State v. Graham , 733 Utah Adv. Rep. 22 ( 2013 )


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    2013 UT App 109
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Plaintiff and Appellant,
    v.
    RODGER MARTIN GRAHAM,
    Defendant and Appellee.
    Opinion
    No. 20110492‐CA
    Filed May 2, 2013
    Fourth District, Provo Department
    The Honorable Claudia Laycock
    No. 091402828
    John E. Swallow, Karen A. Klucznik, and
    Craig L. Barlow, Attorneys for Appellant
    Ronald J. Yengich, Attorney for Appellee
    JUDGE MICHELE M. CHRISTIANSEN authored this Opinion,
    in which JUDGES GREGORY K. ORME and
    WILLIAM A. THORNE JR. concurred.
    CHRISTIANSEN, Judge:
    ¶1    The State appeals from a magistrate’s order declining to
    bind over Defendant Rodger Martin Graham (Defendant) on three
    counts of communications fraud. We affirm.
    State v. Graham
    BACKGROUND1
    ¶2      In the spring of 2005, Defendant approached Investor to
    attempt to secure Investor’s investment in a potential business
    opportunity involving the salvage and sale of wood reclaimed from
    the site of a former steel mill. Defendant told Investor that it would
    cost $250,000 to purchase the salvage rights and another $250,000
    to remove the wood. Defendant also told Investor that the salvaged
    wood would be worth “anywhere from 5 to 8 million bucks.”
    Investor agreed to contribute to Defendant’s salvage project,
    mainly because he viewed it as an opportunity to involve his son
    (Investor’s Son) in a business. Defendant indicated that he would
    also like his son, Benjamin Jay Graham (Defendant’s Son),2 to be
    included in the project.
    ¶3     Investor and Defendant decided that their sons would co‐
    own the salvage business, though Defendant would be the “brains”
    behind the operation because neither of the young men had much
    business experience. Investor agreed to provide the financing, and
    soon thereafter he and Defendant formed Green Harvest Materials,
    Inc. (Green Harvest). Investor’s Son, as co‐owner, was to be in
    charge of marketing and Defendant’s Son, as the other co‐owner,
    was to be in charge of operations. They hired an assistant to serve
    as Green Harvest’s secretary and office manager (Office Manager).
    Office Manager’s responsibilities included collecting all receipts
    from debit card purchases on the company’s bank account,
    purchasing office supplies, and paying all invoices that came
    1. At a preliminary hearing, “[t]he magistrate should view the
    evidence in a light most favorable to the prosecution and resolve
    all inferences in favor of the prosecution.” State v. Hawatmeh, 
    2001 UT 51
    , ¶ 3, 
    26 P.3d 223
     (citation and internal quotation marks
    omitted). We state the facts here accordingly.
    2. Defendant’s Son is a defendant in a related case. See State v.
    Graham, 
    2013 UT App 110
    .
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    State v. Graham
    through Green Harvest. Shortly after the company’s formation,
    Investor began paying substantial amounts of money to
    Defendant’s business, Graham Ironworks, and to Green Harvest.
    While most of Investor’s contributions constituted investment
    capital in Green Harvest, other funds were designated as loans to
    Green Harvest.
    ¶4     Defendant mentored Defendant’s Son in the daily work of
    removing the salvaged materials from the buildings at the site. As
    the work proceeded, it became common practice for Defendant to
    pay for daily operating expenses and then seek reimbursement
    from Green Harvest. Defendant billed Green Harvest through
    Graham Ironworks. On three separate occasions, Defendant sent
    invoices to Green Harvest seeking reimbursement for costs
    associated with asbestos removal at the salvage site. Neither
    Defendant nor Graham Ironworks possessed a license to remove
    asbestos. Defendant hired another company, CST, and its
    subcontractors, to do all the asbestos removal. Defendant presented
    three invoices to Green Harvest and requested reimbursement in
    the amount of $11,500, $23,925, and $23,500 for asbestos removal.
    ¶5     By November 20, 2006, Investor and Green Harvest had
    deposited a total of $871,934.51 into Graham Ironworks’s checking
    account. Also, in the three years that Green Harvest was in
    existence, it never sold any salvaged materials. Neither Defendant
    nor Green Harvest ever paid any money to Investor in return for
    his investment and loans.
    ¶6    On September 30, 2009, the State charged Defendant with
    multiple counts of securities fraud, communications fraud, theft,
    and pattern of unlawful activity, all stemming from his
    involvement with the steel mill salvage site. Following the
    preliminary hearing, the State sought dismissal of seven counts of
    the information. In addition, the magistrate refused to bind
    Defendant over on eight counts, including communications fraud
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    State v. Graham
    counts 12, 16, and 17, which are the subject of this appeal.3 See
    generally Utah Code Ann. § 76‐10‐1801 (LexisNexis 2012)
    (communications fraud statute).4 Each of the three counts
    corresponds to a separate invoice for asbestos removal sent by
    Defendant and Graham Ironworks to Green Harvest. In dismissing
    the counts, the magistrate found that “[t]he State [did] not present[]
    enough facts to establish the second element of communications
    fraud.” See id. § 76‐10‐1801(1) (explaining that a person is guilty of
    communications fraud when that person uses 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”). The State appeals.
    ISSUE AND STANDARD OF REVIEW
    ¶7     The sole issue on appeal is whether the magistrate
    incorrectly refused to bind over Defendant on communications
    fraud counts 12, 16, and 17 following the preliminary hearing. “A
    [magistrate’s] decision to bind over a criminal defendant for trial
    presents a mixed question of law and fact and requires the
    application of the appropriate bindover standard to the underlying
    factual findings.” In re I.R.C., 
    2010 UT 41
    , ¶ 12, 
    232 P.3d 1040
    . Thus,
    “an appellate court should grant commensurate limited deference
    to a magistrate’s application of the bindover standard to the facts
    of each case.” State v. Virgin, 
    2006 UT 29
    , ¶ 34, 
    137 P.3d 787
    .
    3. The magistrate bound Defendant over on one count of securities
    fraud (count 1); three counts of communications fraud (counts 2, 5,
    and 20); one count of theft (count 3); and one count of pattern of
    unlawful activity (count 25).
    4. Because the relevant statutory provisions have not changed in a
    way material to our analysis, we cite the most current version of
    the Utah Code throughout this opinion.
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    State v. Graham
    ANALYSIS
    I. The Bindover Standard
    ¶8      To support the bindover of a defendant for trial, the
    prosecution must put forward enough evidence at the preliminary
    hearing to establish probable cause. See Utah R. Crim. P. 7(i)(2)
    (allowing for bindover when the magistrate “finds probable cause
    to believe that the crime charged has been committed and that the
    defendant has committed it”); see also Virgin, 
    2006 UT 29
    , ¶ 17. “[A]
    showing of ‘probable cause’ entails only the presentation of
    ‘evidence sufficient to support a reasonable belief that the
    defendant committed the charged crime.’” State v. Ramirez, 
    2012 UT 59
    , ¶ 9, 
    289 P.3d 444
     (quoting Virgin, 
    2006 UT 29
    , ¶ 17). A
    “reasonable belief” in this context parallels the standard for an
    arrest warrant, meaning that the level of evidence that the
    prosecution must show is less than that required to prove guilt
    beyond a reasonable doubt. 
    Id.
     “All that is required is reasonably
    believable evidence—as opposed to speculation—sufficient to
    sustain each element of the crime(s) in question.” 
    Id.
     Also, 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.” State v. Clark, 
    2001 UT 9
    , ¶ 10, 
    20 P.3d 300
    (citation and internal quotation marks omitted). Finally, the
    magistrate is not to weigh or sift through conflicting evidence
    presented at the preliminary hearing. See 
    id. ¶9
          Despite the relatively low evidentiary threshold at a
    preliminary hearing, a magistrate may deny bindover in certain
    situations. For example, when the evidence, considered under the
    totality of the circumstances, “is wholly lacking and incapable of
    reasonable inference to prove some issue which supports the
    [prosecution’s] claim,” the magistrate is not required to bind a
    criminal defendant over for trial. See In re I.R.C., 
    2010 UT 41
    , ¶ 22,
    (alteration in original) (citations and internal quotation marks
    omitted).
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    State v. Graham
    II. The Evidence Presented at the Preliminary Hearing
    ¶10 To properly bind Defendant over on each count of second
    degree felony communications fraud, the evidence must support
    a reasonable belief that (1) Defendant “devised [a] scheme or
    artifice to defraud” Green Harvest, or that he sought “to obtain
    from [Green Harvest] money, property, or anything of value”;
    (2) Defendant did so “by means of false or fraudulent pretenses,
    representations, promises, or material omissions”; (3) Defendant
    “communicate[d] directly or indirectly with any person by any
    means for the purpose of executing or concealing the scheme or
    artifice”; (4) “the pretenses, representations, promises, or material
    omissions made or omitted were made or omitted intentionally,
    knowingly, or with a reckless disregard for the truth”; and (5) the
    value of the property, money, or thing obtained or sought to be
    obtained is or exceeds $5,000. See Utah Code Ann. § 76‐10‐
    1801(1)(d), (7).
    ¶11 In refusing to bind Defendant over for trial, the magistrate
    determined that the prosecution failed to present sufficient
    evidence to establish that a false or fraudulent exchange took place
    between Defendant and Green Harvest. Specifically, the magistrate
    determined,
    The State has not presented enough facts to establish
    the second element of communications fraud. While
    the State did show that [Defendant] did not
    personally remove asbestos, the State failed to show
    that he falsely stated anything by submitting the
    invoice for asbestos removal. The State failed to show
    that asbestos was not removed, nor did the State
    offer any evidence that Graham Ironworks was not
    the entity that originally paid for that removal. Thus,
    the State failed to show that the invoices were false
    or fraudulent in any way and that Green Harvest
    paid for a service that was not rendered.
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    State v. Graham
    ¶12 The State argues that it was “only required to present
    sufficient evidence to raise a reasonable belief that [the three
    invoices for asbestos removal] were false.” In challenging the
    magistrate’s decision on appeal, the State relies upon evidence
    submitted at the preliminary hearing, which it claims establishes
    a reasonable belief that Defendant’s invoices were false or
    fraudulent. Specifically, the State presented evidence that neither
    Defendant nor Graham Ironworks was licensed to do asbestos
    removal. In addition, the State adduced evidence suggesting that
    all asbestos removal at the steel mill salvage site was performed by
    CST or its subcontractors and that no removal was performed by
    Defendant, Defendant’s Son, or Graham Ironworks. The State
    contends that these two facts, when viewed in the light most
    favorable to the prosecution, demonstrate that “Defendant played
    no role at all in the removal of asbestos from the [steel mill salvage]
    site,” contrary to what his invoices show. Accordingly, the State
    argues that Defendant’s invoices for asbestos removal costs were
    false or fraudulent representations made in support of a scheme to
    obtain money directly from Green Harvest and indirectly from
    Investor.5
    5. The State also directs our attention to other evidence presented
    at the preliminary hearing as further support for bindover. See
    generally In re I.R.C., 
    2010 UT 41
    , ¶ 24, 
    232 P.3d 1040
     (stating that a
    bindover determination includes consideration of the “totality of
    the circumstances”). The State argues that “Defendant’s bindover
    on the asbestos charges includes not only the evidence specific to
    those charges but also evidence that Defendant had a pattern of
    making false statements to obtain money from . . . [Investor] and
    Green Harvest.” However, the other evidence referred to by the
    State was used to support different counts of communications
    fraud, securities fraud, theft, and pattern of unlawful activity. Even
    though the magistrate bound Defendant over on these different
    counts, the evidence supporting these counts has no particular
    relevance to communications fraud counts 12, 16, and 17.
    20110492‐CA                       7                 
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    State v. Graham
    ¶13 Defendant argues that the magistrate correctly refused
    bindover because the “State failed to present any evidence that
    [Defendant] submitted invoices to Green Harvest by means of false
    or fraudulent pretenses, representations, promises, or material
    omissions.” Defendant claims that the invoices merely sought
    reimbursement for his payments made to CST and its
    subcontractors for asbestos removal. Defendant notes that it was
    common practice for him to pay for a variety of expenses needed
    for daily operations at the salvage site and then to request
    reimbursement from Green Harvest. For example, Defendant
    sought reimbursement for “business related stuff,” including
    “miscellaneous things like tires and . . . general costs for paying
    employees, and . . . day‐to‐day stuff.” In her role as office manager
    and secretary, Office Manager received all invoices, reviewed them,
    and submitted written checks to Defendant. Office Manager never
    expressed any concern with Defendant’s invoices, and Investor’s
    Son testified that the invoices Green Harvest received for asbestos
    removal looked like the typical invoice regularly received from
    Defendant. Furthermore, the invoices themselves explicitly state
    that the asbestos removal, in addition to other daily expenses, was
    part of the “Total Reimbursable Expenses” or “Reimbursement.”
    III. Whether the Magistrate Acted Within Her Discretion in Not
    Binding Defendant Over for Trial
    ¶14 We determine that the magistrate acted within her discretion
    in denying bindover on the three communications fraud counts.
    The determinative issue in this case is whether the evidence
    supports a finding of probable cause for communications fraud
    based on allegations that Defendant submitted false or fraudulent
    invoices. In viewing the evidence and all inferences drawn
    therefrom in the light most favorable to the prosecution, as we
    must, we determine that the State did not meet its burden at the
    preliminary hearing stage.
    ¶15 In her order denying bindover, the magistrate stated that the
    prosecution failed to present “any evidence that Graham Ironworks
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    State v. Graham
    was not the entity that originally paid for [the asbestos] removal.”
    This finding is important because if another party had originally
    paid for the asbestos removal, clearly Defendant would have no
    need to seek reimbursement from Green Harvest. The State argues
    that the magistrate impermissibly required it to disprove this
    “speculative possibility.” See generally In re I.R.C., 
    2010 UT 41
    , ¶ 24,
    
    232 P.3d 1040
     (“[T]he State need not disprove every possibility that
    tends to negate probable cause.”). However, the facts presented at
    the preliminary hearing indicate that Defendant’s invoices sought
    reimbursement for asbestos removal performed by CST and its
    subcontractors. This does not appear to be a “speculative
    possibility.” Also, the prosecution is the party that has the burden
    to establish probable cause at the preliminary hearing. See Utah R.
    Crim. P. 7(i)(1) (“The state has the burden of proof [at a preliminary
    hearing] and shall proceed first with its case.”). Thus, it is the
    prosecution’s obligation to produce evidence demonstrating a
    reasonable belief that Defendant’s reimbursement explanation was
    false or fraudulent. The State has not identified any evidence of this
    nature in the record.
    ¶16 The State appears to allege that the invoices were false
    because they failed to specify that the asbestos removal was
    performed by parties other than Defendant. However, this theory
    is inconsistent with the invoices themselves, which repeatedly
    mention “Reimbursement” and “Total Reimbursable Expenses.”
    These terms, on their face, suggest that Defendant may not have
    been the actual party to remove the asbestos. By definition,
    reimbursement means “to pay back to someone” or “to make
    restoration or payment of an equivalent to.” See Merriam‐Webster’s
    Collegiate Dictionary 1049 (11th ed. 2004). Defendant allegedly
    incurred an expense by paying CST and its subcontractors to
    perform the asbestos removal. Even when viewing the invoices in
    the light most favorable to the prosecution, the State’s evidence
    20110492‐CA                        9                
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    State v. Graham
    does not support a reasonable inference that such a request for
    reimbursement was illegal, illegitimate, or fraudulent.6
    ¶17 Likewise, as Defendant states, the “fact that [he] did not
    personally remove the asbestos does not provide a basis for the
    magistrate to reasonably infer that [his] request[ for]
    reimbursement for the removal was fraudulent. Such a conclusion
    would be mere speculation.” Under Utah law, a magistrate is “free
    to decline bindover where the facts presented by the prosecution
    provide no more than a basis for speculation—as opposed to
    providing a basis for a reasonable belief.” State v. Virgin, 
    2006 UT 29
    , ¶ 21, 
    137 P.3d 787
    . “[S]peculation is defined as the act or
    practice of theorizing about matters over which there is no certain
    knowledge.” State v. Cristobal, 
    2010 UT App 228
    , ¶ 16, 
    238 P.3d 1096
    (citations and internal quotation marks omitted). On these counts,
    the prosecution’s evidence fails to provide certain knowledge, or
    a reasonable belief, that Defendant engaged in communications
    fraud. Therefore, the evidence is “incapable of satisfying the
    probable cause standard. When that is the case, magistrates are
    empowered to deny bindover.” Virgin, 
    2006 UT 29
    , ¶ 22.
    6. Subsection 7 of the communications fraud statute provides 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.” See Utah Code Ann. § 76‐10‐1801(7)
    (LexisNexis 2012) (emphasis added). Therefore, in order to
    establish a reasonable belief that Defendant’s invoices for asbestos
    removal were criminally false or fraudulent, the prosecution must
    show that the invoices reflected some degree of intentional,
    knowing, or reckless deceit. See id. The prosecution’s evidence
    reveals only that Defendant did not personally remove the asbestos
    because he did not have a license to do so. Thus, the magistrate’s
    determination that the totality of the evidence did not demonstrate
    Defendant’s fraudulent misrepresentation appears to be correct.
    20110492‐CA                       10                
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    State v. Graham
    ¶18 The State cites to State v. Ramirez, 
    2012 UT 59
    , 
    289 P.3d 444
    ,
    in support of its argument that the magistrate improperly weighed
    conflicting evidence. See 
    id. ¶ 17
    . In that case, the magistrate
    refused to bind the defendant over on drug possession charges
    after considering the evidence presented at the preliminary
    hearing. 
    Id. ¶ 5
    . The evidence included drug paraphernalia
    containing drug residue located in a motel room in the exact
    location the defendant had directed and permitted the officers to
    search and the defendant’s admission to having a drug problem. 
    Id. ¶¶ 2
    –5, 11. The magistrate “opined that there was no evidence that
    Ramirez had knowledge that the drug residue and paraphernalia
    were present in the motel room either when he was personally
    present in the room or when officers searched the room.” 
    Id. ¶ 11
    .
    Therefore, the magistrate was faced with a choice between two
    competing inferences based on the evidence. In the magistrate’s
    view, “it [was] a stronger inference [that the defendant] didn’t
    know the drugs were there, or he wouldn’t have sent the police
    officers to that place to look around.” 
    Id. ¶ 5
     (internal quotation
    marks omitted).
    ¶19 In reversing the magistrate’s bindover decision, the Utah
    Supreme Court explained that the magistrate’s “role does not
    encompass an assessment of whether [an] inference [in the
    prosecution’s favor] is more plausible than an alternative that cuts
    in favor of the defense.” 
    Id. ¶ 10
    . Rather, “[t]hat is a matter of
    factfinding, which is left for the jury at trial.” 
    Id.
     The supreme court
    then concluded that, though circumstantial, sufficient evidence
    existed in Ramirez’s case to support the bindover. 
    Id. ¶ 16
    .
    ¶20 Unlike the magistrate in Ramirez, the magistrate in this case
    does not appear to have weighed or assessed the plausibility of the
    evidence. Nor is there any indication that she rejected the
    prosecution’s reasonable inferences for any alternate theory
    presented by the defense. See 
    id. ¶ 13
     (“[T]he choice between two
    alternative, reasonable inferences is a matter for the factfinder at
    trial, not for the magistrate at the preliminary hearing.”). Rather,
    the magistrate determined that the prosecution did not present
    20110492‐CA                       11                
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    State v. Graham
    “enough facts to establish the second element of communications
    fraud.”
    ¶21 The prosecution’s evidence at the preliminary hearing was
    limited to the fact that Defendant was not licensed to perform
    asbestos removal, that he did not actually remove the asbestos, and
    that he submitted invoices to Green Harvest for reimbursement for
    the asbestos removal. The prosecution failed to provide any
    evidence suggesting that Defendant was not entitled to the
    reimbursement, such as proof showing that CST never charged
    Defendant for the asbestos removal. In contrast, in Ramirez, the
    prosecution presented at least some affirmative evidence at the
    preliminary hearing connecting the defendant to the possession of
    drugs and drug paraphernalia. See 
    id. ¶ 11
    . For example, “[the]
    evidence included the fact that police officers found the glass pipe
    exactly where Ramirez predicted they would, that when asked to
    explain the pipe, Ramirez openly admitted that he had a drug
    problem, and that officers found material belonging to Ramirez
    (and to no one else) in the room where they found the drugs and
    paraphernalia.” 
    Id. ¶22
     At a preliminary hearing, “the magistrate is tasked only with
    assuring that there is evidence that could sustain a reasonable
    inference in the prosecution’s favor on each element of the crime(s)
    in question.” 
    Id. ¶ 10
    . Here, the magistrate was simply unable to
    infer from the evidence that Defendant’s invoices for asbestos
    removal constituted a false or fraudulent communication with the
    intent to obtain money from Investor.
    ¶23 “[A]n appellate court should grant commensurate limited
    deference to a magistrate’s application of the bindover standard to
    the facts of each case.” State v. Virgin, 
    2006 UT 29
    , ¶ 34, 
    137 P.3d 787
    . The “proximity [of magistrates] to the facts of the case weighs
    in favor of granting them some discretion in bindover decisions.”
    
    Id. ¶ 31
    . Given the insufficient evidence presented by the
    prosecution, we determine that the magistrate acted within her
    discretion by refusing bindover.
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    State v. Graham
    CONCLUSION
    ¶24 Even when viewed in the light most favorable to the
    prosecution, the evidence does not support a finding of probable
    cause. Accordingly, we affirm the magistrate’s order denying
    bindover.
    20110492‐CA                   13               
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Document Info

Docket Number: 20110492-CA

Citation Numbers: 2013 UT App 109, 302 P.3d 824, 733 Utah Adv. Rep. 22, 2013 Utah App. LEXIS 111, 2013 WL 1840374

Judges: Christiansen, Gregory, Orme, Thorne, William

Filed Date: 5/2/2013

Precedential Status: Precedential

Modified Date: 10/19/2024