State v. Pham, 372 P.3d 734

Defendant Anh Tuan Pham shot the victim outside a convenience store; the bullet passed through the victim's abdomen and scrotum and lodged in his leg. The victim was hospitalized three days and had difficulty walking for about two weeks.
Police witnessed the aftermath; Pham fled, stole a vehicle, and was later arrested and charged with discharge of a firearm causing serious bodily injury, receiving/transferring a stolen vehicle, obstructing justice, and failing to stop for an officer.
Victim testified at the preliminary hearing and was cross-examined by defense counsel without reported limits; Victim later moved to Mexico and could not be located for trial.
The State moved to admit Victim's preliminary hearing testimony at trial; the trial court granted the motion over Pham's Confrontation Clause objection; the testimony was read to the jury.
At trial other witnesses testified and Pham testified in his own defense; the jury convicted Pham on all counts; Pham appealed, raising Confrontation Clause and sufficiency-of-evidence challenges.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of preliminary hearing testimony under the Sixth Amendment Confrontation Clause	State: preliminary hearing testimony admissible because defendant had opportunity to cross-examine then and witness was unavailable at trial	Pham: preliminary hearings are structurally inadequate to provide a full, unfettered opportunity for cross-examination, so admission violated the Confrontation Clause	Court: affirmed admission — here Pham had a full opportunity to cross-examine at the preliminary hearing, so Confrontation Clause not violated
Sufficiency of evidence for "serious bodily injury" (substantial risk of death)	State: evidence of bullet traversing abdomen/scrotum and lodging in leg, hospitalization and ongoing pain supports finding of substantial risk of death	Pham: evidence insufficient; no showing the wound created substantial risk of death	Court: evidence sufficient — reasonable jury could find the shooting created a substantial risk of death; conviction affirmed

Crawford v. Washington, 541 U.S. 36 (2004) (when testimony is testimonial, Confrontation Clause requires witness unavailability and prior opportunity for cross-examination)
State v. Garrido, 314 P.3d 1014 (Utah Ct. App. 2013) (opportunity to cross-examine at preliminary hearing can satisfy Crawford)
State v. Brooks, 638 P.2d 537 (Utah 1981) (cross-examination at preliminary hearing and trial occur under same motive and interest)
State v. Bloomfield, 63 P.3d 110 (Utah Ct. App. 2003) (jury may consider means and attendant circumstances in determining serious bodily injury)
State v. Kennedy, 354 P.3d 775 (Utah Ct. App. 2015) (standard of review for insufficiency-of-evidence appeals)
People v. Fry, 92 P.3d 970 (Colo. 2004) (preliminary hearing cross-examination insufficient in Colorado; court declined to expand preliminary hearings to serve as substitute for trial confrontation)