Speaker 1: What's up everyone, and welcome back to the program. In
Speaker 1: this episode, we're going to pick up be where he
Speaker 1: left off with the Tyler Robinson memo to bind d.
Speaker 1: The evidence establishes probable cause that defending committed count five
Speaker 1: and six tampering with a witness by directing mister Twiggs
Speaker 1: to delete incriminating text messages and not talk to police.
Speaker 1: To establish that defendant committed tampering with a witness, the
Speaker 1: state must prove that one defendant either two believe that
Speaker 1: an official proceeding or investigation was pending or about to
Speaker 1: be instituted, or to b intended to prevent an official
Speaker 1: proceeding or investigation, and three attempted to induce or otherwise
Speaker 1: cause another individual to withhold testimony, information, a document, or
Speaker 1: an item Utah Code Section seventy six DASH eight DASH
Speaker 1: five eight two A and two B two. The evidence
Speaker 1: establishes probable cause to support each element. After defendant made
Speaker 1: several incriminating admissions during a text message with mister Twiggs,
Speaker 1: some of which are described above. Defendant directed mister Twiggs
Speaker 1: to delete the exchange state example sixteen point one at nine,
Speaker 1: and not to speak to police. Idea seventeen, defendant demanded
Speaker 1: that mister Twiggs delete the messages, establishes probable cause for
Speaker 1: the first and third elements of count five. Defendants demand
Speaker 1: that mister Twiggs not speak to police establishes probable cause
Speaker 1: for those same elements of count six. The evidence also
Speaker 1: establishes probable cause for the second element of both counts
Speaker 1: that defendant either believed an investigation was pending or intended
Speaker 1: to prevent an investigation. As explained in the note defendant
Speaker 1: left for mister Twiggs before driving to UVU, defendant predicted
Speaker 1: that by the time mister Twiggs read the note, defendant
Speaker 1: would be likely dead or facing a lengthy prison sentence.
Speaker 1: Example at sixteen three. As also explained, defendant texted mister
Speaker 1: Twiggs that he had hoped to keep the secret till
Speaker 1: he died of old age, and that if he is
Speaker 1: able to grab his rifle unseen, he'll have left no evidence.
Speaker 1: Idea three. When mister Twiggs stated that he thought police
Speaker 1: had caught the person, defendant clarified that police had grabbed
Speaker 1: some old crazy dude and interrogated someone in similar clothing.
Speaker 1: Idea too. Defendant also explained that police activity, including an
Speaker 1: officer with the K nine was preventing him from retrieving
Speaker 1: his rifle ID at two, three and four and five.
Speaker 1: It was after these additional admissions that defendant directed mister
Speaker 1: Twiggs to delete their texts and not speak to police
Speaker 1: idea at nine to seventeen. The evidence therefore establishes probable
Speaker 1: cause that defendant knew that an investigation was under way
Speaker 1: when he gave those directions to mister Twigs. The evidence
Speaker 1: therefore establishes probable cause that defendant committed both counts of
Speaker 1: tampering with a witness e. The evidence establishes probable cause
Speaker 1: that defendant committed Count seven violent offense committed in the
Speaker 1: presence of a child. To establish that defendant committed a
Speaker 1: violent offense in the presence of a child as a
Speaker 1: Class A misdemeanor, the state must prove that one defendant
Speaker 1: two committed criminal homicide as defined in Section seventy six
Speaker 1: five two one against the third party, three in the
Speaker 1: physical presence of a child younger than fourteen years old.
Speaker 1: Four defendant had knowledge that the child was present and
Speaker 1: may have seen or heard the offense, and five that
Speaker 1: defendant targeted mister Kirk because of defendant's perception of mister
Speaker 1: Kirk's political expression Utah Code Section seventy six dash three
Speaker 1: dash two oh three dot ten seventy six dash three
Speaker 1: two three dot fourteen one K and two A. The
Speaker 1: evidence establishes probable cause to support each other. As explained,
Speaker 1: the evidence establishes probable cause to support the first two
Speaker 1: elements that defendant committed criminal homicide. The evidence also establishes
Speaker 1: probable cause that a child younger than fourteen was physically
Speaker 1: present when defendant killed mister Kirk. A video from a
Speaker 1: mother in the crowd shows that she was there with
Speaker 1: her children, at least one of which was under fourteen
Speaker 1: states example number six. Another video shot from behind mister
Speaker 1: Kirk shows two women in the crowd holding infants. The
Speaker 1: two women were standing next to each other and can
Speaker 1: be seen just to the right south of the speaker
Speaker 1: poll and visible in the right center of the frame.
Speaker 1: The evidence thus establishes probable cause for the third element.
Speaker 1: The evidence also establishes probable cause for the fourth element
Speaker 1: that defendant knew that a child younger than fourteen was present.
Speaker 1: Defendant could see the entire crowd from his rooftop perch.
Speaker 1: Defendant also made at least two visits to campus before
Speaker 1: the shooting, where he walked around the Amphitheater and treated
Speaker 1: himself to lunch at the Sorenson Center, which borders the
Speaker 1: Amphitheater on the northeast. One reasonable inference from the evidence
Speaker 1: is that while walking around the area, defendant would have
Speaker 1: seen many of the attendees who were gathering for the event,
Speaker 1: including children who were present. The evidence therefore demonstrates probable
Speaker 1: cause for each element of count seven violent offenses committed
Speaker 1: in the presence of a child. The evidence also establishes
Speaker 1: probable cause to support the state's charging Count seven as
Speaker 1: an enhanced Class A misdemeanor because defendant targeted mister Kirk
Speaker 1: based on defendant's perception of mister Kirk's political expression. The
Speaker 1: victim targeting penalty enhancement enhances the crime of committing a
Speaker 1: violent offense in the presence of a child from a
Speaker 1: Class B misdemeanor to a Class A misdemeanor ce Utah
Speaker 1: Code Section seventy six Dash three DASH two OZHO three
Speaker 1: Dash fourteen three A two. To establish the enhancement, the
Speaker 1: state must prove the defendant one intentionally selected his victim
Speaker 1: two because of the defendant's belief or perception regarding the
Speaker 1: victim's personal attribute c Section seventy six three two oh
Speaker 1: three dot fourteen two A. A victim's personal attribute includes
Speaker 1: the victim's political expression idea at seventy six dash three
Speaker 1: dash two O three dot fourteen one K. The evidence
Speaker 1: establishes probable cause to support each element of the enhancement.
Speaker 1: As explained, Defendant admitted to mister Twigs that he targeted
Speaker 1: mister Kirk because defendant had had enough of mister Kirk's hatred.
Speaker 1: Some hate can't be negotiated out state example sixteen to one,
Speaker 1: at three. He also wrote to mister Twigs that he
Speaker 1: wished they could have lived in a world where this
Speaker 1: did not feel necessary state example sixteen three. Defendant, in
Speaker 1: his message did not identify what he believed to be
Speaker 1: the specific hatred from mister Kirk that he needed to
Speaker 1: stop by Cat Willingham, but that is not necessary to
Speaker 1: prove intent beyond a reasonable doubt, much less establish probable cause.
Speaker 1: Specific intent may be proved by circumstantial as well as
Speaker 1: direct evidence. State versus Jennings, twenty twenty five Utah one
Speaker 1: thirty nine five sixty five p dot two D five
Speaker 1: twenty three, quoting State versus Minnesouse two twenty eight, p.
Speaker 1: Dot five seventy four, five seventy six, nineteen twenty four.
Speaker 1: And the circumstantial evidence that defendant targeted mister Kirk because
Speaker 1: of Defendant's belief or perception of mister Kirk's political beliefs
Speaker 1: is overwhelming. The defense would have the court believe that
Speaker 1: mister Kirk was only a religious evangelist. He was much more.
Speaker 1: He was a founder, chief executive officer, and bore president
Speaker 1: of TPUSA, whose express purpose is to empower inform civic
Speaker 1: and cultural engagement grounded in American exceptionalism and positive spirit
Speaker 1: of action. State's example five dot one at one at TPUSA,
Speaker 1: leader and mister Kirk helps citizens develop the knowledge, skills, values,
Speaker 1: and motivation so they can meaningfully engage in their community
Speaker 1: to restore traditional American values like patriotism, respect for life, liberty, family,
Speaker 1: and fiscal responsibility. To that end, mister Kirk would hold
Speaker 1: events like the one at UVU on September tenth, twenty
Speaker 1: twenty five, to engage in civil debate and discussion on
Speaker 1: traditional family values, America's founding principles and political doctrines, and
Speaker 1: to persuade attendees to follow a mindset rooted in politically
Speaker 1: conservative values. Those traditional American values, in mister Kirk's view,
Speaker 1: are synonymous with the classical Orthodox Christian position on marriage, family, gender,
Speaker 1: and sexual being. Mister Kirk believed that God determines whether
Speaker 1: a person is male or female, and that the experimentation
Speaker 1: with sexual gender identity is sinful and therefore should not
Speaker 1: be engaged in, accepted in culture, were allowed under the law,
Speaker 1: and that heterosexuality inside the confines of a marriage is
Speaker 1: the only virtuous pattern for sexuality. The evidence thus establishes
Speaker 1: that mister Kirk represented not only a religious movement, but
Speaker 1: also a political movement against gay marriage and the accommodation
Speaker 1: and acceptance of transgenderism, homosexuality, and sexual experimentation. Defendant's lifestyle,
Speaker 1: on the other hand, stood in sharp contrast to mister
Speaker 1: Kirk's religious and political views. The evidence establishes that defendant
Speaker 1: was in a homosexual relationship with Lands Twigs state example sixteen.
Speaker 1: The evidence also establishes that at or near the time
Speaker 1: of mister Kirk's assassination, mister Twiggs was exploring transitioning from
Speaker 1: man to a woman, and Defendant's text to mister Twiggs
Speaker 1: demonstrate that he loved and cared deeply for mister Twigs.
Speaker 1: In other words, defendants beliefs and practices pertaining to gender
Speaker 1: and second rusuality were directly contrary to mister Kirk's political
Speaker 1: and religious beliefs and practices. Against that backdrop, the evidence
Speaker 1: establishes that defendant engrave the cartridges in his rifle with
Speaker 1: several political messages. The spent thirty odd six cartridge was
Speaker 1: inscribed with the words notices bulge owo of furry meme
Speaker 1: and reference to mel Genitulia. One of the unspent cartridges
Speaker 1: found in defendant's grandfather's rifle contain an inscription referencing homosexuality
Speaker 1: if you read this, You're gay, and another unspent cartridge
Speaker 1: contain the overt political reference hey fascist catch. The evidence
Speaker 1: supports a strong and eminently reasonable inference that defendant targeted
Speaker 1: mister Kirk because of Defendant's belief or perception regarding mister
Speaker 1: Kirk's political expression see UTAH Code Section seventy six three
Speaker 1: two three dot fourteen one K and two A. The
Speaker 1: evidence therefore establishes probably cause to support count seven as
Speaker 1: an enhanced Class A misdemeanor three. The court does not
Speaker 1: need to bind over on the sentencing enhancements that do
Speaker 1: not increase the level of offense. But even if the
Speaker 1: court did, the evidence demonstrates probable cause to support those enhancements.
Speaker 1: As explained in the charging information, the state notified defendant
Speaker 1: that sentencing enhancements for one committing a violent offense in
Speaker 1: the presence of a child and two targeting the victim
Speaker 1: because of his political expression could apply to both counts
Speaker 1: one and two. Dock at one at two. The court
Speaker 1: need not bind over on the sentencing enhancements because, unlike
Speaker 1: the victim targeting enhancement for count seven, they do not
Speaker 1: increase the level of offense and therefore or not elements
Speaker 1: of the underlying offense. Rather, they affect only the potential
Speaker 1: sentence defendant can receive if convicted of the underlying offense.
Speaker 1: At a prelim hearing, the state need only establish probable
Speaker 1: cause to support each element of the charge offenses, not
Speaker 1: sentencing enhancements. But even if the state were required to
Speaker 1: demonstrate probable cause to support the sentencing enhancements, it did
Speaker 1: so as it already demonstrated a sentencing enhancements that do
Speaker 1: not affect the level of offense, are not elements of
Speaker 1: a crime, and are therefore irrelevant at a prelim hearing.
Speaker 1: Prelim hearings are concerned only with the elements of charge crimes,
Speaker 1: not sentencing enhancements. To prevail at prelim hearing, the prosecution
Speaker 1: must produce believable evidence of all the elements of the
Speaker 1: crime charged State Verse Ramirez, twenty twelve, Utah nine two
Speaker 1: eighty nine, POT three d four forty four. All that's
Speaker 1: required at a prelim hearing is reasonably believable evidence, as
Speaker 1: opposed to speculation sufficient to sustain each element of a crime.
Speaker 1: Sentencing enhancements do not increase the level of an offense
Speaker 1: that are not elements of a crime. The Utah Supreme
Speaker 1: Court has largely recognized that sentencing enhancements need not be
Speaker 1: formally charged in information see state verse Shrewder seven to
Speaker 1: twelve p Dot two d two sixty four, Utah nineteen
Speaker 1: eighty five, superseded by statute on other grounds as statuted
Speaker 1: or stated in State Verse Smith Utah twenty fourteen, at
Speaker 1: thirty three. In his murder prosecution for shooting his grandfather,
Speaker 1: Schreider argued that the state was required to allege in
Speaker 1: the charging portion of the information the sentencing enhancement for
Speaker 1: his use of firearm at two seventy three, but the
Speaker 1: Utah Supreme Court rejected that assertion. The court explained that
Speaker 1: while such a technical requirement might be appropriate with respect
Speaker 1: to the elements of a crime of which the state
Speaker 1: seeks to convict a defendant, we see no purpose to
Speaker 1: be served in applying it to an element of punishment.
Speaker 1: The punishment for a crime is not, and has never
Speaker 1: been considered, a part of the pleading. Charging of a
Speaker 1: crime after conviction, the penalty is to be imposed is
Speaker 1: an entirely separate opposition to be determined by the court
Speaker 1: as a matter of law on the basis of the
Speaker 1: penalty prescribed by the statutes. An information need only notify
Speaker 1: a defendant of a sentencing enhancement that the state intends
Speaker 1: to rely on. If the defendant is convicted, the prosecution
Speaker 1: is not required to charge a sentencing enhancement. Accordingly, the
Speaker 1: Angus Court explained, an information that charged a crime that
Speaker 1: could involve a firearm enhancement would be sufficient if it
Speaker 1: alleges either one that the defendant is being charged under
Speaker 1: the enhancement statute or two that a firearm was used
Speaker 1: in the commission of an offense charged in the information.
Speaker 1: The Utah Court of Appeals subsequently recognized in State versus Martinez,
Speaker 1: the angus explicitly rejected any argument that a sentencing enhancement
Speaker 1: must be specifically proven at the prelm hearing. Rather, to
Speaker 1: satisfy due process, the charging information need only provide a
Speaker 1: defendant with notice that the state intends to rely on
Speaker 1: an enhancement at las sentencing. As Martinez Court held, because
Speaker 1: the enhancement is a punishment, its most reasonable to view
Speaker 1: these requirements is coming into play at the sentencing phase
Speaker 1: of the prosecution. Accordingly, the state was not required to prove,
Speaker 1: nor is the court required to buying defending over on
Speaker 1: the two sentencing enhancements as they relate to Counts one
Speaker 1: and two B. Regardless, the evidence demonstrates probable cause to
Speaker 1: support both enhancements. Even if the state were required to
Speaker 1: demonstrate probable cause as to both sentencing enhancements, it did so.
Speaker 1: As demonstrated above, the evidence established probable cause to satisfy
Speaker 1: both the victim targeting and violent offense in the presence
Speaker 1: of a child enhancement CE point two e conclusion. For
Speaker 1: these reasons, the Court should bind defend and over for
Speaker 1: trial on all counts as charged in the information. This
Speaker 1: document was signed by Jeffrey S. Gray, Utah County Attorney
Speaker 1: and it was dated July twenty eighth, twenty six. All
Speaker 1: the information that goes with this episode can be found
Speaker 1: in the description box