2024 UT App 166
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
TRAVIS JAMES GROCE,
Appellant.
Opinion
No. 20240362-CA
Filed November 15, 2024
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 241902112
Ann M. Taliaferro and Jackie Reidelberger,
Attorneys for Appellant
Sean D. Reyes and Hwa Sung Doucette,
Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.
HARRIS, Judge:
¶1 Travis James Groce is being held without bail pending
resolution of a criminal information charging him with, among
other things, attempted child kidnapping. In making its original
pretrial detention determination, the district court found that
there was substantial evidence to support the charges and that
Groce was a substantial danger to the community. And later, after
the preliminary hearing, the court determined that no material
change in circumstances had occurred that would justify a change
in Groce’s pretrial detention status. Groce appeals, and challenges
two of the court’s pretrial detention orders.
State v. Groce
¶2 In response, the State defends the court’s rulings on their
merits, but it also contends that Groce’s appeal has been mooted
by the court’s subsequent reconsideration of the pretrial detention
issue and repeated denial of Groce’s continued requests for bail.
¶3 For the reasons discussed, we conclude that the issue
raised by Groce’s appeal—whether he is properly being detained
pending resolution of the charges—has not been rendered moot
by subsequent events. And on the merits of the matter, we reject
Groce’s arguments and affirm the challenged orders.
BACKGROUND
¶4 In February 2024, the State arrested Groce and filed an
information charging him with attempted child kidnapping and
with being a sex offender in a protected area. The information
came accompanied by a “declaration of probable cause,” in which
a police officer explained that just days earlier, Groce—a
registered sex offender—had driven into the parking lot of an
apartment complex that had a playground. While there, Groce
parked his “black SUV Tesla” next to the playground and left his
“driver side door open.” With the door open, Groce was then seen
“waving” to a three-year-old girl (Child) “with his hand
extended, palm facing up and curling his fingers towards him
multiple times,” as if he were beckoning to Child; one person told
the officer that Groce was telling Child to “come here” in Spanish.
At that point, Child began to approach the Tesla. Several adults at
the playground—none of whom were related to Child—saw what
was happening and surmised that Groce was not Child’s parent;
one of them even “stood in front of the black Tesla” to prevent
Child from going to the car. Groce then closed his car door and
fled the scene, but not before some of the adults were “able to
obtain a partial license plate” number for the vehicle. The same
witnesses also gave police a description of the vehicle as well as
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of Groce himself; they indicated that the man in question was “a
heavier set white male wearing a black coat and glasses.”
¶5 During their ensuing investigation, officers examined
footage from traffic cameras in the area, and using that
information plus the partial license plate, they were able to match
the vehicle in question to Groce. Officers also determined that
Groce was a registered sex offender. They located Groce at his
house later that day wearing a black coat and glasses, and they
found the black Tesla in his garage. Groce’s wife told officers that
Groce had told her, earlier that day, that “police were most likely
on their way to arrest him.” Also, one of the adults at the
playground identified Groce in a photo lineup.
¶6 On the day after Groce’s arrest, a district court judge made
an initial determination to hold Groce without bail, entering a
temporary pretrial status order and finding “substantial evidence
to support the charge” as well as “clear and convincing evidence
that [Groce] would constitute a substantial danger to any other
individual or to the community . . . if released on bail.”
¶7 About a week after the information was filed, Groce filed a
motion challenging his pretrial detention. In that motion, Groce
asked to be released “with conditions” or, alternatively, for the
court to set bail. Groce asserted that the State did not have
“substantial evidence” to support the charges and that the State
could not demonstrate that Groce was a substantial danger to the
community. Groce further argued that “any plausible risks” could
be “mitigated by appropriate conditions of release,” including
GPS ankle monitoring.
¶8 Two days later, on March 1, 2024, the court held a hearing
to consider Groce’s motion. No witnesses testified at the hearing;
instead, the court received “proffers of evidence” and “written
descriptions of evidence.” Groce asserted that the evidence was
“unclear whether . . . witnesses actually saw this wave that
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State v. Groce
allegedly occurred.” He also asserted that only Child could have
heard anything Groce said and that the adult witnesses had
clarified that they did not hear Groce say anything. Groce asserted
that, given these facts, there was not enough evidence that he had
taken a “substantial step” toward kidnapping Child. In response,
the State offered no new evidence, but it argued that the existing
evidence strongly supported holding Groce without bail. In the
State’s view, when a registered sex offender drives into a
playground parking lot, opens his car door, and beckons to a
child, there is substantial evidence to support a charge of
attempted child kidnapping. The State also pointed out Groce’s
apparent consciousness of guilt, in that he fled the scene and later
told his wife that the police were going to be coming to get him.
And it argued that Groce would be a substantial danger to the
community if released, because his actions were “predatory” and
represented an “escalation” from his previous sex offense
(masturbating while watching children at play).
¶9 At the conclusion of the hearing, the court sided with the
State and ordered Groce held without bail. First, the court found
substantial evidence to support the charges, noting that Groce
was a sex offender who visited a parking lot next to a playground,
opened his car door, and beckoned to Child. The court observed
that this behavior “caused two strangers to be alarmed enough to
intercede.” And the court noted that Groce had fled the scene,
which “exhibit[ed], potentially, a guilty conscience with respect to
what he was doing.” All of this evidence, in the court’s view, gave
“rise to an inference that” Groce “was engaged in the act of trying
to lure [Child] into his car, perhaps, in an escalation of what
occurred” in his previous sex offense case.
¶10 As for whether Groce would be a substantial danger to the
community if released, the court stated its “concern” that “there
really isn’t a set of circumstances” or conditions that could be
placed on Groce “that would prevent this kind of behavior from
occurring in the future.” The court noted that Child was a
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“stranger” to Groce, so a no-contact order would not seem to help
reduce the danger. The court noted that Groce was a sex offender
who had been convicted of masturbating while watching
children, and it was concerned that the current situation “appears
to be an escalation . . . to the next level of actually having hands-on offenses involving children.” The court therefore offered its
preliminary view that Groce was a substantial danger to the
community and that the danger could not be mitigated by
restrictive pretrial conditions of release.
¶11 However, the court observed that it was being asked to
make its pretrial detention decision “at the very beginning of” the
case based solely on “proffers” and “written descriptions of
evidence,” which constituted a record that was “not as robust as
what we see later at a preliminary hearing or that we learn as the
case develops.” The court therefore left the door open for the
matter to be revisited if “things occur that change the analysis a
little bit,” and it specifically ordered that a “release
recommendation report” be prepared, which the court indicated
it would “take a look” at to “see if that changes [the court’s]
mind.” And the court set a date, in three weeks, for a continuation
of the detention hearing where the court could consider the
release recommendation report. After the hearing, the court
entered an order directing “Salt Lake County Pretrial Services to
prepare a Release Recommendation Report.”
¶12 Three weeks later, on March 22, the court held the
continued detention hearing. By that point, the release
recommendation report had been prepared, but that report made
no specific recommendation, stating merely that the evaluators
were “not mak[ing] recommendations on [first-degree-felony]
Violent/Sex Offenses; as such, the release determination is at the
discretion of the court.” The report did, however, say that Groce
was not “preoccupied with the alleged victim” and that Groce had
a job and could go back home and live with his wife if released.
At the follow-up hearing, Groce emphasized these points and
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asked for pretrial release, making a specific suggestion that the
court “could impose additional restrictions via GPS monitoring
that would restrict his location.” The State again objected,
reiterating its previous positions. After hearing argument from
both sides, the district court saw “nothing in the Release
Recommendation Report that change[d] [its] mind” that Groce
was a “significant risk to the community,” noting in particular
that GPS monitoring “would tell us where he is, but it wouldn’t
tell us whether there are children around.” The court later
memorialized its decision in a written order, dated April 11,
denying Groce’s motion for pretrial release and ordering that he
“be held without bail.”
¶13 A few days after the follow-up hearing, Groce filed his first
notice of appeal. 1 In the notice, Groce stated that he was appealing
“the district court’s order on March 22, 2024 denying bail.” Later,
after the court issued its written order, Groce filed an amended
notice of appeal specifying that he was appealing from “the Order
Denying Defendant’s Release entered April 11.”
¶14 While Groce’s bail appeal was pending, the criminal case
proceeded toward trial. At the March 22 hearing, Groce had
requested that the court “set a preliminary hearing fairly quickly,”
and the court obliged that request, holding a two-day preliminary
hearing in April 2024. During that hearing, video footage of the
incident in the parking lot was presented, and three people
testified: two witnesses who had been at the scene, and a police
detective. These witnesses testified to the events described above.
Some details were added: Groce had backed his car into the
parking stall; the called-in license plate number was incorrect
1. “Individuals who are denied bail have a statutory right to
immediately appeal the order denying bail, without the necessity
of waiting for the entire case to reach a conclusion.” State v. Seat,
2022 UT App 143, ¶ 17,
523 P.3d 724; see also Utah Code § 77-18a-
1(1)(d).
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because of “an extra zero”; Groce had “half of his body” out of the
car, meaning “his leg was out of the car” while his “hand was on
the wheel” when he was beckoning Child; the witnesses didn’t
know Child or her parents before the date of the incident; and
Child had started toward the Tesla and reached the sidewalk but
had stopped at the sidewalk once one of the witnesses asked
where she was going, at which point Groce fled the scene. The
witnesses also had a hard time identifying Groce in person; in fact,
one of the witnesses identified Groce’s brother rather than Groce.
And the witnesses also confirmed that they “never heard [Groce]
say anything,” in reference to the earlier reports that Groce had
said “come here” to Child in Spanish. At the end of the hearing,
however, the court found that the State had met its burden of
establishing probable cause that Groce had committed the
charged crimes, and it bound the matter over for trial.
¶15 On May 6, a couple of weeks after the preliminary hearing,
the district court—in an unsolicited “order of clarification”—
offered additional reasoning for its decision to hold Groce without
bail. The court noted that, since its April 11 order, the preliminary
hearing had been held, and the court stated that, “[i]f the evidence
adduced at the preliminary hearing had persuaded the court that
a material change in circumstances justified [Groce’s] release from
custody notwithstanding the court’s [earlier] rulings, the court
could and would have revisited its prior detention decision and
reconsidered the issue of [Groce’s] release.” But in an effort “[t]o
ensure an efficient presentation of the detention issue to the
appellate tribunal,” the court clarified “that its decision to
continue to detain [Groce] is based both on the evidence proffered
and argued at the [two] detention hearings . . . as well as the
evidence adduced at the preliminary hearing.” Groce did not file
an updated notice of appeal indicating that he was specifically
appealing from the court’s May 6 order of clarification.
¶16 After the preliminary hearing, Groce filed a motion asking
the court to quash the bindover. On June 27 (two weeks after
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Groce filed his appellate memorandum), the district court held a
hearing to consider the motion to quash and, after considering the
arguments presented, denied the motion in an oral ruling. At the
conclusion of that hearing, Groce asked the court to revisit its
decision to hold him without bail. The court denied that request,
noting that it had already “addressed that twice” and was not
inclined to revisit it again. The court even took the time to read
into the record its May 6 order of clarification, in its entirety,
stating that “the point of why” it had written “that minute entry
in the first place is because [it] didn’t want there to be some sort
of delay where [the appellate court] made some sort of partial
determination and sent it back because it was unclear what [the
court had] relied upon.” The court then restated that “the totality
of all of the evidence that [it had] heard at all of these
proceedings” constituted “substantial evidence” to support the
charges. Later that day, the court memorialized its ruling in a
signed minute entry, stating that “it finds substantial evidence
that [Groce] should continue to be held without bail.”
¶17 A couple of weeks after the hearing on the motion to quash,
Groce filed a second amended notice of appeal, indicating that he
was also appealing from “the district court’s order denying [his]
renewed motion for release (after the preliminary hearing)
entered June 27, 2024.” In the meantime, the district court case has
proceeded apace, with trial currently set for January 2025.
ISSUES AND STANDARDS OF REVIEW
¶18 Groce appeals the district court’s pretrial detention orders,
specifically challenging both the court’s original pretrial status
order—in which the court determined that substantial evidence
exists to support the charges, that Groce constitutes a substantial
danger to the community, and that there are no workable
conditions of pretrial release—and the court’s June 27 order
denying Groce’s motion to modify the original order. “[A] district
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court’s ultimate determination that substantial evidence exists to
support the charge is a law-like mixed question reviewed de
novo,” but we do give deference to the “factual findings in
support of that decision.” Randolph v. State, 2022 UT 34, ¶ 44,
515
P.3d 444. “A district court’s determination that there is clear and
convincing evidence that the defendant is a substantial danger . . .
is reviewed deferentially, and this court will reverse that
determination only if it is clearly erroneous.” State v. Cordova,
2023
UT App 99, ¶ 6,
536 P.3d 666, cert. denied,
540 P.3d 81 (Utah 2023);
accord Randolph,
2022 UT 34, ¶ 49; see also id. ¶ 52 (stating that
questions about “[w]hether there are no effective conditions of
pretrial release available” are issues we review “for clear error”).
And in other contexts, we review a court’s determination
“regarding the presence or absence of a substantial change in
circumstances for an abuse of discretion.” See Harper v. Harper,
2021 UT App 5, ¶ 11,
480 P.3d 1097 (quotation simplified). We
apply that same standard of review here.
¶19 In response, the State not only contests Groce’s arguments
on their merits, but it also asserts that Groce’s appeal has been
rendered moot by the district court’s subsequent rulings. The
question of whether issues presented in an appeal have been
rendered moot by events occurring after the appeal has been filed
is a question that, by definition, “arises for the first time here” on
appeal, and therefore “our decision is not governed by any
standard of review, and we decide the matter as a question of law
in the first instance.” See Grewal v. Junction Market Fairview, L.C.,
2024 UT 20, ¶ 12,
554 P.3d 863 (quotation simplified).
¶20 Finally, the parties have filed various motions on appeal.
The State has filed two motions to strike, targeting Groce’s second
amended notice of appeal and parts of Groce’s reply
memorandum, as well as an addendum Groce appended to his
reply memorandum. For his part, Groce has filed a motion to
supplement the record. These motions were filed with this court
in the first instance, and thus no standard of review is applicable.
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State v. Groce
See In re D.G., 2022 UT App 128, ¶ 5,
522 P.3d 39, cert. denied,
527
P.3d 1106 (Utah 2023).
ANALYSIS
¶21 Before addressing the merits of Groce’s appellate challenge
to the district court’s pretrial detention orders, we first address
the State’s assertion that Groce’s appeal has been rendered moot
by subsequent events, namely, the court’s later rulings regarding
Groce’s pretrial detention. And in the process of discussing
mootness, we render rulings on the motions that have been filed
on appeal. For the reasons discussed, we conclude that the
controversy between these parties about Groce’s pretrial
detention has not been rendered moot, we deny the State’s
motions to strike, and we grant Groce’s motion to supplement the
record. Thereafter, we proceed to consider the merits of Groce’s
arguments, and we affirm the district court’s detention orders.
I. Mootness
¶22 The doctrine of mootness is not “a mere matter of
convenience or judicial discretion.” Utah Transit Auth. v. Local 382
of Amalgamated Transit Union, 2012 UT 75, ¶ 27,
289 P.3d 582.
Rather, “[m]ootness is a constitutional principle” that implicates
our “judicial power” to adjudicate cases, and if the issues
presented for our review on appeal have been rendered moot by
subsequent events, we lose jurisdiction over the appeal, at which
point we have no choice but to dismiss it. See
id. ¶¶ 18–19, 27.
¶23 Whether an appeal is moot turns on whether the “issues”
and “controversy” before the court remain live, and on whether
an order granting the requested relief would still be effective. See
id. ¶ 14 (“An appeal is moot if during the pendency of the appeal
circumstances change so that the controversy is eliminated, thereby
rendering the relief requested impossible or of no legal effect.”
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State v. Groce
(quotation simplified) (emphasis added)); see also State v. Black,
2015 UT 54, ¶ 10,
355 P.3d 981 (“An issue becomes moot if during
the pendency of the appeal circumstances change so that the
controversy is eliminated . . . .” (quotation simplified) (emphasis
added)); Behar v. Johnson,
2024 UT App 129, ¶ 19 (“An issue on
appeal is considered moot when the requested judicial relief cannot
affect the rights of the litigants.” (quotation simplified) (emphasis
added)). If subsequent events have eliminated the controversy
between the parties regarding the salient issues, then any order
the court might make would be of no effect and “anything we
might say about the issues would be purely advisory.” Utah
Transit Auth.,
2012 UT 75, ¶ 15; see also Baird v. State,
574 P.2d 713,
715 (Utah 1978) (“The courts are not a forum for hearing academic
contentions or rendering advisory opinions.”).
¶24 Before considering the State’s mootness argument in the
context of this bail appeal, we first pause to note the unique nature
of such appeals. Most other appeals from district court come to us
after entry of final judgment, and only after the district court has
completed its work in the case and adjudicated all claims brought
by all parties. See Copper Hills Custom Homes, LLC v. Countrywide
Bank, FSB,
2018 UT 56, ¶ 10,
428 P.3d 1133 (“As a general rule, an
appellate court does not have jurisdiction to consider an appeal
unless the appeal is taken from a final order or judgment that ends
the controversy between the litigants.” (quotation simplified)); see
also In re Estate of Heater,
2021 UT 66, ¶ 13,
498 P.3d 883 (“For an
appellate court to have jurisdiction, there must be no claims
pending below.” (quotation simplified)). Thus, in most district
court appeals, the district court has finished its work before the
appellate court begins its own, and therefore the two courts are
typically not working on the same case at the same time.
¶25 But there are certain exceptions to the “final judgment
rule,” including situations in which “the legislature provides a
statutory avenue for appealing nonfinal orders.” Id. ¶ 14
(quotation simplified). One such statutory exception applies here:
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a defendant is entitled to appeal, “as a matter of right,” from “an
order denying bail.” Utah Code § 77-18a-1(1)(d). This rule makes
intuitive sense: a defendant forced to wait until after the entire
criminal case has resolved before being able to appeal a pretrial
detention order would—as a practical matter—lose the right to
appeal that order, because any controversy about pretrial
detention will, by definition, have been eliminated by a trial or
other completion of the case. Allowing immediate appeals from
pretrial detention orders is thus the only way to provide criminal
defendants with an avenue for challenging such orders.
¶26 In other contexts in which interlocutory appeals are
allowed—for instance, appeals permitted under rule 5 of the Utah
Rules of Appellate Procedure—it is not uncommon for a district
court to stay the relevant proceedings while the interlocutory
appeal runs its course. But this is not a practical alternative in the
context of bail appeals. Criminal defendants have a right to a
speedy trial, and it is unlikely that defendants would choose—
while incarcerated prior to trial—to waive those rights and seek
or agree to a stay of the criminal case just so they could mount an
interlocutory appeal of a detention order. Given these practical
realities, district court activity in a criminal case typically does not
cease merely because a defendant appeals a pretrial detention
order. Thus, bail appeals present the rather rare scenario in which
the appellate court and the district court are working on the same
case at the same time.
¶27 Such simultaneous proceedings can present procedural
headaches; after all, there is good reason why the rules don’t allow
this to occur in most cases. A defendant is entitled to—and often
does—ask a district court to revisit or reconsider a bail decision at
any time, even during the pendency of an appeal challenging the
initial pretrial detention order. Groce took advantage of this right
in this case, and that fact has created procedural quirks that
simply don’t arise in a typical appeal.
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State v. Groce
¶28 Here, the State asserts that Groce’s appeal—which is
specifically taken from the district court’s April 11 pretrial status
order and its June 27 order denying Groce’s renewed motion for
pretrial release—has been rendered moot. As the State sees it, “the
district court’s initial orders denying [pretrial] release”—
presumably referring to the ones entered on March 22 and April
11—“have no practical effect now that two subsequent orders”—
presumably referring to the ones entered on May 6 and June 27—
“control Groce’s continued detention.” And while acknowledging
that Groce filed a second amended notice of appeal following the
district court’s June 27 order on his renewed motion, the State
maintains that the June 27 order “is not before this court because
the appeals have not been consolidated.” In addition, the State
asserts that “the evidence that the [district] court relied on” to
support its June 27 ruling is not before this court, because “Groce
has not provided transcripts for the preliminary hearing or the
June 27 hearing.” We find the State’s arguments unpersuasive, for
two overarching reasons.
¶29 First, the particular issues raised in Groce’s appeal have not
been rendered moot by subsequent events, there remains a live
controversy between the parties generally regarding Groce’s
pretrial detention, and the relief requested by Groce—a
determination by this court that the State has not shown
substantial evidence to support the charges or clear and
convincing evidence that Groce is a substantial danger to the
community, and a reversal of the district court’s order of pretrial
detention—would still, if granted, be effective. As long as Groce
remains subject to a court order holding him without bail or
release conditions pending resolution of the charges against him,
the controversy between these parties regarding pretrial
detention remains live.
¶30 In this vein, it is perhaps useful to contrast the present
situation with other common situations in which controversies
regarding pretrial detention issues are indeed mooted by
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State v. Groce
subsequent events. In many—perhaps too many—cases,
appellate controversy regarding pretrial detention issues ends up
moot because the defendant enters into a plea agreement during
the pendency of the bail appeal. See, e.g., State v. Seat, 2022 UT App
143, ¶¶ 18, 40,
523 P.3d 724 (noting that the appellate issues had
been rendered moot when “the court released [the defendant]
from jail . . . upon entry of [the defendant’s] plea,” but also
observing that “we do not doubt that, in many cases, jailed
defendants may feel pressure, because of their in-custody status,
to accept plea bargains that they may not have accepted if they
were out of custody”). In those cases, the issues relevant to the
pretrial detention appeal are rendered moot by the ultimate
resolution of the case. And in other cases, defendants who are
initially held without bail and who appeal that status sometimes
manage to persuade the district court, during the pendency of the
bail appeal, to reconsider the detention order and release them. In
such situations, the controversy about pretrial detention status
may be rendered moot by the defendant’s release.
¶31 But where a defendant remains held without bail prior to
trial, the controversy related to pretrial detention—whether
substantial evidence exists to support the charges, whether the
defendant is a flight risk or a substantial danger, and whether any
material change in circumstances has occurred that might justify
release—remains as live as ever. We simply disagree with the
State’s assertion that the district court’s subsequent orders
continuing to hold Groce without bail pending trial have
rendered moot the controversy related to the underlying pretrial
detention issues.
¶32 Second, Groce has filed a second amended notice of appeal,
incorporating into this appeal a challenge to the district court’s
latest pretrial detention order: the June 27 order denying his
renewed motion for pretrial release and continuing to order him
held without bail. Groce filed that later notice of appeal within the
parameters of the initial appeal—using the same case number—
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State v. Groce
and we are therefore somewhat puzzled by the State’s contention
that a consolidation order would be necessary in order for us to
consider the matters referred to in Groce’s second amended notice
of appeal as part of this case. In this particular situation, there is
no second appellate case that could be consolidated into this one.
¶33 Perhaps aware that the presence of the second amended
notice of appeal is troublesome for its mootness argument, the
State has filed a motion asking us to strike that second notice. In
the State’s view, “only one pretrial status order can control at any
one time,” and the State asserts that the district court’s May 6
unsolicited minute entry—rather than the April 11 order or the
June 27 order—constitutes the operative pretrial status order, and
it points out that Groce did not appeal from the May 6 order.
While we assume the correctness of the assertion that there is only
ever one original “pretrial status order,” see Utah Code § 77-20-
205(2), in our view that order must by definition be the first order
in which the court—either at the defendant’s first appearance or
after a detention hearing—undertakes a complete “substantial
evidence” and “substantial danger/flight risk” inquiry, id.; see also
id. § 77-20-201(1)(c). As the State points out, all subsequent
requests for modification of that original pretrial detention order
are governed by a somewhat different standard, involving not
only the “substantial evidence” and “substantial danger/flight
risk” inquiry but also the question of whether “there has been a
material change in circumstances” that might warrant a change in
pretrial detention status. Id. § 77-20-207(1)(b).
¶34 As we read the record, the first time the district court made
a complete initial “substantial evidence” and “substantial
danger” determination, after argument and evidentiary proffer,
was in its April 11 order, after it had held a pretrial detention
hearing—continued over two days—and reviewed the release
recommendation report. Although the court made certain
findings at the conclusion of the March 1 part of that hearing, the
court stated that it “would like to see a release recommendation
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State v. Groce
report” containing information about potential pretrial release
options before finalizing its decision regarding Groce’s pretrial
detention. After considering the eventual release
recommendation report and entertaining argument at a continued
hearing, the court then issued a written order memorializing its
determination to keep Groce in custody, without bail, pending the
resolution of his charges. In our view, that April 11 order is the
original “pretrial status order” as that term is defined in section
77-20-205(2). And Groce properly appealed from that order, as
indicated in his original notice of appeal and in his first amended
notice of appeal.
¶35 All subsequent orders regarding pretrial detention, then,
will by definition arise in the context of reconsideration. A
defendant being held without bail prior to trial is always free to
ask the district court to reconsider his or her detention status, but
governing statutes require a showing of “a material change in
circumstances” before the court orders a change in the
defendant’s detention status. See id. § 77-20-207(1)(b). The district
court’s May 6 order—entered sua sponte after completion of the
preliminary hearing—falls into this category; indeed, the court
specifically stated, in its order, that “the evidence adduced at the
preliminary hearing” did not “persuade[] the court that a material
change in circumstances” had occurred that “justified [Groce’s]
release from custody.” And the district court’s latest order
denying Groce’s renewed motion for release—entered on June
27—also falls into this category; indeed, at the June 27 hearing, the
court read aloud its May 6 order, again stating that it was not
“persuaded” that there had been “a material change in
circumstances [that] justified [Groce’s] release from custody.”
¶36 A defendant has a statutory right to mount an immediate
appeal from pretrial detention orders. See id. § 77-20-209; see also
id. § 77-18a-1(1)(d). But while, as noted, we agree that there is only
one original “pretrial status order,” see id. § 77-20-205(2), we
disagree with the State’s contention that there is only ever one
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order regarding pretrial detention, in any given case, from which
an appeal can be taken. The relevant statute reads as follows:
If a magistrate or judge issues a pretrial status order
that orders the individual be detained during the
time the individual awaits trial or other resolution
of criminal charges, the individual has the right to
an expedited appeal of the pretrial status order.
Id. § 77-20-209 (emphasis added). The State focuses on the word
“the” in the second clause, and it infers therefrom that “only one
pretrial status order can control at any one time” and that only
that order is appealable. But as we read this statutory provision,
the phrase “the pretrial status order” in the second clause is
simply referring back to the phrase “a pretrial status order” in the
first clause. The better reading of this statute is that a defendant
may appeal “a pretrial status order” that orders pretrial detention.
And in this context, the indefinite article is broad enough to mean
“any” such pretrial detention order. See Graphic Packaging Int’l Inc.
v. Labor Comm’n,
2021 UT App 82, ¶ 24,
495 P.3d 228 (“The
indefinite article ‘a’ can mean ‘any,’ or can be used as a function
word before a mass noun to denote a particular type or instance.”
(quotation simplified)); see also South Dearborn Env’t Improvement
Ass’n v. Department of Env’t Quality,
917 N.W.2d 603, 612 (Mich.
2018) (“‘A’ is an indefinite article, which is often used to mean
‘any.’”). Thus, a defendant may appeal not only the original
pretrial detention order, but also subsequent orders in which the
court keeps the defendant in pretrial detention.
¶37 In passing, we offer some guidance to courts and litigants
as to how such appeals should be managed. A defendant must file
a separate notice of appeal from each pretrial detention order that
he or she intends to challenge, and each such notice must be filed
within thirty days of the entry of the challenged order. See Utah
R. App. P. 4(a) (setting forth the thirty-day appeal deadline).
Subsequent notices of appeal may be filed independently, as
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separate cases with separate case numbers, or they may be filed
as amended notices of appeal in the pending appellate case.
Following the filing of any subsequent notice of appeal, the
litigants may make appropriate motions (for consolidation, for
supplementation of the record, for supplemental briefing, etc.)
regarding management of the appeal. Because bail appeals must
be handled with all possible dispatch, we encourage parties to
streamline this process as much as possible. And as discussed in
more detail below, a defendant’s challenge to a subsequent
pretrial detention order must meet a somewhat higher merits bar
than the challenge to the original pretrial status order.
¶38 Applying these principles here, we conclude that Groce’s
appeal is procedurally proper. His original notice of appeal
involves a challenge to the court’s original pretrial status order, in
which the court found substantial evidence supporting the
charges as well as that Groce was a substantial danger to the
community. Groce filed his appeal from that order within thirty
days of its entry, and he has a statutory right to mount that appeal
now, rather than waiting until the conclusion of his criminal case.
In addition, by filing the second amended notice of appeal, Groce
is also challenging the district court’s June 27 order denying his
motion for modification of the original pretrial status order; in
connection with that ruling, the court determined that there had
not been a material change in circumstances, and it indicated that
Groce was still a substantial danger to the community. We see no
procedural problems with Groce’s efforts to bring both of his
pretrial detention challenges to this court.
¶39 Specifically, we conclude that Groce’s challenge to the
propriety of the district court’s original pretrial status order has
not been mooted by the court’s subsequent orders regarding
Groce’s modification requests. Those later requests are governed,
at least in part, by a different statutory requirement, compare Utah
Code § 77-20-201(1)(c), with id. § 77-20-205(1)(b), and the
governing statutes allow defendants to appeal multiple pretrial
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State v. Groce
detention orders, see id. § 77-20-209. Moreover, no aspect of the
court’s subsequent rulings eliminated the controversy between
these litigants regarding Groce’s pretrial detention status. On this
basis, we reject the State’s mootness argument.
¶40 In so doing, we deny the State’s motion to strike Groce’s
second amended notice of appeal. In our view, Groce’s effort to
amend the scope of this appeal to include a challenge to the June
27 order is procedurally sound. And for similar reasons, we also
deny the State’s motion to strike parts of Groce’s reply
memorandum, and we grant Groce’s motion to supplement the
record to add items—for instance, the transcript of the
preliminary hearing—that the court considered in rendering its
June 27 decision.
II. The Merits of the Pretrial Detention Orders
¶41 We turn now to the merits of Groce’s challenges to the
district court’s pretrial detention orders. As noted, Groce’s appeal
encompasses a challenge to two such orders: (a) the court’s
original pretrial status order, entered on April 11, and (b) the
court’s order, entered as a signed minute entry on June 27,
denying Groce’s motion for a modification of the original order.
We address each challenge, in turn, and discern no error or abuse
of discretion in either order; on that basis, we reject Groce’s
challenges on their merits.
A. The Original Pretrial Status Order
¶42 Our state constitution provides that, subject to three
exceptions, “[a]ll persons charged with a crime shall be bailable.”
Utah Const. art. I, § 8(1). One of those three exceptions is relevant
here, and it applies to the following individuals, who are not
entitled to bail:
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[P]ersons charged with any other crime, designated
by statute as one for which bail may be denied, if
there is substantial evidence to support the charge
and the court finds by clear and convincing
evidence that the person would constitute a
substantial danger to any other person or to the
community or is likely to flee the jurisdiction of the
court if released on bail.
Id. art. I, § 8(1)(c). These constitutional principles have been
codified in statute; the relevant provisions provide that an
individual charged with a crime “shall be admitted to bail as a
matter of right,” unless that individual is both (1) “charged with
. . . a felony when there is substantial evidence to support the
charge,” and (2) found “by clear and convincing evidence” to be
either “a substantial danger to any other individual or to the
community after considering available conditions of release,” or
“likely to flee the jurisdiction of the court if the individual is
released on bail.” Utah Code § 77-20-201(1)(c). And under Utah’s
current statutory scheme, these requirements govern a court’s
determination as to whether, “[a]fter hearing evidence” at a
“pretrial detention hearing,” it should “order detention.” See id.
§ 77-20-206(4), (5) (referring specifically to section 77-20-201(1) as
setting the substantive standards to be applied at a pretrial
detention hearing). The district court here correctly looked to
these principles in entering its original pretrial status order.
¶43 Applying these standards, the court found, in its original
pretrial status order, that substantial evidence supported the
charges against Groce. And while it did not find that Groce was a
flight risk or that Groce was a substantial danger to any discrete
individual, it did find, by clear and convincing evidence and after
considering available release conditions, that Groce was a
substantial danger to the community. Groce challenges both of
these determinations, which we address in turn.
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1. Substantial Evidence to Support the Charges
¶44 Our supreme court has explained that “the purpose of the
substantial evidence standard” in the bail context “is to ensure
that the quantum of evidence presented by the State sufficiently
justifies the denial of the defendant’s right to freedom from
pretrial incarceration.” Randolph v. State, 2022 UT 34, ¶ 74,
515 P.3d
444. The necessary “quantum of evidence,” in this context, is
enough evidence to provide “a reasonable basis for a guilty jury
verdict.”
Id. ¶¶ 73–74. And since in criminal cases a jury must find
a defendant guilty beyond a reasonable doubt, “[t]he substantial
evidence standard is met when the prosecution presents evidence
capable of supporting a jury finding that the defendant is guilty
beyond a reasonable doubt.” Id. ¶ 73. To meet this standard, the
prosecution’s case need not be entirely airtight; indeed,
“[e]vidence may be substantial even in the face of contradicting
pieces of credible evidence.” Id. ¶ 77; see also id. ¶ 80 (observing
that the defendant had, at the bail hearing, “poked holes” in the
State’s case, but stating that “poked holes do not demand that the
district court conclude that the substantial evidence standard has
not been satisfied”); Chynoweth v. Larson,
572 P.2d 1081, 1082
(Utah 1977) (stating that the evidentiary issue at a pretrial
detention hearing is “whether the facts adduced by the State,
notwithstanding contradiction of them by defense proof, warrant
the conclusion that if believed by a jury they furnish a reasonable
basis for a [guilty] verdict” (quotation simplified)). Ultimately,
“[t]he district court’s task is to decide whether the State has, even
in light of the defendant’s contrary evidence, placed into the
record evidence sufficient to permit a reasonable jury to conclude
that the defendant committed the charged offense.” Randolph,
2022 UT 34, ¶ 77.
¶45 In examining whether substantial evidence exists to
support a charge, a district court must of course keep in mind the
elements of the relevant charge. Here, Groce was charged with
attempted child kidnapping. The crime of child kidnapping
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requires the State to prove that the defendant “intentionally or
knowingly, without authority of law, and by any means and in
any manner, seizes, confines, detains, or transports a child
without the consent of the child’s parent or guardian.” Utah Code
§ 76-5-301.1(2). And Utah’s attempt statute requires the State to
prove that the defendant “engage[d] in conduct constituting a
substantial step toward commission of the crime.” Id. § 76-4-
101(1). Thus, to convict Groce of this crime at trial, the State will
have to prove, beyond a reasonable doubt, that Groce
intentionally or knowingly took actions that constituted a
“substantial step” toward seizing, confining, detaining, or
transporting Child, without authority of law and without the
consent of her parents. In the bail context, the relevant question is
whether the State presented “substantial evidence” to support its
case, which (as noted) here means “evidence capable of
supporting a jury finding” at trial, beyond a reasonable doubt,
that Groce committed the crime. See Randolph, 2022 UT 34, ¶ 73.
¶46 In challenging the district court’s “substantial evidence”
determination, Groce makes two related arguments. First, Groce
asserts that the State did not present “substantial evidence” that
Groce took a “substantial step” toward commission of the charged
crime. Second, Groce asserts that the State has not sufficiently
demonstrated that his conduct “corroborated an intent to kidnap”
Child. (Emphasis added.) As Groce characterizes the facts, all the
State has shown is that he drove into a parking lot next to a
playground and, while still in his car, beckoned to Child. And he
argues that this conduct falls “woefully short of a substantial
step” toward intentionally kidnapping Child.
¶47 To constitute a “substantial step” toward commission of a
crime, an action must be “something more than mere
preparation” to commit it; instead, the action must constitute “a
tangible step toward commission of [the] crime that transcends
intent yet fails to culminate in its planned accomplishment.” State
v. Arave,
2011 UT 84, ¶ 30,
268 P.3d 163 (quotation simplified).
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And our supreme court recently clarified that “substantial step”
and “intent” are closely linked, because “‘conduct constitutes a
substantial step if it strongly corroborates the actor’s’ intent to
commit the underlying crime.” State v. Smith, 2024 UT 13, ¶ 24,
548 P.3d 874 (quoting Utah Code § 76-4-101(2)). Here, the State
asserts that Groce’s conduct “strongly corroborated his intent to
kidnap” Child, and that the facts presented to the district court at
the detention hearing “provide a reasonable basis, based on
human experience, for a jury to conclude that Groce intended and
took a substantial step to kidnap” Child. We agree with the State.
¶48 The district court did not err in concluding that the
evidence presented at the detention hearing constituted
“substantial evidence” that Groce had taken a “substantial step”
toward intentionally seizing, confining, detaining, or transporting
Child. To start with, we note that Groce is a registered sex
offender—whose previous offense involved masturbating while
watching children—who drove to a parking lot next to a
playground and beckoned to a child he did not know. These
overarching facts are quite unfavorable for Groce. See id. ¶ 20
(determining that the defendant had taken a “substantial step”
toward, among other charges, attempted child kidnapping, when
he drove to the location where he believed the victim was located
and took actions aimed at inviting her “to get into his car”).
¶49 But as the State points out, the granular-level facts here
clinch the point that a jury could reasonably draw a nonspeculative inference that Groce intended to kidnap Child. For
instance, Groce backed his car into the parking stall, which
allowed for a quicker and easier escape from the parking lot. He
did not just wave at Child, as though to say “hello”; instead, he
beckoned to Child, clearly inviting her to approach his car. At the
time he beckoned to Child, Groce’s car door was open and his
body was halfway outside the car. Child responded to Groce’s
beckoning gesture by actually proceeding toward Groce’s car.
Adults who witnessed this interaction—and who did not know
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State v. Groce
either Groce or Child—believed that something untoward was
occurring, and they took steps to intervene. Thereafter, Groce fled
the scene rather than engage with the adult witnesses and offer a
benign explanation for his actions, a fact the district court believed
might connote consciousness of guilt.
¶50 From these facts, a jury could reasonably infer—without
engaging in improper speculation—that Groce intended to seize,
confine, detain, or transport Child. See Salt Lake City v. Carrera,
2015 UT 73, ¶ 12,
358 P.3d 1067 (stating that “the difference
between an inference and speculation depends on whether the
underlying facts support the conclusion”). The fact that some
conflicting evidence exists—for instance, that Groce never got all
the way out of his car or that the witnesses never actually heard
him say “come here” to Child—and that certain inferences must
be drawn from the evidence in order for it to be sufficient to
support a finding that Groce took a “substantial step” toward
intentionally seizing, confining, detaining, or transporting Child
does not mean that the evidence does not constitute “substantial
evidence” for purposes of a pretrial detention inquiry. In our
view, after hearing the evidence presented, a reasonable jury
could conclude, beyond a reasonable doubt, that Groce
committed the crimes with which he is charged. See Randolph,
2022
UT 34, ¶ 77. And that is enough to satisfy the “substantial
evidence” standard for pretrial detention.
2. Substantial Danger
¶51 Next, Groce challenges the district court’s determination
that he constitutes a substantial danger to the community. We see
no error, let alone clear error, in the court’s determination.
¶52 Groce asserts that the district court failed to give sufficient
weight to certain aspects of the case that favor him. For instance,
Groce points out that he “was gainfully employed until the time
of his arrest” and has a “security clearance” to work for a “military
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contractor.” He points out that he does “not have a lengthy
criminal history,” with just one previous misdemeanor
conviction, and that his history includes “no allegations of
violence.” And he notes that the “individuals involved in the
present case are strangers to” him.
¶53 The district court was aware of these facts. It held off on
making a final decision regarding Groce’s pretrial detention until
after it had reviewed a “release recommendation report,” which
not only contained all of the facts Groce now emphasizes but also
additional facts useful to Groce, including that he had strong
family support and a successful supervision history on his
previous conviction. The court took a commendably holistic view
of the facts here, and Groce’s complaint about the manner in
which the court weighed those facts is simply not well taken given
our deferential standard of review.
¶54 Moreover, the court considered possible conditions of
pretrial release, but it rejected GPS monitoring in this situation
because while it “would tell us where [Groce] is, . . . it wouldn’t
tell us whether there are children around.” The court also noted
that no-contact orders wouldn’t be of any use either, precisely
because Child had been a stranger to Groce. Indeed, the “strangerdanger” aspect to this case appeared to be important to the court’s
conclusion that Groce constituted a substantial danger not just to
any particular individual but to the community at large, a
determination we certainly do not consider clearly erroneous.
¶55 Finally, Groce asserts that the court’s “substantial danger”
determination required “pure speculation,” especially the court’s
musing that the current situation “appears to be an escalation”
from Groce’s previous sex offense “to the next level of actually
having hands-on offenses involving children.” While we agree
that this reasoning certainly involves an inference, we do not
think it was an unfair one. Courts do not act inappropriately when
they consider a defendant’s criminal history in making pretrial
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State v. Groce
detention decisions, and the court did not err here by considering
Groce’s previous offense and by drawing reasonable inferences
from that conviction as applied to Groce’s current charge.
¶56 Accordingly, we discern no error, let alone a clear one, in
the district court’s determination that Groce constitutes a
substantial danger to the community. We therefore reject all of
Groce’s challenges to the court’s original pretrial detention order.
B. The June 27 Order Denying Release
¶57 Next, we examine Groce’s appellate challenge to the
court’s June 27 order denying his renewed motion for bail or
pretrial release. This motion constituted a request for
modification of the court’s original pretrial status order. See Utah
Code § 77-20-207. To succeed on the merits of such a request, the
movant carries an additional burden not present during the
original inquiry: the movant must show “that there has been a
material change in circumstances.” Id. § 77-20-207(1)(b). That is, if
circumstances have not materially changed since the entry of the
then-operative pretrial status order, the governing statute
requires the district court to deny the request for modification on
that ground alone, without engaging anew in the substance of the
inquiry discussed in the previous section and mandated by Utah
law. See id. § 77-20-201(1)(c).
¶58 Groce’s argument for modification was grounded in the
evidence presented at the preliminary hearing, at which witnesses
appeared and testified under oath. And his appellate challenge is
similarly grounded, although as we interpret it, it is limited to the
“substantial evidence” part of the legal test. In essence, Groce
asserts that the evidence presented at the preliminary hearing
materially changed the factual landscape and compels a
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State v. Groce
determination that there is no longer substantial evidence to
support the charge against him. 2 We disagree.
¶59 As the district court noted in its lengthy oral ruling
denying Groce’s motion to quash the bindover, the evidence
presented at the preliminary hearing—including video footage of
the encounter in the playground parking lot—strongly supports
the State’s case. The court noted that Groce was a “registered sex
offender” who “was driving slowly through the parking lot” in “a
location next to a park where he arguably shouldn’t have been.”
Witnesses testified that Groce “was beckoning to” Child, who
2. For purposes of our analysis, we presume—in Groce’s favor,
given the fact that the May 6 order of clarification was not the
result of a motion for modification—that the relevant inquiry
involves comparing the situation as of April 11 (when the original
pretrial status order was entered) with the situation as of June 27
(when Groce made his motion for modification). By making that
presumption, we are able to include in our analysis the evidence
adduced at the preliminary hearing. However, we note the
strength of the State’s assertion that the proper comparison
should be between the situation as of May 6 (the date of the court’s
order of clarification) and the situation as of June 27; the
preliminary hearing occurred before May 6, and not even Groce
contends that any new information came to light between May 6
and June 27 that could have changed the district court’s analysis.
Regardless of which comparison we make, however, we agree
with the State that, in this case, the court did not abuse its
discretion in determining that no material change of
circumstances had occurred. We note, by way of guidance, that in
considering whether a change in circumstances has occurred for
purposes of deciding a motion for modification of a pretrial
detention order, district courts should ordinarily compare the
situation as of the date of the motion with the situation as of the
date of the last (and operative) detention order.
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State v. Groce
“was playing at the park, about ten feet away from” Groce’s car.
The witnesses who saw Groce beckon to Child “confront[ed]”
him, at which point he “fled the scene . . . at a high rate of speed”
and then told his wife that “he may be in custody later on in the
day.” After watching the video footage, the court noted that “[i]t
looked like” Groce “engaged in a substantial step” toward
commission of child kidnapping.
¶60 We recognize that, in making its ruling on the motion to
quash, the court was applying a “probable cause” standard in the
bindover context. But after making that ruling, the court
addressed Groce’s renewed motion to modify pretrial detention,
and it expressly shifted from the “probable cause” standard
applicable to bindover to the “substantial evidence” standard
applicable to detention determinations. And in this new context,
it considered the additional evidence presented at the preliminary
hearing, and it concluded—in its sua sponte May 6 order of
clarification, which it read into the record at the June 27 hearing—
that there had not been “a material change in circumstances” that
“justified [Groce’s] release from custody.”
¶61 Groce resists this conclusion by pointing out several
additional details that emerged in the preliminary hearing that
had not been disclosed to the court previously. We acknowledge
that certain new details were adduced at the preliminary hearing,
including the fact that none of the witnesses heard Groce actually
say anything to Child. But the State’s basic case remained
substantively unchanged, both before and after the preliminary
hearing. On this record, we perceive no abuse of discretion in the
district court’s determination that there had been no “material
change in circumstances” sufficient to justify a modification to
Groce’s pretrial detention. On this basis, we reject Groce’s
challenge to the district court’s June 27 order.
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CONCLUSION
¶62 Groce’s appeal is not moot, because the controversy at the
center of the case—whether Groce is lawfully being held in
custody without bail pending the resolution of his criminal
charges—has not been eliminated by subsequent events. Groce is
entitled to appeal both the original pretrial status order as well as
later detention orders, and he acted procedurally properly by
filing an amended notice of appeal to incorporate a later order.
¶63 On the merits of his appeal, however, Groce has not
persuaded us that the district court committed reversible error.
Substantial evidence exists to support the charges against Groce.
The district court did not clearly err in determining that Groce is
a substantial danger to the community. And it did not abuse its
discretion in concluding that no material change in circumstances
had occurred since the original pretrial status order that would
justify a change in Groce’s pretrial detention status. We therefore
reject all of Groce’s appellate challenges on their merits.
¶64 Affirmed.
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