State v. Hawkins, 366 P.3d 884

Background

Empire Custom Homes (managed by Bowen and Chapple) contracted to buy Deer Canyon lots but lacked funds to complete utilities; closing on 13 lots was required to raise needed infrastructure money.
Hawkins worked for Empire Homes and told DPC and the victim (and the victim’s broker/brother‑in‑law) that funding existed (a private trust), utilities were not a problem, and there was an insurance policy and developer perks (a cruise).
The victim purchased two lots, paid large down payments (totaling ~ $852,000 lost), and Empire Homes failed to obtain financing; lenders foreclosed and the victim lost his investment.
Hawkins was tried separately on two counts of communications fraud: acquitted on one count and convicted on the other; he appealed raising five main issues.
The trial court denied Hawkins’s motions to quash bindover and for directed verdict, refused to give a duty‑to‑disclose instruction, rejected various trial‑fairness claims, denied a speedy‑trial violation, and denied Hawkins’s motion to be declared indigent with appointment of his private counsel.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency / "devised" element of communications fraud	State: evidence showed Hawkins devised and executed the scheme via misrepresentations and documents (risk disclosure)	Hawkins: no evidence he "devised" or planned the scheme; statute should require planning, not mere participation	Affirmed: jury instructions defined "devise" as contrive/plan; circumstantial and direct evidence supported a finding Hawkins devised the scheme; any preliminary‑hearing error cured by guilty verdict
Duty to disclose / material omissions instruction	State: statute covers false representations or material omissions; no separate duty‑to‑disclose element required	Hawkins: conviction may have rested on omissions; jury should be instructed that a duty to disclose is required to convict on omissions	Held harmless: court refused duty instruction but sufficient affirmative misrepresentations existed so omission instruction error (if any) was not prejudicial
Fair trial (expert testimony, prosecutorial misconduct, jury instructions)	Hawkins: experts withheld or misstated testimony; prosecutor threatened perjury prosecution; jury instruction errors denied him a fair trial	State: many claims inadequately briefed or outside the record; curative instructions given where applicable	Affirmed: appellate court rejected most claims as inadequately briefed or unsupported; no cumulative error undermined trial fairness
Speedy trial (Sixth Amendment)	Hawkins: delay (~40 months) violated his speedy‑trial right	State: many delays were waived or caused by Hawkins; relevant delay was seven months after Hawkins first asserted the right	Held: no violation — relevant delay was seven months (not presumptively prejudicial); waivers and defendant‑caused delays were controlling
Indigency / appointment of retained counsel	Hawkins: indigent and asked appointment of his private counsel as indigent defender on first day of trial	State: Salt Lake County uses LDA; court may appoint noncontract counsel only for compelling reasons; Hawkins waited until trial day	Held: denial affirmed — no compelling reason shown to appoint noncontract counsel; motion came too late and appeared designed to have private counsel paid by public funds

Key Cases Cited

State v. Jeffs, 243 P.3d 1250 (Utah 2010) (standard of review — reviewing facts in light most favorable to jury)
Barker v. Wingo, 407 U.S. 514 (U.S. 1972) (four‑factor speedy trial balancing test)
State v. Pledger, 896 P.2d 1226 (Utah 1995) (bindover standard requires sufficient evidence that the crime was committed and defendant committed it)
State v. Clark, 20 P.3d 300 (Utah 2001) (bindover quantum less than directed‑verdict standard)
State v. Nielsen, 326 P.3d 645 (Utah 2014) (directed‑verdict / sufficiency review is highly deferential)
Hi‑Country Prop. Rights Group v. Emmer, 304 P.3d 851 (Utah 2013) (use of ordinary/dictionary meaning in statutory interpretation)