2022 UT App 25
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KENNETH GERALD ROACH,
Appellant.
Per Curiam Opinion
No. 20210495-CA
Filed February 25, 2022
Fourth District Court, Provo Department
The Honorable Christine S. Johnson
No. 211400550
Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and Emily Sopp, Attorneys
for Appellee
Before JUDGES MICHELE M. CHRISTIANSEN FORSTER,
DAVID N. MORTENSEN, and RYAN M. HARRIS.
PER CURIAM:
¶1 Kenneth Gerald Roach appeals his conviction for
possession of a dangerous weapon by a restricted person. Roach
claims that the district court erred when it denied his motion to
quash the bind over based upon its conclusion that a conviction
for domestic violence assault against a roommate made him a
Category II restricted person under Utah Code section 76-10-
503.1 Alternatively, Roach contends that the evidence was
insufficient to establish a factual basis for a determination that
1. Utah Code section 76-10-503 was amended in 2021 to modify
language applicable to juvenile adjudications. This decision cites
to the 2017 version applicable to this case.
State v. Roach
Roach was a restricted person. The State concedes that the
district court erred in denying Roach’s motion to quash the bind
over and asks this court to reverse the challenged conviction. We
reverse.
BACKGROUND
¶2 In January 2019, Roach pleaded no contest to a charge of
domestic violence assault, a class A misdemeanor. The charging
document in that case stated that the victim was Roach’s
“roommate” and was a “cohabitant as defined under Section 30-
6-1, Utah Code Annotated.” No other information about the
relationship between Roach and his roommate was provided in
either the charging document for the 2019 case or at the plea
hearing.
¶3 In March 2021, Roach was arrested for shoplifting. He
resisted arrest, threatened the police officer, and was in
possession of a knife. The State charged Roach with assault
against a peace officer (Count 1), possession of a dangerous
weapon by a restricted person (Count 2), retail theft (Count 3),
and interference with arresting officer (Count 4).
¶4 At the preliminary hearing, the magistrate took judicial
notice of the 2019 domestic violence assault conviction and noted
that it is “the DV tag which makes [Roach] a restricted person.”
The magistrate ruled that, under Utah Code section 76-10-
503(1)(b), a Category II restricted person is “defined as an
individual who, among other things, has been convicted of . . .
assault or aggravated assault . . . with the DV tag. So based on
the statutory definition of a restricted person under 76-10-503,
[Roach] would meet that definition.” No other information was
provided at the preliminary hearing about the factual basis for
the previous conviction or the nature of Roach’s relationship
with the roommate whom he assaulted in the 2019 case.
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State v. Roach
¶5 Roach moved to quash the bind over on Count 2—
possession of a dangerous weapon by a restricted person. Roach
argued that the magistrate erroneously found that his previous
domestic violence assault against a roommate, standing alone,
made him a restricted person. Roach claimed that section 76-10-
503(b) “applies to a very specific category of domestic violence
offenses,” and that an assault against a roommate does not,
without more, satisfy the categories specified in the statute. In
opposing the motion to quash, the prosecutor essentially argued
that any assault conviction involving a cohabitant would make
Roach a Category II restricted person.
¶6 Roach did not dispute that the roommate had been his
cohabitant but argued that what was in dispute was whether the
roommate fell within the class of specifically enumerated people
in the statute. Roach argued that the 2019 assault was not against
a spouse, parent, or guardian “or against an individual similarly
situated to a spouse, parent or guardian of the restricted
person.” Roach argued that the statutory definition was “far
more narrow that just being a cohabitant.”
¶7 The district court declined to quash the bind over on
Count 2, siding with the State and determining that section 76-
10-503(b)(ix) applied because the roommate in the 2019 case had
been a cohabitant.
¶8 Roach was found guilty on all charges, including Count
2—possession of a dangerous weapon by a restricted person.
Only the conviction on Count 2 is challenged in this appeal.
STANDARD OF REVIEW
¶9 “The decision to bind over a criminal defendant for trial
typically presents a mixed question of law and fact to which we
grant some deference to the magistrate.” State v. Redden, 2022 UT
App 14, ¶ 10. But if the bind over decision turned on a question
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State v. Roach
of statutory interpretation, we review it for correctness. See id.
“When we interpret a statute, we look first to the best evidence
of a statute’s meaning, the plain language of the act, and we do
not look beyond a statute’s plain language unless it is
ambiguous.” Id. ¶ 13 (cleaned up). “Wherever possible, we give
effect to every word of a statute, avoiding any interpretation
which renders parts or words in a statute inoperative or
superfluous.” State v. Stewart,
2018 UT 24, ¶ 12,
438 P.3d 515
(cleaned up).
ANALYSIS
¶10 Utah Code section 76-10-503(1)(b)(xi) defines a “Category
II restricted person” as one who
has been convicted of the commission or attempted
commission of assault under Section 76-5-102 or
aggravated assault under Section 76-5-103 against a
current or former spouse, parent, guardian,
individual with whom the restricted person shares
a child in common, individual who is cohabitating
or has cohabitated with the restricted person as a
spouse, parent, or guardian, or against an
individual similarly situated to a spouse, parent, or
guardian of the restricted person.
Utah Code Ann. § 76-10-503(1)(b)(xi) (LexisNexis 2017).
¶11 In the district court, there was no dispute that in 2019,
Roach pleaded no contest to a charge of domestic violence
assault against a cohabitant, who in that case was his roommate.
The certified record of that conviction was entered into evidence
at the preliminary hearing and the magistrate took judicial notice
of the conviction. There was no additional information from any
source about the nature of the relationship between Roach and
his former roommate. The prosecutor in the district court argued
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State v. Roach
that any conviction for assault against a cohabitant was
necessarily a conviction that made Roach a restricted person
who may not possess a dangerous weapon. The State—now
represented by the Utah Attorney General’s Office—does not
support that position. We agree with the parties.
¶12 The magistrate and the district court in Roach’s case
erroneously concluded that any domestic violence assault of a
cohabitant made Roach a restricted person under section 76-10-
503(b)(xi). An appropriate analysis of the statutory language
required the magistrate and district court to determine not only
that the previous assault conviction involved a cohabitant but
also whether that cohabitant fit within the additional statutory
language “as a spouse, parent, or guardian” of the restricted
person or as someone “similarly situated” to one of those
persons. See id. In addition, the record before the magistrate (and
before the district court in connection with the motion to quash)
contained no information about Roach’s prior domestic violence
conviction other than it was an assault against a roommate.
There was no evidence presented in this case to support that
Roach and the roommate had a relationship similar to that of a
spouse, parent or guardian of the restricted person. The State
now acknowledges that, “[i]n fact, there is no evidence of any
kind about the type of relationship [Roach] and his roommate
shared.” The State therefore agrees with Roach that the district
court erroneously concluded, on the record before it, that the
prior assault conviction made Roach a Category II restricted
person.
CONCLUSION
¶13 Accordingly, we reverse Roach’s conviction on Count 2—
possession of a weapon by a restricted person. The convictions
on the remaining counts remain in effect.
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