State v. Youren

2026 UT App 11

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DEBRA KAY YOUREN,
Appellant.

Opinion
No. 20220571-CA
Filed January 29, 2026

Fourth District Court, Nephi Department
The Honorable Anthony L. Howell
No. 191600058

Ann M. Taliaferro, Attorney for Appellant
Derek E. Brown and William M. Hains,
Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1 Debra Youren entered into a caretaking agreement with
her elderly neighbor (Neighbor) under which Youren agreed to
manage Neighbor’s ranch and help him with various household
and medical needs. To facilitate the arrangement, Neighbor gave
Youren access to his bank account. Over the course of several
years, Youren used funds from Neighbor’s bank account to pay
for ranch expenses, but she also used those funds to purchase
things for herself and members of her family.

¶2 Youren’s activities came to light after Neighbor’s death,
and Youren was later charged with exploitation of a vulnerable
adult, theft, and fraudulent handling of recordable writings. A
State v. Youren

jury found Youren guilty of the first two charges but acquitted her
on the third.

¶3 Youren now appeals her convictions on several grounds.
Among others, Youren argues that the district court erred in
denying her requests for a bill of particulars, and she also argues
that she received ineffective assistance when her trial counsel
(Counsel) did not object to various jury instructions and did not
argue that the exploitation statute was unconstitutionally vague.
For the reasons set forth below, we conclude that Youren has not
shown that there was any reversible error. We therefore affirm her
convictions.

BACKGROUND 1

Underlying Facts

¶4 Youren was first introduced to Neighbor in 1995 when she
and her family bought a ranch next to his near the Nevada-Utah
border. Youren and Neighbor would often do favors for each
other, including “everyday stuff” such as “cow work” or cleaning
ditches. Before Neighbor’s wife died in 2013, Youren would also
sometimes drive her to doctor’s appointments.

¶5 In January 2015, when Neighbor was 85 years old,
Neighbor and Youren drafted a “caretaker agreement.” The
agreement read, in relevant part, as follows 2:

1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Suhail, 2023 UT App 15, n.1, 525 P.3d 550 (quotation simplified).

2. In reciting the text of this agreement, we’ve continued to
anonymize Neighbor’s name, but we’ve made no further
alteration to spelling or punctuation.

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State v. Youren

I [Neighbor] agree to trade to Debra Youren
12 heifers and 10 calves a year starting January 2015
for work on my, [Neighbor’s] ranch. Debra Youren
can run up to 30 cows with [Neighbor]. I [Neighbor]
agree to pay all costs associated with ranch and
personal costs.

I Debra Youren agree to be the Ranch
manager, house keeper, cook, a care taker which
includes taking care of his medical needs which
includes doctor appointments and travel to and
from. [Neighbor] understands that there will be
situations when Debra Youren will need to hire day
labor to maintain all of the above responsibilities.

....

I Debra Youren understands and will do
everything medically possible to see that [Neighbor]
stays at his home until he passes away which is his
wishes.

In return [Neighbor] agree to sell Debra
Youren his ranch for $300,000.00. which includes all
cow permits, water rights, 100 head of cows/calfs,
machinery, tools and vehicles associated with
running [Neighbor’s] ranch.

Debra Youren has 1 year after [Neighbor]
passes to deposit $300,000.00 into his family trust for
the purchase of his ranch.

Any equipment purchased after January 2015
belongs to remaining partner if any partner passes
away.

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State v. Youren

This contract can not be broken without both
parties agreeing to any changes. If this contract is
voided with mutual agreement Debra Youren will
be owed $50,000.00 a year for every year starting
January 2015.

¶6 The agreement was notarized and signed by Youren and
Neighbor in August 2015, but they began acting on it shortly after
it was drafted. In February 2015, Neighbor withdrew $334,556.26
from accounts that were in the name of a family trust that he and
his late wife had created, and he then put that money into a new
bank account. The next month, Neighbor added Youren as a
signatory on the new account.

¶7 Over the course of the next several years, Youren used her
personal credit card to pay for ranch expenses and Neighbor’s
care. Youren would then transfer money from Neighbor’s new
bank account to her account, and she would use Neighbor’s
money to pay off her personal card.

¶8 But in addition to using Neighbor’s money to pay off
ranch-related expenses, Youren used it to pay for her own
personal expenses. Between January 2015 and Neighbor’s death
in July 2017, Youren made around 1,100 charges on her personal
card. These included charges for such things as fuel, groceries,
entertainment expenses, and motel rooms. These also included
216 purchases from Amazon. Many of the Amazon purchases
were delivered directly to Youren, and some of them were
delivered directly to her children. These purchases included such
things as clothing, movies, cosmetics, children’s toys and books,
and a laptop and computer accessories. As with the expenses for
Neighbor’s ranch and medical care, Youren would transfer funds
from Neighbor’s bank account to her own and then use those
funds to pay off her personal card, and she would often do so
within just a few days of making charges for personal expenses.
Although Youren would typically use the full amount transferred
from Neighbor’s account to pay off the balance on her personal

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State v. Youren

card, on some occasions, Youren paid less on her personal card
than she had transferred from Neighbor’s account. In total,
Youren transferred over $100,000 from Neighbor’s account to her
own, and she used most of the money that she transferred to pay
off her personal card.

¶9 Separate from the financial transfers, Youren made other
transactions that were later called into question in the criminal
prosecution. These primarily had to do with Neighbor’s property.

¶10 As discussed, the caretaker agreement had a provision
stating that Neighbor would sell the ranch to Youren for $300,000
and that she had one year after his death to put that money into
his family trust. In September 2015, Neighbor signed a quitclaim
deed that transferred the ranch (including three different parcels
totaling 301.60 acres) from his family trust to himself. In July 2016,
Neighbor signed a notarized quitclaim deed that granted Youren
ownership of the ranch and those same three parcels, together
with all water rights and mineral rights. The county assessor’s
estimate of the total worth of the three parcels was $439,468.

¶11 In late 2016, Neighbor was diagnosed with dementia.
Neighbor died on July 6, 2017. Four days after Neighbor’s death,
Youren recorded the quitclaim deed giving herself ownership
over the ranch. 3

¶12 In the months after Neighbor’s death, Youren continued
using Neighbor’s bank account to pay off her personal card. From

3. As discussed below, the charges in this case ultimately focused
solely on various bank transfers. For what it’s worth, there’s no
indication in the record that Youren had transferred $300,000 to
the family trust at the time she recorded the quitclaim deeds, and
at the subsequent trial, one of Neighbor’s sons testified that
Youren had never paid the money. By contrast, Youren claimed
that by the time of trial, she had returned ownership of the ranch
to Neighbor’s sons.

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State v. Youren

July through November 2017, Youren transferred a total of
$24,000 from Neighbor’s bank account to her account, which she
then used to pay off her personal card.

Charges and Trial

¶13 Youren was later charged with one count of exploitation of
a vulnerable adult (we’ll use “exploitation” as shorthand when
referring to this charge and the underlying statute moving
forward), one count of theft, and one count of fraudulent handling
of recordable writings. 4 The information read, in relevant part, as
follows:

COUNT 1: EXPLOITATION OF A
VULNERABLE ADULT, . . . Debra Kay Youren on
or about 2015 through July 2017 did knowingly or
intentionally and unjustly or improperly use or
manage the resources of a vulnerable adult for the
profit or advantage of someone other than the
vulnerable adult, and the aggregate value of the
resources used or the profit made was or exceeded
$5,000.

COUNT 2: THEFT, . . . Debra Kay Youren on
or about July 2017 through September 2017 did
obtain or exercise unauthorized control over the
property of another person with a purpose to
deprive the person thereof, and (i) the value of the
property or services was or exceeded $5,000; (ii) the
property stolen is a firearm or an operable motor
vehicle; or (iii) the property was stolen from the
person of another.

4. As already indicated, the jury ultimately acquitted Youren on
the third count, so we’ll focus the procedural history on the
relevant events relating to the other two counts.

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State v. Youren

¶14 Youren filed a motion for a bill of particulars. In this
motion, Youren asked the district court to order the State to
identify the specific dates, resources, and “manner” that
Neighbor’s resources were improperly used for purposes of the
exploitation charge, and she also asked for the State to identify
“the specific properties” that were taken for purposes of the theft
charge. The State moved to strike this motion as premature, and
the district court agreed and struck it at a hearing.

¶15 Youren later filed a second motion for a bill of particulars,
reciting the same requests as she had made in the first motion. In
March 2020, the court denied the motion as to the exploitation
charge, concluding that Youren had been sufficiently “apprised of
all information necessary to prepare her defense” through the
information, discovery in the case, and what she had learned in a
contemporaneous civil case that had been filed against her by
members of Neighbor’s family. But the court granted the motion,
in part, as it related to the theft charge. The court accordingly
ordered the State to

(1) provide a list of those properties–whether real
property, monetary assets, or material assets–
implicated in this count; (2) describe the manner in
which it alleges [Youren] asserted unauthorized
use, control, or ownership over the listed properties;
and (3) if the same property identified here is also
implicated in Count I, indicate how [Youren’s]
actions and/or mens rea differs in this Count II, from
Count I.

¶16 In accordance with the court’s order, the State filed a bill of
particulars in April 2020 that outlined the things that the State was
contending Youren had unlawfully taken for purposes of the theft
charge. Youren did not object to this bill of particulars, nor did she
ever argue to the district court that it was inadequate.

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State v. Youren

¶17 Before trial, Youren submitted a proposed special verdict
form that would require the jury to list (1) the specific resources
and profits that Youren had exploited for purposes of the
exploitation charge, as well as (2) the specific “things or money”
that she had “obtained or exercised unauthorized control” over
for purposes of the theft charge. During a conference at trial, the
court denied Youren’s request to give the jury this proposed
special verdict form, stating that it “did not see any reason that a
special verdict form was required in this criminal case.” When the
court then asked whether the parties had any questions about the
verdict form that it intended to give the jury, Counsel answered,
“No, Your Honor.”

¶18 The case was tried over the course of eight days in March
2022. During that trial, the State presented evidence showing how
Youren had transferred money from Neighbor’s bank account to
her personal account and how she would then use those funds to
pay off her personal expenses. The State provided specific
examples of various expenses that Youren paid off using
Neighbor’s funds that were not related to Neighbor’s ranch or his
medical care, such as purchases from a women’s underwear
company, for home decor, and for beauty and skincare products.

¶19 At the end of the State’s case, Counsel moved for a directed
verdict. Counsel agreed that the State had put on sufficient
evidence as it related to Youren’s use of “money from the bank
accounts,” but Counsel was concerned that the State might be
intending to also argue that conviction was warranted on either
charge based on certain farm equipment or cattle that Youren may
have taken for herself. In the course of arguing that motion, the
prosecutor reiterated that the exploitation charge was based on
conduct from “February [of 2015] to July of 2017,” while the theft
charge was based on conduct from “July of 2017 to . . .
September/October [of 2017],” which the prosecutor referred to as
the “after death period.” During this same argument, the
prosecutor clarified that he “only intend[ed] to argue to the jury
that the theft was of the money taken from [Neighbor’s] account.”

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State v. Youren

The district court denied the motion for a directed verdict, but in
doing so, it “admonish[ed] the State to do what [it had] told” the
court it was “going to do” with regard to keeping the theft and
exploitation timelines separate.

¶20 The defense’s theory at trial was that all of the expenses at
issue were authorized by Neighbor. In the defense’s opening
statement, for example, Counsel asserted that this case is “about
what [Neighbor] wanted and planned, what [Youren] wanted and
asked for and was given, and what she did and what [Neighbor]
did to carry out that plan.” Youren testified in her own defense,
and during her testimony, she claimed that Neighbor had told her
to use her personal card for the ranch, saying, “Just use yours,
[Youren], and we’ll just pay it off. That’s how we’ll do it.” When
she was asked about some of her credit card purchases that the
State claimed were improper, Youren attempted to justify them.
For example, she claimed that the product she had purchased
from the women’s underwear company was “a support bra” that
was recommended by an organization for women in farming and
ranching. And Youren also testified that she had purchased an
“organic shampoo body wash” for Neighbor because his skin was
“real thin and frail.” But Youren did concede that some of the
purchases were for her personal use, such as some of the cosmetic
and hygiene products.

Jury Instructions and Conviction

¶21 At the outset of trial, the court gave preliminary
instructions. Several of these instructions expressly informed
jurors that the State bore the burden of proving each element of
each offense with proof beyond a reasonable doubt. Indeed, in
one particular instruction, jurors were told that Youren did “not
have to prove anything.” Before closing arguments, the court gave
jurors the final instructions. Several of these instructions
reiterated the State’s burden of proof. One instruction informed
jurors that the “law presumes” that Youren “is not guilty of the
crimes charged” and that this “presumption persists unless the

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State v. Youren

prosecution’s evidence convinces you beyond a reasonable doubt
that [Youren] is guilty.” Another stated that “the prosecution
must prove” both “the specific conduct and mental state” listed in
each elements instruction “before [Youren] can be found guilty of
the crimes charged.”

¶22 The final instructions also contained several instructions
that are particularly relevant to issues on appeal, including the
following:

• Instruction 20, which informed jurors that “[i]gnorance or
mistake of fact which disproves the culpable mental state
is a defense to any prosecution for that crime.”

• Instruction 21, which stated that “[t]he ‘claim of right
defense’ applie[d]” to the theft charge if Youren “(a) acted
under an honest claim of right to the property,” “(b) acted
in the honest belief that she had the right to obtain or
exercise control over the property,” or “(c) obtained or
exercised control over the property . . . honestly believing
that the owner, if present, would have consented.”

• Instruction 23, which set out the elements of the
exploitation charge. This instruction told jurors that they
could not convict Youren of this offense unless, “based on
the evidence,” they found “beyond a reasonable doubt”
each of the listed elements, including that Youren had
“intentionally or knowingly” and “unjustly or improperly
used or managed the resources of a vulnerable adult” “for
the profit or advantage of someone other than the
vulnerable adult” in an “aggregate” amount that exceeded
$5,000.

• Instruction 25, which set out the elements of theft. This
instruction told jurors that they could not convict Youren
of this offense unless, “based on the evidence,” they found
“beyond a reasonable doubt” each of the listed elements,

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State v. Youren

including that Youren had “intentionally or knowingly”
“obtained or exercised unauthorized control over the
property of another” “with a purpose to deprive him
thereof,” and “the value of the property or services” was or
exceeded $5,000.

• Instruction 34, which informed jurors that “[b]ecause this
is a criminal case, every single juror must agree with the
verdict before the defendant can be found ‘guilty’ or ‘not
guilty,’” and which further informed them that the verdict
must reflect the jurors’ “individual . . . judgment as to
whether the evidence presented by the prosecutor proved
each charge beyond a reasonable doubt.”

¶23 In its closing argument, the prosecutor reiterated that the
exploitation charge was “for April of 2015 to [Neighbor’s] death”
and that the theft charge was “for things that occurred after
[Neighbor’s] death.” In its closing argument, Counsel argued that
this case is “really about what . . . Youren thought she could do
under the circumstances that she was put under.” Counsel
maintained that Youren believed she was “allowed to pay her
expenses” from the joint bank account and that just because
Neighbor may not have “agree[d] with” all of her purchases, that
“doesn’t make [her] a criminal.” Counsel further asserted that
Youren’s actions were “rational under the circumstances.”

¶24 At the close of trial, the jury found Youren guilty of
exploitation and theft.

ISSUES AND STANDARDS OF REVIEW

¶25 On appeal, Youren first argues that her due process rights
were violated because the State did not give her adequate notice
of the nature of the charges against her. This court reviews a
district court’s “decision regarding the constitutional adequacy of

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State v. Youren

the notice given to a criminal defendant for correctness.” State v.
Klenz, 2018 UT App 201, ¶ 29, 437 P.3d 504.

¶26 Youren next argues that the district court erred in not
giving the jury additional instructions on unanimity. As
explained below, we agree with the State that this issue is
unpreserved. As a result, we accept Youren’s request (briefed in
the alternative) to review this claim for either plain error or
ineffective assistance of counsel. “Claims for plain error and
ineffective assistance of counsel present questions of law, which
we determine in the first instance as a matter of law.” State v.
Thomas, 2025 UT App 145, ¶ 15, 579 P.3d 416.

¶27 Youren then argues that she received ineffective assistance
because Counsel did not object to several alleged errors in the jury
instructions and did not file a motion arguing that the exploitation
statute is unconstitutionally vague. As noted, ineffective
assistance claims that are raised for the first time on appeal
present questions of law. See id.

ANALYSIS

I. Due Process and Notice

¶28 Youren first argues that the State violated her due process
rights by failing to give her adequate notice of the nature of the
charges against her. We see no reversible error with respect to
either of the charges for which Youren was convicted.

¶29 “The right of an accused to know the nature of the offense
with which [the accused] is charged is a fundamental right
guaranteed by both our federal and state constitutions.” State v.
Seumanu, 2019 UT App 90, ¶ 28, 443 P.3d 1277 (quotation
simplified). Under the Sixth Amendment to the United States
Constitution, a defendant in a criminal case “enjoy[s] the right . . .
to be informed of the nature and cause of the accusation.” U.S.
Const. amend. VI. And under the Utah Constitution, a defendant

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State v. Youren

has the right “to demand the nature and cause of the accusation”
and “to have a copy thereof.” Utah Const. art. I, § 12. “The crux of
both theories is that a criminal defendant must be sufficiently
apprised of the particulars of the charge to be able to adequately
prepare [her] defense.” State v. Fulton, 742 P.2d 1208, 1214 (Utah
1987) (quotation simplified).

¶30 Here, Youren argues that she “managed and engaged in
hundreds of transactions and interactions for [Neighbor]” over
the relevant period, and against this backdrop, she contends that
she wasn’t “apprised . . . of the particular acts or specific conduct
which made up the elements of each charge she would face at
trial.” In her view, her due process rights were violated because
the State did not provide her with “notice stating when and
regarding what resources she allegedly mismanaged” for
purposes of the exploitation charge or of the properties that she
unlawfully took from Neighbor (or, rather, his estate) for
purposes of the theft charge. We address each charge below.

A. Theft

¶31 For analytical reasons, we’ll start with the theft charge.
With respect to this charge, we agree with the State that Youren
did not preserve her challenge. We therefore decline to address it.

¶32 It is well settled that “an appellant must properly preserve
an issue in the district court before it will be reviewed on appeal.”
Ahhmigo, LLC v. Synergy Co. of Utah, 2022 UT 4, ¶ 16, 506 P.3d 536
(quotation simplified). For an issue to be preserved, it must have
been “presented to the district court in such a way that the court
ha[d] an opportunity to rule on it.” Patterson v. Patterson, 2011 UT
68, ¶ 12, 266 P.3d 828 (quotation simplified). This implies, “at a
minimum, not just the invocation of a legal principle but also its
application to the facts of the case.” Salt Lake City v. Kidd, 2019 UT
4, ¶ 33, 435 P.3d 248 (quotation simplified). Thus, “the issue must
be specifically raised, in a timely manner, and must be supported
by evidence and relevant legal authority.” Donjuan v. McDermott,

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State v. Youren

2011 UT 72, ¶ 20, 266 P.3d 839. If a party seeks to raise an issue on
appeal that it failed to preserve in the district court, “the party
must argue an exception to preservation.” Ahhmigo, 2022 UT 4,
¶ 16 (quotation simplified).

¶33 With respect to notice claims like Youren’s, our supreme
court has held that

the notice to which a defendant is constitutionally
entitled may come through one or all of three
sources: the charging information, a response to a
bill of particulars under rule 4(e) of the Utah Rules
of Criminal Procedure, or a response, under section
77-14-1 of the Code, to a demand for the place, date,
and time of the offense charged.

State v. Wilcox, 808 P.2d 1028, 1031 (Utah 1991); accord State v.
Williamson, 2024 UT App 141, ¶ 45, 558 P.3d 143, cert. denied, 568
P.3d 263 (Utah 2025). Working through these potential sources of
notice, we first note that, by rule, the charging information must
include, among others, identification of the statutory offense at
issue, see Utah R. Crim. P. 4(b)(2), and, in cases involving a felony
or a class A misdemeanor, a “statement of facts sufficient to
support probable cause for the charged offense,” id. R. 4(c)(1).
Rule 4 states that if a defendant believes that the information does
not set out sufficient facts to inform the defendant “of the nature
and cause of the offense charged, so as to enable the defendant to
prepare a defense,” the defendant may then file a request for a bill
of particulars. Id. R. 4(e). Alternatively, a defendant may make a
demand, pursuant to Utah Code section 77-14-1, for “the place,
date and time of the commission of the offense charged.”
According to our supreme court, however, “if a defendant fails to
request a bill of particulars or make demand for the date, place,
and time under section 77-14-1 and a response to either of these
would have cured the claimed deficiency, then he or she will be
deemed to have waived the constitutional right to adequate
notice.” Wilcox, 808 P.2d at 1032.

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State v. Youren

¶34 As discussed above, Youren filed a motion for a bill of
particulars in this case. Although the district court denied the
request as to the exploitation charge, it granted it with respect to
the theft charge. Pursuant to the court’s order, the State then
submitted a bill of particulars that set forth its contentions of what
was at issue for purposes of that charge. Indeed, Youren tells us
in her brief that it was her request for a bill of particulars that
preserved her notice claim for both issues.

¶35 But for the purposes of the theft charge, Youren’s problem
is that, after she received the bill of particulars from the State, she
never objected to it or otherwise argued to the district court that
it was inadequate and that she still did not have notice of the
nature of this charge. In light of this, from the district court’s
perspective, because Youren had received a bill of particulars
from the State and was willing to proceed onward to trial on that
basis, Youren’s need for additional notice had been satisfied and
no further judicial action was required. While Youren now
contends otherwise, we agree with the State that Youren simply
did not present her claim “to the district court in such a way that
the court ha[d] an opportunity to rule on it.” Patterson, 2011 UT
68, ¶ 12 (quotation simplified).

¶36 We do note that after the State argued in its responsive
brief that the notice issue was unpreserved as it relates to the theft
charge, Youren argued in her reply brief that it would have been
futile for her to have challenged the lack of notice after she
received the bill of particulars. In Youren’s view, futility thus
excuses any lack of preservation with respect to this issue. We
disagree with this contention.

¶37 In Utah, futility operates as an “exception to the general
requirement of preservation.” State v. Ashcraft, 2015 UT 5, ¶ 33,
349 P.3d 664; see also State v. Rothlisberger, 2004 UT App 226, ¶ 29,
95 P.3d 1193 (“Under our law, parties are not required to make
futile objections in order to preserve a future claim.”). But a
showing of futility typically requires some “indication of the

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State v. Youren

[district] court’s unwillingness to hear any further objection or
explanation” on the matter. Ashcraft, 2015 UT 5, ¶ 34. In Ashcraft,
for example, our supreme court concluded that “the timing, tone,
context, and content of the district court’s response” to a general
objection from defense counsel were such that any “further
objection” or request for “explanation” would have been “futile,”
thereby excusing the defendant’s failure to preserve a more
“specific objection.” Id. In some circumstances, futility can also
turn on the nature of the district court’s original ruling. In
Rothlisberger, for example, we held that when a district court
definitively ruled that the testimony in question “was lay witness
testimony,” that ruling rendered any additional “objection that
was predicated on expert-testimony rules futile.” 2004 UT App
226, ¶ 29.

¶38 But nothing similar occurred here. Again, the district court
had granted Youren’s request for a bill of particulars as to the theft
charge, so it had shown that it was receptive, not hostile, to her
request for additional information about the nature of that charge.
From there, Youren points to no place in the record, and we see
none ourselves, where the district court expressed its
unwillingness to hear an objection about any alleged inadequacy
in what the State had provided or any unwillingness to entertain
further request for notice. In light of this, we see no basis for
concluding that any further objection or request would have been
futile. And because Youren did not assert any other exception to
the preservation rule as it relates to the theft charge, we decline to
consider this challenge further.

B. Exploitation

¶39 Youren also argues that she did not receive adequate notice
regarding the nature of the exploitation charge. As noted, the
district court denied Youren’s request for a bill of particulars as to
this charge, so we agree with Youren that she preserved a notice
challenge as to it. But even so, we conclude that Youren is not

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State v. Youren

entitled to reversal because she has not shown that she was
prejudiced by any lack of notice.

¶40 As an initial matter, the parties disagreed in the briefing
about the prejudice standard that would apply to such a claim, so
we start our analysis there. In State v. Robbins, our supreme court
held that when a defendant challenges a district court’s denial of
a request for a bill of particulars, the defendant is only entitled to
a reversal if the defendant shows “prejudicial error.” 709 P.2d 771,
773 (Utah 1985). The court then held that to do this, the defendant
must show “that the denial of his motion for a bill of particulars
deprived him of the opportunity to assert a defense he reasonably
might have had against the charges.” Id.

¶41 In State v. Bell, the supreme court subsequently clarified the
nature of this inquiry. 770 P.2d 100 (Utah 1988). There, after
receiving a bill of particulars from the State, the defendant argued
that this bill was still “too vague to give him adequate notice of
the charge.” Id. at 102–03. But the State “refused to amend the bill
of particulars,” and the “court rejected” the defendant’s
subsequent and “persistent challenges to the adequacy of the
notice he had received.” Id. at 103. On appeal, the defendant again
argued that he had not received adequate notice, and the supreme
court first ruled that the bill of particulars was indeed too vague
to have satisfied the defendant’s constitutional rights. See id. at
103–05.

¶42 Turning to the question of prejudice, the supreme court
held that such claims are ordinarily subject to reversal only when
the defendant shows that, “absent the error, there was a
reasonable likelihood of a result more favorable” to them. Id. at
106. Echoing the standard set forth in Robbins, the court then
suggested again that the question turns on whether the lack of
notice “impeded the accused’s ability to prepare for trial and to
meet the State’s case.” Id. But the court also recognized that “in
some circumstances[,] the nature of the error involved is such that
this de facto burden should be shifted and the State required to

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State v. Youren

persuade us that the error was harmless.” Id. The court held that
if “the accused” makes “a credible argument that the prosecutor’s
errors impaired the defense,” it becomes “appropriate to place the
burden on the State to persuade a court that the error did not
unfairly prejudice the defense.” Id. (quotation simplified). The
question thus becomes what it would look like for a defendant to
show that he or she was prejudiced by a lack of notice—which, by
extension, would inform the initial question of how a defendant
could make “a credible argument” that the prosecution’s errors
had prejudiced the defense. Id.

¶43 The supreme court’s earlier decision in State v. Burnett, 712
P.2d 260 (Utah 1985), provides one example of demonstrated
prejudice. In that case, the evidence the State presented at trial
varied from the nature of the conduct that was implicated in the
charging document—namely, the information had accused the
defendant of stealing funds from a trust account, but at trial, the
State abandoned that theory and instead presented evidence
showing that the defendant had stolen from third-party investors.
See id. at 262. On appeal, the supreme court held this was
reversible error because the defendant was “not on notice” that he
should prepare to respond to assertions about theft from
investors—i.e., the defense that he had prepared was not
“structured to meet that charge.” Id. The court thus concluded
that “[b]ecause the variance clearly prejudiced [the defendant] in
the preparation and conduct of his defense on the merits, the
conviction must be reversed.” Id.

¶44 Our decision in State v. Draper-Roberts, 2016 UT App 151,
378 P.3d 1261, provides another example. There, the State
provided notice before trial that it would call certain witnesses,
and in the defense’s opening statement, defense counsel
addressed the potential impact (or lack thereof) of those
witnesses’ expected testimonies. See id. ¶¶ 9, 40. But midway
through trial, the State decided not to call one of the witnesses
who had previously been disclosed, and the State instead called a
different witness who had not been disclosed. See id. ¶¶ 9–10.

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State v. Youren

Moreover, also during the trial, the State decided that it would
introduce body cam video that had not previously been disclosed.
See id. ¶¶ 7, 43. On appeal, we held that the defendant had made
a credible showing that these failures to disclose had prejudiced
the defense. We held the State’s shift in witnesses caused the
defense to give an opening statement that was largely ineffective,
see id. ¶¶ 41–42, and we further held that the “mid-trial disclosure
of the body cam video inhibited defense counsel’s ability to
effectively cross-examine the officer and to move to exclude
inadmissible portions of the video,” id. ¶ 43.

¶45 But we’ve also recognized that the “burden shifting”
contemplated by Bell “does not occur automatically” whenever
the State does not provide proper notice. State v. Ahmed, 2019 UT
App 65, ¶ 27, 441 P.3d 777 (quotation simplified). Again, it
requires the defendant to first make “a credible argument” that
the lack of notice “impaired the defense.” Id. (quotation
simplified). In State v. Swapp, for example, we held that although
the defendant had argued that the district court improperly
denied his request for a bill of particulars, the defendant had
“failed to make a credible argument as to how the failure to
provide the bill of particulars impaired his defense.” 808 P.2d 115,
120 n.7 (Utah Ct. App. 1991). We held that this was so because the
defendant had not shown with any specificity “what facts were
not disclosed to him,” nor had the defendant “articulate[d] a
particular legal theory he would have been able to employ had a
bill of particulars been provided” or if he had received more
notice. Id.

¶46 Applying these principles here, we conclude that Youren
has not made a credible showing of how the alleged lack of notice
impaired her defense. Youren’s defense to the exploitation charge
was that she was authorized to do everything that she did or at
least reasonably believed that she was so authorized (thereby
showing that she lacked the necessary mens rea). But in her
opening brief on appeal, Youren did not argue that the State relied
on any particular transaction at trial that somehow surprised her

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State v. Youren

or for which she was unprepared to present a defense, nor did she
argue with any specificity that she would have advanced a
different theory at trial if she had been given more specific notice.

¶47 Instead, Youren’s prejudice argument is essentially that
because the State gave her only broad descriptions of the alleged
misconduct, she prepared to address many transactions that the
State did not end up relying on at trial. In a sense, she thus argues
that she wasted time and energy preparing too much of a defense.
While we don’t foreclose the possibility that in some case, a
wasted-resources argument such as this one might show
prejudice, we still think this would require some credible
assertion that the diversion of time or energy somehow impaired
the defendant’s ability to prepare a defense for the case that was
actually presented at trial. And again, Youren has not given us
any credible reason to believe that this occurred.

¶48 As a result, we conclude that Youren was required to show
that, “absent the error, there was a reasonable likelihood of a
result more favorable to” her, meaning that the lack of notice
somehow “impeded [her] ability to prepare for trial and to meet
the State’s case.” Bell, 770 P.2d at 106. Because she has failed to do
so, we reject this claim for lack of prejudice.

II. Unanimity

¶49 Youren next argues that the charges in this case were
“duplicitous.” From there, Youren argues that the district court
erred by failing to instruct jurors that they were required to be
unanimous as to the particular transactions that formed the basis
for the two charges. We see no reversible error.

A. Preservation

¶50 As an initial matter, we note that the parties dispute
whether this issue was preserved. We agree with the State that it
wasn’t.

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State v. Youren

¶51 Youren claims that she preserved her unanimity claim by
asking the court to give jurors a special verdict form. And in some
cases, we might agree that a request for a special verdict form
could be enough to preserve a unanimity claim, particularly if that
request is tied in some way to an assertion that the jury needed to
be unanimous about the acts in question. But the preservation
doctrine is context-specific. Again, as noted, it requires a party to
present an issue “to the district court in such a way that the court
ha[d] an opportunity to rule on it,” Patterson, 2011 UT 68, ¶ 12
(quotation simplified), which implies, “at a minimum, not just the
invocation of a legal principle but also its application to the facts
of the case,” Kidd, 2019 UT 4, ¶ 33 (quotation simplified).

¶52 Here, although it’s true that Youren asked the court to give
a special verdict form, we’re not persuaded that, in the context of
this case, her request adequately preserved the issue she seeks to
raise on appeal relating to the unanimity requirement. The special
verdict form that Youren proposed didn’t mention unanimity at
all. Thus, on its face, this request would not have alerted the
district court that Youren was asking for this special verdict form
as a means of protecting her constitutional right to a unanimous
verdict. Then, in the ensuing jury instruction conference at trial,
Counsel never asked the court to give the special verdict form as
a means of protecting Youren’s constitutional right to a
unanimous verdict. Indeed, in the course of that discussion,
Counsel never mentioned the unanimity requirement.

¶53 Moreover, while we acknowledge that in many cases, a
party might request a special verdict form precisely for the
purpose of ensuring that the jury is unanimous about required
elements, the State persuasively points out that there are other
reasons for requesting such a form that are separate from concerns
about unanimity.

¶54 Our supreme court has explained that

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State v. Youren

great care should be taken to submit questions to the
jury so that they are as clear as possible. When a
general verdict will best settle the issues, it should
be used. When specific issues cannot be reached by
a general verdict, the trial court should take
advantage of special verdicts or special
interrogatories.

Baker v. Cook, 308 P.2d 264, 267 (Utah 1957). In this sense, special
verdict forms can be used to provide answers to questions that
may otherwise be unclear on a general verdict form alone.

¶55 Courts have also recognized that such forms can be used
as a tool for assisting the jury in its deliberations. In State v.
Parsons, for example, the supreme court affirmed the use of a
special verdict form in a death penalty case that called upon jurors
to note which of the aggravating factors they had found existed.
781 P.2d 1275, 1279–80 (Utah 1989). Although the ultimate
question before the jury was whether the aggravating factors
outweighed the mitigating factors, and, thus, whether the death
penalty was warranted, the supreme court held that this special
verdict form was appropriate and perhaps even “helpful” to the
jury in deciding how to “weigh the aggravating factors against the
mitigating factors,” and it further held that the form would then
be helpful to “an appellate court in determining whether a
sentence of death was properly imposed.” Id. at 1280.

¶56 This comports with how such forms can be used in civil
cases. Under rule 49(a) of the Utah Rules of Civil Procedure, a
court may submit a special verdict form that asks jurors to decide
discrete issues of fact, and this process can be used “in a
complicated case” to “relieve” the jury of “attempting to apply the
law” to those facts. Dishinger v. Potter, 2001 UT App 209, ¶ 17, 47
P.3d 76 (quotation simplified). This process can likewise be used
in a criminal case. See State v. Gray, 851 P.2d 1217, 1225–26 (Utah
Ct. App. 1993). Indeed, we have said that special verdict forms
can be used in “highly confusing cases” involving a “confusing”

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State v. Youren

statutory scheme. Id. at 1226; see also Bell, 770 P.2d at 109 (noting
that a particular statute “lends itself to confusion” and explaining
that “[a]ppellate review of such cases would be greatly enhanced”
by the use of special verdict forms).

¶57 And there are other potential uses for such forms. Such a
form may be useful in a criminal case as a means of aiding a
defendant in advancing “a subsequent double jeopardy defense”
should he or she ever be subject to prosecution again. State v.
Germonto, 868 P.2d 50, 58 (Utah 1993) (quotation simplified). And
in some civil cases, special verdict forms can be used to ensure
that a party does not obtain a double recovery when the jury is
presented with alternative theories from the plaintiff. See Ramon
v. Nebo Sch. Dist., 2021 UT 30, ¶ 21, 493 P.3d 613.

¶58 We are by no means intending the above discussion to
provide a comprehensive list of the potential purposes for special
verdict forms, nor do we intend to offer advice on the utility of
such forms or the strategic advisability of such requests. But what
we do acknowledge here is that there are recognized purposes for
such forms that fall outside of concerns about unanimity. Because
of this, we don’t believe that, standing alone, Youren’s request for
a special verdict form adequately alerted the district court that she
was intending to make a claim about her right to a unanimous
verdict, much less a claim about a requirement for unanimity as
to any particular point. And since she points to no other place
where she raised this unanimity issue, we accordingly treat it as
being unpreserved.

B. Merits

¶59 In anticipation of a possible preservation objection from
the State, Youren alternatively argued in her opening brief that,
even if we conclude that this issue was unpreserved, she should
still be entitled to relief for either plain error or ineffective
assistance of counsel.

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State v. Youren

¶60 To demonstrate plain error, Youren “must establish that
(i) an error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful, i.e., absent the error, there
is a reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the verdict is
undermined.” State v. Cooper, 2011 UT App 234, ¶ 26, 261 P.3d 653
(quotation simplified). “To establish that [an] error should have
been obvious to the trial court, [Youren] must show that the law
governing the error was clear at the time the alleged error was
made. Consequently, an error is not obvious if there is no settled
appellate law to guide the trial court.” State v. Brown, 2025 UT App
31, ¶ 32, 566 P.3d 737 (quotation simplified).

¶61 Alternatively, to show that she received ineffective
assistance of counsel, Youren must show (1) that counsel’s
performance was deficient and (2) that the deficient performance
prejudiced the defense. See Strickland v. Washington, 466 U.S. 668,
687 (1984). An ineffective assistance claim fails when the proposed
motion would have been futile. See State v. Rivera, 2022 UT App
44, ¶ 24, 509 P.3d 257. This is so because “it is not unreasonable
for counsel to choose not to make a motion that would not have
been granted.” State v. Makaya, 2020 UT App 152, ¶ 9, 476 P.3d
1025.

¶62 For the reasons set forth below, we don’t believe that
Youren has established either plain error or ineffective assistance
with respect to the alleged failure to ensure that the jury reached
a unanimous verdict as to the particular transactions at issue in
each charge.

1. Governing law

¶63 We begin by setting forth the law relating to duplicity and
unanimity that would have governed such a claim if it had been
raised sua sponte by the district court (for purposes of Youren’s
plain error claim) or instead by Counsel (for purposes of Youren’s
ineffective assistance claim).

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State v. Youren

¶64 The Utah Constitution states that in “criminal cases[,] the
verdict shall be unanimous.” Utah Const. art. I, § 10. This
provision requires “unanimity as to a specific crime and as to each
element of the crime.” State v. Saunders, 1999 UT 59, ¶ 60, 992 P.2d
951. Put differently, it “requires unanimity as to each count of each
distinct crime charged by the prosecution and submitted to the jury
for decision,” and it also requires unanimity on “each element of
the crimes in question.” State v. Hummel, 2017 UT 19, ¶¶ 26, 50,
393 P.3d 314 (first emphasis in original, second emphasis added).

¶65 The problem of duplicity concerns the broad level question
of how many “count[s]” have been charged for the “distinct
crime” at issue. Id. ¶ 26. Charges are duplicitous when the State
has joined “two or more distinct and separate offenses in a single
count.” Germonto, 868 P.2d at 58 (quotation simplified). “One vice
of duplicity is that a jury may find a defendant guilty on a count
without having reached a unanimous verdict on the commission
of a particular offense.” Id. (quotation simplified). To avoid this
problem, “separate instances of the crime” at issue must be
charged as “distinct counts.” Hummel, 2017 UT 19, ¶ 28. And to
determine the contours of the unanimity requirement in such a
case, a court must determine the “unit of prosecution,” which is
“primarily a question of interpreting the text of the statute
defining the crime.” State v. Rasabout, 2013 UT App 71, ¶¶ 16–17,
299 P.3d 625 (quotation simplified), aff’d, 2015 UT 72, 356 P.3d
1258. The question in such cases thus turns on “whether a
particular course of conduct involves one or more distinct
offenses under [a] statute.” Id. ¶ 17 (quotation simplified).

¶66 On the narrower question about unanimity and the
elements within a charge, our supreme court has held that while
the jury “must be unanimous on all elements of a criminal
charge,” it does not need to be unanimous as to “the manner,
mode, or factual or legal theory on which [the jury’s] verdict is
based.” Hummel, 2017 UT 19, ¶¶ 29, 51 (quotation simplified).
“Mere examples of ways of fulfilling such elements, such as
theories (or methods or modes) of a crime, are not a necessary part

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State v. Youren

of a verdict, and thus fall beyond the requirement of unanimity.”
State v. Francis, 2025 UT App 104, ¶ 112, 575 P.3d 1197 (quotation
simplified).

¶67 In Hummel, our supreme court illustrated this distinction
with reference to a hypothetical case in which “the jury heard
evidence that the defendant both poisoned the victim and tried to
suffocate him with a pillow.” 2017 UT 19, ¶ 52. In such a case, the
supreme court posited that “there would be no requirement for
the jury to agree on which mechanism was the ultimate cause of
death” “because the precise mechanism of the cause of death is
not an element of the crime of murder.” Id. Instead, “[a]ll that
matters under our substantive law is that the defendant caused
death knowingly or intentionally.” Id. Following the lead of such
authority, we recently concluded in Francis that the defendant
“was not entitled to an instruction requiring unanimity on
theories of nonconsent.” 2025 UT App 104, ¶ 112. We held that the
element in question was a nonconsensual touching, so “while the
jury was required to be unanimous in its conclusion” that the
defendant “sexually touched [the victim] without her consent, it
was not required to be unanimous as to why it believed that [the
victim] did not consent.” Id. ¶ 115.

¶68 In this case, Youren makes arguments relating to both
levels of this analysis—namely, she first argues that for each
offense, the State violated the rule against duplicity by including,
within a single count, multiple violations of each statute, and she
thus argues that the jury should have been required to be
unanimous as to each particular count; second, Youren argues
that for each offense, the jury should have been required to be
unanimous as to each transaction because those transactions, in
her view, were how the State proved the elements.

2. Exploitation

¶69 We start with the exploitation charge. Under the
controlling statute, an individual commits the offense in question

20220571-CA 26 2026 UT App 11
State v. Youren

if he or she “unjustly or improperly uses or manages the resources
of a vulnerable adult for the profit or advantage of someone other
than the vulnerable adult.” Utah Code § 76-5-111.4(2)(c). 5

¶70 For unit of prosecution purposes, we see no basis for
concluding that Youren somehow committed a separate offense
with respect to the separate transactions at issue. “When we
interpret statutes, our primary objective is to ascertain the intent
of the legislature, and that intent is sometimes expressed through
verb tense or verb form.” State v. Paule, 2021 UT App 120, ¶ 25,
502 P.3d 1217 (quotation simplified), aff’d on other grounds, 2024
UT 2, 554 P.3d 844. Here, as a matter of ordinary usage, we think
the phrase “uses or manages” could certainly refer to a single use
or act of management. But we think the same verbs could also
plausibly be used to refer to multiple such instances. A person
could say, for example, that she thinks her friend “uses illegal
drugs” to refer to ongoing or repetitive behavior.

¶71 But if there was any doubt about this, it’s removed in this
instance because Youren was charged with the second degree
felony variant of the offense in question. By statute, second degree
felony exploitation requires proof that the conduct was “done
intentionally or knowingly and the aggregate value of the resources
used or the profit made is or exceeds $5,000.” Utah Code § 76-5-
111.4(3)(a) (emphases added). Although the jury was not
informed that Youren had been charged with a second degree
felony, it was instructed, in the elements instruction, that it
needed to find that “the aggregate value of the resources used, or
the profit made was or exceeded $5,000.”

¶72 The word “aggregate” is commonly understood to mean
“taking all units as a whole,” “collectively,” or “considered as a

5. The exploitation statute has been renumbered since the time of
the charged conduct. Given that the relevant statutory language
remains unchanged, however, we cite the current version for
convenience.

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State v. Youren

whole.” 6 And the fact that the statute (and, here, the elements
instruction) uses the plural “resources” likewise indicates that
separate transactions may well be at issue. Thus, as charged and
submitted to the jury, the offense in question contemplated that
multiple transactions could be aggregated into just a single count.
We therefore reject Youren’s claims as they relate to an alleged
problem of duplicity.

¶73 As to Youren’s argument about the individual transactions
constituting separate elements, we agree with the State’s view that
because the second degree felony turns on whether the “aggregate
value of the resources used or the profit made is or exceeds $5,000,”
Utah Code § 76-5-111.4(3)(a) (emphases added), the element that
the State had to prove was something akin to a course of conduct
implicating the improper use of resources involving the collective
amount, which seems different from labeling each transaction as
an individual element for which the jury was required to be
unanimous. We recognize that the distinction between (1) the
elements and (2) “the manner, mode, or factual or legal theory on
which [the jury’s] verdict is based,” Hummel, 2017 UT 19, ¶ 51,
may sometimes seem fuzzy, but this is the line that our supreme
court has drawn. And here, we simply don’t think that it’s
obvious, as is required for a plain error claim, that the transactions
constituted proof of elements for which jurors needed to be
unanimous, rather than constituting the “manner, mode, or
factual . . . theory” for proving the actual element, in which case
unanimity would not be required. Id. Nor do we think, for
purposes of the ineffective assistance claim, that Counsel
performed deficiently by not making what would have been a
decidedly novel argument. For these reasons, we reject Youren’s
claims.

6. Aggregate, Merriam-Webster, https://www.merriam-webster.
com/dictionary/aggregate [https://perma.cc/NML2-7ZEQ].

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State v. Youren

3. Theft

¶74 We next turn to the theft charge. Under the controlling
statute, an individual commits theft if he or she “obtains or
exercises unauthorized control over another person’s property
with a purpose to deprive the person of the person’s property.”
Utah Code § 76-6-404(2). 7

¶75 Our supreme court has recognized that theft is not a
“continuing offense” and that “the key actus reus elements” of
“obtaining or exercising” are “discrete acts that are satisfied
instantaneously.” State v. Taylor, 2015 UT 42, ¶ 27, 349 P.3d 696
(quotation simplified). In light of this authority, Youren claims
that the unit of prosecution turned on individual transactions or
amounts taken and that the jury should have therefore been
instructed that it was required to be unanimous as to each
particular transaction that supported the conviction.

¶76 Pushing back, however, the State invokes what is often
called “the single larceny rule.” This rule applies in “theft-related
crimes.” State v. Bell, 2016 UT App 157, ¶ 11, 380 P.3d 11. When
applicable, the rule holds that “if there is but one intention, one
general impulse, and one plan, even though there is a series of
transactions, there is but one offense.” State v. Kimbel, 620 P.2d 515,
518 (Utah 1980) (quotation simplified). In this sense, the rule

7. The theft statute was recently amended. As with the
exploitation statute, however, because the changes do not affect
the relevant language, we cite the current version for convenience.
We also note that, similar to the exploitation charge, theft
is elevated to a second degree felony if the “value of the property
is or exceeds $5,000.” Utah Code § 76-6-404(3)(a)(i). Youren was
charged with the second degree felony variant in this case, and
while the jury was not informed of the classification of the
charged offense, it was instructed that it was required to find that
“the value of the property or services” at issue “is or exceeds
$5,000.”

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State v. Youren

“allows the aggregation of multiple takings over a period of time
into a single charge of theft.” Taylor, 2015 UT 42, ¶ 30.

¶77 The parties in this case dispute whether the single larceny
rule applies to the theft crimes at issue. To determine the scope of
the rule, we think it appropriate to briefly survey cases in which
Utah courts held that it did or did not apply.

¶78 Starting with cases in which it did apply, we find the
following to be instructive:

• In Kimbel, the supreme court held that the rule applied
where the defendant committed several thefts of the same
kind of item from the same company “at different times on
the same day” and where the defendant then instructed an
accomplice on how to sell those items to others for profit.
620 P.2d at 516, 518. In the court’s view, these thefts were
appropriately aggregated and then charged as a single
offense because they were “part of a continuing plan.” Id.
at 518.

• In State v. Crosby, the supreme court considered a case in
which the defendant, who was a bookkeeping clerk for a
company, was alleged to have “misappropriated company
funds for her personal use” over a period of seven months.
927 P.2d 638, 640 (Utah 1996). Based on this conduct, the
defendant was convicted at trial of three counts of theft. Id.
On appeal, however, the supreme court held that
“although the transactions” at issue had “occurred over a
period of time, they were part of a single plan and should
have been charged as a single offense.” Id. at 645.

• Finally, in State v. Gibson, the defendant was an employee
of a publishing company, and he was charged with taking
money that had been paid to the company “from divers[e]
persons” in a series of transactions over the course of a
month and a half, failing “to account for the moneys so

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State v. Youren

collected,” and then “fraudulently and unlawfully
appropriat[ing] and convert[ing] them to his own use.” 108
P. 349, 350 (Utah 1910). In the supreme court’s view, these
facts supported just a single charge of embezzlement
because they represented a “continuous offense” that had
been committed through “a series of connected
transactions.” Id. (quotation simplified).

¶79 In contrast to these cases, the supreme court held in Taylor
that the rule did not apply where the defendant was charged with
several counts of theft for actions involving different victims that
occurred months and even years apart. See 2015 UT 42, ¶¶ 7–8, 30.
And in Gibson, our supreme court hypothesized that the rule
would not apply in a situation in which “properties belonging to
different persons located at different places were purloined, and
where each asportation constituted a separate and distinct
offense.” 108 P. at 350.

¶80 With these principles in mind, we agree with the State that
the single larceny rule applied to the facts at issue here. Again, at
trial, the State narrowed the theft count to the post-death financial
transactions in which Youren used money from Neighbor’s
account to pay off her own personal credit card. These
transactions were all connected since Youren was only able to
make the necessary transfers because (1) she had earlier entered
into the caretaking agreement with Neighbor, and (2) pursuant to
that agreement, Neighbor had added her to his bank account and
allowed her to access his funds to pay off ranch and medical
expenses. These transfers were thus taken from a single person—
indeed, from a single bank account—and they were all made
possible by a single grant of prior authority. In this sense, Youren
was very much akin to an employee who was charged with
embezzling from a single employer over the course of a period of
time. And as explained, the single larceny rule has been applied
to exactly this kind of conduct.

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State v. Youren

¶81 As a result, the individual transactions would not have
constituted separate offenses, but they would instead have
constituted just a single theft count. Because of this, for duplicity
purposes, the district court did not obviously err by failing to sua
sponte instruct jurors that they must be unanimous as to the
individual transactions, nor did Counsel render deficient
performance by not filing what would have been a futile motion.

¶82 This leaves the remaining question of whether jurors
should have been instructed, for purposes of the elements
analysis, that they were required to be unanimous as to individual
transactions. But for similar reasons, we again disagree with
Youren’s contention. Youren points to no authority holding that
in a case like this one where the single larceny rule applies, jurors
must unanimously agree on the individual acts or transactions
that constituted theft, and the cases recited above suggest
otherwise. In this sense, such acts or transactions would appear to
be “the manner, mode,” or “method[]” by which the defendant
committed the broader crime. Hummel, 2017 UT 19, ¶¶ 51, 57. At
minimum, we don’t think it’s obvious that such unanimity is
required in such a case, so Youren’s plain error claim fails. And
we likewise don’t believe that Counsel acted unreasonably by not
anticipating that these doctrines applied in this manner, so we
likewise reject Youren’s claim that she received ineffective
assistance in this regard.

III. Jury Instructions

¶83 Youren next claims that Counsel provided ineffective
assistance by not making various objections to the jury
instructions. We disagree with each of Youren’s claims.

A. Affirmative Defense Instructions

¶84 As noted, the jury was instructed on the defenses of
(1) ignorance or mistake of fact and (2) honest claim of right. On
appeal, Youren argues that these were affirmative defenses, and

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State v. Youren

she then argues that she received ineffective assistance because
Counsel did not ask the court to instruct the jury that, as
affirmative defenses, (1) the State was required to disprove them
beyond a reasonable doubt and (2) these defenses would result in
acquittal. We disagree.

1. Ignorance or Mistake of Fact

¶85 Starting with the ignorance or mistake of fact defense, it’s
true that this defense is an affirmative defense. See, e.g., State v.
Martinez, 2002 UT 80, ¶ 3 n.2, 52 P.3d 1276; State v. Van Oostendorp,
2017 UT App 85, ¶ 39, 397 P.3d 877. It’s also true that, “because
the burden of proof for an affirmative defense is counterintuitive,
instructions on affirmative defenses must clearly communicate to
the jury what the burden of proof is and who carries the burden.”
State v. Lee, 2014 UT App 4, ¶ 27, 318 P.3d 1164 (quotation
simplified). And finally, it’s true that, as a general rule, the State
must disprove an affirmative defense beyond a reasonable doubt
once the defense has been “put into issue.” State v. Low, 2008 UT
58, ¶ 45, 192 P.3d 867 (quotation simplified).

¶86 Even so, as far as affirmative defenses go, this defense is
somewhat atypical. Many (if not most) affirmative defenses
operate outside the elements of the charged offense. Black’s Law
Dictionary, for example, defines an “affirmative defense” as “[a]
defendant’s assertion of facts and arguments that, if true, will
defeat the plaintiff’s or prosecution’s claim, even if all the
allegations in the complaint are true.” Defense, Black’s Law
Dictionary (12th ed. 2024). Self-defense is a classic example. As
expressed in our controlling statute, this defense allows a
defendant to argue that, even if it’s true that the State has proven
that the defendant killed another person and the defendant had
the requisite mens rea, the defendant should still be acquitted
because he or she “reasonably believe[d] that force [was]
necessary to prevent death or serious bodily injury . . . as a result
of imminent use of unlawful force.” Utah Code § 76-2-402(2)(b).
So too with respect to the affirmative defense of coercion, which

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State v. Youren

applies when the person satisfied a crime’s actus reus and mens
rea requirements but “engaged in the proscribed conduct because
the person was coerced to do so by the use or threatened
imminent use of unlawful physical force upon the person or a
third person, which force or threatened force a person of
reasonable firmness in that situation would not have resisted.” Id.
§ 76-2-302(1). Again, the idea is that, even if the State has proven
each of the elements of the offense, something outside of those
elements nevertheless justifies the behavior or at least negates the
defendant’s criminal culpability. And this dynamic is why it is
ordinarily imperative that the jury be instructed that the State
bears the burden of disproving the affirmative defense beyond a
reasonable doubt.

¶87 But although mistake of fact is classified as an affirmative
defense under Utah law, see id. § 76-2-308, it doesn’t fit this same
pattern. The controlling statute for this defense states that it
applies to “ignorance or mistake of fact which disproves the culpable
mental state,” id. § 76-2-304(1) (emphasis added), and this is
precisely how the jury was instructed in this case.

¶88 As noted, Youren’s claim on appeal is that the jury should
have been instructed that, because this was an affirmative
defense, (1) the State was required to disprove it beyond a
reasonable doubt and (2) the defense would result in acquittal.
But other instructions that were given in this case already covered
that ground. The jury was instructed on the elements of the
charges (including, of note, the mens rea for the offenses), that the
State bore the burden of proving each of the elements (including
mens rea) beyond a reasonable doubt, that a failure by the State to
prove each element beyond a reasonable doubt would result in
acquittal, and that Youren did “not have to prove anything.”
Thus, in the context of this particular defense and the instructions
that were given, Youren is now faulting Counsel for not asking
the court to give what would have been redundant instructions.
Under these circumstances, we see no basis for concluding that
Counsel performed deficiently by not making such a request, nor

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State v. Youren

do we see any reasonable probability that giving these additional
instructions would have resulted in a different outcome.

2. Honest Claim of Right

¶89 We reach a similar conclusion, albeit for slightly different
reasons, with respect to the “honest claim of right” defense.

¶90 As noted above, the theft statute requires proof that the
defendant “obtain[ed] or exercise[d] unauthorized control over
another person’s property with a purpose to deprive the person
of the person’s property.” Utah Code § 76-6-404(2). By statute, a
defendant can make an honest claim of right defense in a theft
case. See id. § 76-6-402. The defense applies if the defendant actor:

(a) acted under an honest claim of right to the
property or service involved;

(b) acted in the honest belief that the actor had the
right to obtain or exercise control over the property
or service in the manner the actor obtained or
exercised control; or

(c) obtained or exercised control over the property
or service honestly believing that the owner, if
present, would have consented.

Id. § 76-6-402(3).

¶91 It’s unclear to us whether the relationship between this
defense and the statutory elements is quite as direct as it is for the
mistake of fact defense we just discussed. 8 But even so, we need

8. Some cases have suggested that the mens rea for theft is simply
the “purpose to deprive” set forth in the statute. See State v. Taylor,
2015 UT 42, ¶ 28, 349 P.3d 696; State v. Daniels, 584 P.2d 880, 882
(continued…)

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State v. Youren

not decide this issue on this basis. Even if it is true that the State
must disprove this defense in a manner separate from its
obligation to prove the elements, we see no reasonable probability
that the jury would have reached a different outcome on the theft
charge if it had been given the additional instructions proposed
by Youren on appeal.

¶92 As discussed, the State alleged at trial that Youren had
committed theft by transferring $24,000 from Neighbor’s bank
account to her own account after Neighbor’s death. Youren’s
defense to this was that she was authorized to do so pursuant to
both the caretaker agreement and communications with
Neighbor. She testified, for example, that he told her that she
could take “anything [she] needed to make the ranch work,” and
that he also told her she could take “[a]nything [she] needed
because” she was “changing [her] life over and staying there,” so
“whatever [she] needed personally, it was okay.”

¶93 But this was essentially the same defense that Youren made
against the exploitation charge, which, again, concerned
transactions that predated Neighbor’s death. In reaching the
verdict that it did, however, the jury necessarily rejected that
defense. In light of the instructions that were given on that charge,
the jury necessarily found that the State had affirmatively proven
that Youren “unjustly or improperly used or managed”
Neighbor’s resources and that she had done so “intentionally or
knowingly.” Moreover, based on the instructions that were given,
the jury’s conviction on the theft charge also shows that it found
that the State had affirmatively proven that Youren obtained or
exercised “unauthorized control” over Neighbor’s property “with

(Utah 1978). If this is all that’s required, then in theory, a person
could have such a purpose, but it could be based on an honest
belief that the person was entitled to deprive the other of the
property in question. Thus, unlike the mistake of fact defense
discussed above, it’s not obviously clear to us that this defense
necessarily negates the elements of the charged offense.

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State v. Youren

a purpose to deprive him” (or, it seems, his estate) thereof. Simply
put, if the jury didn’t believe that Youren had an honest claim of
right during Neighbor’s lifetime, the jury wouldn’t have believed
that she had such a right after his death.

¶94 Given the facts at issue, the instructions that were given,
and the jury’s verdict, we simply see no reasonable probability
that, if the jury had also been told that (1) the State had to disprove
the honest claim of right defense by a reasonable doubt or (2) that
this defense would result in an acquittal, the jury would have
done anything different from what it already did. We therefore
reject this claim for lack of prejudice. See, e.g., State v. Curtis, 2013
UT App 287, ¶ 34, 317 P.3d 968 (“Appellate courts may resolve an
ineffective assistance claim on prejudice alone if the
ineffectiveness did not prejudice the trial’s outcome.” (quotation
simplified)).

B. Additional Instructions Relating to Theft

¶95 Separate from her arguments about the honest claim of
right defense, Youren also argues that Counsel should have asked
the court to give two more instructions relating to the theft charge.
First, she claims that the jury should have been instructed that a
person must have had the unlawful intent for theft “at the time”
she initially “obtain[ed] or exercise[d] control over” the other
person’s property; second, she claims that the jury should have
been instructed that a person cannot be convicted of theft “if [she]
uses the property in a manner that goes beyond the terms of the
consent.”

¶96 With respect to the first claim, we note that Youren never
claimed below that she belatedly recognized that she was not
authorized to take Neighbor’s property. Rather, her defense was
that she never had an unlawful intent because the transactions
were authorized all along. As a result, we see no basis for
concluding that the additional language she now proposes would
have benefited her in any meaningful way at trial. We therefore

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State v. Youren

conclude that Counsel did not perform deficiently by not
proposing this language, and we likewise conclude that Youren
has not shown that she was prejudiced by its absence.

¶97 With respect to the second claim, Youren was not
convicted of theft for simply using Neighbor’s property in a
manner that went “beyond the term of [his] consent” in some
marginal sense, which is how she frames this aspect of this claim
on appeal. Rather, she was convicted of taking his money—i.e., of
transferring his funds to her own bank account for her own use.
On the facts presented in this case, this additional language
therefore seems wholly inapplicable. We accordingly see no basis
for concluding that she was entitled to an instruction employing
this language, much less that it would have made any difference
in the jury’s verdict. We therefore reject this claim for both lack of
deficient performance and lack of prejudice.

C. Additional Instruction Regarding Exploitation

¶98 As noted, the exploitation statute requires proof that the
defendant “unjustly or improperly use[d] or manage[d] the
resources of a vulnerable adult for the profit or advantage of
someone other than the vulnerable adult.” Utah Code § 76-5-
111.4(2)(c). Before trial, Counsel submitted proposed instructions
that (1) defined the term “unjustly” as meaning “to do something
that is not in accordance with what is morally right and fair” and
(2) defined the term “improperly” as meaning “to do something
in a manner not in accordance with accepted standards, especially
of morality and honesty.” The court included these definitions in
the instructions that it gave to the jury. On appeal, Youren claims
that Counsel provided ineffective assistance by proposing these
additional definitions. Youren points out that these definitions are
not set forth in any statute, and she argues that injecting concepts
of morality improperly “allowed the jury to form its own theories
of criminal liability.”

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State v. Youren

¶99 But again, to prevail on an ineffective assistance claim,
Youren must show that she was prejudiced. In her briefs and
arguments, however, Youren has not persuaded us that there is
any meaningful daylight between the terms used in the statute—
“unjustly” and “improperly”—and the extra language added by
Counsel that included notions of morality.

¶100 Our conclusion is not just conceptual or theoretical, but it’s
also warranted in light of the facts at issue in this case. Again, the
State’s theory was that Youren took advantage of an elderly man
by unlawfully taking his money for her own benefit. By contrast,
Youren’s theory was that these transactions were authorized. But
it’s clear from the verdict that the jury believed that the
transactions were not authorized, which, again, was the predicate
for convictions under the State’s case that was presented to the
jury. As a result, we’re not persuaded that there’s a scenario in
which the jury would have found that the transactions were
unjust and improper (which was the statutory language) but not
immoral (which was the added language). Because of this, we see
no reasonable probability that this additional language changed
the outcome of this trial in any way. We accordingly reject this
claim for lack of prejudice.

IV. Vagueness and the Exploitation Statute

¶101 Finally, Youren argues that she received ineffective
assistance because Counsel did not move to dismiss the
exploitation charge on the basis that the exploitation statute is
unconstitutionally vague. In Youren’s view, the statute is vague
both facially and as applied to the facts of this case. We disagree
on both fronts.

¶102 “Vagueness questions are essentially procedural due
process issues, i.e., whether the statute adequately notices the
proscribed conduct.” Hoffman v. Peace Officer Standards & Training
Council, 2022 UT App 34, ¶ 16, 507 P.3d 838 (quotation simplified).
A law is void for vagueness “when its prohibition is so vague as

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State v. Youren

to leave an individual without knowledge of the nature of the
activity that is prohibited.” State v. Mattinson, 2007 UT 7, ¶ 9, 152
P.3d 300 (quotation simplified). “Conversely, a law is not
unconstitutionally vague if it is sufficiently definite to provide
adequate notice as to what conduct is proscribed.” Hoffman, 2022
UT App 34, ¶ 16 (quotation simplified).

¶103 “A statute may be unconstitutional either on its face or as
applied to the facts of a given case.” State v. Herrera, 1999 UT 64,
¶ 4 n.2, 993 P.2d 854. A facial challenge is the more “difficult of
the two because it requires the challenger to establish that no set
of circumstances exists under which the statute would be valid.”
State v. Ray, 2022 UT App 95, ¶ 34, 516 P.3d 329 (quotation
simplified). To prevail on a facial challenge, the defendant must
show that the statute in question “is impermissibly vague in all of
its applications.” Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 495 (1982). But this court has already
rejected a vagueness challenge to the exploitation statute. See State
v. Jones, 2020 UT App 31, ¶ 62, 462 P.3d 372. As a result, a facial
challenge to this statute in this case would have been futile, so to
the extent that Youren’s ineffective assistance claim turns on a
proposed facial challenge, it necessarily fails. See Rodriguez, 2025
UT App 84, ¶ 37; Makaya, 2020 UT App 152, ¶ 9.

¶104 This leaves Youren’s assertion that Counsel should have
argued that the statute is unconstitutionally vague as applied to
her. The question on such a claim is whether the statute
“provide[s] people of ordinary intelligence” with “a reasonable
opportunity to understand what conduct it prohibits.” Hill v.
Colorado, 530 U.S. 703, 732 (2000). But “when a party raises an as-
applied vagueness challenge,” the court “examine[s] the
complainant’s conduct before analyzing other hypothetical
applications of the law.” State v. Hunt, 2018 UT App 222, ¶ 19, 438
P.3d 1 (quotation simplified). This is so because “a person who
engages in some conduct that is clearly proscribed by statute
cannot complain of the vagueness of the law as applied to the
conduct of others.” Id. (quotation simplified).

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State v. Youren

¶105 As discussed, the exploitation statute makes it illegal to
“unjustly or improperly use[] or manage[] the resources of a
vulnerable adult for the profit or advantage of someone other than
the vulnerable adult.” Utah Code § 76-5-111.4(2)(c). As also
discussed, the State’s theory at trial was that Youren exploited
Neighbor before his death by unjustly and improperly using his
money to fund her own personal life.

¶106 On appeal, Youren nevertheless claims that the statute was
unconstitutionally vague as applied to her because Neighbor had
allowed her to use his money for her personal expenses, both
through the caretaker agreement and through other
conversations. But the problem with this assertion is that this was
Youren’s version of the facts, not the State’s.

¶107 Youren points to no authority holding that in a criminal
case, a motion to dismiss for vagueness can be evaluated based on
the defendant’s version of the facts, as opposed to the facts alleged
by the government. And such a view would be contrary to how
motions to dismiss are generally handled. When a defendant files
a motion for a directed verdict in a criminal case, for example, the
question is whether the State produced “believable evidence of all
the elements of the crime charged.” State v. Bran, 2021 UT App 62,
¶ 16, 492 P.3d 147 (quotation simplified). A similar dynamic holds
true in civil cases. If a defendant files a motion to dismiss a
complaint under rule 12(b)(6) of the Utah Rules of Civil
Procedure, for example, the defendant “admits the facts alleged
in the complaint but challenges the plaintiff’s right to relief based
on those facts.” Miller v. Miller, 2020 UT App 171, ¶ 15, 480 P.3d
341 (quotation simplified).

¶108 We see no legal or logical basis for concluding that a
vagueness challenge would operate outside this traditional
rubric. If a defendant was charged with murder and his defense
was that he didn’t pull the trigger, it wouldn’t make sense to say
that the defendant could prevail on a vagueness challenge by
arguing that a reasonable person wouldn’t know that the murder

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State v. Youren

statute applies to a person who didn’t kill the victim. Instead, the
question would have to be whether a reasonable person would
know that the facts as alleged violated the statute.

¶109 So viewed, we see no basis for concluding that the district
court would have granted an as-applied challenge here. Again,
the key elements from the statute considered whether Youren had
“unjustly or improperly” used Neighbor’s resources “for the
profit or advantage of someone other than” Neighbor, Utah Code
§ 76-5-111.4(2)(c), and the State’s allegations were that she had
done exactly that by using Neighbor’s money for her own
purposes without his authorization. In our view, a person of
reasonable intelligence would understand that this alleged
conduct was prohibited by this statute. As a result, we conclude
that any such motion would have been futile and Counsel
therefore did not perform deficiently by failing to make it.

CONCLUSION

¶110 Youren has raised a large number of challenges to her
convictions. For the reasons set forth above, we see no reversible
error with respect to any of them. We therefore affirm Youren’s
convictions.

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