State v. Kime

State v. Kime

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Robert L. Kime,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20021013-CA
 

F I L E D
(April 1, 2004)
 

2004 UT App 90

 

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Third District, Salt Lake Department

The Honorable Dennis M. Fuchs

Attorneys: Gary R. Guelker and Peter Stirba, Salt Lake City, for Appellant

Mark L. Shurtleff, Charlene Barlow, and Kris C. Leonard, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Greenwood.

DAVIS, Judge:

Robert L. Kime appeals the trial court's partial denial of his Motion to Quash Bindover. We affirm.

"The decision to bind a defendant over for trial presents a question of law which we review for correctness." State v. Rodriguez-Lopi, 954 P.2d 1290, 1293 (Utah Ct. App. 1998). In State v. Clark, 2001 UT 9, 20 P.3d 300, the Utah Supreme Court summarized the probable cause standard for bindovers as follows:

To bind a defendant over for trial, the State must show probable cause at a preliminary hearing by present[ing] sufficient evidence to establish that the crime charged has been committed and that the defendant has committed it. At this stage of the proceeding, the evidence required [to show probable cause] . . . is relatively low because the assumption is that the prosecution's case will only get stronger as the investigation continues. Accordingly, [w]hen faced with conflicting evidence, the magistrate may not sift or weigh the evidence . . . but must leave those tasks to the fact finder at trial. Instead, [t]he magistrate must view all evidence in the light most favorable to the prosecution and must draw all reasonable inferences in favor of the prosecution. Yet, [t]he magistrate's role in this process, while limited, is not that of a rubber stamp for the prosecution. . . . Even with this limited role, the magistrate must attempt to ensure that all groundless and improvident prosecutions are ferreted out no later than the preliminary hearing.

Id. at ¶10 (alterations in original) (quotations and citations omitted).(1) The Clark court further clarified this standard by establishing that the "quantum of evidence necessary to support a bindover" is "sufficient evidence to support a reasonable belief that an offense has been committed and that the defendant committed it." Id. at ¶16.

Kime argues that the trial court erred by denying his Motion to Quash Bindover on four counts of the criminal information filed against him (the four counts) because the State failed to present sufficient evidence at his preliminary hearing. Specifically, Kime asserts that the State failed to establish that the investors provided consideration for the new promissory notes, which were the subject of the four counts and, therefore, that the new promissory notes were not issued pursuant to an "offer, sale, or purchase" as required by the fraud provision of the Utah Uniform Securities Act. Utah Code Ann. § 61-1-1 (2000); see id. § 61-1-13(4), (22)(a), (22)(b) (2000) (defining "'purchase,'" "'[s]ale,'" and "'[o]ffer'" to require that each be made "for value").

Kime's argument is without merit. It is undisputed (and, ironically, the main thrust of Kime's appeal) that the new promissory notes were replacements for those already held by the investors. Indeed, the State presented evidence at Kime's preliminary hearing indicating that when Kime issued the new promissory notes to the investors, he requested that the investors write "paid in full" across the front of the previously issued promissory notes and return them to him. Thus, there was evidence that the investors provided consideration for the new promissory notes by surrendering the previously issued promissory notes to Kime in exchange for the new promissory notes, thereby presumably rendering the previously issued promissory notes valueless.(2) See Peirce v. Peirce, 2000 UT 7,¶21, 994 P.2d 193 ("Consideration may be found when there is any act or forbearance bargained for and given in exchange for the promise of another."). When we view this evidence "in the light most favorable to the [State] and . . . draw all reasonable inferences in favor of the [State]," we conclude that it is "sufficient evidence to support a reasonable belief that" the investors provided consideration for the new promissory notes and, therefore, that the new promissory notes were issued pursuant to an offer, sale, or purchase as required by section 61-1-1. Clark, 2001 UT 9 at ¶¶10, 16 (quotations and citations omitted). Accordingly, we conclude that the trial court did not err by denying Kime's Motion to Quash Bindover on the four counts.

Affirmed.

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James Z. Davis, Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

1. Our courts continue to rely, at least partially, on the baseless rubric "'that the prosecution's case will only get stronger as the investigation continues.'" State v. Robinson, 2003 UT App 1,¶14, 63 P.3d 105 (Davis, J., concurring) (quoting Evans v. State, 963 P.2d 177, 182 (Utah 1998)).

2. At oral argument, Kime's counsel confirmed that the investors could have elected to take cash for the previously issued promissory notes in accordance with their terms.