INTRODUCTION
11 Defendant Daniel Schroyer (Schroyer) and co-defendant Jordhan Swank (Swank) were charged with the aggravated murder of Robby Benzon (Benzon), a capital offense, in violation of Utah Code Ann. § 76-5-202(1) (1999) and attempted аggravated murder of Thomas Majnik (Majnik), a first degree felony, in violation of Utah Code Ann. § 76-5-202(1) and § 76-4-102(1) (1999). The attempted aggravated murder charge was later dismissed.
T2 At the preliminary hearing, defendant was bound over for trial after the magistrate found probable cause to believe that he intentionally committed homicide. The magistrate also found probable cause to believe that the commission of the murder was aggravated by two cireumstances identified in Utah Code Ann. § 76-5-202(1)(b) and (c). Defendant's motion to quash the bindover order with the district court was granted in part and denied in part.
T3 Defendant entered a conditional guilty plea to aggravated murdеr on April 24, 2000, preserving his right to appeal the district court's refusal to quash the bindover. After he was sentenced to life in prison, defendant appealed.
BACKGROUND
14 On the night of September 13, 1999, defendant and his friend Swank spent the evening together. That same night two other friends, Benzon and Majnik, were out driving around. Near midnight, somewhere in Salt Lake City, Benzon requested that Majnik pull into a residential driveway. Benzon went into the house for several minutes. When Benzon returned, he asked Majnik if he would drive two of his friends, defendant and Swank, to Murray. Majnik agreed and the two men entered the rear of the car with defendant seated behind Majnik and Swank seated behind Benzon.
[ 5 Loud music was рlaying in the car. At some point, defendant pulled a gun out of his waistband and held it to the left side of Benzon's head. Swank could see defendant talking, but couldn't hear what he was saying. Majnik heard a "pop," thought it was a fireсracker, then looked over and saw Benzon "kind of slumped forward" with "blood drizzling from the side of his head." Majnik testified that defendant said, right, he's-that's right, he's dead, mother Fer." Defendant put the gun to the back of
T6 Defendant instructed Majnik to pull over. Majnik stopped the car and got out. He testified that defendant got out of the car and then pointed the gun at him. Majnik stepped aside, grabbed the gun's barrel and held it to defendant's chest. He told defendant, "You're a dead mother F'er when I gеt this gun." Defendant then yelled to Swank, "Islhoot him." Swank shot Majnik several times, hitting him twice. Swank testified that he would not have shot Majnik if defendant had not told him to do so. Majnik fell to the ground and both defendant and Swank ran off. Majnik survived; Benzon did nоt.
17 As they ran from the scene, defendant and Swank got rid of their guns. They became separated, but met the next day at a friend's house. Swank asked defendant why he shot Benzon, and defendant answered that Benzon "laughed and didn't tаke him serious."
STANDARD OF REVIEW
18 "The determination of whether to bind a criminal defendant over for trial is a question of law." State v. Clark,
ANALYSIS
SUFFICIENCY OF EVIDENCE TO ESTABLISH PROBABLE CAUSE
T9 Defendant arguеs on appeal that the testimony of Majnik and Swank "did not establish the elements of aggravating circumstance or of intent sufficient to bind [defendant] over on the charge of aggravated murder." Specifically, dеfendant complains that the State failed to establish probable cause either that he intended to murder Benzon or that he attempted to kill Majnik as part of the same criminal episode, an aggravаting cireumstance under Utah Code section 76-5-202(1)(b) (1999). 1
T10 At a preliminary hearing "the prosecution must present evidence sufficient for the magistrate to find [plrobable cause to believe that the crime charged had been committed and that the defendant has committed it." State v. Talbot,
111 Recently, in State v. Clark,
A. - Probable Cause for Intentional Action
112 The State must prove defendant intentionally or knowingly caused Ben-zon's death, plus an aggravating cireum-stance, to establish aggravated murder. Utah Code Ann. § 76-5-202(1). Defendant's
1 13 Viewed in the light most favorable to the prosecution, and drawing all reasonable inferences in the prosecution's favor, these facts, among others relied on by the magistrate, support the State's theory of intentional homicide presented at the preliminary hearing. We therefore affirm the trial court's denial of defendant's motion to quash the bindover on this ground.
B. Probable Cause that Crimes Were Committed Incident to One Criminal Episode
114 Defendant was charged with aggravated murder based on the State's theory that he intended to shoot Benzon and also was a party to the attempted murder of the driver, Majnik, during the same eriminal episode, constituting an aggravating cireum-stance under sectiоn 76-5-202(1)(b). Conviction under the "criminal episode" portion of the statute requires the prosecution to establish that the conduct giving rise to the crimes in question is "incident to an attempt or an accomplishment of a single criminal objective," and involved acts closely related in time. State v. Alvarez,
1. Close Relationship in Time
115 The trial court stated in its memorandum decision that "defendant does nоt argue against the temporal proximity of the murder of Benzon and the attempted murder of Majnik." Defendant acknowledges in his appeal to this court that he did not make an argument regarding the relationship in time of the two incidents to the trial court. Yet, without arguing the existence of excéptional cireumstances, he has now argued for the first time that "these two incidents are not closely related in time for purposеs of the Alvares definition." We will not decide this question. See State v. Pledger,
2. Single Criminal Objective
$16 The State argued to the trial court that the attempt to murder Majnik was to prevent him from being able to tеstify about Benzon's murder, thus linking the two crimes in one eriminal episode. The trial court found that (1) Majnik did indeed witness Benzon's murder, (2) he could identify defendant's and Swank's faces, and therefore could identify defendant as Benzon's killer, and (38) defendant ran from the crime seene and hid his gun, indicating that he was trying to hide the erimes, conduct "which is also consistent with witness elimination." The trial court found that viewing the facts "in a light most favorable to the prosecutiоn, ...
1] 17 We affirm the trial court's finding that the two erimes constituted one eriminal episоde.
CONCLUSION
18 We affirm the trial court's denial of defendant's motion to quash the bindover order, as well as defendant's conviction of aggravated murder. The trial court properly found that probable cause existed to believe that defendant intended to shoot Benzon and that defendant's attempted aggravated murder of Majnik was part of the same criminal episode.
Notes
. Subsection 1(b) reads: "the homicide was committed incident to one act, scheme, course of conduct, or criminal episode during which two or more persons were killed, or during whiсh the actor attempted to kill one or more persons in addition to the victim who was killed[.]" Defendant is liable for Swank's shooting of Majnik as a party under Utah Code section 76-2-202 (1999), which reads: "Every person acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct."