State v. Brown

2019 UT App 122

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

TONIA SCHNAE BROWN,

Appellant.

Opinion

No. 20161036-CA

Filed July 18, 2019

Third District Court, Salt Lake Department

The Honorable Vernice S. Trease

No. 151902943

Debra M. Nelson, Attorney for Appellant

Sean D. Reyes and William M. Hains, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,

in which JUDGES GREGORY K. ORME and DIANA HAGEN

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Tonia Schnae Brown appeals her convictions on three

counts of securities fraud, second-degree felonies. We affirm.

BACKGROUND

¶2 Two Utah residents, Victim and Friend, were introduced

to Brown by a mutual friend (Advisor). Brown had informed

Advisor that she had made a substantial amount of money as a

commercial real estate broker prior to the financial crisis of 2008

but had moved her funds to offshore accounts at that

time because she was concerned about the United States’

financial system. She claimed to have just under $50 million in

State v. Brown

an account at InterBank, a bank operating out of Saint Vincent

and the Grenadines, as well as $300,000 in an account with the

Bank of China in Hong Kong. Brown represented that she owed

$59,500 in value added taxes (VAT) to the Hong Kong

government and that her accounts were frozen until she paid the

money.

¶3 Brown signed a promissory note stating that she would

pay Victim $1 million when her accounts were unfrozen if

Victim would send Brown the $59,500 for the VAT. Brown

assured Victim that “there was no risk” and she could return her

money “at any time.” Victim took out a home equity loan in the

amount of $59,500 and wired the money as directed by Brown.

¶4 Instead of delivering the promised $1 million, Brown

delivered a letter to Victim, purportedly from the Bank of China,

stating that the VAT had increased and that an additional

$80,500 was needed to pay the VAT. Brown signed a new

promissory note in which she committed to deliver $2 million in

exchange for the total $140,000 needed to pay the VAT, and

Friend loaned Brown the additional $80,500.

¶5 Once again, Victim and Friend received a letter,

purportedly from the Bank of China, informing them that an

additional $210,000 was needed to release the frozen funds.

Brown urged Victim and Friend to provide the additional funds,

but instead Victim contacted the Federal Bureau of Investigation,

the Securities and Exchange Commission, and a private attorney

to report that she and Friend may have been defrauded by

Brown. Victim and Friend made various attempts to recover the

funds from Brown but were unsuccessful.

¶6 Victim also made her own inquiries, reaching out to the

Hong Kong Monetary Authority (HKMA) and government

authorities in Saint Vincent and the Grenadines, as well as hiring

attorneys in Hong Kong to look into the validity of Brown’s

claims. She learned that Hong Kong does not have a VAT and

that the documentation Brown had provided from both the Bank

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of China and the HKMA were likely not authentic. Victim also

discovered that there was no record of InterBank in Saint

Vincent and the Grenadines and that the address on InterBank’s

letterhead—appearing on a document provided by Brown—was

invalid.

¶7 The State charged Brown with three counts of securities

fraud in connection with this incident, all second-degree

felonies. Brown elected to represent herself in the criminal case.

But before the trial court allowed Brown to proceed pro se, it

conducted a full colloquy regarding Brown’s education, her

understanding of the charges, her understanding of the law, and

her constitutional right to have counsel appointed. The court

“strongly urge[d]” Brown not to represent herself, but she

elected to do so anyway. The court then accepted Brown’s

waiver of counsel, finding that it was knowing, voluntary, and

intelligent.

¶8 The State called a securities expert, Bryan Allen, to testify

at trial. Allen testified that “securities laws impose a requirement

on . . . sellers of securities, to provide full and fair disclosure.”

He explained that disclosure is fraudulent if the seller fails to

provide an investor with “all material facts related to the

investment” or “omit[s] . . . any information that would make

the statements . . . misleading.” Allen further defined “material”

as “any[thing] that a reasonable investor would find important

in deciding to purchase . . . or sell the security.”

¶9 During his testimony, Allen provided a list of “examples

of what might be considered material facts or information in the

securities industry,” including (1) relevant information about the

seller’s business or industry; (2) information about the parties

involved in the transaction, including their experience and

education as well as any negative information about them, such

as prior convictions, judgments against them, or prior

bankruptcies; (3) how the money would be used and how it

would be expected to generate a return for the investor; and (4)

the risks involved in the investment.

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State v. Brown

¶10 When asked about his experience, Allen acknowledged

that he was not an international lawyer and was not an expert in

Hong Kong law. However, he asserted that he knew “enough

about international finance” to recognize if a transaction

“doesn’t seem quite right.”

¶11 The State called Allen to the stand a second time after he

had the opportunity to observe the other witnesses’ testimonies

at trial. At that point, Allen opined that specific statements and

omissions made by Brown would be “important to the average

reasonable investor,” including (1) that she had earned $50

million brokering commercial real estate, (2) that she was

required to pay a VAT in Hong Kong, (3) that she banked with

InterBank, (4) that she had previously received information

suggesting that InterBank did not exist, (5) that she had several

unpaid civil judgments against her, and (6) that she asserted

there was “no risk” involved in the investment.

¶12 Finally, the State submitted two exhibits that Allen had

relied on in forming his opinions (collectively, the printouts): (1)

a printout from the website of the Saint Vincent and the

Grenadines Financial Services Authority publicly warning that

InterBank “is not and has never been registered or licensed by

the St. Vincent and the Grenadines Financial Services Authority”

and that the Authority “is not aware of any such business

housed” at the address listed on the documents provided to

Victim and Friend, and (2) a printout from the Hong Kong

Government website stating that it has no VAT. Brown did not

object to the admission of the printouts, even when asked by the

court if she did. Allen then read portions of the printouts aloud

to the jury and stated that the information in them had helped

him form the basis of his opinion as to whether the transactions

in this case had characteristics of securities fraud.

¶13 After all the evidence was submitted, the trial court met

with the prosecutor and Brown to go over each of the State’s

proposed jury instructions. Instructions 33, 34, and 35 concerned

the definition of willfulness, how a seller’s duty to investigate

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State v. Brown

impacts willfulness, and the effect of ignorance of fact on a

willfulness finding. When the court learned that the definition of

willfulness contained in the proposed instructions was not based

on the Model Utah Jury Instructions, the court questioned the

prosecutor about the accuracy of the instructions and whether he

was aware of any contrary case law. The prosecutor replied that

his office had been using the same definition of willfulness “for

years” and represented that it was consistent with Utah case law,

specifically State v. Chapman, 2014 UT App 255, 338 P.3d 230,

which the prosecutor stated was the most recent case on the

subject. Brown affirmatively stated that she understood each

instruction and did not object to any of them.

¶14 Following trial, the jury convicted Brown on all three

counts, and Brown was sentenced to three concurrent terms of

one to fifteen years in prison and ordered to pay restitution of

$140,000. Accepting the help of appointed counsel, Brown now

appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Brown first argues that the jury instructions incorrectly

instructed the jury regarding her duty to investigate and how

that duty impacted a finding that she acted willfully. This issue

was not preserved below, and Brown therefore asks us to review

it under the doctrines of plain error and exceptional

circumstances.

¶16 Brown also argues that she should be granted a new trial

as a result of allegedly inappropriate expert testimony and the

erroneous admission of the printouts. As with her challenge to

the jury instructions, this issue was not raised below, and Brown

asks us to review it for plain error.

¶17 In order to prevail on grounds of plain error, an appellant

must show that “(i) [a]n error exists; (ii) the error should have

been obvious to the trial court; and (iii) the error is harmful, i.e.,

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State v. Brown

absent the error, there is a reasonable likelihood of a more

favorable outcome for the appellant.” State v. Dunn, 850 P.2d

1201, 1208 (Utah 1993). “Exceptional circumstances is a doctrine

that applies to rare procedural anomalies. We apply this

exception sparingly, reserving it for the most unusual

circumstances where our failure to consider an issue that was

not properly preserved for appeal would have resulted in

manifest injustice.” In re K.A.S., 2016 UT 55, ¶ 19, 390 P.3d 278

(quotation simplified).

¶18 Finally, Brown asserts that the cumulative effect of

these errors requires that she be granted a new trial. “Under the

cumulative error doctrine, we will reverse only if the cumulative

effect of the several errors undermines our confidence that

a fair trial was had.” Dunn, 850 P.2d at 1229 (quotation

simplified).

ANALYSIS

I. Jury Instructions

¶19 On appeal, Brown challenges several of the trial court’s

instructions to the jury. Brown did not raise any objection to the

jury instructions in the trial court but has asked us to review her

challenges on appeal on grounds of plain error and exceptional

circumstances.

A. Brown’s Plain Error Challenge to the Jury Instructions Is

Barred by the Invited Error Doctrine.

¶20 Brown asserts that the trial court incorrectly instructed the

jury regarding Brown’s duty to investigate and the extent to

which her ignorance of fact could be claimed as a defense to

securities fraud. See State v. Moore, 2015 UT App 112, 349 P.3d

797. However, Brown affirmatively represented to the trial court

that she had no objection to the proposed jury instructions.

“Under the doctrine of invited error, we have declined to engage

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in even plain error review when counsel, either by statement or

act, affirmatively represented to the trial court that he or she had

no objection to the proceedings.” State v. Winfield, 2006 UT 4,

¶ 14, 128 P.3d 1171 (quotation simplified). While a pro se litigant

“should be accorded every consideration that may reasonably be

indulged,” she will ultimately “be held to the same standard of

knowledge and practice as any qualified member of the bar.” Id.

¶ 19 (quotation simplified). And we have previously rejected the

assertion that a pro se litigant should be excused from the

invited error doctrine. See id. ¶¶ 18–20 (finding invited error

with respect to a claim of jury bias where a pro se litigant

affirmatively represented to the trial court that he found the

empaneled jury acceptable and specifically rejecting the

assertion that the defendant’s pro se status exempted him from

the invited error doctrine).

¶21 Brown asserts that she was misled by the prosecutor’s

affirmative representation to the trial court that the instructions

correctly stated the law and that her acceptance of this

representation constituted merely “affirmative acquiescence” to

the instructions rather than an “affirmative representation” that

they were correct. See State v. Marquina, 2018 UT App 219, ¶¶ 23–

24, 437 P.3d 628, cert. granted, 440 P.3d 691 (Utah 2019). Because

affirmative acquiescence has been rejected as a basis for invoking

the invited error doctrine, Brown asserts that the doctrine cannot

bar her plain error claims. See id. ¶ 23.

¶22 However, Brown did not merely acquiesce to the

instructions, she affirmatively approved them. The trial court

met with the prosecutor and Brown and went through each

individual jury instruction to ensure that Brown understood

and accepted them. Brown was even aware of a potential

question as to the accuracy of the instructions’ statement of

the law due to the trial court’s extensive questioning of

the prosecutor regarding the instructions on willfulness.

Yet rather than investigate the accuracy of the instructions or

request that the court take further action to verify their accuracy,

Brown explicitly affirmed her approval of each individual

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jury instruction. Thus, her challenge to those instructions on

appeal is barred by the invited error doctrine, and we do not

consider it further.

B. This Case Does Not Present the Type of Rare

Circumstance That Would Justify Review Under the

Exceptional Circumstances Exception to the Preservation

Rule.

¶23 Brown alternatively argues that we should review her

challenge to the jury instructions under the exceptional

circumstances doctrine because “[t]he prosecutor’s erroneous

assertions about controlling case law, and the trial court’s

reliance on those statements,” constituted a rare procedural

anomaly that “‘opened the door to exceptional circumstances’

review.” (Quoting State v. Johnson, 2017 UT 76, ¶ 36, 416 P.3d

443.)

¶24 Utah courts have applied the exceptional circumstances

doctrine “sparingly, reserving it for the most unusual

circumstances where our failure to consider an issue that was

not properly preserved for appeal would have resulted in

manifest injustice.” Johnson, 2017 UT 76, ¶ 29 (quotation

simplified). It is used to reach unpreserved issues “where a rare

procedural anomaly has either prevented an appellant from

preserving an issue or excuses a failure to do so.” Id. (quotation

simplified). This exception is not intended to be a “catch-all

category” constituting “a free-floating justification for ignoring

the legitimate concerns embodied in the preservation and waiver

rules.” Id. ¶ 38.

¶25 We do not agree with Brown that the prosecutor’s

allegedly erroneous statements to the trial court concerning the

accuracy of the jury instructions rise to the level of a rare

procedural anomaly. Brown’s argument appears to assert that

one party’s misinterpretation or misapplication of the law is

such an anomalous occurrence that it excuses the other party’s

obligation to object, investigate, or otherwise advocate for a

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more correct interpretation or application. Misstatements of law,

far from being a procedural anomaly, are an everyday

occurrence in our adversarial system. Indeed, one of the main

roles of a judge is to resolve differences in parties’

interpretations of the law and to correct legal errors. A

misstatement of law by one party, even if erroneously accepted

by the trial court, does not generally work a manifest injustice on

the other party such that the party is excused from complying

with preservation rules.

¶26 Indeed, the anomaly in this case appears to be the

fact that Brown elected to represent herself at trial rather

than obtain counsel. Normally, it would fall to counsel to review

the jury instructions and ensure that they accurately state the

law. Had Brown been represented by counsel and had her

counsel assented to the allegedly erroneous jury instructions,

this case would likely be coming to us in the framework of an

ineffective assistance of counsel claim. Unfortunately for Brown,

as she represented herself, any error in affirming the accuracy of

the instructions was her own. 1 And as a result of that error, we

are unable to review Brown’s unpreserved claims regarding the

accuracy of the jury instructions.

II. Expert Testimony

¶27 Brown next argues that the trial court plainly erred by

permitting expert testimony from Allen that “offer[ed] an

opinion on an ultimate issue to be decided by the jury” and in

admitting the printouts. See State v. Davis, 2007 UT App 13, ¶ 15,

155 P.3d 909 (quotation simplified). Because Allen did not testify

regarding legal conclusions and Brown invited any error in

admitting the printouts, we reject Brown’s arguments regarding

the expert testimony.

1. As noted above, Brown elected to represent herself despite

being “strongly urge[d]” by the court not to do so.

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State v. Brown

A. Brown Has Not Established That Allen’s Testimony Was

Impermissible Under the Utah Rules of Evidence.

¶28 Rule 702 of the Utah Rules of Evidence permits expert

testimony if it “will help the trier of fact to understand the

evidence or to determine a fact in issue.” Utah R. Evid. 702(a).

Such testimony is not rendered inadmissible purely on the basis

that it offers an opinion on an “ultimate issue” to be decided by

the jury. See id. R. 704(a). However, “opinions that tell the jury

what result to reach or give legal conclusions [are]

impermissible.” Davis, 2007 UT App 13, ¶ 15 (quotation

simplified). While there is “no bright line between responses that

embrace an ultimate issue and those that provide an

impermissible legal conclusion,” State v. Tenney, 913 P.2d 750,

756 (Utah Ct. App. 1996), testimony is likely to constitute an

impermissible legal conclusion if it is framed in a way that is

unhelpful to the factfinder; “blur[s] the separate and distinct

responsibilities of the judge, jury, and witness”; or creates a

“danger that a juror may turn to the witness’s legal conclusion

rather than the judge for guidance on the applicable law,” Davis,

2007 UT App 13, ¶ 15 (quotations simplified).

¶29 In State v. Tenney, 913 P.2d 750 (Utah Ct. App. 1996), this

court determined that it was plain error for a trial court in a

securities case to permit expert testimony that repeatedly and

explicitly stated that various actions and omissions on the part of

the defendant violated Utah law. Id. at 756. The court

determined that “those portions of the expert witnesses’

testimony to which defendant objects quite clearly state legal

conclusions because the witnesses tie their opinions to the

requirements of Utah law.” Id.

¶30 On the other hand, in State v. Larsen, 865 P.2d 1355 (Utah

1993), our supreme court examined whether an expert’s

“occasional use of the term ‘material’” during his testimony in a

securities case constituted permissible testimony on an ultimate

issue or an impermissible legal conclusion. Id. at 1361. The court

determined that the trial court acted within its discretion in

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admitting testimony regarding what actions and omissions

“could have been important or significant to an investor” as

“helpful to the jury,” id., and that the expert’s “limited use” of

the word “material,” “under the circumstances, does not

mandate the conclusion that he was improperly instructing the

jury on the law,” id. at 1362. Rather, the expert’s statements were

permissible ultimate issue testimony because the word

“material” was used in its ordinary meaning to signify

“something that an individual would want to know in making

an important decision” rather than in its legal meaning under

Utah law “defining what information must legally be disclosed.”

Id. The court explained that materiality was “at least on one

level, a factual issue to be determined by the jury” rather than a

legal conclusion. Id. at 1363. Because rule 704 permits expert

testimony “regarding the ultimate resolution of that disputed

issue as long as that testimony is otherwise admissible under the

rules of evidence,” the supreme court determined that the trial

court did not err in admitting the expert testimony. See id.

¶31 The expert testimony in this case is much more similar to

the testimony in Larsen than the testimony in Tenney. Allen made

one general reference to “[t]he securities laws,” stating that they

“impose a requirement on issuers or sellers of securities, to

provide full and fair disclosure.” He then testified to how fraud

is defined “in the [securities] industry,” stating that sellers of

securities need to “make sure [to] provide [investors] all material

facts related to the investment,” in other words, anything “that a

reasonable investor would find important in deciding to

purchase . . . or sell the security.” Finally, he testified as to what

types of information might be considered material and which

specific facts in this case he would consider to be material to an

investor.

¶32 Allen’s one general reference to the disclosure

requirements of “securities laws” could not reasonably be

construed as a legal conclusion, because the information

provided was general and not tied to a specific law. Further,

unlike the experts in Tenney, who repeatedly referenced “Utah

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State v. Brown

law” and “the Act” specifically, Allen’s general reference to

“securities laws” occurred only one time in the course of his

testimony. Similarly, his discussion of “fraud” and “materiality”

was tied explicitly to the standard in the securities industry

rather than represented as a legal definition of an element of a

specific criminal statute. And as with the expert in Larsen, Allen’s

“occasional use of the term ‘material’” during his testimony, see

id. at 1361, was used in its ordinary meaning rather than its legal

meaning and was helpful to the jury’s determination of a factual

matter at issue. Allen did not “testify that [Brown] was guilty” or

that, “as a matter of law, the facts satisfied the legal standard of

materiality.” See id. at 1361 n.10. Thus, Brown cannot establish

that it was error for the court to permit Allen to testify as he did,

let alone plain error.

B. Any Error in the Admission of the Printouts Was Invited.

¶33 Brown also asserts that it was plain error for the court to

admit the two printouts because they were “outside [Allen’s]

area of expertise, irrelevant, and unhelpful” and therefore

violated rules 403 and 703 of the Utah Rules of Evidence.

¶34 However, as with the jury instructions, Brown

affirmatively approved the admission of both exhibits. She even

used the printouts in her cross-examination of Allen. Thus, any

error was invited. See State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d

1171.

CONCLUSION

¶35 Brown invited any error in the jury instructions by

affirmatively approving them, and the circumstances of this case

do not justify review of the jury instructions under the

exceptional circumstances exception to the preservation rule.

Additionally, Allen’s testimony did not make impermissible

legal conclusions, and its admission was therefore not erroneous.

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Finally, any error in admitting the printouts was invited. 2

Accordingly, we affirm Brown’s convictions.

2. Because we have rejected each of Brown’s claims of error, we

also reject her cumulative error argument.

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