State v. Dykes

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20100582‐CA
)
v. ) FILED
) (July 27, 2012)
Jeremy James Dykes, )
) 2012 UT App 212
Defendant and Appellant. )

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Third District, Salt Lake Department, 101901771
The Honorable Michele M. Christiansen

Attorneys: E. Rich Hawkes, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Orme, Davis, and Roth.

ROTH, Judge:

¶1 Jeremy James Dykes filed a petition for interlocutory appeal seeking review of
the denial of his motion to quash the information charging him with one count of theft
by receiving stolen property, a third degree felony, see Utah Code Ann. § 76‐6‐408(1)
(Supp. 2011) (defining theft by receiving); id. § 76‐6‐412(1)(b) (2008) (current version at
id. (Supp. 2011)) (classifying the level of offense).1 We granted his petition, and on
appeal, Dykes contends that the district court was required to dismiss the charge in

1
Because section 76‐6‐412(1) has been substantively amended since the events
underlying this conviction, we cite the version then in effect. See Utah Code Ann. § 76‐
6‐412 amend. notes (Supp. 2011). All other references to the Utah Code will be to the
current version, as any amendments to those sections have no bearing on the resolution
of the issue on appeal.
accordance with the rule stated in State v. Brickey, 714 P.2d 644 (Utah 1986), because the
State had improperly refiled a criminal charge that had previously been dismissed, thus
violating his due process rights. We affirm.

BACKGROUND

¶2 On April 7, 2009, a West Valley City police officer saw Dykes driving an all‐
terrain vehicle (ATV) on Redwood Road in West Valley City, Utah. Because he did not
believe that an ATV could legally be driven on public roads, the officer directed Dykes
to pull over into a driveway. At that time, the officer noticed that the ATV was only a
few years old but that it had been partially repainted and that some of the paint was
peeling. Dykes informed the officer that he had purchased the ATV from an
acquaintance to whom he believed it was still registered because Dykes had not yet
registered it in his name. The officer quickly determined not only that the ATV was
registered to someone else entirely but also that it had been reported stolen several
months earlier. The officer arrested Dykes.

¶3 On July 10, 2009, the State charged Dykes with second degree felony theft by
receiving stolen property, which required proof either that the value of the ATV
exceeded $5000 or that it was an operable motor vehicle. See Utah Code Ann. § 76‐6‐
412(1)(a) (“Theft of property . . . shall be punishable . . . as a felony of the second degree
if the: (i) value of the property . . . is or exceeds $5,000; [or] (ii) property stolen is a
firearm or an operable motor vehicle . . . .”). At a preliminary hearing on September 3,
2009,2 the State presented evidence that the ATV was an operable motor vehicle, and a
magistrate judge found probable cause to bind Dykes over for trial on that basis.
Because the State was relying on the operable motor vehicle variant of second degree
theft by receiving stolen property, it did not present any evidence of the ATV’s value at
the preliminary hearing. Dykes moved to quash the bindover in the district court,
claiming that the ATV was not an operable motor vehicle under the theft by receiving
statute and that the State had failed to present evidence of the alternative that the ATV

2
The September 3 preliminary hearing was actually the second such hearing on
this charge. The charge was initially dismissed without prejudice when the State’s
witnesses failed to appear at the first hearing. The State subsequently refiled the same
charge against Dykes. The original dismissal is not at issue.

20100582‐CA 2
was worth at least $5000. The court was persuaded that the ATV was not an operable
motor vehicle and, in the absence of any evidence of its value, bound Dykes over for
trial on a class B misdemeanor theft by receiving stolen property. See generally id. § 76‐6‐
412(1)(d) (punishing theft as a class B misdemeanor when the value of the stolen
property is less than $300). The court denied the State’s motions to bind Dykes over on
a class A misdemeanor offense or to reopen the preliminary hearing to present
additional evidence of value. At Dykes’s request, the district court dismissed the class B
misdemeanor charge without prejudice for lack of jurisdiction. See generally Utah Code
Ann. § 78A‐5‐102(8) (Supp. 2011) (identifying the circumstances under which a district
court may assume jurisdiction over a class B misdemeanor, none of which are
applicable in this case).

¶4 On March 9, 2010, the State refiled the theft by receiving charge as a third degree
felony on the basis of value. See generally id. § 76‐6‐412(1)(b) (punishing theft as a third
degree felony where the value of the stolen property is at least $1000 but less than
$5000). Dykes moved to quash the information, alleging that refiling the charge
violated his due process rights under the rule set forth in Brickey. At a hearing on the
motion, the State presented valuations from the Kelley Blue Book, which indicated that
the ATV had an $1820 trade‐in value and a suggested retail price of $2695. The
prosecutor admitted that this value evidence was generally available before the
preliminary hearing in the original case, but due to his “mistake” in “assert[ing] that [an
ATV is] a motor vehicle,” he had “no admissible evidence” on the ATV’s value to
present at that hearing. The State, citing State v. Morgan, 2001 UT 87, 34 P.3d 767,
attributed this to an “innocent miscalculation of a quantum of evidence required” that
lacked any prosecutorial “intent to abuse or an intent to harass.” The court agreed,
concluding that the Brickey rule had not been violated because there was good cause for
refiling the charge as the “prosecutor [had] innocently miscalculated the quantum of
evidence” necessary to bind Dykes over on the second degree felony and Dykes had not
shown that the “prosecution engaged in abusive practices in miscalculating the
evidence.” Dykes appeals.

ISSUE AND STANDARD OF REVIEW

¶5 Ordinarily we review a magistrate’s bindover decision with some deference,
recognizing that the bindover standard is low and requires only that probable cause be
presented for each element of the offense. See State v. Balfour, 2008 UT App 410, ¶ 9, 198

20100582‐CA 3
P.3d 471. When the State refiles a charge against a defendant that has previously been
dismissed for insufficient evidence, however, it must demonstrate that new or
previously unavailable evidence has surfaced or other good cause justifies the filing.
See Brickey, 714 P.2d at 647‐48. We review the district court’s interpretation of the
Brickey rule for correctness. See State v. Redd, 2001 UT 113, ¶ 13, 37 P.3d 1160 (“A proper
interpretation of case law is a question of law which we review for correctness . . . .”).

ANALYSIS

¶6 “The preliminary hearing . . . acts as a screening device to ferret out . . .
groundless and improvident prosecutions[, thereby] . . . reliev[ing] the accused of the
substantial degradation and expense attendant to a criminal trial, but also . . .
conserv[ing] judicial resources and promot[ing] confidence in the judicial system.”
State v. Brickey, 714 P.2d 644, 646 (Utah 1986) (second omission in original) (citation and
internal quotation marks omitted). It is at this hearing that the State must establish a
factual and legal basis to bind over a charge for trial by introducing “sufficient evidence
to persuade the magistrate that there is probable cause to believe that the crime charged
has been committed and that the defendant committed it.” Id. (internal quotation marks
omitted). To meet its burden, the State must “produce believable evidence of all the
elements of the crime charged.” State v. Clark, 2001 UT 9, ¶ 15, 20 P.3d 300 (internal
quotation marks omitted). If the State fails to produce evidence of all the elements, then
a magistrate must dismiss the charge and discharge the defendant. See Utah R. Crim P.
7(i)(3).

¶7 In State v. Brickey, 714 P.2d 644 (Utah 1986), the Utah Supreme Court held that
due process prohibits a prosecutor from “refiling criminal charges earlier dismissed for
insufficient evidence unless the prosecutor can show that new or previously unavailable
evidence has surfaced or that other good cause justifies refiling.” Id. at 647. See
generally Utah R. Crim P. 7(i)(3) (“[D]ismissal and discharge do not preclude the state
from instituting a subsequent prosecution for the same offense.”). “The lodestar of
Brickey . . . is fundamental fairness,” Morgan, 2001 UT 87, ¶ 15, and this rule is meant to
ensure balance between two important interests‐‐“a prosecutor’s right to freely
prosecute” and “the due process protections of the accused,” id. ¶ 11. As a means to
accomplish that purpose, the Brickey rule focuses on potentially abusive practices,
which include “intentional prosecutorial harassment arising from repeated filings of
groundless claims,” id. ¶ 13, forum shopping by the State through the “shuttl[ing of

20100582‐CA 4
charges] from one magistrate to another simply because a county attorney is not
satisfied with the action of the [first] magistrate,” Brickey, 714 P.2d at 647 (internal
quotation marks omitted), withholding of crucial evidence by the prosecution in order
to surprise the defendant at trial, see Morgan, 2001 UT 87, ¶ 14, and the refiling of
charges after the State fails to produce “evidence for an essential and clear element of a
crime at the preliminary hearing,” Redd, 2001 UT 113, ¶ 20. To advance the goal of
fundamental fairness, the supreme court has adopted a presumption that due process
bars refiling when potentially abusive practices are involved. See id. ¶ 16. However,
“[w]hen potential abusive practices are not involved, there is no presumptive bar to
refiling.” Morgan, 2001 UT 87, ¶ 16.

¶8 Dykes contends that the district court erred in denying his motion to quash the
bindover because the State refiled the theft by receiving charge as a third degree felony,
without new evidence or good cause as required by Brickey, after the original second
degree felony charge had been dismissed. The State does not dispute that it did not
present any new or previously unavailable evidence when it refiled the charge. The
focus of the parties’ arguments is instead on whether the State had “good cause” to
refile. The Utah appellate courts have had only limited opportunity so far to explore
the meaning of “good cause”; the Utah Supreme Court, however, has determined that
the concept includes “an innocent miscalculation of the evidence necessary to establish
probable cause for a bindover.” Morgan, 2001 UT 87, ¶¶ 14, 19; see also State v. Pacheco‐
Ortega, 2011 UT App 186, ¶ 13, 257 P.3d 498 (“Importantly, when the prosecutor . . .
innocently miscalculates the quantum of evidence necessary to establish probable cause
to bind over the defendant, Utah courts have found that the prosecutor’s mistake[ is]
not the type of practice[] that implicate[s] the defendant’s due process rights.”).

¶9 Dykes claims that the State did not have good cause to refile because it failed to
provide any evidence at all on an element of the charged offense at the preliminary
hearing. See generally Clark, 2001 UT 9, ¶ 15 (requiring the State to “produce believable
evidence of all the elements of the crime charged” at the preliminary hearing); Redd,
2001 UT 113, ¶ 17 (stating that “where the State refiles a charge when it has been
dismissed for the State’s failure to provide any evidence on a clear element of the
relevant criminal statute,” the State has engaged in a potentially abusive practice that
presumptively bars refiling). Specifically, he contends that the State did not put on any
evidence of value at the first preliminary hearing. The State, however, was proceeding
under a variation of second degree felony theft by receiving that did not require proof

20100582‐CA 5
of value but instead required proof that the stolen item was an operable motor vehicle.3
Because the State put on evidence, albeit unsuccessfully, intended to demonstrate that
the ATV was an operable motor vehicle, it cannot be said that the State failed to present
any evidence of an element of the crime.4

¶10 The question that remains, then, is whether the State had good cause to refile the
theft by receiving charge as a third degree felony once the district court determined that
an ATV was not an operable motor vehicle. The State admitted that it “made a
mistake” in “assert[ing] that [the ATV is] a motor vehicle.” The State contends,
however, that the mistake amounted to an “innocent miscalculation of the evidence
necessary for bindover.” Dykes counters that the “innocent miscalculation” type of
good cause is limited to mistakes of fact, not misunderstandings of the law.

¶11 Because the Brickey rule is concerned with fundamental fairness, its major focus
has been on curbing potentially abusive practices by the State, such as forum shopping,
withholding of critical information, prosecutorial harassment through repeated filings
of groundless claims, and the failure to exercise reasonable diligence in presenting
evidence of the elements of the crime. See generally State v. Redd, 2001 UT 113, ¶ 17, 37
P.3d 1160; State v. Morgan, 2001 UT 87, ¶¶ 13‐14, 34 P.3d 767; Brickey, 714 P.2d at 647.
Indeed, it is “[t]he[se] policies and protections underlying the Brickey rule [that] provide
guidance in understanding the rule and properly defining its intended ambit.” Morgan,
2001 UT 87, ¶ 13. With regard to good cause, the Utah Supreme Court has explained

3
Dykes also contends that the State failed to put on any evidence that the ATV
was an operable motor vehicle. The record shows, however, that the arresting officer
testified at the preliminary hearing in the original case that he saw Dykes driving the
ATV northbound on Redwood Road. We therefore reject Dykes’s contention that the
State presented no evidence of the degree of the theft by receiving offense. See generally
Utah Code Ann. § 76‐6‐412(1)(a) (2008) (classifying theft as a second degree felony if the
item stolen is worth at least $5000 or is an operable motor vehicle).
4
In an analogous situation, the Utah Supreme Court overturned a magistrate’s
decision to dismiss a charge of abuse or desecration of a corpse on the basis that there
was no new evidence or good cause for refiling where the State originally failed to
present sufficient evidence to establish one variation of the offense but then refiled the
charge under an alternate variation. See State v. Redd, 2001 UT 113, ¶¶ 17, 19, 21, 37 P.3d
1160.

20100582‐CA 6
that a miscalculation of evidence necessary to establish probable cause must be innocent
so as to dissuade the State from intentionally withholding evidence that might impair
the defense or from harassing the defendant with repeated filings because of the
prosecutor’s failure to reasonably investigate the charges. See id. ¶¶ 13‐14; see also Redd,
2001 UT 113, ¶ 17 (excluding the negligent failure to provide evidence of a clear element
of the crime from the concept of good cause to prevent repeated filings by the State in
violation of the defendant’s due process rights). Similarly, when a prosecutor makes an
innocent mistake about the state of the law, the potentially abusive practices the Brickey
rule is intended to curb are not necessarily implicated. This is because to constitute a
truly innocent mistake of law, just as with an innocent mistake of fact, the prosecutor
must exercise some acceptable level of diligence and must not intend to harass the
defendant or unfairly impair the defense. For this purpose then, an innocent mistake of
law would be one that both is made in good faith (i.e., with a genuine belief in its
validity) and has a colorable basis (i.e., is “apparently correct or justified”5). See
generally Morgan, 2001 UT 87, ¶ 22 (“[D]ue process . . . is concerned with potential bad
faith or misconduct of prosecutors.”).

¶12 That appears to be the case here. There is no indication that the State’s decision
to pursue a second degree felony charge on the basis that an ATV qualifies as an
operable motor vehicle was made in bad faith or without a colorable legal basis. The
term “motor vehicle” is defined at least fourteen times in the Utah Code. In seven of
these definitions, the term means a vehicle that is “self‐propelled” and would therefore
reasonably include an ATV. See Utah Code Ann. § 41‐3‐102(19)(a) (2010); id. § 41‐6a‐
102(34)(a); id. § 41‐6a‐501(1)(j)(i); id. § 41‐22‐2(11) (Supp. 2011); Utah Code Ann. § 53‐1‐
102(1)(e) (2010); Utah Code Ann. § 63A‐9‐101(7) (2011); Utah Code Ann. § 76‐5‐207(1)(b)
(Supp. 2011). In fact, at least three of these sections expressly include “an off‐highway
vehicle” in the definition of motor vehicle. See Utah Code Ann. § 41‐3‐102(19)(a) (2010);
id. § 41‐6a‐501(j); id. § 41‐22‐2(11)(b) (Supp. 2011). The other seven sections, including
one in the same chapter of the criminal code as theft by receiving, would not include an
ATV within the definition of motor vehicle. See, e.g., Utah Code Ann. § 13‐14‐102(14)(b)
(Supp. 2011) (excluding certain off‐highway vehicles from the definition of motor
vehicle); Utah Code Ann. § 76‐6‐410.5 (2008) (defining “motor vehicle” for purposes of

5
New Oxford American Dictionary (3d ed.), OxfordDictionaries.com, available at
http://oxforddictionaries.com/definition/american_english/colorable?region=us (last
visited July 9, 2012).

20100582‐CA 7
the theft of a rental vehicle statute as “a self‐propelled vehicle that is intended primarily
for use and operation on the highways”). It is not immediately apparent, however, that
the definitions used in these latter sections more appropriately fit the context of theft by
receiving than the others that would include an ATV within the scope of the term. The
uncertainty about which definition applies for purposes of theft by receiving is
illustrated by the differing interpretations of the term by the magistrate and the district
court judge in this case. The magistrate accepted that the definition of an operable
motor vehicle could include an ATV for purposes of a theft by receiving charge while
the district court found that it could not. And the fact that the ultimate disposition of
the issue rejected the State’s position does not undermine our conclusion that its
argument was at least colorable.6 Further, the record supports a conclusion that the
original prosecutor genuinely believed that an ATV fit within the scope of an “operable
motor vehicle” under the theft by receiving statute.

¶13 Moreover, the State did not engage in any other abusive practices, as they have
been identified by the courts, when it pursued a third degree felony theft by receiving
charge after the second degree felony charge was quashed. See generally Morgan, 2001
UT 87, ¶ 16 (“When potentially abusive practices are not involved, there is no
presumptive bar to refiling.”). To the contrary, the State brought the third degree
felony case before the same district court judge who had dismissed the second degree
felony. See generally State v. Brickey, 714 P.2d 644, 647 (Utah 1986) (requiring
prosecutors, in an effort to prevent forum shopping, to, “whenever possible, refile
charges before the same magistrate who does not consider the matter de novo, but looks
at the facts to determine whether the new evidence or changed circumstances are
sufficient to require a re‐examination”). And the original second degree charge was
dismissed not because the State failed to present probable cause that Dykes had
committed the crime of theft by receiving but instead because there was insufficient
evidence to show that the offense was a second degree felony, i.e., that the ATV was an
“operable motor vehicle.” In other words, the State had shown probable cause that
Dykes had received a stolen ATV with the requisite criminal mens rea but had not
shown a basis for binding the crime over as more than the default class B misdemeanor
applicable to stolen property worth less than $300, see Utah Code Ann. § 76‐6‐412(1)(d)

6
Our decision here does not require that we decide whether an “operable motor
vehicle” includes an ATV for purposes of the theft by receiving statute, and we
therefore do not reach the issue.

20100582‐CA 8
(2008) (current version at id. (Supp. 2011)) (classifying receipt of stolen property valued
at less than $300 as a class B misdemeanor). See generally Morgan, 2001 UT 87, ¶ 13
(“[O]ne important purpose underlying the Brickey rule is to protect defendants from
intentional prosecutorial harassment arising from repeated filings of groundless
claims.”). It does not appear to be fundamentally unfair to allow refiling of a charge
where the State has established probable cause that the defendant committed an offense
for which he could be prosecuted but the charge has been dismissed due simply to the
State’s innocent misunderstanding of the legal requirement for the variation of the
degree of the offense that it originally charged. See generally id. ¶ 15 (“The lodestar of
Brickey . . . is fundamental fairness.”). Thus, under the circumstances before us, we see
no reason to consider an innocent miscalculation of the law different in principle from
an innocent miscalculation of the evidence. We therefore conclude that the district
court did not violate Dykes’s due process rights when it denied his motion to quash the
bindover on the basis that the State had shown good cause to refile the charges as a
third degree felony.

CONCLUSION

¶14 For the foregoing reasons, we affirm the district court’s decision to deny Dykes’s
motion to quash the bindover.

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Stephen L. Roth, Judge

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¶15 WE CONCUR:

____________________________________
Gregory K. Orme, Judge

____________________________________
James Z. Davis, Judge

20100582‐CA 9