State v. Ison

2006 UT 26
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20040807
Plaintiff and Petitioner,
v.
F I L E D
Lew Ison,
Defendant and Respondent. 	April 28, 2006
---
Third District, Salt Lake
The Honorable Leon A. Dever
No. 971018177
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Charlene Barlow, Brett
Delporto, Asst. Att’ys Gen., Salt Lake City, for
petitioner
John Pace, Salt Lake City, for respondent
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 	This appeal is the latest chapter in the saga of a
Carribean cruise that set sail in November 1995 and the alleged
misdeeds of Lew Ison, the man accused of frustrating the vacation
plans of would-be passengers on that cruise.
¶2 	Mr. Ison was convicted of two counts of communications
fraud. 	He appealed his conviction to the court of appeals, where
he argued that his counsel had been ineffective. 	The court of
appeals agreed and ordered a new trial. 	We granted the State’s
petition for certiorari to consider whether the court of appeals
erred in ruling that Mr. Ison’s counsel was ineffective when he
(1) failed to seek the introduction into evidence the results
from an administrative adjudication that exonerated Mr. Ison and
(2) failed to object when the trial court responded to a written
question asked by the jury during its deliberations by stating

No. 20040807 	2
that a contract that appeared to assign Mr. Ison responsibility
for the fate of the cruise passengers was “legal and binding.”
We affirm the court of appeals.
FACTS
¶3 	Aristocrat Travel was a travel agency located in
Bountiful, Utah. 	Aristocrat agreed to sell sixty-two cabins for
a November 1995 Carribean cruise on a Norwegian Cruise Line
vessel. 	Under the agreement, Aristocrat was to collect money
from passengers in installments and forward the funds to
Norwegian--making the final payment one month before the cruise
departed.
¶4 	One month before the final payment to Norwegian was
due, Aristocrat’s owner, LeMar Lee Fiet, agreed to sell the
company’s assets, including its agency bookings, to Mr. Ison’s
company, Continental Travel. 	The agreement stated, in part:
Seller [(Aristocrat)] covenants that all
deposits for cruise and tour bookings have
been paid over to the cruise line or tour
operator. 	Any deposits not having been paid
over shall be delivered to Buyer. 	On
confirmation by Buyer [(Continental)] that
all cruise and tour deposits have been paid
to the cruise lines, tour operators or
received by Buyer, Buyer assumes all
responsibilities for the cruise and tour
bookings transferred to Buyer.
¶5 	Continental agreed to pay Aristocrat $60,000 for its
assets with $10,000 due at the closing of the transaction.
Mr. Ison wrote a $7,000 and a $3,000 check to meet the $10,000
payment obligation, but stopped payment when he discovered that
Aristocrat had failed to pay a $3,000 telephone bill. 	The unpaid
telephone bill was presumably a matter of some importance since
Aristocrat’s telephone numbers were among the assets purchased by
Continental. 	About the same time, Mr. Ison discovered that
Mr. Fiet had not paid the deposits required to secure the
Norwegian cruise. 	Mr. Ison asked an Aristocrat employee to audit
the company’s books for information regarding payments made
toward the Norwegian cruise. 	The employee told Mr. Ison that
more money was needed to secure the cruise, although it was
unclear how much.
¶6 	Mr. Ison sent a letter to Mr. Fiet accusing him of
personally taking and disposing of $13,000 in deposits designated

1 Utah Code section 13-11-4(2) states:
[A] supplier commits a deceptive act or
practice if the supplier knowingly or
intentionally:
. . .
(j) indicates that a consumer
transaction involves or does not involve
(continued...)
3 	No. 20040807
for the Norwegian cruise. 	He then told Mr. Fiet that he would no
longer honor their agreement.
¶7 	Mr. Ison contacted the cruise passengers and explained
that some of the money paid to Aristocrat had not been submitted
to Norwegian. 	To resolve the situation he asked those who had
paid the full price for the cruise to pay an additional $115 and
those whom he could not confirm as having paid the full price
(through Aristocrat or Norwegian paperwork) to pay the full
cruise cost. 	A week later, he sent the passengers a second
letter stating that “Fiet/Aristocrat had not remitted the funds
paid by some of the travelers on the [November Cruise] to
[Norwegian].” 	He told the passengers that if the shortage was
not made up the cruise would be cancelled, “whether they [had]
paid full fare or not.”
¶8 	Mr. Ison further advised the passengers that “having
rescinded the Agreement with Aristocrat, Continental [would] not
assume liability for Aristocrat’s actions in failing to remit the
monies for said cruise.” 	Instead, Mr. Ison offered the
passengers a separate agreement with Continental to “take over”
the situation, which, he assured them, Continental would likely
resolve to their satisfaction.
¶9 	To no one’s surprise, the cruise passengers were not
pleased by this course of events. 	Their complaints triggered
investigations into Mr. Ison and Continental’s conduct by both
the Utah Attorney General and the State Division of Consumer
Protection. 	As authorized by statute, the Division investigated
the complaints and issued a citation to Mr. Ison. 	Mr. Ison
exercised his right to a hearing on the charges made in the
citation. 	“If the recipient of a citation makes a timely request
for review, within ten days of receiving the request, the
division shall convene an adjudicative proceeding in accordance
with Title 63, Chapter 46b, Administrative Procedures Act.” 	Utah
Code Ann. § 13-2-6(3)(c) (2005). 	The Division then convened a
hearing before an administrative law judge (“ALJ”) who heard
testimony and evidence as to whether Mr. Ison had violated Utah
Code sections 13-11-4(2) 1 and 13-11-3(6). 2 	The ALJ concluded

1 (...continued)
a warranty, a disclaimer of warranties,
particular warranty terms, or other
rights, remedies, or obligations, if the
representation is false;
. . .
(l) after receipt of payment for goods
or services, fails to ship the goods or
furnish the services within the time
advertised or otherwise represented
. . . unless within the applicable time
period the supplier provides the buyer
with the option to either cancel the
sales agreement and receive a refund of
all previous payments to the supplier
. . . .
Utah Code Ann. § 13-11-4(2) (2001).
2 Utah Code section 13-11-3(6) (2001) defines a supplier as
“a seller, lessor, assignor, offeror, broker, or other person who
regularly solicits, engages in, or enforces consumer transactions
whether or not he deals directly with the consumer.”
3 Utah Code section 76-10-1801 states, in part:
(1) Any person who has devised any scheme or
artifice to defraud another or to obtain from
another money, property, or anything of value
by means of false or fraudulent pretenses,
representations, promises, or material
omissions, and who communicates directly or
indirectly with any person by any means for
the purpose of executing or concealing the
scheme or artifice is guilty of [a level of
misdemeanor or felony based on the amount of
defrauded money].
Utah Code Ann. § 76-10-1801 (2003).
No. 20040807 	4
that Mr. Ison had not violated either statute. 	In the course of
reaching this conclusion, the ALJ found that Mr. Ison “made no
misrepresentations to any passenger” and never “assumed
responsibility for the cruise and tour bookings in question.”
¶10 	In spite of the ALJ’s findings, the attorney general
filed criminal charges against Mr. Ison for communications fraud
under Utah Code section 76-10-1801. 3 	The case went to trial.
During jury deliberations, the jury sent a note to the trial
judge asking if the agreement between Mr. Fiet and Mr. Ison was a
“legal and binding” contract during the alleged offense. 	The
judge wrote “Yes” on the note, signed it, and returned it to the

5 	No. 20040807
jury. 	The jury convicted Mr. Ison of two counts of
communications fraud. 	He then appealed to the Utah Court of
Appeals, which decided whether
Defendant’s trial counsel was ineffective for
failing to move to admit the decision of the
ALJ . . . and was also ineffective for
failing to object to the trial court’s
instruction to the jury that the purchase
agreement between defendant and Fiet was
“legal and binding.”
State v. Ison, 2004 UT App 252, ¶ 23, 96 P.3d 374.
¶11 	The court of appeals first considered whether the ALJ’s
findings were admissible and whether Mr. Ison’s counsel was
ineffective for failing to move to admit the ALJ’s findings under
Utah Rule of Evidence 803(8)(C). 	Id. ¶ 15. 	The court concluded
that the ALJ’s findings were admissible under Utah Rule of
Evidence 803(8)(C) as a record or report of a public agency based
on a plain language interpretation of the rule. 	Id. ¶ 16.
¶12 	The court of appeals then held that Mr. Ison’s counsel
was ineffective for failing to move for admission of the ALJ’s
findings. 	Id. ¶ 19. 	It reasoned that because “trial counsel was
aware of the ALJ decision, which appears in the record, and
because it would have helped exonerate Defendant, there was no
strategic move for not moving for its admission.” 	Id.
Therefore, counsel’s failure to seek admission of the ALJ’s
findings was “below the standard of reasonable professional
assistance.” 	Id. (citing State v. Dunn, 850 P.2d 1201, 1225
(Utah 1993)).
¶13 	The court of appeals also held that Mr. Ison’s trial
counsel was ineffective because he failed to object to the trial
court’s determination, made in response to the jury’s written
question, that the contract between Mr. Ison and Mr. Fiet was
legally binding. 	Id. ¶ 20. 	The court of appeals reasoned that
because no evidence was presented at trial on the issue of the
contract’s legal status, it was inappropriate for the trial court
to summarily rule on its legality after the jury had retired.
Id. ¶ 21. 	In fact, as the court of appeals noted, the trial
court made no determination on the record that Mr. Ison was
obligated to perform the contract without confirmation, which
never came, that deposit money had been forwarded to Norwegian
for the cruise. 	Id. 	In light of these errors, the court of
appeals reversed Mr. Ison’s convictions and granted him a new
trial. 	Id. ¶ 23. 	The State petitioned for a writ of certiorari,
which we granted.

No. 20040807 	6
ANALYSIS
¶14 	The State challenges the two premises which undergird
the court of appeals’ ineffective counsel determination. 	It
contends that Mr. Ison’s counsel could not have been ineffective
because the ALJ’s findings were not admissible and thus trial
counsel was blameless for not seeking their admission into
evidence. 	Similarly, because the trial judge provided the
correct answer to the jury’s question, Mr. Ison’s counsel had no
reason to object to it.
I. 	THE COURT OF APPEALS PROPERLY HELD THE ALJ’S FINDINGS
ADMISSIBLE
¶15 	Rule 803(8)(C) of the Utah Rules of Evidence authorizes
the admission of hearsay that appears in the form of public
records and reports. 	A court may admit into evidence, “in civil
actions and proceedings and against the Government in criminal
cases, factual findings resulting from an investigation made
pursuant to authority granted by law, unless the source of
information or other circumstances indicate lack of
trustworthiness.” 	Utah R. Evid. 803(8)(C).
¶16 	We interpret evidentiary rules using the same time-
honored methods we employ to draw meaning from writings
generally. 	Accordingly, we look first to the plain meaning of
the text of rule 803(8)(C) for guidance.
¶17 	The State does not challenge the contention that the
ALJ’s findings were a report of a public agency. 	Furthermore,
the State does not assert that what the Division labels “Findings
of Fact” are not “factual findings” as that term is used in rule
803(8). 	Instead, the State insists that the Division’s findings
do not meet the requirements of rule 803(8) because they are not
“factual findings resulting from an investigation.” 	According to
the State, the Division’s findings were the “result” of an
adjudication and not an investigation, and therefore fall outside
the ambit of the rule.
¶18 	To test the soundness of the State’s argument, we must
explore whether the connection between the ALJ’s factual findings
and the Division’s investigation of Mr. Ison were so attenuated
as to disqualify them from being considered the “result” of the
investigation and whether there is something about the nature of
the administrative hearing setting that so alters the character
of factual findings made by the ALJ that they became the
exclusive “result” of the administrative hearing and not the
investigation that occasioned it.

7 	No. 20040807
¶19 	We need not determine whether the Division conducted an
investigation. 	It did. 	As the plain language of rule 803 makes
clear, however, it is the product of the investigation,
specifically its factual findings, and not the investigation
itself that is eligible for consideration under the public report
exception to the hearsay rule. 	An investigation is a process.
In American popular culture, criminal investigations are closely
associated with the detectives who conduct them; detectives who
sport a fedora with a bent front brim in search of “Just the
facts ma’am” or, who in the current fashion, possess skill in the
use of the futuristic gadgetry of forensic science. 	Because it
is a process, however, an investigation itself has no evidentiary
significance. 	It is the data uncovered and the dots connected by
the investigative process that acquire the potential for becoming
evidence.
¶20 	Regardless of whether an investigation is performed in
the Holmesian (Sherlock, not Oliver Wendell) tradition of culling
insights into the make-up of human beings from observations of
dress, speech, and carriage or by employing the latest advances
in genetics, chemistry, or physics, any report or other account
of data gathered through the investigation is subjected to
sifting and evaluation. 	Training, experience, and intuition are
applied to the compilation of raw data, and a report emerges.
Facts are found.
¶21 	These factual findings inevitably bear traces of the
processes used in their discovery. 	It is difficult indeed to
imagine an investigatory report of a public agency that would,
even under the narrowest interpretation of “investigation,” be
wholly free of what could be taken as opinion. 	Such reports
would nevertheless qualify as factual findings under rule
803(8)(C).
¶22 	The definition of “finding” in legal parlance both
reinforces and refines its connection to the deliberative process
and inevitable connection to “opinion.” 	Black’s Law Dictionary
says that a “finding” is “[t]he result of the deliberation of a
jury or a court. 	A decision upon a question of fact reached as a
result of a judicial examination or investigation by a court,
jury, referee, coroner etc.” 	Black’s Law Dictionary 632 (6th ed.
1990). 	When “finding” is connected to “fact” the combination has
a still greater legal valence. 	Black’s defines a “finding of
fact” as “[a] determination from the evidence of a case, either
by a court or an administrative agency, concerning facts averred
by one party and denied by another.” 	Id. at 632.

No. 20040807 	8
¶23 	The use of the term “factual findings” in rule
803(8)(C), laden as it is with legal overtones, indicates that
the type of public agency report that the rule intends to shelter
is one made by a person whom the law considers to be a finder of
fact. 	So construed, an admissible report could be one containing
the factual findings of Oliver Wendell Holmes, Jr., based on an
investigation undertaken by Sherlock Holmes.
¶24 	An essential point of this discussion is that the clear
demarcation between investigations and adjudications urged on us
by the State does not exist. 	Forensic investigations regularly
yield factual findings that share characteristics with findings
of fact determined in administrative adjudications. 	Those same
adjudications, at least insofar as they seek to uncover truth,
are themselves investigations. 	A plain reading interpretation of
rule 803(8)(C) acknowledges these overlapping domains and, we
conclude, clearly extends the reach of the public agency report
into the realm of administrative adjudications.
¶25 	In reaching this conclusion, we are in accord with
United States Supreme Court jurisprudence relating to Federal
Rule of Evidence 803(8)(C), a rule identical to Utah’s. 	In Beech
Aircraft Corp. v. Rainey, 488 U.S. 153 (1988), widows of deceased
Navy pilots sued the manufacturer of the airplanes they believed
malfunctioned in a Navy training exercise causing their husbands’
deaths. 	Id. at 156. 	The application of rule 803(8) became a
point of contention when the defense sought to introduce an
investigative report of the crash that had been ordered by the
commanding officer of the training squadron in which the deceased
pilots served.
¶26 	Justice Brennan’s majority opinion tracked closely our
methodology and result. 	It relied on the “traditional tools of
statutory construction”--plain language meaning--to interpret
rule 803(8)(C). 	Id. at 161-70. 	Justice Brennan first turned
away an attempt to rein in the application of rule 803 (as the
State seeks to in this case) by exploiting a “perceived dichotomy
between ‘fact’ and ‘opinion’ in arguing for the limited scope of
the phrase ‘factual finding.’” 	Id. at 163. 	He reasoned that “it
is not apparent that the term ‘factual findings’ should be read
to mean simply ‘facts.’” 	Id. at 163-64.
¶27 	Justice Brennan, too, looked to Black’s definition of
“finding of fact” as “[a] conclusion by way of reasonable
inference from the evidence.” 	Id. (citing Black’s Law Dictionary
569 (5th ed. 1979)). 	Drawing on this definition, Justice Brennan
reasoned that “the language of the Rule does not compel us to
reject the interpretation that ‘factual findings’ includes
conclusions or opinions that flow from a factual investigation.”

4 Utah Code section 13-2-6 states:
(3) If the division has reasonable cause to
believe that any person is engaged in
violating any chapter listed in Section 13-2-
1, the division may promptly issue the
alleged violator a citation signed by the
division’s director or his designee.
. . .
(c) If the recipient of a citation makes a
timely request for review, within ten days of
receiving the request, the division shall
convene an adjudicative proceeding in
accordance with Title 63, Chapter 46b,
Administrative Procedures Act.
(d)(i) If the presiding officer finds that
there is not substantial evidence that the
recipient violated a chapter listed in
Section 13-2-1 at the time the citation was
issued, the citation may not become final,
and the division shall immediately vacate the
citation and promptly notify the recipient in
writing.
(ii) If the presiding officer finds
there is substantial evidence that the
(continued...)
9 	No. 20040807
Id. at 164. 	Based on a plain review of the text, he felt that it
is clear “the language of the Rule does not state that ‘factual
findings’ are admissible, but that ‘reports . . . setting forth
. . . factual findings are admissible.’” 	Id. (emphasis in
original).
¶28 	We share Justice Brennan’s refusal to endorse a
categorical distinction between fact and opinion in the context
of rule 803(8)(C) and find in it further support for our view
that the rule cannot accept mutually exclusive understandings of
investigation and adjudication.
¶29 	In this case, we have little difficulty concluding that
the factual findings in the ALJ report “resulted” from an
investigation. 	Rule 803(8)(C) does not provide explicit guidance
concerning the degree of causal proximity between factual
findings and an investigation necessary to satisfy the “resulting
from an investigation” requirement. 	The Consumer Protection
Division’s hearing would not have occurred had the Division not
conducted its investigation of Mr. Ison. 	The hearing and the
factual findings it produced were events in a direct statutory
sequence that commenced with the passengers’ complaints and the
Division’s investigation. 4

4 (...continued)
recipient violated a chapter listed in
Section 13-2-1 at the time the citation was
issued, the citation shall become final and
the division may enter a cease and desist
order against the recipient.
Utah Code Ann. § 13-2-6 (2005).
No. 20040807 	10
¶30 	The hearing put to the test the Division’s conclusion
that its investigation warranted the issuance of a citation
against Mr. Ison for violations of Utah Code sections 13-11-4(2)
and 13-11-4(6) (2001). 	The ALJ determined, based on factual
findings, that the Division’s investigation failed the test.
Those factual findings, including those that Mr. Ison points to
in support of his claim of ineffective assistance of counsel,
therefore “resulted from” the Division’s investigation.
¶31 	Rule 803(8)(C) of the Utah Rules of Evidence
presumptively invites admission of a public agency report “unless
the sources of information or other circumstances indicate lack
of trustworthiness.” 	The State’s sole attack on the
trustworthiness of the ALJ’s findings is that the record does not
contain evidence “that the ALJ had any special expertise or
experience in the matters presented at the hearing that would
make his findings trustworthy.” 	Inasmuch as the State fails to
provide us with any indication of its own regarding what matters
it refers to or what special expertise or experience the ALJ
would have had to possess in order to lend sufficient
trustworthiness to his findings, we reject this argument. 	We
note, however, that the ALJ is presumed to be an impartial fact
finder. 	In conducting an impartial evaluation of competing
claims to factual truth in the service of rendering a decision in
an administrative proceeding like the one that occurred here, an
ALJ is called upon to exhibit considerable expertise and
experience.
¶32 	We are not persuaded that Mr. Ison’s counsel can be
excused for not seeking to introduce the ALJ’s findings because
the issue of whether the ALJ report came within rule 803(8)(C)
was an open question in our courts. 	Mr. Ison would have alerted
his counsel that the ALJ had exonerated him of charges that he
had violated the Consumer Sales Practices Act. 	Indeed, is it
possible that Mr. Ison did not have feelings of indignation upon
learning that he was facing criminal charges based on the same
alleged misrepresentations that the ALJ had found he did not
make? 	The ALJ’s findings were potentially very powerful
exculpatory evidence. 	We agree with the court of appeals that
there was no strategic reason not to seek admission of the ALJ’s
findings. 	Surely, competent counsel would scour the exceptions

5 Our analysis is limited to the court of appeals’
determination that the performance of Mr. Ison’s counsel “fell
below the standard of reasonable professional assistance,” State
v. Dunn, 850 P.2d 1201, 1225 (Utah 1993), the first of a two-part
test adopted by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 686-87 (1984), to evaluate claims of
ineffective assistance of counsel. 	The State has not challenged
part two, that but for counsel’s deficient performance there is a
reasonable probability that the outcome of the trial would have
been different. 	We therefore do not consider it.
11 	No. 20040807
to the hearsay rule in search of a means to place the findings in
the hands of the jury.
¶33 	Our observation that the ALJ’s findings packed
considerable potential evidentiary punch does not lead us to
conclude that the findings were unacceptably prejudicial. 	Our
confidence in the capabilities of juries extends to our belief
that, aided by properly crafted instructions, they may understand
the function and authority of the ALJ within the executive branch
of government and appropriately weigh his findings. 	Moreover,
the court of appeals was correct to observe that the speculative
possibility that the trial judge might have exercised his
discretion and ruled that the prejudice of the ALJ’s findings
substantially outweighed its probative value and therefore
rejected the proposed evidence pursuant to rule 403 of the Utah
Rules of Evidence does not justify failing to offer otherwise
admissible evidence.
¶34 	We therefore affirm the court of appeals’ holding that
Mr. Ison was afforded ineffective assistance of counsel based on
the failure to offer into evidence the ALJ’s findings relating to
Mr. Ison’s alleged misrepresentations and absence of contractual
obligation to the cruise passengers. 5
II. 	MR. ISON’S COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO
THE TRIAL COURT’S ANSWER TO THE JURY’S QUESTION ON THE VALIDITY
OF THE CONTRACT
¶35 	Finally, we review whether Mr. Ison’s counsel was
ineffective because he did not object to the trial court’s
single-word answer, “Yes,” to the jury’s request to know whether
the contract between Mr. Ison and Mr. Fiet was “legal and
binding.” 	Complicating this issue is the fact that the only
record of this interaction is the slip of paper containing the
jury’s question and the judge’s answer. 	We agree with the court
of appeals that Mr. Ison has properly preserved this issue
despite the absence of a record from which we could understand
the circumstances surrounding and the reasons for the trial

No. 20040807 	12
court’s treatment of the jury’s question. 	We also agree that the
trial court’s direction that the jury find a “legal and binding”
contract was both erroneous as a matter of law and prejudicial to
Mr. Ison.
A. 	Lack of Record Does Not Negate the Ineffective Assistance of
Counsel Claim
¶36 	The State contended before the court of appeals that
Mr. Ison was foreclosed from challenging the jury question issue
on appeal because his counsel failed to preserve the issue by
objecting to the judge’s answer on the record. 	The court of
appeals dispatched the State’s argument with the observation that
it would have been impossible for Mr. Ison to document his
counsel’s failure to object, because the trial court responded to
the jury’s question off the record. 	Another way of looking at
Mr. Ison’s dilemma is that but for his attorney’s ineffective
assistance, the trial court would not have responded to the
jury’s question off the record. 	Thus, because of the ineffective
assistance of Mr. Ison’s counsel, no record exists to establish
whether counsel objected to the question or not.
¶37 	Now, before us, the State contends that without a
record to substantiate Mr. Ison’s claim, we must assume both that
a record of the events surrounding the jury question exists and
that Mr. Ison’s failure to include this portion of the record on
appeal requires us to infer that no error occurred. 	This multi-
layered presumption places, in our opinion, too much strain on
the interests of justice.
¶38 	The State is correct when it asserts that a defendant
must substantiate his arguments by pointing to the record. 	The
State further correctly notes that claims of error cannot
ordinarily be founded on matters not present in the record on
appeal, because “[w]hen crucial matters are not included in the
record, the missing portions are presumed to support the action
of the trial court.” 	State v. Pritchett, 2003 UT 24, ¶ 13, 69
P.3d 1278.
¶39 	We agree with the court of appeals; however, we have
stoppped short of conferring omnipotence to this rule.
[T]hree exceptions to this general rule are
recognized in Utah. 	An appellate court may
address an issue for the first time on appeal
if appellant establishes that the trial court
committed “plain error,” if there are
“exceptional circumstances,” or in some
situations, if a claim of ineffective

13 	No. 20040807
assistance of counsel is raised on appeal
even though, by reason of the claimed
ineffectiveness, the matter was not raised
below.
State v. Irwin, 924 P.2d 5, 7 (Utah Ct. App. 1996) (emphasis
added) (citations ommitted).
¶40 	Furthermore, we have expressly recognized in our rules
of appellate procedure that evidence of deficient performance by
counsel may exist outside of the record and may be used in
support of a claim of ineffective assistance. 	See Utah R. App.
P. 23B(a).
¶41 	In this case, Mr. Ison does not claim “plain error” or
“exceptional circumstances.” 	Instead, he argues that the
situation presented is one of the limited situations in which a
claim of ineffective assistance of counsel may preserve an issue
not raised below. 	Where a claim of ineffective assistance is
grounded in the absence of a record, a party may not gain the
benefit of the presumption of regularity without a showing that
the party claiming error consented to or acquiesced in the off-
the-record treatment of a matter giving rise to the ineffective
assistance claim.
¶42 	Special care must be taken to discourage parties from
attempting to avoid the preclusive effect of a failure to
preserve an issue by claiming that the ineffective assistance of
counsel should be blamed for the void in the record where an
issue-preserving objection would otherwise have appeared. 	We
exercise such care here in affirming the court of appeals. 	The
deficiency of a written question to the court from a deliberating
jury is, while not an infrequent occasion, one that suffers from
an absence of procedural guidance. 	As this case illustrates, a
trial judge who takes up a jury question off the record does so
at considerable peril. 	We can imagine few, if any, instances in
which a trial court could appropriately dispense with a record
when confronted with a jury question.
¶43 	Because of the unique circumstances attendant to a jury
inquiry made during deliberations, we find it appropriate to
recognize this as one of the very limited circumstances
contemplated by Irwin when ineffective assistance of counsel may
excuse a failure to preserve an issue on the record. 	“An
appellate court may address an issue for the first time on appeal
. . . in some situations, if a claim of ineffective assistance of
counsel is raised on appeal even though, by reason of the claimed
ineffectiveness, the matter was not raised below.” 	Irwin, 924
P.2d at 7.

No. 20040807 	14
B. 	The Court of Appeals Correctly Determined That the Question
of Whether the Contract Was “Legal and Binding” Should Have Been
Decided by the Jury After Hearing the Evidence
¶44 	The trial judge exceeded his discretion when he
directed the jury that the agreement was “legal and binding,” and
Defendant’s counsel’s failure to object rendered his performance
below the standard of “professional assistance” required by Dunn,
850 P.2d 1201 (Utah 1993).
¶45 	The State correctly reminds us that we must ordinarily
presume that a trial court’s decision is based on reasonable
factual determinations. 	We cannot, however, extend the court the
benefit of this presumption here because no evidence was offered
about the obligations that may or may not have existed under the
contract.
[I]n cases in which factual issues are
presented to and must be resolved by the
trial court but no findings of fact appear in
the record, we assume that the trier of facts
found them in accord with its decision, and
we affirm the decision if from the evidence
it would be reasonable to find facts to
support it. 	If the ambiguity of the facts
makes this assumption unreasonable, however,
we remand for a new trial.
State v. Ramirez, 817 P.2d 774, 787 (Utah 1991) (internal
quotation marks and citations omitted).
¶46 	The trial judge’s answer to the jury question was no
less than a ruling that the agreement between Aristocrat and
Continental was “legal and binding” as a matter of law. 	Such a
ruling could have been justified if the “legal and binding”
nature of the agreement was evident from the plain language of
its text.
When interpreting a contract, a court first
looks to the contract’s four corners to
determine the parties’ intentions, which are
controlling. 	Cent. Fla. Invs., Inc. v.
Parkwest Assocs., 2002 UT 3, ¶ 12, 40 P.3d
599; see also Winegar v. Froerer Corp., 813
P.2d 104, 108 (Utah 1991). 	If the language
within the four corners of the contract is
unambiguous, then a court does not resort to
extrinsic evidence of the contract’s meaning,

15 	No. 20040807
and a court determines the parties’
intentions from the plain meaning of the
contractual language as a matter of law.
Bakowski v. Mt. States Steel, Inc., 2002 UT 62, ¶ 16, 52 P.3d
1179.
¶47 	The text of the agreement did not permit this
determination because, although the language of the agreement may
have been clear, that language incorporated a condition precedent
to Continental’s performance--the verification that Aristocrat
had properly forwarded the passengers’ payments to Norwegian.
The existence of this condition left the trial judge ill-equipped
to know whether Continental’s contractual duties had matured
based only on the text of the agreement.
¶48 	The trial judge’s “Yes” answer to the jury’s question
meant that he had determined that Continental had satisfied this
condition. 	He could not have reached this determination,
however, without evaluating the evidentiary basis for it. 	This
assessment required the trial judge to shift his attention from
the text of the agreement to what Continental and Aristocrat
actually did, or failed to do. 	This endeavor would have borne
the unmistakable hallmarks of fact-finding. 	Of course, if the
evidence that the trial judge uncovered relating to the
performance of the condition had left the mind of any reasonable
juror with no option but to find that Aristocrat had satisfied
the condition, we would affirm the “Yes” answer to the jury
question. 	The evidence does not, however, permit this outcome.
The only evidence in the record on the topic of Aristocrat’s
performance of the condition precedent points to the conclusion
that it had failed to satisfy it. 	Under these circumstances, we
agree with the court of appeals that the trial court erred when
it ruled as a matter of law that the agreement was “legal and
binding.”
¶49 	We are unpersuaded by the State’s contention that
Mr. Ison’s Continental “breached” the agreement because it failed
to demand mediation of Aristocrat’s failure to perform. 	As a
general proposition of contract law, a failure to properly invoke
a dispute resolution provision will not excuse a breach of a
substantive contract term. 	This “breach” is apparently the most
the State can muster in aid of its contention that Mr. Ison was
obligated to perform Continental’s contractual duties, despite
uncontroverted evidence that Aristocrat never confirmed to
Mr. Ison that it had protected the interests of the passengers by
advancing their deposits to Norwegian.

No. 20040807 	16
¶50 	We are aware of no contract law authority, and the
State has provided us with none, to support the proposition that
a party’s failure to pursue an agreed-upon alternative dispute
resolution method would excuse the breach that created the
dispute. 	That is certainly not the case here, where the
agreement merely required mediation as a condition to litigation.
Whether Mr. Ison demanded mediation or not, he did not have
confirmation that the passengers’ deposits, to which he was
entitled under the agreement, had been properly accounted for.
While he may well have been foreclosed from seeking a court’s
declaration that he was relieved of any duty to assume
Aristocrat’s obligations to the passengers until mediation had
occurred, it was nevertheless entirely plausible for Mr. Ison to
truthfully tell passengers that Continental had no responsibility
for their bookings based on unambiguous contract language that
imposed upon Continental the duty to honor the bookings only
after Aristocrat properly accounted for them. 	Thus, while the
evidence would provide considerable support to a claim that the
trial court could have responded to the jury’s question with a
“No,” there is no evidence to justify a “Yes” answer.
CONCLUSION
¶51 	We affirm the court of appeals. 	The ALJ report was
admissible under rule 803(8)(C), and defense counsel’s failure to
move for the report’s admission constituted ineffective
assistance of counsel. 	We also affirm that the trial court erred
in communicating to the jury that the contract was “legal and
binding,” and Mr. Ison’s attorney’s failure to object on the
record constituted ineffective assistance of counsel as well.
---
¶52 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.