my test) is entirely circular. In my view, it is 

the majority’s test that is under- and overinclusive—or at least 

potentially so, in that the multi-factored balancing test makes it 

impossible to predict with any certainty which crimes will be deemed 

to be encompassed within a “single criminal episode.”

¶ 69 Second, the practical effect of my test is not nearly as 

sweeping as the court imagines. “[S]erial prosecutions” will ensue only 

if the prosecution chooses to exercise its discretion to charge these 

crimes separately. And a rational prosecutor seems highly likely to 

charge these hypothetical crimes together for a range of practical 

reasons. Even if related cases are charged separately, moreover—as 

with the court’s secondary example of “a hacker who simultaneously 
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LEE, A.C.J., concurring in the judgment

33

acquires unauthorized access to one million computers,” id.—there is 

no reason to expect “one million trials.” Id. Cases can be charged 

separately but ultimately consolidated for trial. UTAH R. CRIM. P. 34. So 

the majority overstates the practical concern implicated by my test.

¶ 70 Finally, the majority’s concerns about underinclusiveness are 

not necessarily alleviated by its test. The virtue of a “totality of the 

circumstances” test is its flexibility. But that is also its principal vice. 

And I cannot see how a prosecutor could predict how the multiple 

bank theft or computer hacking counts would fare under the majority’s 

test. In both cases there are some factors pointing in favor of mandatory 

joinder (location, similar conduct) and others pointing the other way 

(different victims, neither offense is incident to the attempt or 

accomplishment of the other). The majority, moreover, goes out of its 

way to say that the listed considerations “are certainly not the only 

factors relevant to the mandatory joinder analysis.” Supra ¶ 35. So it 

seems impossible to anticipate with any certainty how the court’s own 

hypotheticals would come out under its test. It is entirely possible that 

the examples it lists would come out the same under both tests.

III

¶ 71 A totality-of-the-circumstances test is a tempting response to 

a complex legal problem. And such a test may have a place in the law—

in a field, for example, where precision is untenable (or unimportant) 

and flexibility is at a premium.10 But this is not such a field.11 The 

 

10 See United States v. Mead Corp., 533 U.S. 218, 241 (2001) (Scalia, J., 

dissenting) (deriding “th’ol’ ‘totality of the circumstances’” as “that test 

most beloved by a court unwilling to be held to rules (and most feared 

by litigants who want to know what to expect)”).

11 There is a rich literature on the virtues and vices of objective 

rules and subjective standards. Nearly everyone agrees that there is a 

place in the law for both. But even the pro-standards crowd 

acknowledges that balancing tests are problematic in fields in which 

predictability is at a premium. Compare Antonin Scalia, The Rule of Law 

As a Law of Rules, 56 U. CHI. L. REV. 1175, 1182 (1989) (stating that 

“predictability is destroyed” when courts adopt tests based on the 

“totality of the circumstances” or “a balancing of all the factors 

involved”) with Cass R. Sunstein, Must Formalism Be Defended 

Empirically?, 66 U. CHI. L. REV. 636, 654 (1999) (acknowledging that 

(cont.)
STATE v. RUSHTON

LEE, A.C.J., concurring in the judgment

34

flipside of flexibility is unpredictability. And predictability is at a 

premium in the field of claim preclusion.

¶ 72 A prosecutor faced with the question of how widely to frame 

an information or indictment must anticipate the preclusive effect of 

such a decision.12 A misjudgment in this field will produce drastic 

consequences—the preclusion of a criminal claim without any 

consideration of the merits. Such a consequence should be the 

predictable result of a reasoned decision. And we thwart that 

possibility when we do no more than articulate a series of “factors” to 

be balanced in some unspecified way.

¶ 73 I would avoid that problem here. I would do so by rejecting 

the majority’s “totality” test in favor of a more objective rule rooted in 

the operative terms of the governing statute. And I would affirm under 

that test.

 

although the “issue[] [is] hard to resolve in the abstract,” “[w]here 

predictability is especially important—such as in areas involving 

commercial and criminal law—formalism [which seeks to limit judicial 

discretion] might be favored.”).

12 Surely this is an additional “purpose of the mandatory joinder 

statute.” See supra ¶ 35 (listing other purposes). We should not assume 

that a statute like this one is aimed at accomplishing only a limited set 

of objectives on one side of the scale. We should recognize the reality 

that this statute, like most all others, is aimed at balancing competing 

objectives, including that of the prosecution in the exercise of its 

discretion. See Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 23 n.6, 248 

P.3d 465 (“[M]ost statutes represent a compromise of purposes 

advanced by competing interest groups, not an unmitigated attempt to 

stamp out a particular evil.”).