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<v Speaker 1>What's up everyone, and welcome back to the program. In

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<v Speaker 1>this episode, we're going to pick up be where he

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<v Speaker 1>left off with the Tyler Robinson memo to bind d.

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<v Speaker 1>The evidence establishes probable cause that defending committed count five

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<v Speaker 1>and six tampering with a witness by directing mister Twiggs

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<v Speaker 1>to delete incriminating text messages and not talk to police.

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<v Speaker 1>To establish that defendant committed tampering with a witness, the

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<v Speaker 1>state must prove that one defendant either two believe that

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<v Speaker 1>an official proceeding or investigation was pending or about to

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<v Speaker 1>be instituted, or to b intended to prevent an official

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<v Speaker 1>proceeding or investigation, and three attempted to induce or otherwise

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<v Speaker 1>cause another individual to withhold testimony, information, a document, or

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<v Speaker 1>an item Utah Code Section seventy six DASH eight DASH

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<v Speaker 1>five eight two A and two B two. The evidence

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<v Speaker 1>establishes probable cause to support each element. After defendant made

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<v Speaker 1>several incriminating admissions during a text message with mister Twiggs,

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<v Speaker 1>some of which are described above. Defendant directed mister Twiggs

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<v Speaker 1>to delete the exchange state example sixteen point one at nine,

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<v Speaker 1>and not to speak to police. Idea seventeen, defendant demanded

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<v Speaker 1>that mister Twiggs delete the messages, establishes probable cause for

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<v Speaker 1>the first and third elements of count five. Defendants demand

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<v Speaker 1>that mister Twiggs not speak to police establishes probable cause

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<v Speaker 1>for those same elements of count six. The evidence also

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<v Speaker 1>establishes probable cause for the second element of both counts

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<v Speaker 1>that defendant either believed an investigation was pending or intended

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<v Speaker 1>to prevent an investigation. As explained in the note defendant

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<v Speaker 1>left for mister Twiggs before driving to UVU, defendant predicted

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<v Speaker 1>that by the time mister Twiggs read the note, defendant

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<v Speaker 1>would be likely dead or facing a lengthy prison sentence.

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<v Speaker 1>Example at sixteen three. As also explained, defendant texted mister

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<v Speaker 1>Twiggs that he had hoped to keep the secret till

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<v Speaker 1>he died of old age, and that if he is

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<v Speaker 1>able to grab his rifle unseen, he'll have left no evidence.

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<v Speaker 1>Idea three. When mister Twiggs stated that he thought police

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<v Speaker 1>had caught the person, defendant clarified that police had grabbed

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<v Speaker 1>some old crazy dude and interrogated someone in similar clothing.

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<v Speaker 1>Idea too. Defendant also explained that police activity, including an

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<v Speaker 1>officer with the K nine was preventing him from retrieving

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<v Speaker 1>his rifle ID at two, three and four and five.

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<v Speaker 1>It was after these additional admissions that defendant directed mister

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<v Speaker 1>Twiggs to delete their texts and not speak to police

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<v Speaker 1>idea at nine to seventeen. The evidence therefore establishes probable

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<v Speaker 1>cause that defendant knew that an investigation was under way

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<v Speaker 1>when he gave those directions to mister Twigs. The evidence

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<v Speaker 1>therefore establishes probable cause that defendant committed both counts of

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<v Speaker 1>tampering with a witness e. The evidence establishes probable cause

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<v Speaker 1>that defendant committed Count seven violent offense committed in the

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<v Speaker 1>presence of a child. To establish that defendant committed a

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<v Speaker 1>violent offense in the presence of a child as a

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<v Speaker 1>Class A misdemeanor, the state must prove that one defendant

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<v Speaker 1>two committed criminal homicide as defined in Section seventy six

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<v Speaker 1>five two one against the third party, three in the

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<v Speaker 1>physical presence of a child younger than fourteen years old.

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<v Speaker 1>Four defendant had knowledge that the child was present and

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<v Speaker 1>may have seen or heard the offense, and five that

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<v Speaker 1>defendant targeted mister Kirk because of defendant's perception of mister

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<v Speaker 1>Kirk's political expression Utah Code Section seventy six dash three

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<v Speaker 1>dash two oh three dot ten seventy six dash three

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<v Speaker 1>two three dot fourteen one K and two A. The

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<v Speaker 1>evidence establishes probable cause to support each other. As explained,

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<v Speaker 1>the evidence establishes probable cause to support the first two

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<v Speaker 1>elements that defendant committed criminal homicide. The evidence also establishes

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<v Speaker 1>probable cause that a child younger than fourteen was physically

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<v Speaker 1>present when defendant killed mister Kirk. A video from a

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<v Speaker 1>mother in the crowd shows that she was there with

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<v Speaker 1>her children, at least one of which was under fourteen

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<v Speaker 1>states example number six. Another video shot from behind mister

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<v Speaker 1>Kirk shows two women in the crowd holding infants. The

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<v Speaker 1>two women were standing next to each other and can

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<v Speaker 1>be seen just to the right south of the speaker

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<v Speaker 1>poll and visible in the right center of the frame.

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<v Speaker 1>The evidence thus establishes probable cause for the third element.

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<v Speaker 1>The evidence also establishes probable cause for the fourth element

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<v Speaker 1>that defendant knew that a child younger than fourteen was present.

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<v Speaker 1>Defendant could see the entire crowd from his rooftop perch.

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<v Speaker 1>Defendant also made at least two visits to campus before

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<v Speaker 1>the shooting, where he walked around the Amphitheater and treated

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<v Speaker 1>himself to lunch at the Sorenson Center, which borders the

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<v Speaker 1>Amphitheater on the northeast. One reasonable inference from the evidence

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<v Speaker 1>is that while walking around the area, defendant would have

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<v Speaker 1>seen many of the attendees who were gathering for the event,

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<v Speaker 1>including children who were present. The evidence therefore demonstrates probable

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<v Speaker 1>cause for each element of count seven violent offenses committed

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<v Speaker 1>in the presence of a child. The evidence also establishes

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<v Speaker 1>probable cause to support the state's charging Count seven as

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<v Speaker 1>an enhanced Class A misdemeanor because defendant targeted mister Kirk

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<v Speaker 1>based on defendant's perception of mister Kirk's political expression. The

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<v Speaker 1>victim targeting penalty enhancement enhances the crime of committing a

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<v Speaker 1>violent offense in the presence of a child from a

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<v Speaker 1>Class B misdemeanor to a Class A misdemeanor ce Utah

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<v Speaker 1>Code Section seventy six Dash three DASH two OZHO three

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<v Speaker 1>Dash fourteen three A two. To establish the enhancement, the

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<v Speaker 1>state must prove the defendant one intentionally selected his victim

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<v Speaker 1>two because of the defendant's belief or perception regarding the

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<v Speaker 1>victim's personal attribute c Section seventy six three two oh

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<v Speaker 1>three dot fourteen two A. A victim's personal attribute includes

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<v Speaker 1>the victim's political expression idea at seventy six dash three

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<v Speaker 1>dash two O three dot fourteen one K. The evidence

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<v Speaker 1>establishes probable cause to support each element of the enhancement.

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<v Speaker 1>As explained, Defendant admitted to mister Twigs that he targeted

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<v Speaker 1>mister Kirk because defendant had had enough of mister Kirk's hatred.

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<v Speaker 1>Some hate can't be negotiated out state example sixteen to one,

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<v Speaker 1>at three. He also wrote to mister Twigs that he

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<v Speaker 1>wished they could have lived in a world where this

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<v Speaker 1>did not feel necessary state example sixteen three. Defendant, in

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<v Speaker 1>his message did not identify what he believed to be

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<v Speaker 1>the specific hatred from mister Kirk that he needed to

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<v Speaker 1>stop by Cat Willingham, but that is not necessary to

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<v Speaker 1>prove intent beyond a reasonable doubt, much less establish probable cause.

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<v Speaker 1>Specific intent may be proved by circumstantial as well as

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<v Speaker 1>direct evidence. State versus Jennings, twenty twenty five Utah one

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<v Speaker 1>thirty nine five sixty five p dot two D five

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<v Speaker 1>twenty three, quoting State versus Minnesouse two twenty eight, p.

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<v Speaker 1>Dot five seventy four, five seventy six, nineteen twenty four.

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<v Speaker 1>And the circumstantial evidence that defendant targeted mister Kirk because

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<v Speaker 1>of Defendant's belief or perception of mister Kirk's political beliefs

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<v Speaker 1>is overwhelming. The defense would have the court believe that

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<v Speaker 1>mister Kirk was only a religious evangelist. He was much more.

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<v Speaker 1>He was a founder, chief executive officer, and bore president

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<v Speaker 1>of TPUSA, whose express purpose is to empower inform civic

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<v Speaker 1>and cultural engagement grounded in American exceptionalism and positive spirit

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<v Speaker 1>of action. State's example five dot one at one at TPUSA,

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<v Speaker 1>leader and mister Kirk helps citizens develop the knowledge, skills, values,

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<v Speaker 1>and motivation so they can meaningfully engage in their community

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<v Speaker 1>to restore traditional American values like patriotism, respect for life, liberty, family,

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<v Speaker 1>and fiscal responsibility. To that end, mister Kirk would hold

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<v Speaker 1>events like the one at UVU on September tenth, twenty

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<v Speaker 1>twenty five, to engage in civil debate and discussion on

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<v Speaker 1>traditional family values, America's founding principles and political doctrines, and

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<v Speaker 1>to persuade attendees to follow a mindset rooted in politically

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<v Speaker 1>conservative values. Those traditional American values, in mister Kirk's view,

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<v Speaker 1>are synonymous with the classical Orthodox Christian position on marriage, family, gender,

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<v Speaker 1>and sexual being. Mister Kirk believed that God determines whether

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<v Speaker 1>a person is male or female, and that the experimentation

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<v Speaker 1>with sexual gender identity is sinful and therefore should not

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<v Speaker 1>be engaged in, accepted in culture, were allowed under the law,

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<v Speaker 1>and that heterosexuality inside the confines of a marriage is

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<v Speaker 1>the only virtuous pattern for sexuality. The evidence thus establishes

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<v Speaker 1>that mister Kirk represented not only a religious movement, but

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<v Speaker 1>also a political movement against gay marriage and the accommodation

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<v Speaker 1>and acceptance of transgenderism, homosexuality, and sexual experimentation. Defendant's lifestyle,

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<v Speaker 1>on the other hand, stood in sharp contrast to mister

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<v Speaker 1>Kirk's religious and political views. The evidence establishes that defendant

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<v Speaker 1>was in a homosexual relationship with Lands Twigs state example sixteen.

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<v Speaker 1>The evidence also establishes that at or near the time

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<v Speaker 1>of mister Kirk's assassination, mister Twiggs was exploring transitioning from

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<v Speaker 1>man to a woman, and Defendant's text to mister Twiggs

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<v Speaker 1>demonstrate that he loved and cared deeply for mister Twigs.

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<v Speaker 1>In other words, defendants beliefs and practices pertaining to gender

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<v Speaker 1>and second rusuality were directly contrary to mister Kirk's political

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<v Speaker 1>and religious beliefs and practices. Against that backdrop, the evidence

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<v Speaker 1>establishes that defendant engrave the cartridges in his rifle with

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<v Speaker 1>several political messages. The spent thirty odd six cartridge was

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<v Speaker 1>inscribed with the words notices bulge owo of furry meme

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<v Speaker 1>and reference to mel Genitulia. One of the unspent cartridges

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<v Speaker 1>found in defendant's grandfather's rifle contain an inscription referencing homosexuality

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<v Speaker 1>if you read this, You're gay, and another unspent cartridge

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<v Speaker 1>contain the overt political reference hey fascist catch. The evidence

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<v Speaker 1>supports a strong and eminently reasonable inference that defendant targeted

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<v Speaker 1>mister Kirk because of Defendant's belief or perception regarding mister

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<v Speaker 1>Kirk's political expression see UTAH Code Section seventy six three

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<v Speaker 1>two three dot fourteen one K and two A. The

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<v Speaker 1>evidence therefore establishes probably cause to support count seven as

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<v Speaker 1>an enhanced Class A misdemeanor three. The court does not

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<v Speaker 1>need to bind over on the sentencing enhancements that do

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<v Speaker 1>not increase the level of offense. But even if the

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<v Speaker 1>court did, the evidence demonstrates probable cause to support those enhancements.

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<v Speaker 1>As explained in the charging information, the state notified defendant

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<v Speaker 1>that sentencing enhancements for one committing a violent offense in

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<v Speaker 1>the presence of a child and two targeting the victim

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<v Speaker 1>because of his political expression could apply to both counts

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<v Speaker 1>one and two. Dock at one at two. The court

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<v Speaker 1>need not bind over on the sentencing enhancements because, unlike

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<v Speaker 1>the victim targeting enhancement for count seven, they do not

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<v Speaker 1>increase the level of offense and therefore or not elements

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<v Speaker 1>of the underlying offense. Rather, they affect only the potential

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<v Speaker 1>sentence defendant can receive if convicted of the underlying offense.

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<v Speaker 1>At a prelim hearing, the state need only establish probable

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<v Speaker 1>cause to support each element of the charge offenses, not

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<v Speaker 1>sentencing enhancements. But even if the state were required to

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<v Speaker 1>demonstrate probable cause to support the sentencing enhancements, it did

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<v Speaker 1>so as it already demonstrated a sentencing enhancements that do

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<v Speaker 1>not affect the level of offense, are not elements of

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<v Speaker 1>a crime, and are therefore irrelevant at a prelim hearing.

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<v Speaker 1>Prelim hearings are concerned only with the elements of charge crimes,

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<v Speaker 1>not sentencing enhancements. To prevail at prelim hearing, the prosecution

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<v Speaker 1>must produce believable evidence of all the elements of the

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<v Speaker 1>crime charged State Verse Ramirez, twenty twelve, Utah nine two

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<v Speaker 1>eighty nine, POT three d four forty four. All that's

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<v Speaker 1>required at a prelim hearing is reasonably believable evidence, as

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<v Speaker 1>opposed to speculation sufficient to sustain each element of a crime.

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<v Speaker 1>Sentencing enhancements do not increase the level of an offense

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<v Speaker 1>that are not elements of a crime. The Utah Supreme

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<v Speaker 1>Court has largely recognized that sentencing enhancements need not be

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<v Speaker 1>formally charged in information see state verse Shrewder seven to

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<v Speaker 1>twelve p Dot two d two sixty four, Utah nineteen

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<v Speaker 1>eighty five, superseded by statute on other grounds as statuted

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<v Speaker 1>or stated in State Verse Smith Utah twenty fourteen, at

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<v Speaker 1>thirty three. In his murder prosecution for shooting his grandfather,

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<v Speaker 1>Schreider argued that the state was required to allege in

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<v Speaker 1>the charging portion of the information the sentencing enhancement for

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<v Speaker 1>his use of firearm at two seventy three, but the

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<v Speaker 1>Utah Supreme Court rejected that assertion. The court explained that

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<v Speaker 1>while such a technical requirement might be appropriate with respect

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<v Speaker 1>to the elements of a crime of which the state

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<v Speaker 1>seeks to convict a defendant, we see no purpose to

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<v Speaker 1>be served in applying it to an element of punishment.

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<v Speaker 1>The punishment for a crime is not, and has never

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<v Speaker 1>been considered, a part of the pleading. Charging of a

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<v Speaker 1>crime after conviction, the penalty is to be imposed is

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<v Speaker 1>an entirely separate opposition to be determined by the court

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<v Speaker 1>as a matter of law on the basis of the

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<v Speaker 1>penalty prescribed by the statutes. An information need only notify

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<v Speaker 1>a defendant of a sentencing enhancement that the state intends

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<v Speaker 1>to rely on. If the defendant is convicted, the prosecution

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<v Speaker 1>is not required to charge a sentencing enhancement. Accordingly, the

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<v Speaker 1>Angus Court explained, an information that charged a crime that

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<v Speaker 1>could involve a firearm enhancement would be sufficient if it

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<v Speaker 1>alleges either one that the defendant is being charged under

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<v Speaker 1>the enhancement statute or two that a firearm was used

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<v Speaker 1>in the commission of an offense charged in the information.

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<v Speaker 1>The Utah Court of Appeals subsequently recognized in State versus Martinez,

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<v Speaker 1>the angus explicitly rejected any argument that a sentencing enhancement

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<v Speaker 1>must be specifically proven at the prelm hearing. Rather, to

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<v Speaker 1>satisfy due process, the charging information need only provide a

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<v Speaker 1>defendant with notice that the state intends to rely on

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<v Speaker 1>an enhancement at las sentencing. As Martinez Court held, because

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<v Speaker 1>the enhancement is a punishment, its most reasonable to view

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<v Speaker 1>these requirements is coming into play at the sentencing phase

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<v Speaker 1>of the prosecution. Accordingly, the state was not required to prove,

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<v Speaker 1>nor is the court required to buying defending over on

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<v Speaker 1>the two sentencing enhancements as they relate to Counts one

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<v Speaker 1>and two B. Regardless, the evidence demonstrates probable cause to

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<v Speaker 1>support both enhancements. Even if the state were required to

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<v Speaker 1>demonstrate probable cause as to both sentencing enhancements, it did so.

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<v Speaker 1>As demonstrated above, the evidence established probable cause to satisfy

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<v Speaker 1>both the victim targeting and violent offense in the presence

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<v Speaker 1>of a child enhancement CE point two e conclusion. For

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<v Speaker 1>these reasons, the Court should bind defend and over for

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<v Speaker 1>trial on all counts as charged in the information. This

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<v Speaker 1>document was signed by Jeffrey S. Gray, Utah County Attorney

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<v Speaker 1>and it was dated July twenty eighth, twenty six. All

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<v Speaker 1>the information that goes with this episode can be found

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<v Speaker 1>in the description box