State v. Johnson

2023 UT App 145

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
STACEY AUSTIN JOHNSON,
Appellant.

Opinion
No. 20210838-CA
Filed November 24, 2023

Third District Court, Salt Lake Department
The Honorable Kara Pettit
No. 171905182

Stacey Austin Johnson, Appellant Pro Se
Sean D. Reyes and Marian Decker,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred.

MORTENSEN, Judge:

¶1 Stacey Austin Johnson convinced would-be borrowers to
deposit millions of dollars into his accounts—including his
attorney trust account—to secure large business loans that never
funded. After Johnson’s license to practice law was suspended, he
failed to inform borrowers of this and continued to receive funds
into his attorney trust account. Some borrowers maintained that
they relied on Johnson’s representation that their money would
remain in Johnson’s attorney trust account until their loans
funded—a representation that was a complete untruth as their
money was immediately forwarded to the purported lender.

¶2 Johnson was convicted on five counts of communications
fraud and one count of pattern of unlawful activity. Johnson now
 State v. Johnson

argues (1) that the jury instructions constructively amended his
charges, (2) that the jury instructions incorporated the wrong
mens rea, (3) that a jury instruction related to the timing of
effectiveness of orders was incorrect, (4) that his convictions were
not supported by substantial evidence, and (5) that the district
court abused its discretion by ordering excessive restitution. We
find each of Johnson’s contentions unavailing, and we affirm his
convictions and the court’s restitution order.

BACKGROUND 1

¶3 In early 2015, the Fourth Judicial District Court of Utah
held an adjudication trial in which the Utah State Bar’s Office of
Professional Conduct argued that Johnson had committed
unprofessional conduct as an attorney. The court entered an order
on June 15, 2015, prohibiting Johnson from “practicing law in the
State of Utah” and from “holding himself out as an attorney at
law.” The order specified that Johnson’s suspension was
“effective as of 30 days from the date” the order was entered. On
August 10, 2015, Johnson filed a motion to dismiss and an
application to stay his suspension pending an appeal. The court
denied Johnson’s application and motion on September 9, 2015.

¶4 Meanwhile, Johnson was engaged in a course of action that
would lead to the charges at issue in the present case: arranging
to assist borrowers in obtaining multi-million-dollar business
loans from a purported overseas lender (Lender). In his principal
brief, Johnson explained that “Lender required borrowers to pay
1% of the amount of any loan up front so it could buy insurance
for the benefit of ¶ Lender against default” and that “in November
2014” Johnson “agreed to work for Lender as an attorney to

1. “We recite the facts in the light most favorable to the jury’s
verdict, and we present conflicting evidence as necessary to
understand issues raised on appeal.” State v. Black, 2015 UT App
30, ¶ 2, 344 P.3d 644.

20210838-CA 2 2023 UT App 145
 State v. Johnson

receive this 1% payment in his attorney trust account and forward
all of it to Lender.” This account was an Interest on Lawyers’ Trust
Accounts (IOLTA) account, a particular type of trust account
available to attorneys for responsibly holding client funds. 2
Johnson further stated that “Lender required [Johnson] to have
malpractice [insurance] on his [a]ttorney trust account so Lender
could trust [Johnson] to receive money from borrowers and send
it as directed.” He claimed that “for his help, [he] would receive
1% of the funded loans,” which 1% “would be funded at the same
time . . . Lender funded any other loan.”

¶5 The FBI investigated Johnson’s activities. This
investigation included sending an agent (Agent 1) to meet with
Johnson as a representative of a supposed prospective borrower
in December 2016. Agent 1’s surreptitious recording of the
exchange, later played at trial, illustrates Johnson’s role in the
scheme. Agent 1 met with Johnson at Johnson’s law office, where
Johnson explained “the loan program.” He told Agent 1 that the
primaries were a “group of Middle Eastern sheiks” holding
“investment grade instruments” that they “take . . . to a central
bank and the central bank can use . . . as its money supply.” He
stated that they had a one-billion-dollar instrument that could be
“multipl[ied] by 16 times.” Johnson directed Agent 1 to have his
clients deposit $500,000 into Johnson’s attorney trust account to

2. “Law firms need to follow very specific rules on how client
funds are handled, and maintaining an IOLTA account ensures
you are compliant with ethical and legal obligations.” Kate
Rattray, What Is an IOLTA Account? A Complete Guide, Clio (Nov.
8, 2023), https://www.clio.com/blog/iolta-account/ [https://perma
.cc/3578-4Q5W]. “The income generated on the pooled funds”
from IOLTA accounts “is used for civil legal aid and other
programs that support access to justice for low-income people.”
IOLTA Basics, National Association of IOLTA Programs,
https://iolta.org/what-is-iolta/iolta-basics/ [https://perma.cc/EH8
S-7LYJ].

20210838-CA 3 2023 UT App 145
 State v. Johnson

receive a $50 million loan. He said that once Lender “got the
money in [its] account,” it would “send out . . . a wire transfer for
the payment for the premium.” He further said, “And then if all
else is in place, within 48 hours we’ve got the money to issue.”
Johnson informed Agent 1 that there would be a $10,000
processing fee for the loan.

¶6 Johnson accepted money from multiple borrowers into his
accounts (his IOLTA account and another account) between
November 2014 and August 2016 totaling approximately $2.9
million. 3 After Johnson’s license to practice law was suspended,
he did not inform various borrowers of that fact but continued
accepting their money into his IOLTA account.

¶7 Johnson repeatedly asked borrowers to deposit more
money to pay fees and to satisfy the minimum amount that would
release the loan funds. Still, the loans did not fund as promised.
One of the borrowers contacted law enforcement and made a
complaint alleging that he had been defrauded, thereby
prompting the above-described investigation. Johnson was
eventually charged in the Third Judicial District Court of Utah
with six counts of communications fraud and one count of pattern
of unlawful activity. The charges of communications fraud were
each associated with different alleged victims. Each count of
communications fraud alleged:

3. Johnson asserts that roughly $2.8 million of that amount was
intended to be sent to Lender and that Johnson sent that entire
amount to Lender, while approximately $100,000 was an amount
“borrowers . . . agreed to pay him separately for helping them
apply for their loans,” which money he kept. But he claims that
“[n]one of the victims” his charges are based on “ever paid any
money to [him] because he agreed to collect from them when their
loans funded.”

20210838-CA 4 2023 UT App 145
 State v. Johnson

[Johnson] devised a scheme or artifice to defraud
another . . . or to obtain from another . . . money,
property, or anything of value by means of false or
fraudulent pretenses, representations, promises, or
material omissions, and did communicate directly
or indirectly with any person by any means for the
purpose of executing or concealing the scheme or
artifice, and the value of the property, or thing
obtained or sought to be obtained exceeds $5,000.

¶8 The district court presided over a jury trial on the charges
in September 2021. The jury heard testimony from the alleged
victims associated with each of the communications fraud
charges, as well as from additional alleged victims and FBI agents
(Agent 2, Agent 3, and Agent 4). The victims testified to the facts
as described above, including that Johnson did not inform them
that his license to practice law had been suspended. Several
victims also testified that Johnson told them their money would
be secure in his attorney trust account and that if the loans did not
fund, their deposits would be refunded to them.

¶9 Agent 3 recounted an interview he and Agent 2 conducted
with Johnson wherein they told him they were investigating
Lender and he agreed to speak with them. A recording of this
interview was played for the jury. During the interview, Agent 2
asked if Johnson had a law degree, and Johnson said yes but
claimed that he stopped practicing law in June 2015 because his
license was suspended following a bar complaint. Agent 2 noted
that Johnson had his “name on the front of the [office] doors as . . .
an attorney,” and Johnson said that he “just [had not] taken that
down” but had stopped practicing in June 2015. He explained that
he had an attorney trust account while he practiced law but
maintained that “when [he] stopped practicing, [he] just had a
regular bank account.” Agent 2 asked if any money went into his
attorney trust account after he stopped practicing, and he
responded, “Yeah . . . probably—like, the first month, you know.”

20210838-CA 5 2023 UT App 145
 State v. Johnson

At trial, Agent 3 testified that he had reviewed Johnson’s bank
records and found twelve deposits into Johnson’s attorney trust
account “from the time that Mr. Johnson’s law license was
suspended on July 15, [2015,]” “until November 16, 2015.”

¶10 Johnson’s defense counsel (Counsel) cross-examined
Agent 3 regarding the date he had given for Johnson’s suspension.
Agent 3 indicated that he did not “make an independent inquiry
with the state bar as to when [Johnson’s] . . . bar license suspension
went into effect” and that he also was not aware if his partner,
Agent 2, had made such an inquiry. Counsel provided Agent 3
with a copy of “a report from [Agent 2] dated January 12, 2017,”
and from it, Agent 3 read, “[The] deputy senior counsel at [the]
Utah State Bar advised that on or around June 15, 2015, the Utah
law license of . . . Johnson was suspended. Johnson’s license was
suspended for two years and took effect on October 16, 2015.”
Agent 3 then said, “So it appears that I was incorrect.”

¶11 After this, the State sought and obtained admission of
several documents, including the Fourth Judicial District Court’s
(1) order from March 2015 setting Johnson’s disciplinary matter
for a sanctions hearing; (2) order from June 15, 2015, directing that
Johnson “be suspended for two years effective as of 30 days from
the date of this Order”; and (3) ruling on September 9, 2015,
denying Johnson’s motion to stay his suspension pending appeal.

¶12 Agent 4, a forensic accountant, testified that he had
reviewed “bank statements, deposits, checks, [and] wires” related
to the case. He testified about what he found and about the
various exhibits he had prepared for the State, which were
admitted at trial. Several of these exhibits showed deposits
alleged victims had made into Johnson’s attorney trust account
after July 15, 2015.

¶13 After the State rested, Counsel moved for a directed
verdict. Counsel argued that count one should be dismissed
because there was “no nexus” between Johnson and the alleged

20210838-CA 6 2023 UT App 145
 State v. Johnson

victim identified in that count. Counsel asserted (1) that the
relevant exhibits showed that the wiring instruction, though from
Johnson, indicated that the money would be sent directly to
Lender and (2) that the related promissory note and loan
agreement did not involve Johnson. However, Counsel stated that
as to “[t]he other counts, [he] would submit . . . that there’s
substantial evidence that the case should proceed to the jury.” The
State responded that as to count one, the alleged victim “talked
about Mr. Johnson being the gatekeeper here[] and that the funds
were going to go into his trust account” and said he “was
supposed to hold the funds in escrow until this big $5 million loan
funded.” The State continued, “And, again, . . . there’s oral
testimony about [Lender] and the representations made, and so I
think there is sufficient evidence for the count to proceed to the
jury.” When the court asked Counsel for rebuttal, he said, “I’ll
submit it, Your Honor.” The court then denied the motion for
directed verdict on count one, saying it found “that there’s been
sufficient evidence . . . to establish a prima facie case on that
count,” including the testimony of the victim associated with the
count and Agent 4’s testimony, which the court said allowed it to
“pretty readily and easily” identify a nexus.

¶14 Johnson then presented his defense. He testified on his
own behalf, and he also called as witnesses his wife and an
accountant. On appeal, Johnson has not provided a transcript of
his or his wife’s testimonies. He did not renew his motion for a
directed verdict after presenting his case.

¶15 After this, the court asked Counsel and the prosecutor if
they “had a chance to go over the draft of the instructions,” and
both answered affirmatively. The court then discussed the jury
instructions with the attorneys. First, the court addressed the
instructions on the elements for each count of communications
fraud. These instructions left out the language from the
Information that Johnson allegedly devised a scheme or artifice
“to defraud another,” instead containing only the alternative

20210838-CA 7 2023 UT App 145
 State v. Johnson

language that Johnson allegedly devised a scheme or artifice “to
obtain from another . . . money, property, or anything of value.”
Regarding this difference, the court said, “[T]he court of appeals
said that . . . [the] definition [of scheme or artifice] did not mean
that there was necessarily a specific intent to defraud that was
required if you were under the second type of communications
fraud. And so I’m not sure why we wouldn’t just use that
definition of scheme.” The State replied, “The State’s fine with
that,” and Counsel did not object.

¶16 The court then discussed “the mens rea instruction.” This
instruction stated, in part, that “[t]o find the defendant guilty, you
must find with respect to each element of the offense that the
defendant acted: a) intentionally; or, b) knowingly; or,
c) recklessly.” The court said, “The State’s proposed instruction
really had it just related to communications fraud, and there
wasn’t [another] one for the pattern of unlawful activity,” so the
court “just changed that language to the element of offense, so it
applied [to] all seven charges.” The State expressed its assent, and
Counsel did not raise an objection.

¶17 The court and the State exchanged thoughts about the
instruction on pattern of unlawful activity, and Counsel stated
that he did not object to the instruction. The court then said,
“Okay. Let’s go to substantive things. Anything that looks [like]
I’ve missed something or needs to be corrected?” Counsel did not
then raise an objection.

¶18 The State mentioned that it was seeking an additional
instruction regarding the timing of an order of suspension based
on evidence that had been admitted related to that issue. The State
reviewed the caselaw and rules of procedure that the proposed
instruction was based on and said,

There’s . . . a case that resulted from [Johnson’s]
appeal in [the discipline] case, so it’s kind of law of
the case. It’s [Johnson v. Office of Professional Conduct,

20210838-CA 8 2023 UT App 145
 State v. Johnson

2017 UT 7, 391 P.3d 208]. And the ruling—the
finding of that case by the Supreme Court is that the
order from June 15 was the order of the court. It
gave rise to the appeal because [it was] the final
judgment.

And so this issue, even though there’s been
testimony about it, is really a matter of law. And I
think it’s appropriate to have a jury instruction, so
that the jury isn’t back there wondering, like, how
appellate case law works or how the appellate
process works. It’s a settled issue that I think could
be addressed through a jury instruction.

The court asked Counsel to respond, and Counsel said, “I think
the jury already has the multitude of court rulings and this would
only serve to further confuse them. It’s [c]umulative, and I would
object to it.” The court then stated, “I do think it’s important for
legal instruction because it is a legal issue as far as the
effectiveness of an order. And so to inform the jury what the law
is on that, I do think it’s appropriate . . . .” However, the court
stated, “I’m not sure that I’m going to necessarily agree with this
language. . . . So I will look at this in the citations and come back
with an instruction on that . . . .”

¶19 The court asked, “Any other discussion on instructions or
verdict form?” Counsel did not respond with any objections. The
State attempted to add an alleged victim to count two, but
Counsel objected and the court did not make the change. The
court then asked again, “Anything else on instructions or verdict
form?” Counsel responded, “No, Your Honor.”

¶20 After this, the court took a break to consider the language
of the proposed instruction related to the timing of Johnson’s
suspension. It then said, “Okay. So we’re back on record. I have
looked at the law cited by the State in support of the instruction
on judgments, and I think it’s appropriate, and I am going to give

20210838-CA 9 2023 UT App 145
 State v. Johnson

that instruction as written. I haven’t revised it.” Counsel then
renewed his objection to that instruction.

¶21 The jury acquitted Johnson on one count of
communications fraud (count two) but convicted him on the
remaining counts. Johnson was later sentenced to concurrent
prison terms. The court suspended the prison terms, ordered jail
time, and placed Johnson on probation for thirty-six months.
Some time after sentencing, the court held a restitution hearing.
The minutes of the hearing indicate that the court ordered
Johnson to pay $1,541,000 in restitution. Johnson has not provided
a transcript of that hearing. Johnson appeals his convictions and
the court’s restitution order.

ISSUES AND STANDARDS OF REVIEW

¶22 Johnson asks us to set aside the jury’s verdict and the
restitution order for several reasons. First, he alleges that his
convictions “were the result of a constructive amendment of the
Information” based on the jury instructions. Johnson
acknowledges that he did not raise an objection on this point at
trial. Accordingly, the appropriate standard of review for this
issue is plain error. Under the plain error standard of review, a
defendant “must demonstrate that (i) an error exists; (ii) the error
should have been obvious to the [district] court; and (iii) the error
is harmful, i.e., absent the error, there is a reasonable likelihood of
a more favorable outcome for the appellant.” State v. Bond, 2015
UT 88, ¶ 36, 361 P.3d 104 (cleaned up).

¶23 Second, Johnson argues that the district court erred in
giving jury instructions that allowed the jury to convict based on
a mens rea of recklessness. Johnson again recognizes that this
issue was not preserved; he contends that “the lack of the
requirement of a mens rea of a specific intent to defraud is so
egregious that the convictions should be vacated because [of]

20210838-CA 10 2023 UT App 145
 State v. Johnson

plain error and manifest injustice.” 4 Again, plain error requires an
obvious error and prejudice. Id.

¶24 Third, Johnson asserts that the jury instruction related to
the timing of the order suspending him from the practice of law
was erroneous. “Generally, whether a jury instruction correctly
states the law presents a question of law which we review for
correctness.” State v. Malaga, 2006 UT App 103, ¶ 7, 132 P.3d 703
(cleaned up). However, when a defendant fails to preserve an
assertion of erroneous jury instructions, we “address purported
errors made in the jury instructions under the doctrines of plain
error/manifest injustice, exceptional circumstances, or ineffective
assistance of counsel.” See id.

¶25 Fourth, Johnson claims that his convictions were not
supported by substantial evidence. “In considering an
insufficiency of the evidence claim, we review the evidence and
all inferences which may reasonably be drawn from it in the light
most favorable to the verdict of the jury.” State v. Maestas, 2012 UT
46, ¶ 302, 299 P.3d 892 (cleaned up). “Thus, we will reverse a jury
verdict only when the evidence, so viewed, is sufficiently
inconclusive or inherently improbable that reasonable minds
must have entertained a reasonable doubt that the defendant

4. Rule 19(e) of the Utah Rules of Criminal Procedure states, in
part, “Unless a party objects to an instruction or the failure to give
an instruction, the instruction may not be assigned as error except
to avoid a manifest injustice.” Our supreme court has said, “Our
cases are not entirely clear as to the meaning to be given the term
‘manifest injustice.’” State v. Verde, 770 P.2d 116, 120 (Utah 1989).
It concluded that “in most circumstances, the term ‘manifest
injustice’ is synonymous with the ‘plain error’ standard.” Id. at
121–22. We have no reason to distinguish the terms here, so we
apply them interchangeably.

20210838-CA 11 2023 UT App 145
 State v. Johnson

committed the crime of which he or she was convicted.” Id.
(cleaned up).

¶26 Fifth, Johnson argues that the district court erred in its
restitution order. “We will not disturb a district court’s restitution
determination unless the court exceeds the authority prescribed
by law or abuses its discretion.” State v. Watson, 2021 UT App 37,
¶ 12, 485 P.3d 946 (cleaned up).

ANALYSIS

I. Constructive Amendment of the Information

¶27 Johnson alleges that the jury instructions constructively
amended the Information, thereby violating his constitutional
rights “to be informed of the charges against him” and “to a fair
trial.” 5 We disagree.

¶28 Johnson points us to federal caselaw stating that “an
unconstitutional constructive amendment of a grand jury’s
indictment occurs when the evidence presented at trial, together
with the jury instructions, so alters the indictment as to charge a
different offense from that found by the grand jury.” United States
v. Farr, 536 F.3d 1174, 1180 (10th Cir. 2008) (cleaned up). The
United States Court of Appeals for the Tenth Circuit stated,

5. Although Johnson states in his opening brief that his “objection
to the constructive amendment was not raised at trial” and that,
therefore, the appropriate standard of review for this issue is plain
error, he also argues that “constitutional violations are such a
structural defect in the constitution of the trial mechanism that
[they] def[y] harmless error analysis” such that “[t]here is no need
for the prejudice analysis.” Because we determine that there was
no constructive amendment here, we do not address this
argument.

20210838-CA 12 2023 UT App 145
 State v. Johnson

In assessing a claim of an impermissible
constructive amendment, our ultimate inquiry is
whether the crime for which the defendant was
convicted at trial was charged in the indictment; to
decide that question, we therefore compare the
indictment with the district court proceedings to
discern if those proceedings broadened the possible
bases for conviction beyond those found in the
operative charging document.

Id. While we note that Johnson was not indicted by a grand jury
but rather charged through an Information prepared by the State,
we readily determine that the jury instructions did not
impermissibly “broaden[] the possible bases for conviction” or
“so alter[]” the Information “as to charge a different offense” from
those outlined therein. See id.

¶29 Johnson first argues that the Information was
constructively amended when the jury instructions for the
elements of the communications fraud counts left off the language
“to defraud another.” In the Information, each communications
fraud count alleged that Johnson “devised a scheme or artifice to
defraud another . . . or to obtain from another . . . money, property,
or anything of value by means of false or fraudulent pretenses,
representations, promises, or material omissions.” In the jury
instructions, the “to defraud another” language was omitted.
Instead, the instructions required the jury to find that Johnson
“devised a scheme or artifice to obtain from another . . . money,
property, or anything of value by means of false or fraudulent
pretenses, representations, promises, or material omissions.”

¶30 Removing one possible ground from a charge does not
broaden the charge but rather narrows it. See id. Where a statute
provides two possible grounds for a charge, it is not
impermissible for the State to submit to the jury that the defendant
was guilty by virtue of violating only one of these. The statute for

20210838-CA 13 2023 UT App 145
 State v. Johnson

communications fraud condemns “[a]ny person who has devised
any scheme or artifice to defraud another or to obtain from
another money, property, or anything of value by means of false
or fraudulent pretenses, representations, promises, or material
omissions.” Utah Code § 76-10-1801(1) (emphasis added).
Therefore, Johnson could not have been convicted for a crime
different from the one charged when the jury convicted him under
the instruction’s language.

¶31 Johnson further alleges constructive amendment through
added language as to recklessness in the jury instructions. For
each count of communications fraud, the instructions required the
jury to find that “the pretenses, representations, promises, or
material omissions made or omitted by the defendant were made
or omitted intentionally, knowingly, or with a reckless disregard
for the truth.” Johnson contends that this language was
erroneously added because “[t]his mens rea of recklessness was
never mentioned, alluded to, or inferred in the charging
documents.”

¶32 Johnson’s argument here fails because this language comes
from the relevant statute. Utah Code subsection 76-10-1801(7)
states that “[a] person may not be convicted under this section
unless the pretenses, representations, promises, or material
omissions made or omitted were made or omitted intentionally,
knowingly, or with a reckless disregard for the truth.” While this
language was not quoted in the Information, for each count of
communications fraud, the Information stated that the actions of
Johnson were “in violation of” Utah Code section 76-10-1801. The
jury instructions did not amend the Information by adding
language directly from the statute cited in the Information.

¶33 Johnson also asserts that the jury instruction for a pattern
of unlawful activity was erroneously amended because it did not
state that the charge “required a finding of three episodes of
unlawful activity” as indicated by statute, see id. § 76-10-1602, and

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 State v. Johnson

did not specify that the unlawful acts here were three or more
episodes of communications fraud.

¶34 This argument, too, fails. The jury instruction required the
jury to find that Johnson engaged in “a pattern of unlawful
activity.” Another jury instruction defined this term as “at least
three episodes of unlawful activity.” 6 And the only conduct
charged—other than the pattern of unlawful activity—was
multiple counts of communications fraud. It is unreasonable to
read the jury instructions as requiring the jury to find anything
different from what the Information specified—three or more acts
of communications fraud.

¶35 Finally, Johnson alleges that these various modifications
constructively amended the Information by removing the
requirement that the jury find a specific intent to defraud.
However, our court has previously considered a defendant’s
argument “that the communications fraud statute requires
specific intent to defraud” and concluded that such an
“interpretation of the statute is not dictated by its plain language
and that neither Utah nor federal caselaw settles the question.”
State v. Squires, 2019 UT App 113, ¶¶ 28–29, 446 P.3d 581.
Therefore, Johnson cannot prove plain error on his claim of
constructive amendment because any alleged error on this point
would not “have been obvious” to the district court, see State v.
Bond, 2015 UT 88, ¶ 36, 361 P.3d 104 (cleaned up), where the
question is, at best, unsettled.

¶36 Johnson fails to prove that the jury instructions
constructively amended the Information, and he fails to prove
plain error in this respect.

6. Johnson also takes issue with the definition of “scheme” given
in this instruction. But the Information provides no definition of
“scheme,” so the instruction could not have constructively
amended the term’s meaning.

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 State v. Johnson

II. Jury Instructions on Mens Rea

¶37 Johnson next contends that the district court erred in
instructing the jury that it could convict based on a mens rea of
recklessness. However, Johnson’s argument on this point fails
under the doctrine of invited error.

¶38 Our supreme court has directed that “if counsel, either by
statement or act, affirmatively represented to the court that he or
she had no objection to the jury instruction, [appellate courts] will
not review the instruction under the manifest injustice exception.”
State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111. This policy
“prevents a party from taking advantage of an error committed at
trial when that party led the trial court into committing the error.”
Id. (cleaned up). “We adhere to this rule for two important
reasons. First, it fortifies our long-established policy that the trial
court should have the first opportunity to address the claim of
error. Second, it discourages parties from intentionally
misleading the trial court so as to preserve a hidden ground for
reversal on appeal.” Id. (cleaned up).

¶39 Here, Johnson invited any alleged error the district court
made regarding the instructions related to recklessness. 7 First,
Counsel affirmed that he had reviewed the draft instructions.
Then, the court explained why it left the language “to defraud
another” out of the elements instructions for communications
fraud, and Counsel did not raise an objection. The court next
explained the proposed mens rea instruction, and Counsel did not
object. The court then discussed the instruction on pattern of
unlawful activity, and Counsel affirmatively declared that he did
not object to the instruction. At this point, the court said, “Okay.
Let’s go to substantive things. Anything that looks [like] I’ve

7. Johnson has not asserted ineffective assistance of counsel on
this or any other issue to which we apply the invited error
doctrine.

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 State v. Johnson

missed something or needs to be corrected?” Counsel did not state
an objection. And again, after discussing the instruction related to
the suspension order, the court asked, “Any other discussion on
instructions or verdict form?” Counsel did not respond with any
objections. Finally, after the State attempted unsuccessfully to add
an alleged victim to count two, the court repeated, “Anything else
on instructions or verdict form?” Counsel responded, “No, Your
Honor.” Because Counsel, “by statement or act, affirmatively
represented to the court that he . . . had no objection to the jury
instruction, we will not review the instruction under the manifest
injustice exception.” Id.; see also State v. Jimenez, 2009 UT App 368,
¶ 17, 223 P.3d 461 (“In this case, defense counsel undeniably
approved the instructions. Thus, [the defendant] is precluded
from relief based upon manifest injustice.”), aff’d, 2012 UT 41, 284
P.3d 640. 8

III. Jury Instruction Related to Timing of Suspension Order

¶40 Johnson next argues that “[t]he verdict should be set aside”
because the jury instruction related to the timing of Johnson’s
suspension from practicing law “was erroneous and highly
prejudicial against” Johnson. We disagree.

8. In his reply brief, Johnson argues—for the first time—that the
exceptional circumstances doctrine should apply to this and other
alleged errors. An appellant who saves an issue for the reply brief
deprives “the appellee of the chance to respond. That leaves [the
appellate] court without a central tenet of our justice system—
adversariness. That is fatal.” Taylor v. University of Utah, 2020 UT
21, ¶ 50, 466 P.3d 124 (cleaned up). Accordingly, Utah appellate
courts “have consistently held that issues raised by an appellant
in the reply brief that were not presented in the opening brief are
considered forfeited and will not be considered.” Id. (cleaned up).
For this reason, we do not address Johnson’s belated introduction
of the exceptional circumstances doctrine.

20210838-CA 17 2023 UT App 145
 State v. Johnson

¶41 The jury instruction at issue reads, “A judgment of the
district court, including an order imposing sanctions on a lawyer,
is complete and is entered when it is signed by the judge and
recorded in the docket. An appeal or motion seeking relief from
the judgment does not stay the judgment, unless specifically
ordered by the court.” Presumably, the State sought such an
instruction in response to Agent 3’s statement, “So it appears that
I was incorrect”—referencing his testimony that Johnson was
suspended from the practice of law beginning July 15, 2015.

¶42 Johnson contends that this jury instruction misstates the
law. 9 We disagree. First, Johnson asserts that “[i]t was a false
statement of the law to say the suspension began June 15, 2015.”
But the instruction did not say—or even imply—that Johnson’s
suspension began on that date. It indicated that the court’s order
was complete and entered on June 15, and this is accurate. See
Hunter v. Sunrise Title Co., 2004 UT 1, ¶ 12, 84 P.3d 1163 (stating
that a dismissal was “effective . . . the date the district court
entered its order”); Utah R. App. P. 4(a) (indicating that the date
the clock begins running for appeal from a final judgment is “the

9. The State asserts that, on this point, Johnson’s “arguments are
not preserved” because Counsel’s objection to the proposed
instruction was not that it stated the law incorrectly but that “the
jury already ha[d] the multitude of court rulings and this would
only serve to further confuse them. It [was] [c]umulative.” But “if
the merits of a claim can easily be resolved in favor of the party
asserting that the claim was not preserved, we readily may opt to
do so without addressing preservation.” State v. Kitches, 2021 UT
App 24, ¶ 28, 484 P.3d 415 (cleaned up), cert. denied, 496 P.3d 718
(Utah 2021).
Moreover, whether Johnson preserved this issue is
ultimately immaterial. Johnson argues that if it was unpreserved,
we should apply plain error review. Because we decide that the
instruction was a correct statement of law, Johnson loses
regardless of which standard of review we apply.

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 State v. Johnson

date of entry of the judgment or order appealed from”). The
effective date of the order ruling on suspension is distinct from
the effective date of Johnson’s actual suspension where the order
specified that Johnson’s suspension was “effective as of 30 days
from the date” the order was entered. The first part of this
instruction did not misstate the law.

¶43 The second portion of the instruction is also correct. It
reads, “An appeal or motion seeking relief from the judgment
does not stay the judgment, unless specifically ordered by the
court.” Johnson asserts that “[w]hen a motion to stay an attorney
disciplinary sanction is filed with the trial court[,] it should stay
the sanction at least until the motion is decided. The sanction of
suspension is not a final order with the motion pending.” He
relies on In re Discipline of Johnson, 2001 UT 110, 48 P.3d 881, for
this position, providing our supreme court’s reasoning that
because the “private practice of law cannot easily be stopped and
started again, unless there is a substantial threat of irreparable
harm to the public, a disbarred lawyer should be entitled to a stay
of judgment pending appeal to this court where the final authority
for discipline rests.” Id. ¶ 17. But this very case defeats Johnson’s
argument. There, the supreme court stated that it was enunciating
“a standard to guide the discretion of the district court in
determining whether to stay a judgment of sanction pending appeal
of that judgment to this court.” Id. (emphases added). If a court
has discretion to do this, it must actually exercise its discretion to
stay the judgment. In the absence of such an exercise of discretion,
there is no stay. Id. The supreme court is unambiguous on this
point, saying again that a district court “may, in its discretion, grant
the stay.” Id. (emphasis added). This case cannot support
Johnson’s argument that the “sanction of suspension is not a final
order with the motion pending.”

¶44 Johnson also points to rule 62 of the Utah Rules of Civil
Procedure, but this reliance is similarly misplaced. That rule states
that “[w]hen a party seeks an appeal from an interlocutory order,

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 State v. Johnson

or takes an appeal from a judgment, granting, dissolving, or
denying an injunction, the court in its discretion may suspend,
modify, restore, or grant an injunction during the pendency of
appellate proceedings.” Utah R. Civ. P. 62(c) (emphasis added).
Again, this rule confirms that a stay is neither mandatory nor
automatic and must be granted to have force.

IV. Substantial Evidence

¶45 Johnson next argues that the guilty verdicts against him
“are not supported by substantial evidence.” We disagree.
Johnson’s argument on this point as to counts three through seven
fails because Johnson invited any alleged error as to these counts.
When Counsel moved for a directed verdict after the State
finished presenting its case, Counsel said that as to all but the first
count, he “would submit . . . that there’s substantial evidence that
the case should proceed to the jury.” “Under the doctrine of
invited error, [Utah appellate courts] have declined to engage in
even plain error review when counsel, either by statement or act,
affirmatively represented to the trial court that he or she had no
objection to the proceedings.” State v. Winfield, 2006 UT 4, ¶ 14,
128 P.3d 1171 (cleaned up). Accordingly, we do not entertain
Johnson’s argument regarding these counts.

¶46 As to the question of whether Johnson’s conviction on
count one is supported by substantial evidence, the State argues
that this issue is unpreserved, and we agree. “In order to preserve
an issue for appeal the issue must be presented to the trial court
in such a way that the trial court has an opportunity to rule on
that issue.” Salt Lake City v. Josephson, 2019 UT 6, ¶ 12, 435 P.3d 255
(cleaned up). One factor we consider in determining whether a
district court had an opportunity to rule on a certain issue is
whether a party “specifically raised” the issue argued on appeal.
Id. (cleaned up).

¶47 In seeking a directed verdict, Counsel argued that count
one should be dismissed because there was “no nexus” between

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 State v. Johnson

Johnson and the alleged victim of count one where the relevant
exhibits showed that the wiring instruction, though from Johnson,
stated that the money would be sent directly to Lender and where
the related promissory note and loan agreement did not involve
Johnson. This argument falls far afield from the one Johnson
makes on appeal. Johnson now provides several reasons he
believes the evidence was insufficient: he “did not falsely promise
to hold [borrowers’] money in his attorney trust account until the
borrowers received their loans,” he “did not falsely promise to
refund [borrowers’] money if they did not get their loans,” there
was “insufficient evidence that [Johnson’s] omission to tell
borrowers his law license was suspended was a material
omission,” Johnson “did not misrepresent that he would not get
any money from these victims until they received their loan,” and
he “did not falsely pretend that the victims would receive their
loans in a short time period.” None of these points bears any
meaningful semblance to Johnson’s contention to the district court
that there was no nexus between him and the alleged victim
referenced in count one. Accordingly, we cannot say that the issue
presented was “sufficiently raised to a level of consciousness”
before the district court such that it had an “opportunity to rule
on that issue.” Id. (cleaned up).

¶48 Furthermore, even if plain error review is available to
Johnson here for this unpreserved issue, Johnson loses. He cannot
succeed in any claim of insufficiency because he has omitted
critical evidence from the record for appellate review, and this
failure defeats—at least—the prejudice element of plain error.
“When an appellant fails to provide an adequate record on
appeal, we presume the regularity of the proceedings below,” and
“when crucial matters are not included in the record, the missing
portions are presumed to support the action of the” jury. State v.
Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (cleaned up).

¶49 Johnson has failed to provide a transcript of the trial
testimony for both himself and his wife, but he argues that these

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 State v. Johnson

omissions do not constitute “crucial matter that was left out of the
record on appeal” because Johnson’s testimony came in
sufficiently through the testimonies of the FBI agents and the
recorded interviews the State played for the court. 10 This cannot
be true. We are hard pressed to think of a circumstance where, in
a criminal trial, the omitted testimony is not material where it is
the defendant’s own testimony. Furthermore, there is a significant
difference between the type of evidence missing from the record
(testimonial evidence under oath and subject to cross-
examination) and that included in the record (surreptitious
recordings of extrajudicial interactions with Johnson).

¶50 Additionally, without being able to compare Johnson’s
trial testimony to the testimony that came in through the FBI
agents and interviews, we cannot know how much alignment
there was between these. It may well be that when Johnson took
the witness stand, he provided more incriminating evidence than

10. In apparent anticipation of Johnson arguing that our
sufficiency inquiry should be restricted to the evidence presented
in the State’s case-in-chief, the State asserts that Utah has adopted
the “waiver rule,” which the State explains thus: “When, as here,
a defendant moves for a directed verdict at the close of the State’s
case-in-chief and then proceeds to his case after his motion is
denied, he waives any limitation on the appellate court’s review
of the evidence before the jury.” In support of this argument, the
State cites State v. Stockton, 310 P.2d 398, 400 (Utah 1957); State v.
Hawkins, 2016 UT App 9, ¶¶ 41, 43–44, 366 P.3d 884, cert. denied,
379 P.3d 1181 (Utah 2016); and State v. McCallie, 2016 UT App 4,
¶ 42 n.8, 369 P.3d 103, cert. granted, 384 P.3d 567 (Utah Sept. 12,
2016) (No. 20160500), and cert. dismissed as improvidently granted,
June 7, 2017 (No. 20160500). We need not address this issue
because Johnson does not actually argue that his and his wife’s
testimonies would not be permissible for appellate review on this
issue but rather that his testimony was adequately presented to
us through the transcripts he provided.

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 State v. Johnson

was previously relayed. See State v. 633 East 640 North, 942 P.2d
925, 929 (Utah 1997) (recognizing that a defendant who puts on
evidence after the denial of a directed verdict motion “run[s] the
risk of producing evidence tending to prove elements of the
plaintiff’s case that may not have been proven at the time the
motion for directed verdict was made”). Indeed, here we can
presume that such an occurrence happened because these “crucial
matters are not included in the record,” so “the missing portions
are presumed to support the action of the” jury. See Pritchett, 2003
UT 24, ¶ 13 (cleaned up). Because Johnson has failed to provide
us an adequate record, we cannot find prejudice here, and we
cannot determine that his convictions are unsupported by
substantial evidence.

V. Restitution

¶51 Finally, Johnson argues that the district court “abused its
discretion in awarding excessive restitution.” But fatally for
Johnson, he has also failed to provide us with a transcript of the
restitution hearing, and without this, he fails to carry his burden
on appeal.

¶52 Johnson makes several arguments against the court’s
restitution order; but because there is no transcript of the
restitution hearing, “we presume the regularity of the
proceedings” in the restitution hearing, and the missing transcript
is “presumed to support the action” of the district court. See State
v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (cleaned up). All we
have available to us to review Johnson’s claims are the spartan
hearing minutes, from which we confirm that the State provided
both evidence and argument to the court. Each of Johnson’s
arguments here fails because, assuming the regularity of the
proceedings, the State could have presented evidence directly
contradicting these arguments during the hearing. “[W]e must
presume that” the evidence the State presented at trial “supports
the district court’s [order]; under these circumstances, we are

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 State v. Johnson

simply not in a position to second-guess the court’s [order].” Laker
v. Caras, 2023 UT App 125, ¶ 19; see also State v. Case, 2020 UT App
81, ¶ 20, 467 P.3d 893 (“[The appellant] has not provided a record
of the hearing at which the court denied his motion, so we cannot
analyze the correctness of the trial court’s ruling . . . .”), cert. denied,
474 P.3d 948 (Utah 2020). Accordingly, we reject Johnson’s
argument that the court exceeded its discretion in reaching its
restitution award.

CONCLUSION

¶53 All of Johnson’s arguments fail. First, Johnson is incorrect
in asserting that the jury instructions constructively amended his
charges. Second, Johnson invited any alleged error related to the
jury instructions on mens rea. Third, the jury instruction related
to the timing of the effectiveness of orders is correct. Fourth,
Johnson’s claim as to the sufficiency of the evidence is unavailing
on counts three through seven for invited error and on count one
because his failure to produce critical trial testimony defeats his
assertion of prejudice. Fifth, Johnson fails to carry his burden to
persuade us that the district court abused its discretion related to
its restitution order because he has not provided us a transcript of
the restitution hearing. Consequently, we affirm Johnson’s
convictions and the court’s restitution order.

20210838-CA 24 2023 UT App 145