State of Utah v. Sean Graham

2006 UT 43
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah Nos. 20050046
Plaintiff, Appellant, 20050051
and Cross-Appellee,
v.
Sean Graham, F I L E D
Defendant, Appellee,
and Cross-Appellant. August 8, 2006
---
Fifth District, Cedar City
The Honorable G. Michael Westphall
No. 041500145
Attorneys: Mark L. Shurtleff, Att’y Gen., Laura B. Dupaix,
Asst. Att’y Gen., Salt Lake City, Scott Garrett,
Cedar City, for plaintiff
Douglas D. Terry, St. George, Duncan M. James,
David M. Kindopp, Ukiah, CA, for defendant
---
WILKINS, Associate Chief Justice:
¶1 Defendant Sean Graham is a seventeen-year-old who,
together with another boy, beat his group home counselor twice
over the head with a baseball bat and stuffed him in a locked
closet. The State charged Graham with, among other crimes,
aggravated murder and kidnapping, but the district court refused
to bind Graham over on those two charges. The case is now before
us on interlocutory appeal. We granted review of the following
six issues, three on direct appeal and three on cross-appeal:
(1) Whether the State presented sufficient evidence of the
Defendant’s mental state at the preliminary hearing stage to
support a charge of aggravated murder;
(2) Whether the State demonstrated a kidnapping as an
aggravating factor pursuant to Utah Code section 76-5-
202(1)(d);

No. 20050046, 20050051 2
(3) Whether the State demonstrated that the homicide was
accomplished in the course of committing the kidnapping as a
predicate offense pursuant to Utah Code section 76-5-
203(2)(d);
(4) Whether the Defendant kidnapped the victim within the
meaning of Utah Code section 76-5-301;
(5) Whether facilitation of the Defendant’s departure from a
group home may be construed as “other personal gain” within
the meaning of Utah Code section 76-5-202(1)(f); and
(6) Whether Utah Code section 76-5-202(1)(f) is
unconstitutionally vague or overbroad.
¶2 We affirm the district court’s determination at the
preliminary hearing that Graham kidnapped Arnett within the
meaning of Utah Code section 76-5-301. We reverse, however, the
court’s conclusions regarding the insufficiency of evidence for
the aggravated murder mens rea, for kidnapping as an aggravating
factor, and for kidnapping as a predicate offense. We also note
that the issues involving Utah Code section 76-5-202(1)(f) are
moot because the State has dropped its “other personal gain”
argument.
BACKGROUND
I. FACTUAL BACKGROUND
¶3 Maximum Life Skills Academy (the Academy) is a behavior
modification facility for troubled teenage boys whose parents
voluntarily place them in the Academy and assign legal
guardianship to the facility. Graham was scheduled to leave the
Academy on March 4, 2004, but one week before his scheduled
departure, staff members discovered that he and his friend Jesse
Simmons had cheated on many of their twelfth-grade English
assignments. The Academy’s director required Graham and Simmons
to make up those assignments, which ultimately led to a
postponement of their release date. Graham and Simmons
subsequently exhibited poor behavior because of their anger about
the postponement. The Academy’s staff reprimanded Graham and
Simmons for the poor behavior by placing all six boys attending
the Academy on “lock-down,” a revocation of all privileges.
¶4 As testified by one of the other four boys at the
Academy, either the night before or the morning of the murder,
staff members heard Graham and Simmons “talkin’ about running.”
To help prevent escape, the staff asked Graham, Simmons, and two

3 No. 20050046, 20050051
other boys to sleep on their mattresses in the front room where
the night counselor could watch them closely.
¶5 On March 8, 2004, night counselor Anson Arnett arrived
at the Academy around 9 p.m. He was the only counselor on duty
that night. After telling the four boys upstairs to be quiet and
to go to bed, Arnett went downstairs to enable the alarm and to
check on the two boys sleeping there. Graham and Simmons had
been whispering to one another, and as soon as Arnett went
downstairs, they got out of bed. Simmons pulled an aluminum
baseball bat out of his sheets, and he and Graham crouched at the
top of the stairs where Arnett could not see them.
¶6 Only Graham could see Arnett ascend the staircase.
Simmons could not. As soon as Graham saw Arnett’s head, he
glanced over to Simmons–-when their eyes met, Simmons stood up
and hit Arnett on the back of the head with the aluminum bat.
Banging his head against the wall, Arnett fell.
¶7 Arnett was not knocked unconscious from this blow. In
fact, Arnett stood up while Graham and Simmons asked, “What
happened? Are you alright?” The two boys told Arnett that he had
fallen. Arnett walked into his office and shut the door, at
which point Graham asked Simmons, “Why didn’t you knock him out
the first time?”
¶8 When Arnett reappeared a few minutes later, he walked
down the stairs and out the front door. Graham and Simmons,
again, crouched in the same position at the top of the stairs and
waited for Arnett to appear. Arnett reentered the house and
moved up the stairs. Graham glanced at Simmons. Once their eyes
met, Simmons hit Arnett a second time on the back of the head
with the bat. This time when Arnett fell, he started convulsing.
Graham frisked Arnett for his keys to the Academy and its van and
then stuffed him into a closet, with his head on the floor and
his legs in the air over a filing cabinet. Graham and Simmons
locked the door with a deadbolt that could only be opened with a
key. There was no doorknob.
¶9 Graham and Simmons collected their belongings and fled
in the Academy’s van. The four boys remaining in the house tried
to call for help, but Graham and Simmons had cut the phone lines.
Consequently, two of the boys ran over two miles to a counselor’s
home for help. The counselor drove back to the Academy with the
boys and helped Arnett until the ambulance and police arrived.
¶10 Arnett died the following night from blunt force trauma
to the head.

1 Utah Code Ann. § 76-5-202(1)(d) (2005).
2 Id. § 76-5-202(1)(f).
3 Id. § 76-5-202(1)(g).
4 Id. § 76-5-202(1)(r).
No. 20050046, 20050051 4
II. PROCEDURAL BACKGROUND
¶11 The State charged Graham with aggravated murder,
kidnapping, theft of an operable motor vehicle, and theft. The
State also charged Graham with four statutory aggravators for the
murder count: (1) the homicide was committed while the actor was
engaged in the commission of kidnapping;1 (2) the homicide was
committed for the purpose of effecting Graham’s or another’s
escape from lawful custody;2 (3) the homicide was committed for a
pecuniary gain;3 and (4) the homicide was committed in an
especially heinous, atrocious, cruel, or exceptionally depraved
manner.4
¶12 After a preliminary hearing, the magistrate bound
Graham over on all counts but on only two of the statutory
aggravators to murder: (1) the homicide was committed while the
actor was engaged in the commission of a kidnapping, and (2) the
homicide was committed for pecuniary or other personal gain.
¶13 Graham moved to quash the bindover order, and the
district court found that the evidence did not support a
reasonable belief that Graham “had the specific intent to cause
the death” of the victim. The district judge also found that
the homicide did not occur while Graham “was engaged in the
commission of . . . [a] kidnapping or aggravated kidnapping.”
¶14 Absent the requisite intent to kill Arnett, the State
was required to reduce Graham’s aggravated murder charge to
simple murder. The trial court denied the prosecution’s request
to proceed on the theory of felony murder, concluding that the
homicide did not occur during the commission of a kidnapping.
¶15 This case is now before us on interlocutory appeal.
ANALYSIS
¶16 This court has jurisdiction over “interlocutory appeals
from any court of record involving a charge of a first degree or

5 Utah Code Ann. § 78-2-2(3)(h) (2005).
6 See Jedrziewski v. Smith, 2005 UT 85, ¶ 4, 128 P.3d 1146
(“The district court’s decision was a matter of law, so we review
for correctness.”).
7 The recently-adopted standard of review found in State v.
Virgin, 2006 UT 29, 137 P.3d 787, which requires “some deference”
to a magistrate’s determinations from the preliminary hearing,
does not apply in this case because the six issues before us are
matters of statutory interpretation and are thus strict questions
of law reviewed for correctness and afforded no deference. The
Virgin standard of review requiring “some deference” is limited
to mixed questions of law and fact. Id. ¶ 26.
8 State v. Clark, 2001 UT 9, ¶ 10, 20 P.3d 300 (quoting
State v. Pledger, 896 P.2d 1226, 1229 (Utah 1995)).
9 Id. ¶ 15.
10 See Virgin, 2006 UT 29, ¶ 17.
5 No. 20050046, 20050051
capital felony.”5 Because the six issues before us are inquiries
of proper statutory interpretation, they are matters of law,
which we review for correctness.6 Accordingly, we afford no
deference to the determinations of lower courts.7
¶17 As we set forth the correct statutory interpretations
for each of these issues before us and apply the given facts to
make our final determinations of law, we must employ the bindover
standard implemented in preliminary hearings. “To bind a
defendant over for trial, the State must show ‘probable cause’ at
a preliminary hearing by ‘present[ing] sufficient evidence to
establish that the crime charged has been committed and that the
defendant committed it.’”8 In other words, “to prevail at a
preliminary hearing, the prosecution must . . . produce
believable evidence of all the elements of the crime.”9 It is
not necessary to actually prove the elements of the crime at a
preliminary hearing. Instead, to obtain a bindover for trial,
which is the stage at which this case reached appeal, the
prosecution must produce sufficient evidence to reasonably
conclude that the requisite elements were satisfied and that the
defendant committed the crime.10

11 Utah Code Ann. § 76-2-103(1) (2005).
12 Id. § 76-2-103(2).
13 State v. Casey, 2003 UT 55, ¶ 37, 82 P.3d 1106.
14 Id.
No. 20050046, 20050051 6
I. THE STATE PRESENTED SUFFICIENT EVIDENCE OF GRAHAM’S MENTAL
STATE TO SUPPORT A CHARGE OF AGGRAVATED MURDER
¶18 The State argues that the trial court erroneously
required specific intent under the aggravated murder statute.
The State also asserts that it presented sufficient evidence of
Graham’s mental state to support a charge of aggravated murder.
Graham contends, however, that the trial court properly required
specific intent–-an intentional and knowing mental state--for
aggravated murder and that the State failed to preserve an
argument against the application of this mens rea by conceding
that the law requires an intentional and knowing mental state.
Moreover, Graham alleges that under a specific intent analysis,
the State provided insufficient evidence to support the
aggravated murder charge.
¶19 We first address the adequacy of the State’s
preservation of the trial court’s application of specific intent.
We then discuss the correct mental state for aggravated murder.
Lastly, we turn to the sufficiency of the evidence to satisfy the
requisite mens rea.
¶20 In Utah, to charge one with aggravated murder, the
State must demonstrate probable cause that an actor
“intentionally or knowingly causes the death of another under any
of the following circumstances” listed in Utah Code section 76-5-
202(1) (emphasis added). Under Utah statute, a person acts
intentionally “when it is his conscious objective or desire to
engage in the conduct or cause the result.”11 On the other hand,
a person acts knowingly “when he is aware of the nature of his
conduct or the existing circumstances” and is “aware that his
conduct is reasonably certain to cause the result.”12 Thus, “it
is certainly possible that a knowing crime can be committed
unintentionally.”13 “That is, a person can know that a certain
action will cause a certain result without that result being the
person’s conscious objective.”14
¶21 The State never conceded a required mens rea of only
specific intent. In fact, our research led to ample discourse in
the hearing transcripts that indicates that the State focused its

15 Utah Code Ann. § 76-5-202(1) (emphasis added).
7 No. 20050046, 20050051
analysis on “intentionally” or “knowingly,” and discounted any
requirement of both in order to satisfy the necessary mental
state for aggravated murder. In arguing that the State conceded
this point, Graham’s briefs appear to misrepresent the dialogue
between the prosecution and the trial judge at the preliminary
hearing. Rather, when the judge repeatedly stated that “an
essential element to capital homicide is an intent to kill,” the
State answered with “Yes. Intentional or knowing, yes.”
(emphasis added). The judge then followed up with “there has to
be an intent to kill, not just [] an intent to engage in the
conduct but an intent to cause death. Does the State agree with
that’s [sic] an element of capital homicide?” And the State
answered with “Yes, Your Honor. We agree that it has to be
intentional or knowingly, yes.” We do not interpret the
prosecution’s responses as a concession that a defendant must act
with specific intent–-an intentional mental state–-to satisfy the
requisite mens rea for aggravated murder.
¶22 We believe instead, after careful review of the record,
that the prosecution intended to present evidence that if Graham
did not act “intentionally,” he at a minimum acted “knowingly,”
and that under our statutory language, either mens rea sufficed
to bind Graham over on an aggravated murder charge. Even in
those few places in the record where the prosecution uses the
phrase “intentionally and knowingly,” when read in the context of
the surrounding statements, it is clear that the State asserts
that both mental states are means by which one may be charged
with aggravated murder. Accordingly, we disagree with Graham.
The State is not precluded from contesting the trial court’s
conclusions as to the requisite mens rea. The State argued
“intentionally or knowingly” at the preliminary hearing and may
therefore challenge the trial court’s insistence on specific
intent.
¶23 Next, we turn to the substance of Graham’s argument
that despite explicit statutory language, our case law requires
the defendant to have acted “intentionally” and “knowingly” for
the State to charge him with aggravated murder. We disagree.
Our case law clearly affirms the language of Utah Code section
76-5-202(1) which expressly provides that “criminal homicide
constitutes aggravated murder if the actor intentionally or
knowingly causes the death of another under any of the following
circumstances.”15 The statute lists several circumstances, one
of which is kidnapping, which elevate criminal homicide to
murder.

16 State v. Shaffer, 725 P.2d 1301, 1314 (Utah 1986).
17 Id. (emphasis added).
18 See State v. Holland, 921 P.2d 430, 437 (Utah 1996)
(“[P]leading guilty to first degree murder (now called aggravated
murder) does not raise any inference of lack of competency.”).
No. 20050046, 20050051 8
¶24 Twenty years ago, we addressed this exact question in
State v. Shaffer, concluding that the argument that first degree
murder requires an intentional and knowing mental state is
“entirely without merit.”16 Instead, “[t]he requisite mental
state for first degree murder is “intentionally or knowingly.”17
The mental state for aggravated murder, Utah’s present equivalent
to first degree murder,18 is specified as “intentionally or
knowingly,” and any case law suggesting to the contrary should be
disregarded.
¶25 Lastly, we conclude that the prosecution met the
bindover standard for aggravated murder because it presented
sufficient evidence to reasonably conclude that Graham
intentionally or knowingly caused the death of Arnett. Graham
crouched at the top of the staircase, knowing that his friend
Simmons was holding, with the intent to strike Arnett, an
aluminum baseball bat. When Arnett ascended the staircase,
Graham met eyes with Simmons, alerting Simmons to the appropriate
time to strike Arnett. After Arnett had been hit and was still
conscious and mobile, Graham asked Simmons why he “didn’t knock
him [Arnett] out the first time.” Through this statement, Graham
indirectly encouraged Simmons to strike Arnett a second time,
which Simmons did, knocking Arnett to the ground and into
convulsions. Graham assisted in shoving Arnett into a closet,
locked it with a deadbolt to which only he and Simmons had the
key, and fled the scene of the crime. Finally, Graham had cut
the phone lines at the home, making it impossible for the
remaining four boys to call for help. Therefore, at the bindover
stage, it was reasonable to conclude that Graham understood that
this postponement of medical assistance to Arnett, particularly
after such a violent beating, could lead with reasonable
certainty to Arnett’s death.
¶26 For the above reasons, it is reasonable to conclude
that Graham acted either intentionally or knowingly in causing
Arnett’s death. The prosecution presented sufficient evidence of
an “intentional or knowing” mental state as required by Utah Code
section 76-5-202(1). Thus, the trial court erroneously required
specific intent.

19 Utah Code Ann. § 76-5-202(1)(d) (2005).
9 No. 20050046, 20050051
II. THE STATE DEMONSTRATED KIDNAPPING AS AN AGGRAVATING FACTOR
PURSUANT TO UTAH CODE SECTION 76-5-202
¶27 In Utah, criminal homicide constitutes aggravated
murder “if the actor intentionally or knowingly causes the death
of another . . . [when] the homicide was committed while the
actor was engaged in the commission of, or an attempt to commit,
or flight after committing or attempting to commit . . .
aggravated kidnapping [or] kidnapping.”19 Thus, to demonstrate
that Graham’s kidnapping of Arnett constituted a valid factor for
aggravated murder, the State must show that (1) Graham satisfied
the requisite mental state for aggravated murder, (2) his actions
constituted kidnapping under Utah Code section 76-5-301, and (3)
the homicide occurred “while” Graham was engaged in the
kidnapping pursuant to section 76-5-202(1)(d). We have addressed
the requisite mental state and have concluded that the State met
its burden for a bindover. Therefore, we turn to whether
Graham's actions constituted kidnapping under Utah Code section
76-5-201, and if so, whether the homicide occurred “while” Graham
was engaged in the commission of the kidnapping.
A. Graham’s Actions Constituted Kidnapping Under Utah Code
Section 76-5-301
¶28 Utah Code section 76-5-301 provides that
(1) [a]n actor commits kidnapping if the actor
intentionally or knowingly, without authority
of law, and against the will of the victim:
(a) detains or restrains the victim for any
substantial period of time; (b) detains or
restrains the victim in circumstances
exposing the victim to risk of bodily injury;
[or] (c) holds the victim in involuntary
servitude . . . .
To demonstrate sufficient evidence of kidnapping in this case,
the State must show that one could reasonably conclude that
Graham, against the will of Arnett, detained or restrained him
for any substantial period of time or detained him in
circumstances exposing him to risk of bodily injury.
¶29 The evidence shows that in locking Arnett in a closet
and in taking the only key to that closet’s deadbolt lock, Graham
detained and restrained Arnett for a substantial period of time.
The fact that Graham and Simmons took the deadbolt’s key and cut

20 “(1) Criminal homicide constitutes aggravated murder if
the actor intentionally or knowingly causes the death of another
under any of the following circumstances . . . (d) the homicide
was committed while the actor was engaged in the commission of,
or an attempt to commit . . . kidnapping.” Utah Code Ann. § 76-
5-202(1)(d) (emphasis added).
No. 20050046, 20050051 10
the phone lines added considerable length to Arnett’s detainment
because, as previously discussed, two of the remaining boys had
to run over two miles for help before another counselor freed
Arnett from the closet and called the paramedics.
¶30 Moreover, the manner in which Graham placed Arnett in
the closet arguably demonstrates a detainment in circumstances
exposing Arnett to risk of bodily injury. Placing him upside
down on his head, the exact location of the two violent blows,
Graham may have put Arnett in even greater physical danger and
risk of more extensive injury than already sustained. Each of
these factors, alone, and certainly together, presents sufficient
evidence to bind Graham over for kidnapping Arnett. Thus, we
affirm the lower court’s bindover on the charge of kidnapping.
B. Graham Committed the Homicide While in the Commission of the
Kidnapping Pursuant to Utah Code Section 76-5-202(1)(d)
¶31 The critical question is whether Graham committed this
homicide while in the commission of the kidnapping as required by
Utah Code section 76-5-202(1)(d).20 Reasoning that because the
acts which caused the homicide–-the two blows to the head–-
occurred before the kidnapping, the trial court quashed the
statutory murder aggravator on the ground that Arnett’s death
“did not occur while [Graham] was engaged in the commission of,
or an attempt to commit, or flight after committing or attempting
to commit kidnapping or aggravated kidnapping.” We respectfully
disagree with the trial court’s reasoning. As long as the acts
that constitute kidnapping occurred at or about the same time as
the blows to the head and prior to Arnett’s death, as part of one
continuous criminal event, the homicide occurred while Graham was
engaged in the commission of the kidnapping.
¶32 Contrary to Graham’s contention, our case law does not
require a “time sequence” under which the felony has already been
in progress before any of the acts resulting in homicide have
been committed. Graham argues that because the first step in the
homicide–-arguably the first blow to the head–-occurred prior to

21 Instead, we conclude that it is only logical that a
homicide is not completed until the victim dies. Homicide is
defined as “intentionally, knowingly, recklessly, with criminal
negligence, or acting with a mental state otherwise specified in
the statute defining the offense, caus[ing] the death of another
human being.” Id. § 76-5-201(1)(a) (emphasis added). Even if
the two blows to the head started the events which resulted in
the homicide, the “homicide” was not complete until the victim
actually died.
22 State v. Archuleta, 850 P.2d 1232, 1245 (Utah 1993)
(quoting State v. Johnson, 740 P.2d 1264, 1268 (Utah 1987)).
23 740 P.2d 1264 (Utah 1987).
24 Id. at 1268. In State v. Johnson, we relied on the
definition of “while” given by the Indiana Supreme Court in
Stroud v. State, 395 N.E.2d 770, 771 (Ind. 1979). Although
Stroud dealt specifically with Indiana’s death penalty statute,
we find the analysis and definitions relevant and appropriate for
interpreting Utah Code section 76-5-202(1)(d).
25 Johnson, 740 P.2d at 1268.
26 Id.
27 850 P.2d 1232 (Utah 1993).
11 No. 20050046, 20050051
the time of the kidnapping, the homicide did not occur “while”
Graham was engaged in the kidnapping. We disagree.21
¶33 Our case law focuses on “whether the death and the
aggravating acts constituted a ‘continuity of action over a span
of time.’”22 In State v. Johnson,23 we defined “while” as “during
the time that,”24 which “clearly implies a continuity of action
over a span of time.”25 We also explained that “the term ‘while’
does not indicate . . . that the killing must occur at the same
instant as the [kidnapping] . . . , but rather indicates that the
killing must be directly associated with the [kidnapping] as part
of one continuous occurrence, a situation present in the instant
case.”26
¶34 A few years later in State v. Archuleta, we affirmed
the reasoning in Johnson, relying on the same definition of
“while.”27 In Archuleta, the defendant argued that if any of the
criminal acts inflicted on the victim were completed before the
intent to commit the homicide was formed, then those offenses

28 Id. at 1244-45.
29 Id.
30 Utah Code Ann. § 76-5-202(1), -301(1).
No. 20050046, 20050051 12
cannot be aggravating circumstances.28 We disagreed and held
that as long as there is “no break in the chain of events from
the inception of the felony to the time of the homicide, we treat
the two events as part of one continuous transaction.”29
¶35 Graham relies on this statement in Archuleta to support
his assertion that the kidnapping had to begin before the
homicide in order for his acts to constitute aggravated murder.
That is not correct. The law, as described in Johnson and
Archuleta, is that if the felony and homicide are closely related
in time and proximity, it is logical to consider them as one
continuous transaction, and a defendant may be charged with each
separate crime committed during that transaction so long as the
requisite independent elements are satisfied.
¶36 In this case, Graham started the chain of events by
encouraging Simmons to hit Arnett with the bat. The homicide was
not complete, however, until Arnett actually died. Therefore,
Graham may be charged with any independent crime committed
between the first blow and Arnett’s death, so long as the
independent crime was part of one continuous chain of events with
the beating. Here, the blows and the detainment in the closet
occurred mere moments apart in the chain of events leading to
Graham’s escape from the Academy. Therefore, it is reasonable to
conclude that the homicide occurred while Graham engaged in the
kidnapping. And because kidnapping falls under those crimes
listed as aggravating factors, the State may prosecute Graham for
aggravated murder.
¶37 Finally, Graham argues that the kidnapping could not
have been committed “while” he was engaged in the commission of
the homicide because the mens rea required for kidnapping
conflicted with the mens rea required for homicide. This
contention is without merit. Both aggravated murder and
kidnapping require the same mens reas: an “intentionally or
knowingly” mental state.30 The State provided sufficient
evidence both that Graham “intentionally or knowingly” murdered
Arnett and that Graham “intentionally or knowingly” detained and
restrained him in the closet. Graham’s actions satisfied the
elements of these two separate acts, coupled with their
corresponding requisite mental states, and are thus sufficient to
support both charges.

31 Utah Code Ann. § 76-5-203(1) (2005).
32 Id. § 76-5-203(2)(d)(i).
13 No. 20050046, 20050051
¶38 In sum, the State presented sufficient evidence to
permit application of kidnapping as an aggravating factor
pursuant to Utah Code section 76-5-202(1)(d). The mens reas for
kidnapping and for aggravated murder are the same, and Graham’s
actions reasonably satisfied both crimes independent from each
other. And because the homicide occurred while in the commission
of the kidnapping, Graham should have been bound over for
aggravated murder.
III. THE TRIAL COURT ERRED IN DETERMINING THAT THE STATE
DEMONSTRATED INSUFFICIENT EVIDENCE FOR AN ALTERNATIVE CHARGE OF
FELONY MURDER
¶39 We also granted review to determine whether the State
demonstrated that the homicide was accomplished in the course of
committing the kidnapping as a predicate offense pursuant to Utah
Code section 76-5-203(2)(d) (2005), which provides that
(2) [c]riminal homicide constitutes murder if:
. . . .
(d) (i) the actor is engaged in the
commission, attempted commission,
or immediate flight from the
commission or attempted commission
of any predicate offense, or is a
party to the predicate offense.
Under subsection (1), the statute lists the “predicate offenses,”
which in this particular case include kidnapping.31 The State
argues that the trial court erred in refusing to bind Graham over
under the section 76-5-203(2)(d) felony murder rule as an
alternative to aggravated murder. We agree.
¶40 The trial court erroneously concluded that the homicide
did not occur “in the commission, attempted commission, or
immediate flight from the commission or attempted commission of
the predicate offense.”32 The language of both the aggravated
murder statute of section 76-5-202(1)(d) and the felony murder
statute of section 76-5-203 leads us to the same textual and
legal analysis. First, the phrases “while the actor is engaged
in” from the aggravated murder statute and “the actor is engaged
in the commission of” from the felony murder statute share the

33 State v. Archuleta, 850 P.2d 1232, 1245 (Utah 1993).
No. 20050046, 20050051 14
same meaning. Because they are essentially synonymous, we also
apply the Johnson and Archuleta analysis to the phrase “engaged
in the commission of.” Thus, we conclude that the homicide and
kidnapping at issue in this case were likewise inextricably
intertwined to represent “a continuity of action over a span of
time.”33
¶41 As a result, we hold that because the State
demonstrated sufficient probable cause that the homicide was
accomplished in the course of committing the kidnapping as a
predicate offense pursuant to section 76-5-203(2)(d), in the
alternative to aggravated murder, the trial court at least should
have bound Graham over on the charge of felony murder.
IV. THE ISSUES RAISED CONCERNING UTAH CODE SECTION 76-5-202(1)(F)
ARE MOOT BECAUSE THE STATE HAS DROPPED THE CHARGE
¶42 It is unnecessary for us to address whether Graham’s
departure from the group home may be construed as “pecuniary or
other personal gain” under Utah Code section 76-5-202(1)(f)
(2005) because the State withdrew it as an aggravating factor.
Consequently, we need not address whether that section is
unconstitutionally vague or overbroad.
CONCLUSION
¶43 Graham’s actions constituted the elements of both
kidnapping and aggravated murder independently of one another.
The State satisfied the appropriate mental state for aggravated
murder by demonstrating that Graham “intentionally or knowingly”
committed the homicide. The State presented sufficient evidence,
pursuant to our aggravated murder statute, to reasonably conclude
that Graham committed the homicide while “engaged in the
commission of” the kidnapping. Likewise, the State demonstrated
sufficient evidence to reasonably conclude, in the alternative to
aggravated murder, that Graham committed felony murder. We
accordingly reverse in part and affirm in part the orders of
bindover and remand for further proceedings consistent with the
law as expressed herein.
---
¶44 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.