State v. Brown

2019 UT App 122

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TONIA SCHNAE BROWN,
Appellant.

Opinion
No. 20161036-CA
Filed July 18, 2019

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 151902943

Debra M. Nelson, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and DIANA HAGEN
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Tonia Schnae Brown appeals her convictions on three
counts of securities fraud, second-degree felonies. We affirm.

BACKGROUND

¶2 Two Utah residents, Victim and Friend, were introduced
to Brown by a mutual friend (Advisor). Brown had informed
Advisor that she had made a substantial amount of money as a
commercial real estate broker prior to the financial crisis of 2008
but had moved her funds to offshore accounts at that
time because she was concerned about the United States’
financial system. She claimed to have just under $50 million in
State v. Brown

an account at InterBank, a bank operating out of Saint Vincent
and the Grenadines, as well as $300,000 in an account with the
Bank of China in Hong Kong. Brown represented that she owed
$59,500 in value added taxes (VAT) to the Hong Kong
government and that her accounts were frozen until she paid the
money.

¶3 Brown signed a promissory note stating that she would
pay Victim $1 million when her accounts were unfrozen if
Victim would send Brown the $59,500 for the VAT. Brown
assured Victim that “there was no risk” and she could return her
money “at any time.” Victim took out a home equity loan in the
amount of $59,500 and wired the money as directed by Brown.

¶4 Instead of delivering the promised $1 million, Brown
delivered a letter to Victim, purportedly from the Bank of China,
stating that the VAT had increased and that an additional
$80,500 was needed to pay the VAT. Brown signed a new
promissory note in which she committed to deliver $2 million in
exchange for the total $140,000 needed to pay the VAT, and
Friend loaned Brown the additional $80,500.

¶5 Once again, Victim and Friend received a letter,
purportedly from the Bank of China, informing them that an
additional $210,000 was needed to release the frozen funds.
Brown urged Victim and Friend to provide the additional funds,
but instead Victim contacted the Federal Bureau of Investigation,
the Securities and Exchange Commission, and a private attorney
to report that she and Friend may have been defrauded by
Brown. Victim and Friend made various attempts to recover the
funds from Brown but were unsuccessful.

¶6 Victim also made her own inquiries, reaching out to the
Hong Kong Monetary Authority (HKMA) and government
authorities in Saint Vincent and the Grenadines, as well as hiring
attorneys in Hong Kong to look into the validity of Brown’s
claims. She learned that Hong Kong does not have a VAT and
that the documentation Brown had provided from both the Bank

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of China and the HKMA were likely not authentic. Victim also
discovered that there was no record of InterBank in Saint
Vincent and the Grenadines and that the address on InterBank’s
letterhead—appearing on a document provided by Brown—was
invalid.

¶7 The State charged Brown with three counts of securities
fraud in connection with this incident, all second-degree
felonies. Brown elected to represent herself in the criminal case.
But before the trial court allowed Brown to proceed pro se, it
conducted a full colloquy regarding Brown’s education, her
understanding of the charges, her understanding of the law, and
her constitutional right to have counsel appointed. The court
“strongly urge[d]” Brown not to represent herself, but she
elected to do so anyway. The court then accepted Brown’s
waiver of counsel, finding that it was knowing, voluntary, and
intelligent.

¶8 The State called a securities expert, Bryan Allen, to testify
at trial. Allen testified that “securities laws impose a requirement
on . . . sellers of securities, to provide full and fair disclosure.”
He explained that disclosure is fraudulent if the seller fails to
provide an investor with “all material facts related to the
investment” or “omit[s] . . . any information that would make
the statements . . . misleading.” Allen further defined “material”
as “any[thing] that a reasonable investor would find important
in deciding to purchase . . . or sell the security.”

¶9 During his testimony, Allen provided a list of “examples
of what might be considered material facts or information in the
securities industry,” including (1) relevant information about the
seller’s business or industry; (2) information about the parties
involved in the transaction, including their experience and
education as well as any negative information about them, such
as prior convictions, judgments against them, or prior
bankruptcies; (3) how the money would be used and how it
would be expected to generate a return for the investor; and (4)
the risks involved in the investment.

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¶10 When asked about his experience, Allen acknowledged
that he was not an international lawyer and was not an expert in
Hong Kong law. However, he asserted that he knew “enough
about international finance” to recognize if a transaction
“doesn’t seem quite right.”

¶11 The State called Allen to the stand a second time after he
had the opportunity to observe the other witnesses’ testimonies
at trial. At that point, Allen opined that specific statements and
omissions made by Brown would be “important to the average
reasonable investor,” including (1) that she had earned $50
million brokering commercial real estate, (2) that she was
required to pay a VAT in Hong Kong, (3) that she banked with
InterBank, (4) that she had previously received information
suggesting that InterBank did not exist, (5) that she had several
unpaid civil judgments against her, and (6) that she asserted
there was “no risk” involved in the investment.

¶12 Finally, the State submitted two exhibits that Allen had
relied on in forming his opinions (collectively, the printouts): (1)
a printout from the website of the Saint Vincent and the
Grenadines Financial Services Authority publicly warning that
InterBank “is not and has never been registered or licensed by
the St. Vincent and the Grenadines Financial Services Authority”
and that the Authority “is not aware of any such business
housed” at the address listed on the documents provided to
Victim and Friend, and (2) a printout from the Hong Kong
Government website stating that it has no VAT. Brown did not
object to the admission of the printouts, even when asked by the
court if she did. Allen then read portions of the printouts aloud
to the jury and stated that the information in them had helped
him form the basis of his opinion as to whether the transactions
in this case had characteristics of securities fraud.

¶13 After all the evidence was submitted, the trial court met
with the prosecutor and Brown to go over each of the State’s
proposed jury instructions. Instructions 33, 34, and 35 concerned
the definition of willfulness, how a seller’s duty to investigate

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State v. Brown

impacts willfulness, and the effect of ignorance of fact on a
willfulness finding. When the court learned that the definition of
willfulness contained in the proposed instructions was not based
on the Model Utah Jury Instructions, the court questioned the
prosecutor about the accuracy of the instructions and whether he
was aware of any contrary case law. The prosecutor replied that
his office had been using the same definition of willfulness “for
years” and represented that it was consistent with Utah case law,
specifically State v. Chapman, 2014 UT App 255, 338 P.3d 230,
which the prosecutor stated was the most recent case on the
subject. Brown affirmatively stated that she understood each
instruction and did not object to any of them.

¶14 Following trial, the jury convicted Brown on all three
counts, and Brown was sentenced to three concurrent terms of
one to fifteen years in prison and ordered to pay restitution of
$140,000. Accepting the help of appointed counsel, Brown now
appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Brown first argues that the jury instructions incorrectly
instructed the jury regarding her duty to investigate and how
that duty impacted a finding that she acted willfully. This issue
was not preserved below, and Brown therefore asks us to review
it under the doctrines of plain error and exceptional
circumstances.

¶16 Brown also argues that she should be granted a new trial
as a result of allegedly inappropriate expert testimony and the
erroneous admission of the printouts. As with her challenge to
the jury instructions, this issue was not raised below, and Brown
asks us to review it for plain error.

¶17 In order to prevail on grounds of plain error, an appellant
must show that “(i) [a]n error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful, i.e.,

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absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant.” State v. Dunn, 850 P.2d
1201, 1208 (Utah 1993). “Exceptional circumstances is a doctrine
that applies to rare procedural anomalies. We apply this
exception sparingly, reserving it for the most unusual
circumstances where our failure to consider an issue that was
not properly preserved for appeal would have resulted in
manifest injustice.” In re K.A.S., 2016 UT 55, ¶ 19, 390 P.3d 278
(quotation simplified).

¶18 Finally, Brown asserts that the cumulative effect of
these errors requires that she be granted a new trial. “Under the
cumulative error doctrine, we will reverse only if the cumulative
effect of the several errors undermines our confidence that
a fair trial was had.” Dunn, 850 P.2d at 1229 (quotation
simplified).

ANALYSIS

I. Jury Instructions

¶19 On appeal, Brown challenges several of the trial court’s
instructions to the jury. Brown did not raise any objection to the
jury instructions in the trial court but has asked us to review her
challenges on appeal on grounds of plain error and exceptional
circumstances.

A. Brown’s Plain Error Challenge to the Jury Instructions Is
Barred by the Invited Error Doctrine.

¶20 Brown asserts that the trial court incorrectly instructed the
jury regarding Brown’s duty to investigate and the extent to
which her ignorance of fact could be claimed as a defense to
securities fraud. See State v. Moore, 2015 UT App 112, 349 P.3d
797. However, Brown affirmatively represented to the trial court
that she had no objection to the proposed jury instructions.
“Under the doctrine of invited error, we have declined to engage

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in even plain error review when counsel, either by statement or
act, affirmatively represented to the trial court that he or she had
no objection to the proceedings.” State v. Winfield, 2006 UT 4,
¶ 14, 128 P.3d 1171 (quotation simplified). While a pro se litigant
“should be accorded every consideration that may reasonably be
indulged,” she will ultimately “be held to the same standard of
knowledge and practice as any qualified member of the bar.” Id.
¶ 19 (quotation simplified). And we have previously rejected the
assertion that a pro se litigant should be excused from the
invited error doctrine. See id. ¶¶ 18–20 (finding invited error
with respect to a claim of jury bias where a pro se litigant
affirmatively represented to the trial court that he found the
empaneled jury acceptable and specifically rejecting the
assertion that the defendant’s pro se status exempted him from
the invited error doctrine).

¶21 Brown asserts that she was misled by the prosecutor’s
affirmative representation to the trial court that the instructions
correctly stated the law and that her acceptance of this
representation constituted merely “affirmative acquiescence” to
the instructions rather than an “affirmative representation” that
they were correct. See State v. Marquina, 2018 UT App 219, ¶¶ 23–
24, 437 P.3d 628, cert. granted, 440 P.3d 691 (Utah 2019). Because
affirmative acquiescence has been rejected as a basis for invoking
the invited error doctrine, Brown asserts that the doctrine cannot
bar her plain error claims. See id. ¶ 23.

¶22 However, Brown did not merely acquiesce to the
instructions, she affirmatively approved them. The trial court
met with the prosecutor and Brown and went through each
individual jury instruction to ensure that Brown understood
and accepted them. Brown was even aware of a potential
question as to the accuracy of the instructions’ statement of
the law due to the trial court’s extensive questioning of
the prosecutor regarding the instructions on willfulness.
Yet rather than investigate the accuracy of the instructions or
request that the court take further action to verify their accuracy,
Brown explicitly affirmed her approval of each individual

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jury instruction. Thus, her challenge to those instructions on
appeal is barred by the invited error doctrine, and we do not
consider it further.

B. This Case Does Not Present the Type of Rare
Circumstance That Would Justify Review Under the
Exceptional Circumstances Exception to the Preservation
Rule.

¶23 Brown alternatively argues that we should review her
challenge to the jury instructions under the exceptional
circumstances doctrine because “[t]he prosecutor’s erroneous
assertions about controlling case law, and the trial court’s
reliance on those statements,” constituted a rare procedural
anomaly that “‘opened the door to exceptional circumstances’
review.” (Quoting State v. Johnson, 2017 UT 76, ¶ 36, 416 P.3d
443.)

¶24 Utah courts have applied the exceptional circumstances
doctrine “sparingly, reserving it for the most unusual
circumstances where our failure to consider an issue that was
not properly preserved for appeal would have resulted in
manifest injustice.” Johnson, 2017 UT 76, ¶ 29 (quotation
simplified). It is used to reach unpreserved issues “where a rare
procedural anomaly has either prevented an appellant from
preserving an issue or excuses a failure to do so.” Id. (quotation
simplified). This exception is not intended to be a “catch-all
category” constituting “a free-floating justification for ignoring
the legitimate concerns embodied in the preservation and waiver
rules.” Id. ¶ 38.

¶25 We do not agree with Brown that the prosecutor’s
allegedly erroneous statements to the trial court concerning the
accuracy of the jury instructions rise to the level of a rare
procedural anomaly. Brown’s argument appears to assert that
one party’s misinterpretation or misapplication of the law is
such an anomalous occurrence that it excuses the other party’s
obligation to object, investigate, or otherwise advocate for a

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more correct interpretation or application. Misstatements of law,
far from being a procedural anomaly, are an everyday
occurrence in our adversarial system. Indeed, one of the main
roles of a judge is to resolve differences in parties’
interpretations of the law and to correct legal errors. A
misstatement of law by one party, even if erroneously accepted
by the trial court, does not generally work a manifest injustice on
the other party such that the party is excused from complying
with preservation rules.

¶26 Indeed, the anomaly in this case appears to be the
fact that Brown elected to represent herself at trial rather
than obtain counsel. Normally, it would fall to counsel to review
the jury instructions and ensure that they accurately state the
law. Had Brown been represented by counsel and had her
counsel assented to the allegedly erroneous jury instructions,
this case would likely be coming to us in the framework of an
ineffective assistance of counsel claim. Unfortunately for Brown,
as she represented herself, any error in affirming the accuracy of
the instructions was her own. 1 And as a result of that error, we
are unable to review Brown’s unpreserved claims regarding the
accuracy of the jury instructions.

II. Expert Testimony

¶27 Brown next argues that the trial court plainly erred by
permitting expert testimony from Allen that “offer[ed] an
opinion on an ultimate issue to be decided by the jury” and in
admitting the printouts. See State v. Davis, 2007 UT App 13, ¶ 15,
155 P.3d 909 (quotation simplified). Because Allen did not testify
regarding legal conclusions and Brown invited any error in
admitting the printouts, we reject Brown’s arguments regarding
the expert testimony.

1. As noted above, Brown elected to represent herself despite
being “strongly urge[d]” by the court not to do so.

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State v. Brown

A. Brown Has Not Established That Allen’s Testimony Was
Impermissible Under the Utah Rules of Evidence.

¶28 Rule 702 of the Utah Rules of Evidence permits expert
testimony if it “will help the trier of fact to understand the
evidence or to determine a fact in issue.” Utah R. Evid. 702(a).
Such testimony is not rendered inadmissible purely on the basis
that it offers an opinion on an “ultimate issue” to be decided by
the jury. See id. R. 704(a). However, “opinions that tell the jury
what result to reach or give legal conclusions [are]
impermissible.” Davis, 2007 UT App 13, ¶ 15 (quotation
simplified). While there is “no bright line between responses that
embrace an ultimate issue and those that provide an
impermissible legal conclusion,” State v. Tenney, 913 P.2d 750,
756 (Utah Ct. App. 1996), testimony is likely to constitute an
impermissible legal conclusion if it is framed in a way that is
unhelpful to the factfinder; “blur[s] the separate and distinct
responsibilities of the judge, jury, and witness”; or creates a
“danger that a juror may turn to the witness’s legal conclusion
rather than the judge for guidance on the applicable law,” Davis,
2007 UT App 13, ¶ 15 (quotations simplified).

¶29 In State v. Tenney, 913 P.2d 750 (Utah Ct. App. 1996), this
court determined that it was plain error for a trial court in a
securities case to permit expert testimony that repeatedly and
explicitly stated that various actions and omissions on the part of
the defendant violated Utah law. Id. at 756. The court
determined that “those portions of the expert witnesses’
testimony to which defendant objects quite clearly state legal
conclusions because the witnesses tie their opinions to the
requirements of Utah law.” Id.

¶30 On the other hand, in State v. Larsen, 865 P.2d 1355 (Utah
1993), our supreme court examined whether an expert’s
“occasional use of the term ‘material’” during his testimony in a
securities case constituted permissible testimony on an ultimate
issue or an impermissible legal conclusion. Id. at 1361. The court
determined that the trial court acted within its discretion in

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admitting testimony regarding what actions and omissions
“could have been important or significant to an investor” as
“helpful to the jury,” id., and that the expert’s “limited use” of
the word “material,” “under the circumstances, does not
mandate the conclusion that he was improperly instructing the
jury on the law,” id. at 1362. Rather, the expert’s statements were
permissible ultimate issue testimony because the word
“material” was used in its ordinary meaning to signify
“something that an individual would want to know in making
an important decision” rather than in its legal meaning under
Utah law “defining what information must legally be disclosed.”
Id. The court explained that materiality was “at least on one
level, a factual issue to be determined by the jury” rather than a
legal conclusion. Id. at 1363. Because rule 704 permits expert
testimony “regarding the ultimate resolution of that disputed
issue as long as that testimony is otherwise admissible under the
rules of evidence,” the supreme court determined that the trial
court did not err in admitting the expert testimony. See id.

¶31 The expert testimony in this case is much more similar to
the testimony in Larsen than the testimony in Tenney. Allen made
one general reference to “[t]he securities laws,” stating that they
“impose a requirement on issuers or sellers of securities, to
provide full and fair disclosure.” He then testified to how fraud
is defined “in the [securities] industry,” stating that sellers of
securities need to “make sure [to] provide [investors] all material
facts related to the investment,” in other words, anything “that a
reasonable investor would find important in deciding to
purchase . . . or sell the security.” Finally, he testified as to what
types of information might be considered material and which
specific facts in this case he would consider to be material to an
investor.

¶32 Allen’s one general reference to the disclosure
requirements of “securities laws” could not reasonably be
construed as a legal conclusion, because the information
provided was general and not tied to a specific law. Further,
unlike the experts in Tenney, who repeatedly referenced “Utah

20161036-CA 11 2019 UT App 122
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law” and “the Act” specifically, Allen’s general reference to
“securities laws” occurred only one time in the course of his
testimony. Similarly, his discussion of “fraud” and “materiality”
was tied explicitly to the standard in the securities industry
rather than represented as a legal definition of an element of a
specific criminal statute. And as with the expert in Larsen, Allen’s
“occasional use of the term ‘material’” during his testimony, see
id. at 1361, was used in its ordinary meaning rather than its legal
meaning and was helpful to the jury’s determination of a factual
matter at issue. Allen did not “testify that [Brown] was guilty” or
that, “as a matter of law, the facts satisfied the legal standard of
materiality.” See id. at 1361 n.10. Thus, Brown cannot establish
that it was error for the court to permit Allen to testify as he did,
let alone plain error.

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

¶33 Brown also asserts that it was plain error for the court to
admit the two printouts because they were “outside [Allen’s]
area of expertise, irrelevant, and unhelpful” and therefore
violated rules 403 and 703 of the Utah Rules of Evidence.

¶34 However, as with the jury instructions, Brown
affirmatively approved the admission of both exhibits. She even
used the printouts in her cross-examination of Allen. Thus, any
error was invited. See State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d
1171.

CONCLUSION

¶35 Brown invited any error in the jury instructions by
affirmatively approving them, and the circumstances of this case
do not justify review of the jury instructions under the
exceptional circumstances exception to the preservation rule.
Additionally, Allen’s testimony did not make impermissible
legal conclusions, and its admission was therefore not erroneous.

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Finally, any error in admitting the printouts was invited. 2
Accordingly, we affirm Brown’s convictions.

2. Because we have rejected each of Brown’s claims of error, we
also reject her cumulative error argument.

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