State v. Rushton

2015 UT App 170
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
DAVID M. RUSHTON,
Defendant and Appellant.

Opinion
No. 20120969-CA
Filed July 9, 2015

Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 111903029

Joanna E. Landau, Attorney for Appellant

Sean D. Reyes, Ryan D. Tenney, and Mark W. Baer,
Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
JAMES Z. DAVIS and J. FREDERIC VOROS JR. concurred.

ROTH, Judge:

¶1 David M. Rushton entered a conditional guilty plea to one
misdemeanor and two felony offenses stemming from his failure
to pay employee wages and remit retirement withholdings while
he owned and operated Fooptube, LLC, a computer
programming and design company. He argues that the district
court should have granted his motion to dismiss the charges
because they arose from the same criminal episode as charges to
which he had previously pleaded guilty. We affirm Rushton’s
convictions.
State v. Rushton

BACKGROUND

¶2 In 2008, the Utah State Tax Commission began
investigating Rushton and Fooptube on suspicion of tax evasion.
On April 14, 2009, the State charged Rushton with six tax crimes
alleged to have been committed during calendar years 2006,
2007, and 2008 (the tax case). During the same time period, a
number of Fooptube employees filed claims for unpaid wages
with the Utah Labor Commission. Also at about this time, the
United States Department of Labor’s Employee Benefits Security
Administration was investigating whether Rushton had failed to
remit employee retirement contributions. At a review hearing in
the tax case on May 5, 2009, Fooptube employees personally
notified the tax commission investigator and the prosecutor of
the wage claims. Rushton was arraigned in the tax case in
December 2009, and in June 2010, he pleaded guilty to two
charges pursuant to a plea agreement.

¶3 On April 20, 2011, the State filed this second case (the
wage case) against Rushton, charging him with two second
degree felony counts of communications fraud; two second
degree felony counts of unlawful dealing with property by a
fiduciary; two second degree felony counts of theft of services or,
alternatively, twelve class A misdemeanor counts of failing to
pay wages; and one second degree felony count of engaging in a
pattern of unlawful activity for his failure to pay his employees
an estimated $1.17 million in wages and his failure to remit an
estimated $1.2 million in withheld retirement funds. Rushton
moved to dismiss, arguing that his convictions in the tax case
barred the State from prosecuting the wage case because the
charges in the wage case were part of the same criminal episode
as the charges in the tax case. The district court denied Rushton’s
motion, concluding that the two cases did not arise from a single
criminal episode. The court explained that although the charges
in both cases were “closely related in time,” the conduct from
which the respective charges arose was “not in furtherance of the
same criminal objective.” The court reasoned that there was not
a single criminal objective because the “victim in the [tax] case is

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the state of Utah” and “[t]he issue is . . . tax laws,” while the
wage case involves Rushton’s alleged “defraud[ing of] his
employees.” 1 After the district court denied his motion, Rushton
entered Sery pleas 2 to three counts. He now appeals the district
court’s refusal to dismiss the wage case.

ISSUE AND STANDARD OF REVIEW

¶4 Rushton challenges the district court’s decision to deny
his motion to dismiss the wage case. “A trial court’s decision to
grant or deny a motion to dismiss presents a question of law,

1. In the tax case, Rushton pleaded guilty to one count of failure
to render personal tax returns and one count of engaging in a
pattern of unlawful activity. The State of Utah is the victim of
both of those crimes. Rushton’s failure to pay taxes resulted in
the state being deprived of funds legitimately owed to it. The
pattern of unlawful activity conviction was based in part on
Rushton’s failure “to file or truthfully file corporate tax returns
and remit employee withholding taxes” while operating
Fooptube. But, in filing their own tax returns, Fooptube
employees relied on Rushton’s representation that the taxes had
been remitted to the state on their behalf. The state therefore
“applied [credits] for the benefit of such employees” in the
amount of “about $585,917.89.” Thus, the state shouldered the
loss from the unpaid employee taxes.
In the wage case, the employees are the victims because
they were not paid wages for which they had worked and their
retirement withholdings were never remitted.

2. A guilty plea entered pursuant to State v. Sery, 758 P.2d 935
(Utah Ct. App. 1988), is conditional. It permits a defendant to
reserve the right to appeal an issue raised in the district court,
such as the denial of the motion to dismiss in this case, and then
to withdraw the plea if he or she is successful on appeal. See id.
at 938.

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which we review for correctness.” State v. Selzer, 2013 UT App 3,
¶ 14, 294 P.3d 617 (citation and internal quotation marks
omitted).

ANALYSIS

¶5 Rushton argues that in denying his motion to dismiss, the
district court wrongly determined that the charges in the wage
case did not arise out of the same criminal episode as the charges
in the tax case. We conclude that the district court correctly
denied Rushton’s motion to dismiss.

¶6 Multiple charges arise from a single criminal episode if
the conduct underlying the charges “is closely related in time
and is incident to an attempt or an accomplishment of a single
criminal objective.” Utah Code Ann. § 76-1-401 (LexisNexis
2012). 3 Except under certain circumstances not relevant here,
separate offenses arising out of a single criminal episode must be
tried together when “(a) [t]he offenses are within the jurisdiction
of a single court; and (b) [t]he offenses are known to the
prosecuting attorney at the time the defendant is arraigned on
the first information or indictment.” Id. § 76-1-402(2). Failure to
comply with this mandate may bar subsequent prosecution for
conduct arising from the same criminal episode:

If a defendant has been prosecuted for one or more
offenses arising out of a single criminal episode, a
subsequent prosecution for the same or a different
offense arising out of the same criminal episode is
barred if:

3. We refer to the current version of the Utah Code because the
pertinent statutes do not differ substantively from the versions
in effect at the time of the underlying offenses.

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(a) the subsequent prosecution is for an offense
that was or should have been tried under
[section 402(2)] in the former prosecution; and
(b) the former prosecution:
(i) resulted in acquittal;
(ii) resulted in conviction;
(iii) was improperly terminated; or
(iv) was terminated by a final order or
judgment for the defendant that has not
been reversed, set aside, or vacated and
that necessarily required a determination
inconsistent with a fact that must be
established to secure conviction in the
subsequent prosecution.

Id. § 76-1-403(1) (LexisNexis Supp. 2014). “The purpose of such
compulsory joinder is twofold: (1) to protect a defendant from
the governmental harassment of being subjected to successive
trials for offenses stemming from the same criminal episode; and
(2) to ensure finality without unduly burdening the judicial
process by repetitious litigation.” Selzer, 2013 UT App 3, ¶ 22
(citation and internal quotation marks omitted).

¶7 It is undisputed that the offenses in both the wage case
and the tax case fell within the jurisdiction of the district court
and that conduct supporting the wage case was known to the
prosecuting attorney at the time that Rushton was arraigned on
the tax case. 4 See Utah Code Ann. § 76-1-402(2) (LexisNexis
2012). It is also undisputed that the State’s prosecution in the tax
case resulted in a conviction when Rushton entered his guilty
pleas to two counts. See id. § 76-1-403(1)(b)(ii) (LexisNexis Supp.
2014). Thus, the only point of contention here is whether the tax

4. The State conceded the first factor in the district court, and the
court made the latter finding in the face of the State’s opposition.
The State, however, “does not contest” the finding on appeal.

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case charges and wage case charges arose out of a “single
criminal episode” because they were closely related in time and
were incident to the attempt or accomplishment of a single
criminal objective. See id. § 76-1-401 (LexisNexis 2012).

¶8 The district court determined that the charges in each case
did not arise from a single criminal episode because, although
they were “closely related in time,” the conduct from which the
two sets of charges arose was “not in furtherance of the same
criminal objective” where “the offense[s] in each case involved
different victims.” Rushton challenges the court’s latter
determination, arguing that the offenses in both cases were
“incident to one criminal purpose, that of misappropriating
corporate money from Fooptube.” The State counters that the
court correctly determined that the two sets of charges were not
part of a single criminal episode because they had separate
criminal objectives, that is, the offenses in the tax case were
aimed at taking funds owed to the government while the
offenses in the wage case were aimed at taking funds owed to
the Fooptube employees. 5 The parties rely on a number of cases
in support of their respective positions. Although all of these
cases may help inform our decision, we consider it useful to first
address the differing contexts in which they arose to explain
why some are more useful than others in resolving the particular
single criminal episode question here.

5. The State also argues that the charges were not closely related
in time. In doing so, however, the State does not directly
challenge the district court’s finding that they were. We do not
specifically address the timing issue, however, other than to
consider it as part of the context in which the crimes took place,
because we affirm on the basis that Rushton did not have a
single criminal objective in engaging in the conduct underlying
each case.

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I. Categorization of Our Precedent

¶9 The cases cited by the parties seem to fit primarily into
three categories: (1) cases that address whether a defendant’s
conduct could be charged as more than one offense or amounted
to only a single offense, see, e.g., State v. James, 631 P.2d 854 (Utah
1981); State v. Rasabout, 2013 UT App 71, 299 P.3d 625, cert.
granted, 308 P.3d 536 (Utah 2013); State v. Mane, 783 P.2d 61 (Utah
Ct. App. 1989); see also State v. Bauer, 792 N.W.2d 825 (Minn.
2011); (2) cases that address whether separate offenses arguably
arising from a single criminal episode must be tried together, see,
e.g., West Valley City v. Parkinson, 2014 UT App 140, 329 P.3d 833;
State v. Selzer, 2013 UT App 3, 294 P.3d 617; State v. Strader, 902
P.2d 638 (Utah Ct. App. 1995); and (3) cases that address
whether separate offenses arguably arising from a single
criminal episode may be tried separately, see, e.g., State v. Mead,
2001 UT 58, 27 P.3d 1115; State v. Lopez, 789 P.2d 39 (Utah Ct.
App. 1990).

¶10 The first category of cases addresses the constitutional
protection against double jeopardy. Strader, 902 P.2d at 642.
Double jeopardy prevents “a defendant from being tried more
than once for the same crime.” Id. Although the concepts of
single criminal episode and double jeopardy are distinct, the
double jeopardy issue has been addressed within the single
criminal episode framework. This may be because the enactment
of the single criminal episode statutes resulted in an “expan[sion
of] the scope of offenses barred from multiple trials beyond the
same offense focus in double jeopardy, to all offenses arising
from a single criminal episode.” Id. at 641 (citation and internal
quotation marks omitted); State v. Sommerville, 2013 UT App 40,
¶ 7, 297 P.3d 665 (explaining that the single criminal episode
statutes were primarily “designed to protect a defendant from
multiple trials for offenses that are part of a single criminal
episode” (citation and internal quotation marks omitted)). In
other words, the single criminal episode statutes seem to extend
the protection against multiple prosecutions encompassed
within the double jeopardy doctrine from single offenses to
separate offenses arising out a single criminal episode. It may be

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because of this expansion that the single criminal episode
statutes include a provision emphasizing that they are not
intended to undermine double jeopardy protection:

A defendant may be prosecuted in a single
criminal action for all separate offenses arising out
of a single criminal episode; however, when the
same act of a defendant under a single criminal
episode shall establish offenses which may be
punished in different ways under different
provisions of this code, the act shall be punishable
under only one such provision; an acquittal or
conviction and sentence under any such provision
bars a prosecution under any other such provision.

Utah Code Ann. § 76-1-402(1) (LexisNexis 2012); see, e.g., Mane,
783 P.2d at 63–65 (using this provision of the single criminal
episode statutes in its analysis of whether there was one or more
crimes committed). In this first category of cases, where the
primary focus is double jeopardy, the courts have taken “a very
narrow perspective, focusing on whether a subsequent
prosecution is for the same offense” as the first prosecution. 6
Strader, 902 P.2d at 642 (emphasis omitted).

6. Though our courts have addressed single criminal episode
concerns in cases raising double jeopardy issues, we are not
convinced that this first category actually provides much
guidance on single criminal episode questions such as the one
presented here because, in the end, double jeopardy is not
concerned with whether multiple offenses arose out of the same
criminal episode but rather with whether particular conduct
constitutes a single offense or multiple offenses. Because
Rushton has relied on cases from this category and at times our
decisions have used a single criminal episode framework as an
analytical tool in the context of a double jeopardy issue, we
include it within our categorization of case precedent.

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¶11 In the second category of cases, the appellate court’s focus
is on the compulsory joinder requirement established in Utah
Code section 76-1-402(2); these cases directly address whether
separate offenses arising from a single criminal episode must be
prosecuted together. In these cases, the defendant’s conduct
constitutes more than one prosecutable offense and the issue is
whether the offenses arose from a single criminal episode so as
to bar separate prosecutions in the interest of judicial economy
and finality for the defendant. See, e.g., Selzer, 2013 UT App 3,
¶ 22. We have concluded that this type of claim is “comparable
to asserting double jeopardy.” Strader, 902 P.2d at 642. Thus, “‘it
is appropriate to take a narrow, rather than an expansive, view
of what [a single criminal episode] entails.’” Selzer, 2013 UT App
3, ¶ 26 (alteration in original) (quoting Strader, 902 P.2d at 642).

¶12 Finally, in the third category of cases, appellate courts are
concerned with whether the mandatory joinder of multiple
charges in a single prosecution deprives one or both parties of a
fair trial. See, e.g., Lopez, 789 P.2d at 42 (noting that severance is
available if trying charges together would prejudice either the
prosecution or the defense). Consequently, there are two related
issues that arise in these cases. The first is whether the offenses
occurred as part of a single criminal episode so that they should
ordinarily be tried together, and the second, which arises only if
they did, is whether trying the charges together in the particular
case would result in undue prejudice to either party. Strader, 902
P.2d at 641 n.6. In this context then, “[a]n expansive
interpretation of ‘single criminal episode’ is appropriate.” Id. at
641.

¶13 There are sound reasons for employing a narrow
interpretation of single criminal episode in the first two
categories while using a more expansive interpretation in the
third category. The single criminal episode statutes serve to
“expand the scope of offenses barred from multiple trials
beyond the same offense focus in double jeopardy to all offenses
arising from a single criminal episode.” Id. (citation and internal
quotation marks omitted). In doing this, the legislature sought to
promote judicial economy and to protect defendants by

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requiring joinder into a single trial any charges arising from
conduct that was close in time and done in furtherance of the
same criminal objective. Id.; accord Selzer, 2013 UT App 3, ¶ 22.
But these same concerns for judicial economy and protection of
defendants simply do not arise when the conduct is not part of a
single criminal episode because the offenses do not share an
intertwined factual or legal history that makes separate
prosecutions inefficient or repetitive. A narrow perspective thus
serves to ensure that the joinder requirement does not unduly
preclude prosecution for charges that do not arise out of a single
criminal episode.

¶14 On the other hand, when one of the parties challenges
joinder for trial, that party is concerned about the prejudice that
may inure to the party’s position if the charges are heard
together. An expansive view of single criminal episode allows
the trial court to more readily balance the interest in judicial
economy that the joinder requirement serves with the
defendant’s constitutional right to a fair trial and the State’s
interest in a fair prosecution. See State v. Strader, 902 P.2d 638, 641
n.6 (Utah Ct. App. 1995). Moreover, “because appellate courts
review decisions regarding joinder or severance of offenses only
for abuse of discretion, it follows that the reviewing court would,
as a practical matter, take a broad view of what constitutes a
single criminal episode in that context.” Id. at 641–42 (citations
omitted).

¶15 Given the question before us in this case—whether the tax
offenses and wage offenses all arise from a single criminal
episode so as to bar the prosecution in the wage case—cases in
the second category are the most useful because they are directly
on point. The first category of cases provides only limited
guidance because although the cases use the same narrow
standard for determining whether conduct arises from a single
criminal episode, they are more directly focused on the double
jeopardy-related question of whether the conduct constitutes a
single offense or can legitimately be prosecuted as different
offenses. Here, there is no dispute that Rushton’s conduct
constituted more than one offense that could be punished under

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multiple code provisions. The severance-related cases in the
third category are even less instructive as they employ a much
broader standard for assessing whether offenses arise from the
same criminal episode because the focus is on prejudice at trial. 7
We therefore rely primarily on the second category of cases in
assessing whether Rushton’s charges arose from a single
criminal episode so as to warrant compulsory joinder.

II. Single Criminal Objective

¶16 The only issue before us in assessing whether the tax case
and the wage case arose from a single criminal episode is
whether the conduct underlying those charges was “incident to

7. While no prior case appears to have explicitly categorized the
existing case law as we have done here, Utah appellate courts
have long utilized these categories in analyzing the questions
that arise under the single criminal episode statutes. See West
Valley City v. Parkinson, 2014 UT App 140, ¶¶ 6–8, 329 P.3d 833
(relying on multiple-prosecution cases to determine whether a
separate crime arose out of the same criminal episode as an
earlier prosecuted offense so as to bar a subsequent prosecution);
State v. Strader, 902 P.2d 638, 642 n.7 (Utah Ct. App. 1995)
(observing that the defendant’s reliance on severance cases was
unpersuasive where the question presented for appeal involved
whether multiple prosecutions were appropriate); id. at 642 n.5
(noting that “cases considering whether offenses are separate for
double jeopardy purposes are not applicable in single criminal
episode cases contesting the court’s decision to join offenses”
(citation and internal quotation marks omitted)); State v. Lopez,
789 P.2d 39, 44 (Utah Ct. App. 1990) (stating that “the line of
cases relied upon by defendant to establish that the present
circumstances were not part of a single criminal episode are not
applicable because they do not deal with the issues of joinder
and severance of charges, but with determining if criminal acts
are separate for double jeopardy purposes”).

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an attempt or an accomplishment of a single criminal objective.”
Utah Code Ann. § 76-1-401 (LexisNexis 2012). “Whether or not
there is a single criminal objective ‘depends on the specific facts
of the case viewed under . . . the totality of the circumstances.’”
State v. Selzer, 2013 UT App 3, ¶ 26, 294 P.3d 617 (omission in
original) (quoting Strader, 902 P.2d at 642). In assessing the
circumstances, a court must “focus[] more on a defendant’s
actions,” and not on external factors that may link the charges
together, to determine whether “objectively” the conduct is
“incident to an attempt or an accomplishment of a single
criminal objective.” West Valley City v. Parkinson, 2014 UT App
140, ¶ 7, 329 P.3d 833 (citation and internal quotation marks
omitted).

¶17 In applying the definition of single criminal episode, case
law within the second category suggests that a recurring concern
is whether the commission of one crime is aimed at furthering
the accomplishment of the other crime. For example, in West
Valley City v. Parkinson, 2014 UT App 140, 329 P.3d 833, police
responded to a call of domestic violence to find that the
defendant was no longer at the home. Id. ¶ 2. While one officer
was interviewing the victim, the officer saw the defendant drive
by the house. Id. Based on his interview with the victim, the
officer believed that the defendant had a child in the car, and he
therefore attempted to stop the vehicle through hand gestures
and verbal commands. Id. The defendant failed to stop, and
the officer pursued by vehicle, eventually apprehending the
defendant. Id. After being charged with four misdemeanor
domestic violence charges in justice court, the defendant pleaded
guilty to misdemeanor domestic violence assault. Id. ¶ 3. About
one week after the defendant’s guilty plea, the City filed an
information in district court charging the defendant with crimes
related to the police chase. Id. ¶ 4. On the defendant’s motion,
the district court concluded that the new charges were part of
the same criminal episode as the domestic violence charges and
dismissed them. Id. The City appealed, and we reversed,
concluding that “the domestic violence charges filed with the
justice court and the conduct for which charges were filed in

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the district court did not share a common criminal objective.” Id.
¶ 7. We reasoned that, viewing the circumstances in an objective
manner and with a narrow view of “single criminal episode,”
the defendant’s actions in leaving the scene once the police had
been called were “not incident to the accomplishment of his
domestic violence objectives,” which were to “harm[] or
frighten[]” the victim, but rather were “motivated by [the
defendant]’s objective of eluding police.” Id. ¶ 9.

¶18 Likewise, in State v. Strader, 902 P.2d 638 (Utah Ct. App.
1995), we concluded that the defendant’s actions in stealing a
circular saw, providing false identification, and possessing drugs
did not have a single criminal objective. Id. at 639, 643. There, an
officer pulled over the defendant’s vehicle after the officer saw
the defendant enter a construction site and return to his car
carrying an object. Id. at 639. When asked for identification, the
defendant gave his correct name but provided the officer with a
clearly altered license that had a false name on it. Id. The officer
arrested the defendant for false identification and, in a search
incident to impounding the car, discovered methamphetamine
as well as the object (a stolen circular saw) that the officer had
seen the defendant carrying from the construction site. Id. The
defendant pleaded guilty to the false identification charge. Id. at
640. Later that month, the State filed charges for all three
offenses: theft, false identification, and possession of a controlled
substance. Id. The defendant moved to dismiss, arguing that the
conduct arose from a single criminal episode for which he had
already been prosecuted. Id. The district court denied the
defendant’s motion, except as to the false identification charge to
which the defendant had already pleaded guilty. Id. The
defendant then entered a plea agreement under which he would
plead guilty to the possession charge in exchange for the
dismissal of the theft charge and the right to appeal the denial of
the motion to dismiss. Id.

¶19 On appeal, we affirmed the district court’s denial of the
motion to dismiss. Id. at 643–44. Again taking a narrow view of
what constituted a single criminal episode, we reasoned that the
“only possible nexus between the crimes was [the defendant’s]

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intent to avoid arrest on the [theft and possession] charges by
giving false identification.” Id. Yet the defendant’s provision of
“a forged driver’s license [that he had] at hand seem[ed] to
indicate that obscuring his identity was an ongoing and routine
course of conduct” and was “not specifically done to somehow
further his theft or drug possession activities.” Id.; see also Selzer,
2013 UT App 3, ¶¶ 3–5, 26 (concluding that a sexual assault
followed by a physical assault on the same victim nearly three
hours later did not share a criminal objective because the acts
were conducted for “very different purpose[s]” in that the
physical assault, which was an act of “rage,” did not further
the defendant’s purpose in committing the earlier sexual assault,
which was done to fulfill the defendant’s desire for “sexual
gratification and domination of the victim in a sexual act”
(internal quotation marks omitted)).

¶20 Considering the totality of the circumstances of this case,
we conclude that as in Parkinson and Strader, Rushton’s actions
in the wage case and the tax case were not incident to the
accomplishment of a single criminal objective. Rather, the crimes
in each case are entirely separate. In the tax case, Rushton’s
actions involved taking funds owed to the government by failing
to pay taxes and falsifying withholding-tax statements and W-2s,
while in the wage case, he took funds owed to employees when he
failed to pay earned wages and to remit withheld retirement
savings to the designated retirement funds. And although
Rushton contends that the activities underlying each case had
the common purpose of keeping Fooptube afloat, keeping a
company financially stable is a lawful objective, not a criminal
one. Rather, his criminal objective in each case was to steal
money to which he was not entitled.

¶21 Moreover, Rushton’s actions in stealing from employees
did not further his objective of stealing from the government,
even if it did advance his ultimate goal of keeping Fooptube
financially viable. And Rushton’s argument that the crimes were
linked by his ultimate goal of unlawfully appropriating the
money of others views his “objective” from too elevated a
vantage point. The narrow label of single criminal objective is

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not meant to encompass such a broad criminal goal because if it
did, then almost any series of crimes committed for the purpose
of illegally obtaining money, say to feed a drug habit, could be
described as “single.” 8 Rather, the fact that the thefts ultimately
benefitted the same company is merely an external factor that
provides some link between the offenses, but it does not
appropriately “focus[] more on the defendant’s actions” or his
purpose in committing the acts. 9 See Parkinson, 2014 UT App 140,
¶ 7.

8. Indeed, from this viewpoint, a defendant’s entering an
apartment building first to steal dimes from its laundry room
and then to steal money or other items of value from an
apartment unit ought to meet the single criminal objective
requirement. See State v. Porter, 705 P.2d 1174, 1176–78 (Utah
1985). Yet, the Utah Supreme Court concluded that these
activities constituted two separate burglary offenses despite the
defendant’s apparent common objective of stealing as much as
possible from a single building. Id. at 1178 (considering whether
the defendant could be prosecuted for more than one crime for
activities arising out a single criminal episode); cf. State v. Bauer,
792 N.W.2d 825, 830 (Minn. 2011) (explaining, in the context of
determining that the State’s decision to charge the defendant
with both the sale of a controlled substance and failure to affix
tax stamps to a controlled substance did not punish the same
conduct twice, that “the criminal plan of obtaining as much
money as possible is too broad an objective to constitute a single
criminal goal” (citation and internal quotation marks omitted)).

9. That conclusion is underscored by the fact that Rushton’s
actions in stealing from the government and stealing from the
employees, though characterized by the district court as
occurring “close in time” due to the overlap in their commission,
also had some temporal distinctions. Rushton falsified tax
documents and failed to pay taxes from 2006 until June 2008,
which was about the time that the state tax commission began
(continued...)

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¶22 We are unpersuaded by Rushton’s other arguments for
treating the wage case and the tax case as having the same
criminal objective. For instance, Rushton argues that less
emphasis should be placed on the number of victims because
even when there are multiple victims, the underlying actions can
still arise from a single criminal episode. In support of his
position, Rushton cites several cases where the defendant was
tried on multiple charges resulting from his actions toward
multiple victims.

¶23 The cases Rushton relies on, which fall into category one,
do not support his contention. In the cited cases, the defendants
had already been prosecuted (in one trial) for multiple offenses
and were appealing on the basis that the convictions constituted
multiple punishments for the same conduct. Thus, the analysis
on appeal focused on whether the defendant was properly
convicted for multiple offenses, not on the issue presented
here—whether the defendant’s actions against multiple victims
were aimed at the accomplishment of a single criminal objective
so as to mandate their prosecution together. For example, in
State v. James, 631 P.2d 854 (Utah 1981), the defendant was
convicted on five counts of aggravated kidnapping for taking
five people hostage during a drugstore robbery. Id. at 855. On
appeal, the defendant argued that “his actions constituted a

(…continued)
investigating him on suspicion of tax evasion. Although Rushton
also stopped paying employees their wages and remitting their
retirement withholdings sometime in 2008, that conduct
continued through 2009, well after Rushton had ceased his tax-
related crimes. That Rushton stopped his tax scheme and turned
to stealing money owed to his employees around that same time
supports a determination that these two sets of criminal
activities were not part of a single criminal objective but rather
were two separate illegal means for achieving the ultimate goal
of keeping the business afloat.

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State v. Rushton

single criminal act, hence his constitutional right to not be twice
placed in jeopardy for the same offense was violated.” Id. The
Utah Supreme Court concluded that double jeopardy did not
preclude multiple convictions because “offenses committed
against multiple victims are not the same.” Id. at 856; see also
State v. Rasabout, 2013 UT App 71, ¶¶ 10, 12, 33, 299 P.3d 625
(stating, in the course of reversing the trial court’s merger of
twelve discharge of a firearm convictions, that whether the
charges arose out of a single criminal episode “does not resolve
the question” because the issue presented in the case “was one of
multiplicity and double jeopardy”), cert. granted, 308 P.3d 536
(Utah 2013); State v. Mane, 783 P.2d 61, 63 (Utah Ct. App. 1989)
(addressing “whether a single criminal act resulting in multiple
victims constitutes a single offense or multiple offenses”).

¶24 In short, Rushton has not shown that the district court
erred in deciding as it did. See State v. Selzer, 2013 UT App 3,
¶ 27, 294 P.3d 617 (affirming the district court’s denial of a
motion to dismiss because although “other possible
interpretations of [the defendant’s] actions may be possible, the
district court could certainly have accepted the State’s argument
and determined that the sexual assaults and [the physical]
assault did not share a single criminal objective”); cf. State v.
Ireland, 570 P.2d 1206, 1207 (Utah 1977) (concluding that
although the defendant made a plausible argument that “all [his]
acts were directed toward escape,” “the facts adequately
support[ed] the trial court’s determination that two separate and
distinct offenses were committed”).

¶25 For these reasons, we affirm the district court’s
determination that Rushton’s actions in the wage case were not
incident to or in furtherance of his purpose in the tax case
because the two sets of charges did not share a single criminal
objective. Accordingly, the district court correctly denied
Rushton’s motion to dismiss.

20120969-CA 17 2015 UT App 170
State v. Rushton

CONCLUSION

¶26 We conclude that there was a basis for the district court’s
decision that the actions underlying the wage case were not
incident to the accomplishment of the criminal objective in the
tax case. Consequently, the two sets of charges could properly be
prosecuted in two separate actions and denial of the motion to
dismiss was correct. We therefore affirm Rushton’s convictions.

20120969-CA 18 2015 UT App 170