State of Utah v. Magarrell

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

James Magarrell,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010225-CA

F I L E D
February 22, 2002 2002 UT App 57 -----

Fourth District, Provo Department
The Honorable Ray M. Harding, Sr.

Attorneys:
Shelden R. Carter, Provo, for Appellant
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Orme.

BILLINGS, Associate Presiding Judge:

Defendant James Magarrell appeals the magistrate's order binding him over for trial on criminal solicitation.

At issue is the magistrate's decision that there was probable cause to bind over Defendant for trial.(1) "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."'" State v. Clark, 2001 UT 9,¶10, 20 P.3d 300 (citations omitted) (alteration in original). The supreme court recently clarified the preliminary hearing probable cause standard by equating it with the arrest warrant standard, holding that both require the State to "present sufficient evidence to support a reasonable belief that an offense has been committed and that the defendant committed it." Id. at ¶16. "'The magistrate must view all evidence in the light most favorable to the prosecution and must draw all reasonable inferences in favor of the prosecution.'" Id. (citation omitted).

The offense of criminal solicitation contains two elements. First, [a]n actor commits criminal solicitation if with intent that a felony be committed, he solicits, requests, commands, offers to hire, or importunes another person to engage in specific conduct that under the circumstances as the actor believes them to be would be a felony or would cause the other person to be a party to the commission of a felony. Utah Code Ann. § 76-4-203(1) (1999). Second, "[a]n actor may be convicted under this section only if the solicitation is made under circumstances strongly corroborative of the actor's intent that the offense be committed." Id. § 76-4-203(2).

We conclude that there was sufficient evidence in this case to bind over Defendant.(2) While working in a prison work release program with Phillip Meza, Defendant approached Meza and asked if Meza was connected with anyone who could kill his ex-wife. During the conversation, Meza asked Defendant several times if he understood what he was asking, and Defendant assured Meza that he was very serious about having his ex-wife killed and would pay $10,000. Later at a controlled meeting arranged by the Utah County Sheriff's Office between Meza and Defendant, the two discussed various aspects of how the murder should take place. Defendant told Meza that his ex-wife had cheated on him, had not allowed him to see their children, and had falsely accused him of crimes which resulted in his incarceration. Defendant told Meza he wanted her death to look like an accident, like going over a cliff or a mugging, so that he could collect insurance. Defendant gave Meza the correct name of his ex-wife, an accurate description of her physical appearance, her approximate home address, and a detailed description of where she worked and her daily habits, as well as a description of her vehicle. In addition, Defendant gave detailed instructions as to how and when he wanted the killing to take place, although he was still unsure as to whether he wanted her killed or "turn[ed] into a vegetable." Defendant wanted his ex-wife's boyfriend assaulted as well if he were with her when it happened, but also said that it would be easier if she were alone, and told Meza that there was a horse stable she frequented where she could be beaten to death. They also discussed the specifics of how Defendant would pay for the assault.

Defendant also asserts that Utah courts have been "hesitant to support convictions on similar facts."(3) In support, Defendant cites State v. Johnson, 821 P.2d 1150 (Utah 1991). However, besides being factually different, the defendant in Johnson was convicted of attempted murder, not solicitation. See id. at 1153.

Because we find there to be sufficient evidence supporting probable cause to bind over Defendant on the charge of criminal solicitation, we affirm.
 
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge -----

WE CONCUR:
 
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 
 

______________________________
Gregory K. Orme, Judge

1. While Defendant argues in his brief that the evidence is insufficient to support a conviction, this is not the issue that was preserved for appeal. After the magistrate's denial of Defendant's motion to dismiss and order binding him over for trial, Defendant pleaded no contest to the charge of solicitation to commit aggravated assault, reserving the right to appeal the magistrate's decision. To clarify what issue Defendant had reserved for appeal, the prosecutor said, "Judge, just so the record is perfectly clear, too, the discussion we've had with Mr. Carter [defense counsel] is his intent to appeal bindover in this case. If that changes, if he intends to actually appeal the sufficiency of the evidence in the entire case, we would want to supplement the record, obviously, with the evidence we believe we would submit at trial."

2. Through his Sery plea, Defendant also reserved the right to appeal the bindover decision with regard to the witness tampering charge. However, since Defendant does not address this charge in his brief, we decline to review it.

3. We again note that the issue in this case is the bindover decision and not insufficient evidence for a conviction.