                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 2014 UT 16


                                    IN THE

      SUPREME COURT OF THE STATE OF UTAH

                            STATE OF UTAH,
                          Plaintiff and Appellee,
                                       v.
                 JOAN A. STEED and FRANK J. STEED,
                     Defendants and Appellants.

                               No. 20110389
                            Filed May 16, 2014

                      Third District, Salt Lake
                   The Honorable Robin W. Reese
                          No. 081907873

                                 Attorneys:
Sean D. Reyes, Att’y Gen., Andrew F. Peterson, Asst. Att’y Gen.,
                  Salt Lake City, for appellee
            Max D. Wheeler, Rodney R. Parker, and
     Richard A. Van Wagoner, Salt Lake City, for appellants


    CHIEF JUSTICE DURRANT authored the opinion of the Court,
  in which ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM,
             JUSTICE PARRISH, and JUSTICE LEE joined.

   CHIEF JUSTICE DURRANT, opinion of the Court:
                           INTRODUCTION
    ¶1 Following a criminal jury trial, Frank and Joan Steed (the
Steeds), husband and wife, were each convicted of three counts of
failure to render (file) a proper tax return and one count of
engaging in a pattern of unlawful activity. They were acquitted of
four counts of tax evasion and two additional counts of failure to
file a proper tax return. The failure-to-file statute required proof
that the Steeds (1) failed to file, and (2) that they did so with one
of three specific intents. At the close of the State’s case, the Steeds
submitted a Motion to Dismiss based on the State’s failure to
                          STATE v. STEED
                       Opinion of the Court
provide sufficient evidence of two of the three specific intent
alternatives. We conclude that the State presented insufficient
evidence of these two contested intent alternatives, and therefore
the court erred in denying the Steeds’ Motion to Dismiss. The
court should have submitted only the one remaining intent
alternative to the jury.
    ¶2 Ultimately, the failure-to-file charges were presented to
the jury, but instead of submitting the single supported intent
alternative to the jury, the court excluded that alternative and
submitted the two unsupported intent alternatives to the jury.
The excluded intent alternative was the only basis for conviction
that was supported by the State’s evidence, so we also conclude
that there was insufficient evidence to support the verdicts. As a
result, the court erred in denying the Steeds’ Motion to Arrest
Judgment. We therefore reverse each of the Steeds’ failure-to-file
convictions and remand with instructions to enter a judgment of
acquittal. We also reverse the pattern counts, which were
contingent on these convictions. Because we reverse on
sufficiency of the evidence grounds, we do not reach the Steeds’
remaining arguments.
                        BACKGROUND
   ¶3 In 2000, the Steeds moved to Utah from Mississippi to
continue their real estate development business. Once in Utah,
they settled in the Uintah Basin and began to develop “mini-
ranch” home sites. The Steeds formed seven different Utah
corporations, each of which was involved in various aspects of
the business, including building cabins, operating motels, and
developing culinary water systems. They also hired an
accountant, Roger Oliphant, who helped them file tax returns in
both 2001 and 2002.
    ¶4 Several years later, the Utah State Tax Commission
(Commission) conducted an audit of the Steeds’ sales tax
collection. In the course of the audit, the auditor requested copies
of the Steeds’ tax returns for 2003–2006, as well as supporting
documentation. Mr. Oliphant had been unable to file the Steeds’
tax returns for these years, allegedly because the Steeds had failed
to provide all of the necessary receipts and information. The sales
tax auditor made approximately ten separate requests for the
returns and other documents; when the requests went
unanswered, the auditor referred the matter for a criminal
investigation.



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                        Opinion of the Court
    ¶5 Agent Scott Mann of the Commission led the
investigation. He concluded that the Steeds had not filed personal
tax returns from 2003–2007. An information was then filed against
the Steeds in 2008, charging each of them separately with five
counts of failing to file a state tax return for the years 2003–2007,
four counts of tax evasion for the years 2003–2006, and one count
of a pattern of unlawful activity.
    ¶6 Before trial, the Steeds filed a motion asking the court to
require the State to prove a tax deficiency as an element under the
failure-to-file and tax evasion statutes. The trial court, consistent
with our opinion in State v. Eyre, 1 concluded that the tax evasion
statute requires proof of a tax deficiency, but it also concluded
that the failure to file statute does not require proof of a tax
deficiency. In a later ruling, the trial court also ordered the State
to disclose its tax calculations to the Steeds so they could prepare
their defense based on the State’s proposed estimate. In response,
the State provided a one-page summary of its calculated income
figures for the Steeds, without any explanation of how the figures
were calculated. The Steeds then requested a more detailed
computation of the State’s proposed adjusted gross income (AGI)
figures. The State provided a new chart, though it provided no
additional information about the State’s method of calculating the
Steeds’ AGI.
    ¶7 The day before trial was scheduled to begin, and as a
result of the State’s noncompliance, the Steeds moved to preclude
the State from offering evidence of the Steeds’ income at trial. The
trial court granted the motion. But on the first scheduled day of
trial, April 27, 2010, the court reversed its ruling by concluding
that the State may not have fully understood the prior orders. As
a result, the court struck the trial date and gave the State another
opportunity to provide the Steeds with the necessary calculations.
Just over two months later, on July 7, 2010, the State identified
David Bateman as its expert witness and provided the Steeds
with a copy of his report, which was later used extensively at
trial. Trial was then scheduled to commence just over two months
later, on September 14, 2010.
   ¶8 At trial, Mr. Bateman explained the calculations in his
report. He began by identifying $45 million in total deposits
among the Steeds’ various accounts. He then eliminated certain
deposits from this figure, including intercompany transfers,

   1   2008 UT 16, 179 P.3d 792.

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                          STATE v. STEED
                       Opinion of the Court
deposits from unknown payors, uncategorized deposits, deposits
less than $1,000, and checks written for under $1,000. He then
categorized the Steeds’ various expenses in order to subtract them
from this figure and calculate the Steeds’ income for each year.
Particularly, Mr. Bateman testified that “[if] there was a question
as to whether it might be a business expense or a personal
expense, it’s in the personal category.” And by his calculations,
the Steeds had an alleged total of $8.6 million in personal
expenses over the years in question. By his calculations, the
Steeds’ “bottom line” income totaled more than $16 million for
the years in question. On a large chart presented to the jury, Mr.
Bateman claimed that the Steeds’ “taxable income” was
$3,512,006 in 2003; $4,341,695 in 2004; $5,779,525 in 2005; and
$2,912,117 in 2006.
    ¶9 On cross examination and in rebuttal, the Steeds
disputed many of Mr. Bateman’s categorized “apparent personal
expenses,” noting that millions of these purported personal
expenses actually included costs for cabin construction,
infrastructure, a $3 million water tank, and other business
expenses. In response, Mr. Bateman testified that even if he had
recategorized all of these expenses as business expenses, the
Steeds would still have had a combined total of $5.5 million in net
income for the years in question. Importantly, Mr. Bateman was
only allowed to testify about the Steeds’ income and not to
calculate a tax. And Mr. Bateman was careful to avoid claiming
that he was calculating a tax, despite his “estimated taxable
income figure,” noting carefully that he had no tax experience.
    ¶10 Several other witnesses testified, including Agent Mann,
who asserted that the Steeds received multiple large payments to
both their business and personal deposit accounts. He then
testified that, if these payments constituted gross income, the
Steeds were required to file a tax return. The State also called
Arlene Jones to testify. She was an employee who worked for
Mr. Oliphant, the Steeds’ former accountant. She testified that,
based on the information that the Steeds had provided to her
office, the Steeds owed thousands of dollars in taxes for 2003
through 2006. She also testified that the Steeds had told their
accountants that they did not want to pay any taxes at all. Finally,
Delores Furniss, custodian of records for the Commission,
testified that the Steeds did not file returns for the years in
question. She also testified that individuals must file a return if
their gross income exceeds certain threshold amounts, even if no
federal return was filed.

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                        Opinion of the Court
    ¶11 Before trial had commenced, the Steeds submitted a
proposed elements instruction that was consistent with how the
court interpreted the failure-to-file statute. The elements
instruction ultimately submitted to the jury was consistent with
the Steeds’ proposed instruction. This instruction was
problematic in that it permitted the jury to convict on only two of
the three possible intent alternatives set forth in the statute,
excluding the third alternative—the “intent to evade . . . a[]
requirement of Title 59.” In effect, this meant the State had to
prove that the Steeds (1) intentionally failed to file, and (2) did so
with one of two included specific intents—either the intent to
evade a tax or the intent to evade a “lawful requirement of the
Utah State Tax Commission.”
    ¶12 The Steeds conceded multiple times that they earned
sufficient income each year to trigger the filing requirement,
including in their briefing before us: “[i]t was never disputed that
the defendants had sufficient income to trigger the filing
requirement.” At trial, the Steeds conceded the same—that they
had sufficient income to trigger the filing requirement. But the
fact that a taxpayer has gross income, which triggers the filing
requirement, does not necessarily mean that the same taxpayer
has tax liability, which is a separate requirement altogether. And
the Steeds argued in a Motion to Dismiss that the State failed to
present evidence either of a tax deficiency or of their intent to
evade a “lawful requirement” of the Commission. Their motion
was denied.
    ¶13 The jury ultimately acquitted the Steeds of all counts of
tax evasion, as well as two counts of failure to render a proper tax
return. But the Steeds were each convicted of three counts of
failure to render a proper tax return, along with one count of a
pattern of unlawful activity. The Steeds moved to arrest the
judgment, largely on the same insufficiency of the evidence
grounds upon which they relied in their Motion to Dismiss. This
final motion was denied and the Steeds timely appealed. After we
heard oral argument, we requested supplemental briefing from
the parties on several issues surrounding potential defects in the
jury instructions. We have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(b).
                    STANDARD OF REVIEW
   ¶14 In contesting the sufficiency of the evidence, the Steeds
challenge several rulings: (1) the trial court’s denial of their
Motion to Dismiss, (2) the trial court’s denial of their Motion to
Arrest Judgment, and (3) the verdict itself. In reviewing a motion
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                            STATE v. STEED
                         Opinion of the Court
to dismiss, the trial court must decide whether the State has met
its burden of “produc[ing] believable evidence of all the elements
of the crime charged[; if it has not,] the trial court must dismiss
the charges.” 2 On appeal, “[t]he grant or denial of a motion to
dismiss is a question of law [that] we review for correctness,
giving no deference to the decision of the trial court.” 3 “When our
review requires us to examine statutory language, we look first to
the plain meaning of the statute” 4 and then “review [the] district
court’s interpretation of a statute for correctness.” 5
   ¶15 In reviewing a challenge to the sufficiency of the
evidence after the verdict is rendered—whether the challenge is
based on the trial court’s denial of a motion to arrest judgment or
whether it is based on the verdict itself—“we view the evidence
and all reasonable inferences drawn therefrom in a light most
favorable to the verdict.” 6 “We reverse a jury verdict only when
the evidence, so viewed, is sufficiently inconclusive or inherently
improbable such that reasonable minds must have entertained a
reasonable doubt that the defendant committed the crime for
which he or she was convicted.” 7
                             ANALYSIS
    ¶16 On appeal, the Steeds challenge their convictions on
three grounds: first, they challenge the sufficiency of the evidence
supporting both the State’s case and the verdicts; second, they
challenge the constitutionality of Utah’s expert notice statute; and
third, they argue that the trial court abused its discretion in failing
to strike the testimony of Mr. Bateman, the State’s expert witness.
Because we reverse due to insufficiency of the evidence, we do
not reach the Steeds’ remaining arguments.

   2 State v. Arave, 2011 UT 84, ¶ 24, 268 P.3d 163 (internal
quotation marks omitted).
   3  State v. Hamilton, 2003 UT 22, ¶ 17, 70 P.3d 111 (second
alteration in original) (internal quotation marks omitted).
   4   Id. (internal quotation marks omitted).
   5   H.U.F. v. W.P.W., 2009 UT 10, ¶ 19, 203 P.3d 943.
   6  Hamilton, 2003 UT 22, ¶ 18 (internal quotation marks
omitted); State v. Robbins, 2009 UT 23, ¶¶ 14–15, 210 P.3d 288
(holding the same with respect to motions to arrest judgment).
   7 Hamilton, 2003 UT 22, ¶ 18 (internal quotation marks
omitted).

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                         Cite as: 2014 UT 16
                        Opinion of the Court
    ¶17 We first conclude that the trial court erred in interpreting
the failure-to-file statute. Next, in reviewing the trial court’s
denial of the Steeds’ Motion to Dismiss, we do not defer to its
interpretation of the statute, but rather consider whether the State
presented sufficient evidence under the statute as it is correctly
interpreted. Ultimately, we conclude that the State presented
evidence of only one of the three specific intent alternatives under
the Statute, so it was error for the trial court to submit the other
two unsupported intent alternatives to the jury and deny the
Steeds’ Motion to Dismiss.
    ¶18 Finally, we review the court’s denial of the Steeds’
Motion to Arrest Judgment, as well as the Steeds’ challenge to the
verdict itself. Because the only supported intent alternative was
not submitted to the jury, and instead the two unsupported intent
alternatives were submitted, we conclude that there was
insufficient evidence to support the verdicts and it was therefore
error for the court to deny the Steeds’ Motion to Arrest Judgment.
Accordingly, we reverse and remand with instructions to enter a
judgment of acquittal on all counts.
  I. THE TRIAL COURT INCORRECTLY INTERPRETED THE
                FAILURE-TO-FILE STATUTE
    ¶19 We first answer two threshold questions raised by the
Steeds’ challenge to their failure-to-file convictions: first, how to
correctly interpret the elements of the statute; and second,
whether the requirement to file a tax return arises from Title 59
or, alternatively, the Commission’s rules. The trial court erred in
its interpretation on both issues. First, the trial court incorrectly
concluded that the statute provides for two, rather than three,
specific intent alternatives. Second, the court erroneously
interpreted the filing requirement to be a “requirement of the
State Tax Commission” rather than a “requirement of Title 59.”
  A. The Trial Court Erred in Excluding Title 59 as a Specific Intent
                             Alternative
1. The Failure-to-File Statute Provides for Three Specific Intent
Alternatives and Requires Proof of a Tax Deficiency Under the
First Alternative
    ¶20 At issue in this case are two separate statutes—Utah’s
failure-to-file statute and Utah’s tax evasion statute. The failure-
to-file statute provides, in relevant part, that
       [a]ny person who, with intent to evade any tax, fee,
       or charge as defined in Section 59-1-401 or
       requirement of Title 59, Revenue and Taxation, or
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                            STATE v. STEED
                         Opinion of the Court
         any lawful requirement of the State Tax
         Commission, fails to make, render, sign, or verify
         any return or to supply any information within the
         time required by law . . . is guilty of a third degree
         felony. 8
The statute requires that the State prove not only the necessary
actus reus—here, an omission: the intentional failure to “make,
render, sign, or verify” a tax return—but also separately that it
was done with one of three specific intents—the intent to evade
(1) a “tax, fee, or charge as defined in Section 59-1-401”; (2) a
“requirement of Title 59, Revenue and Taxation”; or (3) “any
lawful requirement of the State Tax Commission.” 9 Although it is
possible to merge the first two intent alternatives as one because
they are not offset with a comma, 10 the remainder of the statutory
scheme is inconsistent with this interpretation. 11 Accordingly, we

   8  UTAH CODE § 76-8-1101(1)(c)(i) (2013). The failure-to-file
statute has since been amended, effective May 13, 2014. Because
the amendments are material, we cite to the 2013 version of the
statute, which is substantively the same version that was in effect
at the time of the alleged offenses. See State v. Losee, 2012 UT App
213, ¶ 1 n.1, 283 P.3d 1055.
   9   Id.
   10  Id. (requiring a defendant to have the “intent to evade any
tax, fee, or charge as defined in Section 59-1-401 or requirement of
Title 59, Revenue and Taxation.” (no comma between “59-1-401”
and “or”)).
   11 The prior version of the failure-to-file statute, as well as its
companion provisions, confirm that the failure-to-file statute
provides for three separate intent alternatives. For example, the
prior version of the statute clearly provides for three distinct
intent alternatives: “[a]ny person who, with intent to evade any
tax or requirement of Title 59 or any lawful requirement of the State
Tax Commission, fails to make, render, sign, or verify any return
or to supply any information within the time required by law . . .
is guilty of a third degree felony.” UTAH CODE § 76-8-1101(1)(c)(i)
(2003) (emphasis added). Accord State v. Smith, 2003 UT App 179,
¶ 13, 72 P.3d 692 (“Thus, to convict [defendant] of violating
Subsection (1)(b), the State was required to prove that [defendant]
failed to file a state tax return with the intent to evade any (a) tax,
(b) requirement of Title 59, or (c) lawful requirement of the State
Tax Commission.” (citing UTAH CODE § 76-8-1101(1)(b) (1999)).
                                                       (continued…)
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                         Cite as: 2014 UT 16
                        Opinion of the Court
conclude that the statute provides for three specific intent
alternatives.
    ¶21 Under the statute, the State must first prove the
necessary actus reus—that a defendant intentionally or willfully
failed to file. To establish that a defendant failed to file, the State
can provide a certification by the Commission or other relevant
evidence. And in proving that the defendant did so intentionally,
the State may rely upon direct evidence or, where such evidence
is lacking, intent “may be inferred from the actions of the
defendant or from surrounding circumstances.” 12 For example, in
the failure-to-file context, intent may be inferred from the fact that
a defendant filed tax returns in prior years. 13

The statute has since been revised and restyled to include “fee, or
charge as defined in Section 59-1-401” and, in the process, a
comma was omitted at the end.
    Although this revision raises an ambiguity, the Utah tax code
contains other companion provisions affirming that three distinct
alternatives were envisioned. For instance, the section of the tax
code directing for criminal penalties under the failure-to-file
statute provides that “[a]ny person who, with intent to evade any
tax or any requirement of this chapter [Title 59], or any lawful
requirement of the commission, fails to pay the tax, or to make,
render, sign, or verify any return, or to supply any information,
within the time required by or under this chapter . . . is liable for a
civil penalty as provided in Section 59-1-401, and is also guilty of
a criminal violation as provided in Section 59-1-401.” UTAH CODE
§ 59-10-541(4) (emphasis added).
    And finally, section 59-1-401, which is the penalty statute
mentioned in section 59-10-541, provides that “[a] person who,
with intent to evade a tax, fee, or charge or requirement of this title
or any lawful requirement of the commission, fails to make,
render, sign, or verify a return or to supply information within
the time required by law . . . is guilty of a third degree felony.” Id.
§ 59-1-401(12)(c)(i) (emphasis added).
   12  Smith, 2003 UT App 179, ¶ 16 (internal quotation marks
omitted). The jury was instructed accordingly. (“Intent being a
state of mind is seldom susceptible of proof by direct and positive
evidence and may ordinarily be inferred from acts, conduct,
statements and circumstances.”).
   13  United States v. Bohrer, 807 F.2d 159, 161 (10th Cir. 1986)
(“[F]iling tax returns in prior years is evidence of willfulness.”).

                                   9
                             STATE v. STEED
                          Opinion of the Court
    ¶22 Next, the State must establish the necessary specific
intent. “Where a specific intent is an element of a crime, the
specific intent must be proven as an independent fact and cannot
be presumed from the commission of the unlawful act.” 14 Thus,
the State must do more under the statute than simply establish
that a defendant failed to file his or her taxes; the State must
prove, either by direct evidence 15 or inference 16 that the
defendant failed to file a tax return with the “conscious objective
or desire” 17 to evade either a tax, a requirement of Title 59, or a
requirement of the Commission. But irrespective of the method
employed, it is imperative that the State prove intent in order to
convict under Utah’s criminal tax statutes. A defendant’s failure
to file without a corresponding intent gives rise only to civil
penalties, which are much less severe. 18
    ¶23 And in order to establish that the Steeds had the intent to
evade a tax or a requirement of Title 59 or the Commission, the
State must also prove that the Steeds actually owed a tax or that
they failed to comply with an applicable requirement of Title 59
or the Commission. This is because “it is logical to conclude that,
if no tax is owing [or no other requirement is binding], there is no
tax [or requirement] to evade.” 19 It is also important to note that



   14   22 C.J.S. Criminal Law § 40 (2006).
   15   Id.
   1621 AM. JUR. 2D Criminal Law § 119 (2008) (specific intent may
be “inferred from the circumstances . . . and the actions of the
defendant”).
   17 UTAH CODE § 76-2-103(1) (“A person engages in conduct . . .
[i]ntentionally, or with intent or willfully with respect to the
nature of his conduct or to a result of his conduct, when it is his
conscious objective or desire to engage in the conduct or cause the
result.”). The jury instructions were in accord.
   18 Compare id. § 59-1-401(2)–(11) (providing for differing civil
penalties depending on the nature and severity of a taxpayer’s
actions, including the underpayment of a tax or avoidance of tax
obligations); with id. § 59-1-401(12) (discussing criminal penalties
associated with certain actions, including tax evasion and the
failure to file).
   19 See State v. Eyre, 2008 UT 16, ¶ 11, 179 P.3d 792 (“To prevail
on a felony tax evasion claim, the State must therefore show that a
                                                     (continued…)
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                         Opinion of the Court
in many cases a defendant may fail to comply with a requirement
of Title 59 or the Commission but owe no taxes at all. This is
because a taxpayer’s obligations under Title 59 and the
Commission’s regulations are often independent of the taxpayer’s
tax liability. For example, Title 59’s requirement to file a tax
return is triggered by a threshold level of gross income, 20 even if
there is ultimately no tax liability on that income.
2. The Tax Evasion Statute Requires Proof of an Attempt to Evade
a Tax
    ¶24 By way of contrast, and in order to clarify why the
failure-to-file and tax evasion statutes do not merge, we review
the tax evasion statute at this juncture. It provides that
         [a]ny person who intentionally or willfully attempts
         to evade or defeat any tax, fee, or charge as defined
         in Section 59-1-401 . . . is, in addition to other
         penalties provided by law, guilty of a second degree
         felony. 21
Under this statute, as with the first intent alternative under the
failure-to-file statute, the State must first prove a tax deficiency.22
In fact, the State must prove a tax deficiency every time it is
required to prove that a defendant had the “intent to evade a
tax” 23—whether it is in a civil or criminal context.
   ¶25 Second, the State must prove that the defendant
“intentionally or willfully” attempted to evade or defeat this tax.
Under Utah law, in order to prove “attempt,” the State must
show both that the defendant intended to commit the crime and
that the defendant “engage[d] in conduct constituting a
substantial step toward the commission of the crime.” 24 “The


tax was, in fact, due and owing; merely establishing income does
not suffice.”).
   20   See infra ¶30 & n.31.
   21   UTAH CODE § 76-8-1101(1)(d)(i).
   22   Eyre, 2008 UT 16, ¶ 11.
   23   Id. ¶ 12 (internal quotation marks omitted).
   24 UTAH CODE § 76-4-101(1) (“For purposes of this part, a
person is guilty of an attempt to commit a crime if he: (a) engages
in conduct constituting a substantial step toward commission of
the crime; and (b)(i) intends to commit the crime; or (ii) when
                                                   (continued…)
                                 11
                            STATE v. STEED
                         Opinion of the Court
‘mere intent to violate a . . . criminal statute is not punishable as
an attempt unless it is also accompanied by significant
conduct.’” 25 In other words, the tax evasion statute requires the
State to prove both that a defendant intended to evade a tax and
that he or she took a “substantial step” toward the same. In Jensen
v. State Tax Commission, we provided examples of what might
constitute willful attempt to evade:
         [b]y way of illustration, and not by way of
         limitation, we would think affirmative willful
         attempt may be inferred from conduct such as
         keeping a double set of books, making false entries
         or alterations, or false invoices or documents,
         destruction of books or records, concealment of
         assets or covering up sources of income, handling of
         one’s affairs to avoid making the records usual in
         transactions of the kind, and any conduct, the likely
         effect of which would be to mislead or to conceal. 26
    ¶26 The failure-to-file statute’s first intent alternative does
not require the State to prove that a defendant took a “substantial
step” toward committing tax evasion, but only that the defendant
had the “intent to evade [a] tax.” While a jury may surely infer
that a defendant intended to evade a tax by engaging in any of
the acts listed in our Jensen decision, it may also infer such an
intent from affirmative statements or other, lesser conduct.
Because the failure-to-file and tax evasion statutes thus require
different proof, the two offenses do not merge. 27
3. The Court Erred in Excluding Title 59 as a Specific Intent
Alternative
   ¶27 Although the failure-to-file statute provides for three
specific intent alternatives, the court interpreted the statute to


causing a particular result is an element of the crime, he acts with
an awareness that his conduct is reasonably certain to cause that
result.”).
   25 State v. Arave, 2011 UT 84, ¶ 30, 268 P.3d 163 (alteration in
original) (quoting United States v. Resendiz-Ponce, 549 U.S. 102, 106
(2007)).
   26835 P.2d 965, 973 (Utah 1992) (quoting Spies v. United States,
317 U.S. 492, 499 (1943)).
   27   See Smith, 2003 UT App 179, ¶¶ 11–20.

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                          Cite as: 2014 UT 16
                         Opinion of the Court
include only two in several of its rulings, excluding Title 59. First,
the Steeds filed a motion in limine before trial requesting that the
court interpret the failure-to-file statute to require proof of a tax
deficiency, since our decision in State v. Eyre made this an open
question. 28 The trial court denied the Steeds’ motion and also
interpreted the statute to criminalize “multiple variations of
conduct,” including either the intent to evade a tax or any lawful
requirement of the Commission, thereby excluding Title 59 as a
specific intent alternative.
    ¶28 The trial court committed the same interpretive error in
denying the Steeds’ Motion to Dismiss, which was argued after
the State presented its case. In denying their Motion, the court
reiterated its position that there were two alternative theories—
“an intent to evade a tax or an intent to evade a lawful
requirement, a requirement that you file a return if you have
income equal to or greater than those stated amounts would be a
violation of the law if the jury accepts it.” And because of this
incorrect interpretation of the statute, the court also excluded
Title 59 as an intent alternative in the jury instructions.
Instructions 18 and 25 (included separately for each defendant)
stated that:
         Before you can convict the defendant . . . you must
         find from the evidence and beyond a reasonable
         doubt, each and every one of the following elements
         of that offense:
                1. That the defendant failed to make, render,
                   sign or verify [an] Individual Income Tax
                   Return within the time required under
                   Utah law; and
                2. that the defendant did so with an intent to
                   evade any tax or other lawful requirement of
                   the Utah State Tax Commission.
(Emphasis added). The State did not object to the exclusion of
Title 59 from the jury instructions, though it did request that
additional language from the statute be included under element
one—that there was evidence the Steeds “fail[ed] . . . to supply
any information within the time required by law.” 29 Because the


   28   2008 UT 16, ¶ 10 n.2.
   29   UTAH CODE § 76-8-1101(1)(c)(i).

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                           STATE v. STEED
                        Opinion of the Court
failure-to-file statute provides for three intent alternatives, it was
error for the court to construe the statute otherwise and exclude
Title 59 as a grounds for conviction.
  B. The Trial Court Erred in Construing the Filing Requirement as a
  “Lawful Requirement of the State Tax Commission” Rather than a
                      “Requirement of Title 59”
    ¶29 The next essential statutory interpretation question is
whether the requirement to file a tax return is a “requirement of
Title 59” or whether it is a “lawful requirement of the State Tax
Commission.” As we explain below, the filing requirement is a
statutory requirement housed in Title 59, whereas the
Commission rules are ancillary and housed within the
administrative code. We then conclude that the court erred in
conflating the two bodies of law, which exacerbated the court’s
previously discussed error of excluding Title 59 as a specific
intent alternative.
1. The Filing Requirement Is a Requirement of Title 59
    ¶30 The general filing requirement is found in Utah Code
section 59-10-502 (part of Title 59), which requires that “every
resident individual” file a state tax return in any year they are
required to file a federal return.30 And a federal return must be
filed whenever certain income thresholds are met—a tax does not
necessarily need to be owed. 31 Accordingly, Title 59 also requires
residents to file income tax returns whenever these same income
thresholds are met, which the Steeds concede were met in this
case. And Utah Code section 59-10-514(1)(a) further requires that
taxpayers file their Utah tax returns “on or before [April 15th] . . .
or . . . on or before [the federal filing date].”



   30 In full, the statute provides that “[a]n income tax return with
respect to the tax imposed by this chapter [Title 59] shall be filed
by: (1) every resident individual, estate, or trust required to file a
federal income tax return for the taxable year; and (2) every
nonresident individual, estate, or trust having federal gross
income derived from sources within the state for the taxable year
and required to file a federal income tax return for such taxable
year.”
   31 See Jensen, 835 P.2d at 969–70 (holding that the duty to file is
triggered when income is earned rather than when tax liability is
ultimately assessed on that income).

                                 14
                        Cite as: 2014 UT 16
                        Opinion of the Court
   ¶31 The Commission may impose additional requirements on
taxpayers, which it has done with the record-keeping
requirement 32 and the verification requirement. 33 The
Commission also has the authority to regulate the filing
requirement under Utah Code section 59-10-514(3), which
provides that “[i]n accordance with Title 63G, Chapter 3, Utah
Administrative Rulemaking Act, the commission may make rules,
prescribing what constitutes filing a return with the commission.”
But while the Commission is given authority to “prescrib[e] what
constitutes filing a return,” the filing requirement itself, as noted
above, is a “requirement of Title 59” rather than “a[] lawful
requirement of the State Tax Commission.” In fact, the
Commission’s publications incorporate the language from Utah
Code section 59-10-502 when discussing the filing requirement. 34
   ¶32 The State argues, however, that the filing requirement is
both a requirement of Title 59 and of the Commission, citing Utah
Code section 59-10-501(1) (2004), which states:
        [e]very person liable for any tax imposed by [Title
        59], or for the collections thereof, shall keep such
        records, render such statements, make such returns,

   32 UTAH ADMIN. CODE r. 865-9I-18(A) (2003) (“Every taxpayer
shall keep adequate records for income tax purposes of a type
which clearly reflect income and expense, gain or loss, and all
transactions necessary in the conduct of business activities.”),
recodified at r. 865-9I-18(1) (2014) (no substantive changes).
   33 Id. r. 865-9I-22(B) (2003) (“All returns filed with the Tax
Commission must be signed by the taxpayer or his duly
authorized agent as provided by law. Unsigned returns are not
valid returns for income tax purposes and if unsigned, the
benefits of proper filing may be denied the taxpayer.”).
   34E.g. UTAH STATE TAX COMMISSION, INDIVIDUAL INCOME TAX
TC-40 FORMS & INSTRUCTIONS 2 (2013):
        Who Must File
        1. Every Utah resident or part-year resident who must
        file a federal income tax return;
        2. Every nonresident with income from Utah sources
        who must file a federal return; and
        3. Taxpayers wanting a refund of any income tax
        overpaid.

                                 15
                            STATE v. STEED
                        Opinion of the Court
        and comply with such rules as the commission may
        from time to time by rule prescribe. Whenever in the
        judgment of the commission it is necessary, it may
        require any person, by notice served upon such
        person or by rule, to make such returns, render such
        statements, or keep such records, as the commission
        deems sufficient to show whether or not such
        person is liable for tax under this chapter.
While it is true that the Commission may give notice and clarify
how returns are to be filed, 35 the general filing requirement is
nonetheless still imposed by Title 59, rather than by the
Commission. 36
2. The Court Erroneously Conflated Requirements of Title 59 and
the State Tax Commission
   ¶33 In denying the Steeds’ Motion to Dismiss, the court
incorrectly concluded that the filing requirement was a “lawful
requirement of the State Tax Commission”:
        the way I read [the failure-to-file statute,] the State
        may also be successful in its prosecution if it’s able
        to convince the jury beyond a reasonable doubt that
        the defendants admitted failure to file was done
        with the intent to evade a lawful requirement of the
        state Tax Commission and I would conclude that
        . . .the requirement . . . that those who have gross
        incomes equal to or greater than the amount shown
        in the Plaintiff’s Exhibit 15 is in fact that kind of
        lawful requirement referred [to] in the statute.



   35 For example, the Commission has promulgated regulations
that clarify how to file returns when one spouse is a resident and
the other is not, UTAH ADMIN. CODE r.865-9I-6 (2014), and when
two separate returns must be filed, id. r. 865-9I-8 (2014).
   36 The State’s briefing conflates the two obligations—calling
the filing requirement a “general obligation[]” and that “the
reference to requirements of the Tax Commission encompasses
many or most of the general Title 59 obligations.” Though it is
true that a taxpayer may be required to comply with a
requirement of Title 59 and an additional Commission
requirement, the two requirements are separate and may not be
required of all taxpayers.

                                  16
                         Cite as: 2014 UT 16
                        Opinion of the Court
Later in its decision, the court reiterated the same incorrect
interpretation:
       I think it could be in the alternative, an intent to evade
       a tax or an intent to evade a lawful requirement, a
       requirement that you file a return if you have income
       equal to or greater than those stated amounts would
       be a violation of the law if the jury accepts it.
    ¶34 And this error, like the exclusion of Title 59 as an intent
alternative, made its way into the jury instructions. As explained
above, supra ¶¶ 27–28, the jury was instructed that it could
convict the Steeds on at least one of only two intent alternatives—
the “intent to evade any tax or other lawful requirement of the
Utah State Tax Commission.” The court then submitted an
additional jury instruction—No. 20—that clarified what
constituted a “lawful requirement of the Utah State Tax
Commission.” It read:
       [l]awful requirements of the Utah State Tax
       Commission include the requirement that a resident
       of Utah is required to file a Utah State Individual
       Income Tax Return for any given year in which he
       or she has gross income in excess of the exemption
       amount. Gross income means the total of all
       income received before making any deductions
       allowed by law. Gross income includes all income
       from whatever source derived and includes
       compensation for services, including fees,
       commissions, and similar items.
    ¶35 This instruction misstates the law. As we explained
above, the filing requirement is a requirement of Title 59—not of
the Commission. And the jury could not have properly convicted
the Steeds for intentionally evading the filing requirement,
because the filing requirement is not a lawful requirement of the
Commission, despite a statement to the contrary in Instruction 20.
To convict the Steeds for intentionally evading the filing
requirement, the elements instruction would need to have
included Title 59 as a specific intent alternative, which it failed to
do.
  II. THE STATE PRESENTED INSUFFICIENT EVIDENCE TO
      SUPPORT THE STEEDS’ CONVICTIONS UNDER THE
                FAILURE-TO-FILE STATUTE
   ¶36 As described above, the failure-to-file statute requires
proof of at least one of the three specific intent alternatives. In

                                  17
                           STATE v. STEED
                        Opinion of the Court
reversing the Steeds’ convictions, we first consider whether the
State presented sufficient evidence of the Steeds’ “intent to evade
. . . a[] lawful requirement of the State Tax Commission” or the
Steeds’ “intent to evade a[] tax.” Ultimately, we conclude that the
State presented insufficient evidence of either, so the court
erroneously denied the Steeds’ Motion to Dismiss as to these two
specific intent alternatives. In reaching this result, we also discuss
the State’s burden in establishing a husband’s and wife’s separate
tax liabilities.
    ¶37 But we also conclude that the State did present sufficient
evidence of the Steeds’ “intent to evade . . . [a] requirement of
Title 59,” so it would have been improper for the court to dismiss
the failure-to-file charges altogether at the motion to dismiss
stage. We then review the sufficiency of the evidence supporting
the verdicts. Because the only supported intent alternative—the
“intent to evade . . . [a] requirement of Title 59”— was ultimately
excluded from the jury instructions, and there was insufficient
evidence to support the two intent alternatives that were
ultimately submitted, we conclude that it was error for the court
to deny the Steeds’ Motion to Arrest Judgment. We therefore
reverse the failure-to-file convictions, as well as the pattern counts
that hinged on the failure-to-file convictions, and remand with
instructions to enter a judgment of acquittal.
A. The State Presented No Evidence of Any Lawful Requirement of the
                       State Tax Commission
   ¶38 After the State presented its case, the Steeds moved to
dismiss, arguing that
       [i]n this case the only evidence offered that relates to
       the element of intent is that it was done with the
       intent to evade the tax. The statute says or any
       lawful requirement of the State Tax Commission but
       there has been no evidence offered by the State that
       would draw into play any other lawful requirement.
       We haven’t heard any witness or anything about
       some other lawful requirement that might be the
       intent of the taxpayers.
In response, the court asked the State
       [b]ut you’re not arguing any other part, that there’s
       some other revenue—or that some other
       requirement of the State Tax Commission that they
       have attempted to evade, right? You’re essentially


                                 18
                         Cite as: 2014 UT 16
                        Opinion of the Court
      arguing they have an income greater than the
      threshold, they had to file?
To which the State responded: “Yes. . . . They have to file. That’s
our central argument to the case.” And despite additional
prompting by the court, the State failed to identify a single lawful
requirement of the Commission purportedly violated by the
Steeds. Instead, the State furthered the incorrect argument that
the filing requirement (housed in Title 59) was a requirement of
the Commission.
    ¶39 The trial court denied the Steeds’ Motion and agreed
with the State, concluding that the State had presented sufficient
evidence of the Steeds’ intent to evade the filing requirement.
Although we agree that the State presented evidence that the
Steeds intended to evade the filing requirement, we note once
again that the filing requirement is a “requirement of Title 59,”
and this intent alternative was excluded as a basis for conviction
in the jury instructions. Accordingly, evidence of the Steeds’
intent to violate the filing requirement was insufficient to meet
the State’s burden in proving the Steeds’ intent to violate a lawful
requirement of the Commission. On appeal, the State identified a
number of Commission requirements, but it failed to cite to any
mention of these requirements at trial.
   ¶40 We likewise find nothing in the record indicating that the
State presented evidence of the Steeds’ intent to violate a lawful
requirement of the Commission. At trial the State never argued
that the Steeds violated a filing demand or other requirement of
the Commission —their argument and evidence at trial centered
on the Title 59 filing requirement—that the Steeds’ “fundamental
duty and obligation” “was to file returns and file truthful returns
without an intent to evade.” We therefore conclude that the State
presented insufficient evidence of the Steeds’ intent to violate a
lawful requirement of the Commission, and the court erred in
denying the Steeds’ request to dismiss this intent alternative.
 B. The State Presented Insufficient Evidence of the Steeds’ Individual
                            Tax Liability
   ¶41 We also conclude that the State presented insufficient
evidence of the Steeds’ “intent to evade [a] tax.” To meet its
burden under this intent alternative, as discussed above, supra
¶¶ 24–26, the State had to prove both that the Steeds had a tax
deficiency and that they intended to evade their taxes. Because
we conclude that the State presented insufficient evidence of the
Steeds’ individual tax liabilities, we do not reach the issue of

                                  19
                             STATE v. STEED
                          Opinion of the Court
intent. In ruling on the insufficiency of the evidence, we first
discuss the State’s general burden in criminal tax cases when it is
required to prove a tax deficiency. We then discuss the State’s
burden when a husband and wife are tried in a joint proceeding.
    ¶42 When the Commission assesses civil penalties for a
defendant’s failure to pay taxes, it must establish what the
defendant’s tax liability was. This is often difficult because the
defendant has not filed a tax return, so the Utah code requires
only that the Commission “estimate the tax, fee, or charge due
from the best information or knowledge the commission can
obtain.” 37 In a criminal setting, the State must establish the
defendant’s tax liability beyond a reasonable doubt, however, and
it “must prove that it has conducted a full and adequate
investigation of the defendant’s finances and that it has followed
up all leads furnished by the taxpayer that are ‘reasonably
susceptible of being checked.’” 38 In calculating tax liability, the
State must subtract from a defendant’s gross income any “exempt
income and allowable deductions.” 39 This excludes itemized
deductions, since they are not “allowable” when a defendant fails
to file a return. 40 The government must also give credit for any
offsetting business expenses and deductions that it can
reasonably ascertain. 41


   37   UTAH CODE § 59-1-1406(2)(a).
   38 United States v. Schafer, 580 F.2d 774, 777 (5th Cir. 1978)
(quoting Holland v. United States, 348 U.S. 121, 138 (1954)).
   39   State v. Eyre, 2008 UT 16, ¶ 11, 179 P.3d 792.
   40 See Maxwell v. United States, 80 F. Supp. 2d 1352, 1353 (N.D.
Ga. 1999) (“The Internal Revenue Code (‘Code’) allows a
taxpayer, in determining his taxable income, to itemize his
deductions rather than take a standard deduction. However, a
taxpayer must elect to take itemized deductions; the Code
specifies that ‘[u]nless an individual makes an election under this
subsection for the taxable year, no itemized deduction shall be
allowed for the taxable year.’ The election is to be made ‘on the
taxpayer’s return.’” (alteration in original) (citations omitted)); see
also Murray v. Comm’r, 104 T.C.M. (CCH) 112, *3 (2012) (“As a
result of not filing his 2006 Federal income tax return, petitioner is
not allowed to claim an itemized deduction for theft loss.”).
   41United States v. Esser, 520 F.2d 213, 217 (7th Cir. 1975) (“The
government must do everything that is reasonable and fair under
                                                    (continued…)
                                 20
                           Cite as: 2014 UT 16
                          Opinion of the Court
    ¶43 But as the State conducts this investigation, it “need not
show a tax deficiency with precision,” 42 nor must it, as noted by
the trial court, “perfectly recreat[e] the taxpayer’s returns.” In
fact, “a de minimis tax deficiency may be sufficient to meet this
requirement, [but] we caution that the State may have difficulty
proving the intent element of tax evasion without a greater
showing.” 43 We also note that the State may opt to prove tax
liability using different methods, including the “net worth plus
nondeductible expenditures method.” 44 When a “taxpayer's
records are inadequate as a basis for determining income tax
liability,” this may be the only possible method to establish a
defendant’s tax deficiency. 45 Once the State meets its burden, the
burden then shifts to the defendant to disprove the State’s income
figures and to “prove any further allowable deductions not
previously claimed.” 46
    ¶44 Where the State wishes to pursue a case against both a
husband and wife for criminal tax charges, two important issues
arise: first, whether to try them jointly; and second, how a joint
trial will affect the State’s burden of proof. As to the issue of a
joint trial, it is well established that the State can try a husband
and wife, as well as others, in a joint proceeding on criminal tax
charges. 47 Indeed, joint trials “promote efficiency and ‘serve the


the circumstances to identify any non-income transactions and
deduct them from total deposits. Further, all proper deductions
and credits must be subtracted.”).
   42   Eyre, 2008 UT 16, ¶ 12 n.7.
   43   Id.
   44  Fowler v. United States, 352 F.2d 100, 102 (8th Cir. 1965)
(citing Holland, 348 U.S. at 125).
   45   Holland, 348 U.S. at 125.
   46 United States v. Lacob, 416 F.2d 756, 760 (7th Cir. 1969); see
also 13 AM. JUR. TRIALS 1 Defending Federal Tax Evasion Cases § 62
(2014) (“If the defendant claims that no tax would be due if he
were allowed to take additional deductions not reflected in the
reports made by him, the duty of going forward on this matter of
proof shifts to him.”).
   47United States v. Emond, 935 F.2d 1511, 1517 (7th Cir. 1991)
(upholding joint trial of husband, wife, and other codefendants
on tax evasion and other related charges); United States v.
                                                 (continued…)
                               21
                              STATE v. STEED
                          Opinion of the Court
interests of justice by avoiding the scandal and inequity of
inconsistent verdicts,’” but the danger is that they can also result
in prejudice. 48 As such, the court must decide carefully whether
severance is warranted, or whether it can tailor alternative relief
to guard against the danger of prejudice. 49
    ¶45 If the court decides that severance is not warranted, it
must still ensure that the State meets its burden of proof
separately as to the husband and wife. In establishing a tax
deficiency, the State’s burden will differ depending on the filing
status election (or nonelection) of the husband and wife. But
regardless of any taxpayer’s election, it is a “long-recognized legal
principle that a husband and wife are separate and distinct
taxpayers even where they have filed a joint Federal income tax
return.”50 For instance, even though a joint filing election will
permit the State to impute the same tax deficiency to both the
husband and the wife, each defendant must be treated separately
to ensure that the other elements of the crime, including intent,
are proved individually.
    ¶46 This notion of individual liability runs throughout Utah’s
civil and criminal tax codes. For example, the requirement to file a
tax return applies to “every resident [and] . . . nonresident
individual” 51 earning income in the state—not to every resident or
nonresident couple. Furthermore, criminal penalties also attach
individually: the failure-to-file statute makes it a crime for “[a]ny

Manfredi, 628 F. Supp. 2d 608, 644 (W.D. Pa. 2009) (upholding tax
evasion indictments brought jointly against husband and wife).
See 13 AM. JUR. TRIALS 1 Defending Federal Tax Evasion Cases § 49
(2014) (“It is not uncommon for both husband and wife to be
jointly indicted on tax evasion charges arising out of their
joint tax returns, although they may sometimes be indicted
separately on charges based on a joint return.” (collecting cases)).
   48 Zafiro v. United States, 506 U.S. 534, 537–39 (1993) (noting
instances where risk of prejudice is especially acute); see United
States v. Breinig, 70 F.3d 850, 853 (6th Cir. 1995) (husband
prejudiced in joint trial where wife asserted mens rea defense that
introduced “highly inflammatory evidence of [the husband’s] bad
character”).
   49   Zafiro, 506 U.S. at 538–39.
   50   Rodney v. Comm’r, 53 T.C. 287, 307 (1969).
   51   UTAH CODE § 59-10-502(1)–(2) (emphasis added).

                                      22
                           Cite as: 2014 UT 16
                          Opinion of the Court
person” to fail to file a tax return. 52 It is for this reason that a
judgment against one spouse for tax fraud lacks res judicata effect
in a later prosecution against the other. 53 Accordingly, the State
must meet its burden of proof separately for each spouse, even if
it chooses to try them in a joint proceeding.
    ¶47 We also note that the State’s burden of proving a tax
deficiency is affected by the filing status of the husband and wife,
and one of three situations will apply to the spouses’ joint
prosecution. First, the husband and wife may have elected to file
a joint return. If this is the case, then the State need only prove a
shared tax liability amount, since joint and several liability
attaches as to the entire tax deficiency. 54 Second, the husband and
wife may have elected to file separately, in which case each
spouse will have a distinct and individual tax deficiency. 55 Third,
and last, the husband and wife may have failed to file altogether,
and thus failed to elect a filing status. “Where no return has been
filed or no joint return has been filed, there is no sound basis for
concluding that the tax liability of each spouse is the same.” 56



   52   Id. § 76-8-1101(1)(c)(i) (emphasis added).
   53   Rodney, 53 T.C. at 307.
   54 IAN M. COMISKY ET AL., 1 TAX FRAUD & EVASION § 2.03[6][a]
(2014) (“Where a joint return is filed, the tax liability may
properly be viewed as joint, and each spouse may be charged
with evasion of the joint tax liability.”); Kruse v. Comm’r, 100
T.C.M. (CCH) 524, at *2 (2010) (noting that in cases where a
husband and wife have filed jointly and have a tax deficiency,
“each spouse generally is jointly and severally liable for the
entire tax due for that taxable year.”).
   55   COMISKY, supra note 54, § 2.03[6][a].
   56 Id.; United States v. McKee, 506 F.3d 225, 244 (3d Cir. 2007)
(“A married individual’s tax responsibilities are separate from
those of her spouse with respect to her own income unless she
elects to file jointly.” (citing 26 U.S.C. §§ 1(a), 6013)); cf. United
States v. Reed, 821 F.2d 322, 325 (6th Cir. 1987) (“Based on the
evidence presented at trial, the most reasonable inference the jury
would draw is that the [defendants] would have chosen to
minimize their tax liability by filing joint returns.”).This principle
applies for both federal and Utah state tax purposes. See UTAH
CODE § 59-10-503(1) (establishing that a husband’s and wife’s
                                                      (continued…)
                                   23
                           STATE v. STEED
                        Opinion of the Court
Though a husband and wife may file jointly if they meet the
requirements under Utah Code section 59-10-503, they are not
required to do so, and the Commission cannot impose a joint tax
deficiency unless taxpayers have so elected.
    ¶48 We recognize that where no return has been filed or
where taxpayers have kept inadequate records, establishing any
tax deficiency—whether individual or joint—can be a difficult
task. And establishing a husband’s and wife’s individual tax
liability where they receive pass-through income from joint
ventures, partnerships, or other entities, can be an especially
complex task that may ultimately turn on each spouse’s
respective ownership interest in the particular entities in
question. 57 That said, the complexity of the case does not absolve
the State of meeting its burden of proof separately as to each
defendant. The State must still establish that each defendant had a
tax liability for each of the years in question.
    ¶49 Here, the State failed to meet its burden. At the outset,
we recognize that the State presented evidence of the Steeds’
pooled income and tax liabilities. Mr. Bateman, the State’s expert,
calculated that the Steeds’ collective taxable income from 2003 to
2006 was $16.5 million. The State then called a state tax auditor,
Brett Wilding, to the stand to calculate a shared amount of tax
liability for each year. But the State never introduced evidence of
the Steeds’ individual tax liabilities, even though in the restitution
phase it was established that they greatly differed. We find this
error particularly significant because the Steeds had filed
separately in the previous years, indicating to the State that they
had differing tax liabilities.
    ¶50 Because the Steeds failed to file tax returns for each tax
year at issue, and thereby did not elect to file jointly, the State was
required to separately establish Frank Steed’s and Joan Steed’s tax
liability. This argument was made before the trial court in the
Steeds’ Motion to Dismiss. The State argued that it did not have
to establish individual liability because there was “evidence of
commingling” and because the Steeds earned pass-through


election for their Utah tax return is contingent on their election on
their federal return).
   57Comm’r  v. Tower, 327 U.S. 280, 286–87 (1946) (concluding in a
tax deficiency proceeding that a wife was not a partner in a
business, which made income attributable only to the husband).

                                  24
                         Cite as: 2014 UT 16
                        Opinion of the Court
income from various entities. The court recognized that, per the
State’s own expert’s testimony, the Steeds’ individual tax
deficiencies may very well depend on their individual ownership
of the various entities. The court then asked the State how the jury
could go about properly apportioning income between the Steeds,
to which the State responded: “it’s impossible” and that it wasn’t
the burden “of the State to be perfect, just to be good.” In reply,
the Steeds argued that it could be done but that there was “no
attempt by the State to do this.”
    ¶51 The court acknowledged that this was the “trickiest”
issue in the Steeds’ Motion to Dismiss, and that “it is something
that the State could have done and probably should have done a
better job with.” But it ruled against the Steeds because it felt that
the State presented sufficient evidence of the Steeds’ shared
“management of each of the companies” and because the Steeds
“shared equally incomes produced by all of these entities . . . and
they jointly utilized income for their living expenses.” This was
error. A spouse cannot be imputed with a tax deficiency—
particularly under a criminal statute—simply because he or she
shares or jointly uses income produced by the other spouse. It is
the State’s burden to correctly apportion income to each spouse,
which it never did in this case. We therefore conclude that it was
error for the court to deny the Steeds’ request to dismiss this
intent alternative.
  C. We Reverse Because the State Presented Insufficient Evidence to
                  Support the Steeds’ Convictions
     ¶52 Although the State presented insufficient evidence of the
Steeds’ “intent to evade a[] tax” and the Steeds’ “intent to evade .
. . a[] lawful requirement of the State Tax Commission,” the State
did present sufficient evidence of the Steeds’ “intent to evade . . .
[a] requirement of Title 59.” 58 It would thus have been
appropriate for the trial court to submit this remaining intent
alternative to the jury. But as established above, the court
excluded Title 59 as an intent alternative from the jury
instructions. And the State never objected to the exclusion of Title
59 because, like the court, the State incorrectly understood the
filing requirement to be a “lawful requirement of the State Tax
Commission” rather than a “requirement of Title 59.” Because the
court committed multiple errors, we review both the court’s
denial of the Steeds’ Motion to Dismiss, as well as the verdicts

   58   Supra ¶ 39.

                                 25
                           STATE v. STEED
                       Opinion of the Court
themselves, as challenged in the Steeds’ Motion to Arrest
Judgment.
    ¶53 First, in reviewing a trial court’s grant or denial of a
motion to dismiss, we will reverse “if upon reviewing the
evidence and all inferences that can be reasonably drawn from
it,” we conclude that the State presented no “believable
evidence of all the elements of the crime charged.” 59 As we
concluded above, the State presented no evidence of the Steeds’
intent to evade a lawful requirement of the Commission, and it
also failed to introduce evidence of the Steeds’ individual tax
liabilities in order to establish their “intent to evade [a] tax.”
Because the court misunderstood the State’s burden with respect
to the establishment of a tax deficiency, and because it
misinterpreted the failure-to-file statute, it erroneously denied the
Steeds’ Motion to Dismiss and permitted unsupported charges to
go to the jury.
    ¶54 Second, “[t]he standard for determining whether an
order arresting judgment [or declining to arrest judgment] is
erroneous is the same as that applied by an appellate court in
determining whether a jury verdict should be set aside for
insufficient evidence.” 60 That is, the court may reverse only where
the State has failed to present evidence “from which a reasonable
jury could find that the elements of the crime had been proven
beyond a reasonable doubt.” 61 Here, the insufficiency of the
evidence problem pervaded the verdict, since the State presented
insufficient evidence to support convictions under the failure-to-
file statute as the statute was presented in the jury instructions.



   59 State v. Hamilton, 2003 UT 22, ¶¶ 40–41, 70 P.3d 111 (internal
quotation marks omitted); see UTAH R. CRIM. P. 17(p) (“At the
conclusion of the evidence by the prosecution, or at the
conclusion of all the evidence, the court may issue an order
dismissing any information or indictment, or any count thereof,
upon the ground that the evidence is not legally sufficient to
establish the offense charged therein or any lesser included
offense.”).
   60State v. Robbins, 2009 UT 23, ¶ 15, 210 P.3d 288 (internal
quotation marks omitted).
   61 Hamilton, 2003 UT 22, ¶ 41 (internal quotation marks
omitted).

                                 26
                        Cite as: 2014 UT 16
                       Opinion of the Court
    ¶55 We therefore reverse on two separate bases—first, the
court’s failure to dismiss the two unsupported intent alternatives
as requested in the Steeds’ Motion to Dismiss. At that point, the
court could have permitted the Title 59 intent alternative to be
submitted to the jury, so a complete reversal based on the
erroneous denial of the Steeds’ Motion to Dismiss would have
been improper. But we also reverse because there was insufficient
evidence to support the failure-to-file charges as ultimately
presented in the jury instructions, and because the State never
objected to the exclusion of Title 59 as an intent alternative. Given
the above, we reverse and remand with instructions to enter a
judgment of acquittal. “The Double Jeopardy Clause forbids a
second trial for the purpose of affording the prosecution another
opportunity to supply evidence which it failed to muster in the
first proceeding.”62 We also reverse the separate convictions
based on the Steeds’ alleged pattern of unlawful activity, since
they hinged on the failure-to-file convictions.
                          CONCLUSION
      ¶56 Because the State presented insufficient evidence of the
Steeds’ “intent to evade a[] tax” and the Steeds’ “intent to evade
. . . a[] lawful requirement of the State Tax Commission,” the trial
court erred in denying the Steeds’ Motion to Dismiss and in
submitting these intent alternatives to the jury. The court also
erred in denying the Steeds’ Motion to Arrest Judgment because
there was insufficient evidence to support the charges as
presented in the jury instructions. We accordingly reverse the
failure-to-file counts, as well as the pattern counts, and remand
the case to the trial court with instructions to enter a judgment of
acquittal.




   62 Burks v. United States, 437 U.S. 1, 11 (1978); United States v.
Miles, 327 Fed. App’x. 797, 798 (10th Cir. 2009) (“[T]he
government is entitled to one fair opportunity to present its
evidence and make its case for conviction.”); Anderson v. Mullin,
327 F.3d 1148, 1156 (10th Cir. 2003) (“[A]fter the government has
failed to prove its case, it should not be afforded a second bite at
the apple.” (internal quotation marks omitted)).

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