UT v. Tyler Robinson Final Preliminary Hearing

(04:09:37)
Not withstanding all of the people around Charlie Kirk, the defendant chose to fire. He knew, as anybody would know, that that creates a great risk of death, not only to Charlie Kirk, but the people around Charlie Kirk. And this is what the scene looked like. There were people everywhere. There are people moving around behind Charlie Kirk. You see in the minutes leading up to the shooting, there are people moving behind Charlie Kirk, moving in front of the pop-up tent there from behind, from in front, moving around freely. Just five seconds before the shot, there was a woman directly behind Charlie Kirk in the line of fire. And we know the defendant would've seen all these people, and of course the people in front of Charlie Kirk, and especially that questioner who is only feet away, as well as the security detail immediately to Charlie Kirk's right.

(04:10:45)
Looking at that image, probably two feet away, but the defendant chose to take that shot anyway. What do we know about the defendant's mental state? We all know people can miss, right? Michael Jordan didn't hit every single three pointer he took, right? Major league pitchers don't throw strikes every time. And the defendant knew he could miss two. Exhibit 25, I count 28 rounds that are fired through these targets and only one, two, three, four of those 28 rounds hit the red. The defendant knew he could miss. Not only did he know he could miss, he planned for it. He planned for it because he came loaded with four rounds in that magazine, not just the round that he shot. He knew he could miss and the only reason he took other rounds is because he knew he could miss and he came prepared to shoot again. Now, Your Honor, in all the case law, we don't see appellate cases anywhere, frankly, throughout the country of assassinations like this, of public assassinations.

(04:11:58)
And so the cases are only as helpful as the applicability of the facts that they deal with. But we do have factual precedent. In addition to common sense, you know that if you shoot into a crowd, if you miss, you're going to hit someone else. And that's not just a possibility, that's a great risk of death to someone else when we're talking about firing a high-powered rifle. We remember Butler, Pennsylvania when President Trump was shot. His life was saved because he turned his head and the bullet went through his ear. And what happened in that miss and other misses? Well, three of those errant shots hit people, one of which fatally. Not only is there common sense, but there's recent precedent. You shoot at someone in a public assassination attempt, you have a great risk of killing someone else.

(04:12:48)
Now, Your Honor, these are not just possibilities, but known risks. What are the consequences of missing? Death. It's not that the defendant didn't see all these people. He obviously did. He had to. It's that he didn't care. He came on a mission to kill Charlie Kirk, and if he missed, so be it. And he was prepared to take other shots and let the casualties be what they may. The evidence that the defendant is of probable cause in this case, that the defendant is the shooter and knowingly created a great risk of death is overwhelming. And we'd ask the court to bind over count one. As to count two, felony discharge of a firearm. Your Honor, it's the same evidence that applies. I'm not going to go over that evidence again here for count two. Count three, obstruction of justice. This involves hiding the rifle. We know that the defendant hid the rifle, one, because we see him after he jumps off the Losee Center, run into the woods.

(04:13:50)
The rifle was found hidden under a bush, and the defendant admitted to his boyfriend that he had to leave it in a bush. Count four deals with disposing of the clothing. In exhibit 14, which is the written statement of Mike Mitchell, Mike Mitchell recounts his conversation with the defendant where the defendant stated he had disposed of the clothing. Count five, witness tampering. This deals with the defendant telling Lance Twiggs to delete the text messages after the defendant had admitted to killing Charlie Kirk. Count six, witness tampering. This is telling Twiggs to stay silent. Now, defense counsel in their pleadings states that, "No, this is altruistic. This is not witness tampering because it's not telling Lance Twiggs to avoid giving information or testimony for the defendant's benefit. It's just telling him his rights, in essence." Well, that requires you to draw the inferences in the defendant's favor, which is improper at this stage.

(04:14:56)
Moreover, it requires you to ignore the circumstances here. You have to remember, the defendant had just shot and killed someone. He'd just hidden the rifle. He'd just gotten rid of his clothing. He just asked Lance Twiggs to delete the text messages and incriminating messages. And of course, so he told Lance Twiggs also to avoid giving him up. Don't talk to police when they come to ask you questions. Furthermore, as it relates to the Fifth Amendment, Lance Twiggs did not have a Fifth Amendment right against incriminating the defendant. The Fifth Amendment right only applies to incriminating himself, and there's no evidence that Lance Twiggs would have incriminated himself by speaking with the police. Finally, Your Honor, we get to count seven.

(04:15:41)
Now at this juncture, I want to talk a little bit about the aggravating and enhancers, right? So counts one and two have an aggravating factor of committing homicide in the presence of a child and a victim targeting enhancement for the motive. With regard to counts one and two, the court does not need to enter any order binding over those allegations. Apprendi states that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, the prescribed statutory maximum, what appears in the law, that must be submitted to a jury and proved beyond a reasonable doubt. Defense counsel misstates the law here and says anything that increases the punishment. That's not what Apprendi says. It says what I've quoted here on the screen, anything that enhances the penalty beyond the prescribed statutory maximum. And so let's look. Do these aggravating factors do so? 76 3203.9 says this, "The sentencing judge or the board of pardons and parole shall consider as an aggravating factor in their deliberations that the defendant committed the violent offense in the presence of the child as an aggravating factor, right?

(04:16:54)
That does not increase the statutory maximum penalty, so you don't have to bind it over. Victim targeting, now victim targeting can under certain circumstance enhance the statutory maximum, and it does with count seven, by the way. But with regards to count one and counts two, it does not. Under 203.14 sub 3B, it states the sentencing judge or the barter pardons and parole shall consider defendant selection of the victim as an aggravating factor. An aggravating factor does not increase the statutory maximum. It's considered just like the aggravating circumstances on the PSI that we're so used to dealing with. Now, with regard to count seven, it does, right? Going back to the statute, a class B is enhanced to a class A if there's victim targeting. Count seven is violence in the presence of a child. It's a class B misdemeanor. It's increased to a class A because of the victim targeting enhancement. Now, regardless if you agree with me on any of these things, as far as the aggravator and enhancing circumstance go, the facts still satisfy both of these elements.

(04:18:17)
And I have to address them both anyway because the evidence that supports count seven is the same evidence that supports the enhancing circumstance. That is that the defendant knew children were present, right? That's count seven and also the aggravating circumstance. How do we know the defendant knew that children were present? Defense counsel is right. We don't have any direct evidence of what the defendant saw, but we do know several things. One thing we know is that Orem City's motto is Family City USA. You can't go anywhere in Orem and you can't go anywhere in Utah County without seeing kids all over the place. And UVU on September 10th, that morning was no different. There were children around and no one was hiding the children. It's a reasonable inference to believe that the defendant would've seen these children in one of two of his scouting missions or when he was on the roof.

(04:19:15)
In looking at the evidence, I stopped the video in exhibit eight at one spot where that panning video slows down enough to have a clear view. And in one frame, I'm able to find three babies in arms, right? They're circled there on count eight. In addition to that, we know there were other children who were present. Through exhibit six, we know there were two children present with their mother here. Your Honor, the inference is the defendant would've known that children were present when he shot and killed Charlie Kirk. Was he focusing on them? No, of course not. He was focusing on his target, but he would've known and he didn't care and he committed the offense in their presence anyway. Finally, to enhance count seven to a class A misdemeanor, you also have to find probable cause that the defendant targeted Charlie Kirk because of his political views. Charlie Kirk was famous. He was a famous political activist.

(04:20:22)
And in exhibit 5.1, we learn a little bit about what he stood for and what his organization stood for. Charlie Kirk would engage attendees, most often students in civil debates and discussion on traditional family values, Orthodox Christian views on sexuality, marriage and gender and sex, as well as other political doctrines. Charlie Kirk and TPUSA speakers often specifically attempted to persuade attendees to follow a mindset rooted in Orthodox, Christian and politically conservative values. We know what Charlie Kirk stood for, and those ideas were repugnant to the defendant who was in a homosexual relationship with a man who was considering transitioning genders. It doesn't take a lot to connect the dots. We know what the defendant's mental state was and why he did what he did because of what he said, right?

(04:21:16)
Remember the note to his boyfriend, Luna, where he says, let me make sure I get this right. " I went on a mission to take out Charlie Kirk. I wish we could have lived in a place where this was not necessary. I wish I could have stayed for you and lived our lives together." We've got to think about the context there. When he was asked by his boyfriend, "Why? Why did I do it? Yeah, I had enough of his hatred. Some hate can't be negotiated out." And then most clearly we have the etchings on the rounds found in the gun. Exhibit 19, Twiggs explained what this means. Notices bulge, O-W-O, surprise face. What's this? This is a furry meme of the surprise someone has in discovering that another individual unexpectedly has male genitalia. Exhibit 20 is probably the most clear political statement here. "Hey, fascist, catch." We know what that means from just knowledge of current events. Fascist is a common derogatory label that those on the left give to those on the right to try and categorize them and group them with the famous evil dictators and fascists of the 20th century.

(04:22:58)
And then exhibit 2022, if you read this, you are gay, LMAO. So these etchings show a clear political and sexual motivation connected with a political stance that Charlie Kirk took. Your Honor, in summary, on September 10th, 2025, the defendant, Tyler James Robinson, shot and killed Charlie Kirk because he disagreed with him. And he did it by firing a high-powered rifle into a group of thousands who surrounded Charlie Kirk literally on all sides. And he, like any rational person, knew that that would create a great risk of death to all those around Charlie Kirk in the event of any one of a number of likely possibilities that he created a great risk of death that he could miss, a ricochet, a pass through, or any number of things could happen and kill any other of those people around Charlie Kirk. We'd ask the court to bind over the defendant on all charges.

Tony Graf (04:24:20):

All right. So defense, do you want to take a break, move forward and then take a break in the middle or what's your preference?

Staci A. Visser (04:24:31):

Let's do it.

Tony Graf (04:24:33):

All right. We move forward.

Staci A. Visser (04:24:55):

Thank you, Your Honor. As I stated before, we're going to split this up a little bit, the defense presentation, and kind of focus on three potential areas depending on the court's questions. So if the court does have questions about the aggravator specifically, I would be the one to ask those questions too. As I stated before, Mr. Burt is available to answer questions about the forensic evidence should the court have questions about that. And then Mr. Novak will comment upon count six, seven, and the enhancement issues there at the end. I want to start out by stating, Your Honor, that my focus is primarily on the legal framework and the constitutional issue that's been presented. I will at times discuss the state's evidence, of course. These are not concessions of facts. This is the evidence that's before the court. We do understand we're in a probable cause hearing.

(04:25:57)
We understand what the standard is. We understand the law. We're all on the same page about that there. And I do want to address briefly the error that I made in the briefing about Cristobal and not citing the additional law that came after it. I do want to provide a little context to the court about that case in particular that is cited by other cases. It's really just that one sentence that was overruled, and I absolutely should have put that into the brief, and I apologize to the court for that mistake. These cases deal with the standard of review and reviewing a jury verdict for sufficiency of the evidence on direct appeal. It is a different scenario, and the discussion of speculation in Cristobal is still endorsed by the Supreme Court and State v. Prisby in particular. They do not cite to that specific sentence to be very clear, but the rest of it is still good law and it's still cited by Prisby.

(04:27:06)
So with that clarification, I'm going to address one more issue before I get into this too much, and that is the state's effort in the briefing and here now in oral argument to add to the evidence. In the reply brief, for example, the state cites to standards like safety standards of a Provo shooting range. That wasn't evidence at the prelim. The state had five days to present evidence. The state had ample opportunity to present evidence about guns, gun safety, specifics about physics, about probabilities, about whatever it wanted to admit. It did not. It cannot now add to that, both in argument and in its briefing. So we would ask the court to stick to the evidence in making its determination.

(04:28:13)
So turning to the aggravator, there is a tendency when we talk about the aggravator to kind of use synonyms and maybe get caught up in semantics. So I'm going to start with the standard and I'm going to end with the standard. And the standard is the actor knowingly created a great risk of death to another individual other than the deceased individual here, Mr. Kirk, and the actor. The question before the court is whether Utah's aggravator, as interpreted by the Utah Supreme Court, applies to the circumstances as presented to the state. And as we've argued in our brief, it does not. So I'm going to address this in three, kind of bleeding into four parts. The first is the constitutional framework. That is a fundamental issue here that's going to follow this case, frankly, discussing how Utah has defined the aggravator and how the state is trying to shoehorn this case into that aggravator by discussing some of the evidence that it relies on, particularly as to knowledge.

(04:29:28)
So the constitutional base that we're talking about here is going back to the cases we cited in our brief, Gregg and Proffitt. These cases looked at the statutory schemes in Georgia and Florida to determine if they met the requirements to be constitutional after Furman. And they looked specifically at the aggravator, knowingly created great risk of death to more than one person. And in Gregg, United States Supreme Court said explicitly, "While such a phrase might be susceptible of an overly broad interpretation, the Supreme Court of Georgia has not so construed it." So the state's claim in its brief that the legislature narrowed the circumstances adequately just by adding knowing to this aggravator is simply not true. This is a phrase that is susceptible to overly broad interpretations. And we know that because the state is trying to apply it here. Similarly, in Proffitt, the United States Supreme Court found the Florida Supreme Court properly construed the aggravator narrowly.

(04:30:51)
That statute also had a knowing requirement. It was still reviewed and it wasn't upheld based off of the knowing requirement. It was based off of how the courts construed it narrowly. So that's the foundation, that's the floor for the aggravator. Now we look at how the Utah courts have applied it and there are three cases that are really on point here that we have to look at. We look at Pierre, we look at Johnson and we look at Sosa-Hurtado. And in these cases, there is discussion of three factors. Those are well spelled out in the brief, but I will again state them here. This is from paragraph two, which is where the court will find the actual finding ruling from Sosa-Hurtado, "The temporal relationship between the murderous act and any acts endangering a third person. The spatial relationship between the third party, the murder victim and the defendant at the time of the acts constituting the murder, and whether and to what extent the third party was actually threatened by the assailant." These are the three-

Staci A. Visser (04:32:00):

... actually threatened by the assailant. These are the three factors that inform the question that was identified in Johnson, which is zone of danger. So examining these three factors here, they're clearly not met. There is no temporal relationship for this Court to evaluate because there is one act. There is one shot. There is one bullet. There is one victim. There is no temporal relationship for this Court to evaluate. This factor is not met. There were no actual threats by the assailant to the third party. There was no evidence that would suggest that anyone else was threatened. In the other cases talking about threats to the third party, we're looking at multiple gunshots. We're looking at verbal threats. We're looking at pointing a firearm at someone. We're looking at using a device that is more likely to cause injury to multiple people. For example, in Florida, there was a case involving a sawed-off shotgun that was found to be more likely to cause injury to people in surrounding areas, bombs. Those are the types of weapons that would cause injury to more people than the actual victim. We acknowledge that the Sosa-Hurtado court was careful to say that these are not a checklist, right? These are factors for this Court to consider in deciding whether or not the conduct here falls within the statute. And the fact that maybe one of these factors is met, but the other two are not, should be something that this Court weighs. It's interesting in Sosa-Hurtado, when I was rereading it in preparation, they describe Johnson itself, the Johnson case, as like a single-act case. So although most of the cases talk about the series of events and the issue in Sosa-Hurtado was essentially whether or not Johnson overruled Pierre, that's one of the issues that it raised. And the court explicitly found no, no because Johnson was a single-act case. So the court looked closely at those factors in examining whether in that single-act case, the statute was met.

(04:34:57)
And that's also why we spent quite a bit of time in the briefing talking about the cases that were relied upon in the Johnson decision. These cases are Chenault v. State, a Georgia case. This is a case of a mass shooting in a church. State v. McMurtrey in Arizona, multiple shots fired in a bar full of patrons. State v. Sonnier, Louisiana, victims made to lie down side by side on the ground and shot them rapid fire with a rifle. State v. Doss, Arizona, defendant fired multiple shots into a crowded auditorium killing the victim and hitting another. State v. Price, a case relied on heavily by the court in Johnson. The defendant unloaded six rounds of his Colt .38 revolver at the intended murder victim while the other person was sitting close to the victim on the couch. Several of the bullets struck the victim on the side next to which the other person was sitting.

(04:36:04)
The Utah Supreme Court in Johnson emphasized the language from State v. Price. And Price is an interesting case because it actually grapples with the constitutional question of how do we construe this aggravator? And they state, "The facts must include a knowing or purposeful state of mind vis-a-vis the creation of great risk of death and that there be a likelihood or high probability of great risk of death created, not just a mere possibility, and that there be at least one person within the zone of danger created by the defendant's conduct." Price goes on to talk about the various circumstances under which this may apply, and it specifically states, "Certainly, constitutional concern would arise where the aggravating factor construed to apply where only one person, the murder victim, is murdered."

(04:37:09)
And that's what we have here. That's the crux of the issue, right? Expanding the aggravator to conduct involving one person, the murder victim, and no other conduct is alleged endangering anyone. And that's why the Court cannot adopt the State's interpretation without running afoul of the constitution. And what's interesting about the State's position on this is if the State really believed that Sosa-Hurtado was enough, if these factors were enough, it wouldn't need to pull case law from another jurisdiction and ask this Court to adopt language that no Utah court has ever adopted before. The anyone near argument similarly relies only on one factor, right? Spatial proximity. Now, we can get into the nitty-gritty of the spatial proximity issue.

(04:38:27)
Here, the State didn't really provide a lot of evidence about the spatial proximity issue, and I don't want to get into this tit-for-tat about feet, about measurements that don't exist in the record. I think the videos speak for themselves. I think the State's reliance on some videos over other videos is a little misleading. For example, the State's emphasis on Exhibit 8, which is a camera angle pointed downward is perhaps not appropriate when calculating distance or estimating distance for the purpose, excuse me, of a probable cause finding. But the fundamental idea that the State is propounding here is that presence alone is enough. But if the Court adopts that reasoning, the Court is unconstitutionally expanding the aggravator. This is how we run into the Eighth Amendment in Utah Constitution Article I, Section 7 issue.

(04:39:45)
I do want to briefly mention the issues in the evidence about the State's speculating. The State asks the Court to draw inferences from evidence that appear to have been admitted primarily for the purpose of establishing identity, but is now trying to construe it in such a way that it shows knowledge, for example, the screwdriver on the roof. The screwdriver on the roof, according to the State's evidence, has a DNA that is similar to Mr. Robinson's. I would imagine that is intended to show that it was allegedly Mr. Robinson on the roof. Now, we're going to deal with that evidence in the future. We're going to have hearings about the DNA evidence, for sure. But the State goes on to ask this Court to infer that the rifle was taken apart and put back together with the screwdriver. The State didn't show actually how that would happen with the screwdriver. The rifle wasn't even here. This is just speculation.

(04:41:09)
But on top of that speculation, the State is also asking the Court to speculate that with this configuration of gun, that would impact the reliability of the shot, the accuracy of the shot, and then speculate that this individual, the shooter, knew about that. These are not inferences. This is speculation. This is a prime example of speculation. The same is true of the targets. The State provided very little evidence about the targets other than they were found in Mr. Robinson's shared apartment in a closet on the first floor. They provided evidence through testimony that the perforations in the targets are from a gun. They didn't say what kind of gun. We don't know when those were shot. We don't know who shot them, and we don't know the conditions under which those were shot at. They are just targets. The State didn't provide any other evidence from this Court to draw an inference. Anything else is just speculation. The four bullets in the gun is an interesting argument that I think ultimately cuts against the State's position because we know this was a bolt-action rifle. In order to reload it, the spent cartridge had to be removed, and it wasn't. So it actually cuts against this idea that maybe other people were in danger, that there was an intent or knowledge that other people might be killed. There is zero evidence that there was any action taken towards other people. Zero evidence.

(04:43:27)
When we talk about the spatial proximity issue, I think it's important to look at what that means in other contexts, for example, the State v. Price case, where it talks about how this individual was next to the victim on the couch and the bullets were fired on the same side. So when the Court evaluates the evidence here, examining who was present in the presence of Mr. Kirk when he was shot, the Court should pay attention to that. This bullet entered the left side of the neck at a downward angle. That's what the State just told you. The only other individual you really see is the individual to Mr. Kirk's right, not the same side. But even if spatial proximity, even if presence is established, again, that is simply not enough because enveloping all of these factors, all of this analysis that we see from the Utah Supreme Court is the issue of intent.

(04:44:43)
The other acts committed by the defendant in the course of committing the murder inform knowledge. So like in Sosa-Hurtado, the court found it was strong evidence of intent, of knowledge, that the individual shot at the other prior to shooting at the victim. We don't have any other acts to inform knowledge. That's why the State is pulling, is grasping at these facts, asking the Court to speculate about pieces of evidence it just picked because there's nothing from the facts to inform this knowledge question. And that's where we come back to this issue, knowingly creating a great risk of death to another.

(04:45:41)
The State has not met its burden as to the aggravator here. We are asking the Court to strike the aggravator. The facts at their core are that the shooter shot a high-powered rifle from a roof at a downward angle, hitting the victim in the left side of the neck at a distance of 415 feet. The angle is 415 feet. It's not 410 feet. It had a telescopic scope on it. The shooter did not fire any more shots and, in fact, did not even reload. The shooter is not alleged to have engaged with anyone else, is not alleged to have pointed the rifle at anyone else, threatened anyone else, or done anything other than shoot that gun and run away. There was no ricochet. The only other individual under the tent, excuse me, with Mr. Kirk, like I described, was on the opposite side of him.

(04:46:47)
This was an open air environment. This was not an enclosed space. And contrary to the screenshots that the State pulled from Exhibit 9, no one was behind the tent when Mr. Kirk was shot. Even assuming that the shooter might have some knowledge about that, which I think is a real stretch because it's not like the tent was see-through, no one was behind Mr. Kirk when that shot was fired. And Mr. Kirk was seated in an elevated position. This is clearly visible in Exhibit 7. He is above those closest. So there's nothing in this evidence showing that there was a great risk that someone else was going to be killed, let alone that the shooter would have knowledge of that risk. It's not just the shot fired, it's what happened around it. That's what we know from Pierre, Johnson, and Sosa-Hurtado.

(04:47:54)
And my final comment, Your Honor, is we did spill much ink in our briefing about other cases describing the circumstances. We did discuss in some depth the Pennsylvania cases upon which the State relied, and we did that for a reason. We did that to show the Court that the Court, first of all, shouldn't be adopting standards from another jurisdiction that hasn't already been adopted by the Utah Supreme Court, but also that that standard in that state is fuzzy. It's not clear based off of their own case law. And there are a plenary of jurisdictions that have interpreted this aggravator the way that Utah does, considering these factors. So this Court isn't doing something revolutionary. Striking the aggravator is the only conclusion supported by Utah law and by the Constitution. Does the Court have any questions for me?

The Court (04:49:07):

Not at this time. Thank you, Ms. Visser.

Staci A. Visser (04:49:20):

Thank you.

The Court (04:49:25):

Mr. Burt.

Mr. Grunander (04:49:33):

Judge, with the Court's permission, I'm going to be narrowly focused on the comments that were made in the State's pleading and just by Mr. McBride about the forensic evidence in the case and specifically the DNA and firearms evidence. And the pleadings say very little about either one of those topics. There's a sentence about the firearm evidence, and there's, I think, one or two sentences about the DNA reports. Nothing is said about the testimony of the three experts who testified here in front of the Court. And that focus, I think, is consistent with the State's position throughout this hearing, which is that the Court shouldn't look underneath the reports that the State chose to put in front of you, the expert reports, and specifically Exhibits 30 through 34. And their position as they argued to you during the hearing was that by law, those reports constitute reliable hearsay evidence that this Court must credit.

(04:50:52)
And pursuant to that theory, they attempted throughout the preliminary examination to cut off any questions about the reliability of the evidence that was offered through those reports. And as the Court knows, the Court rejected that theory in its ruling on our challenge to the admissibility of the hearsay evidence in the case. And I want to just remind the Court of what the Court said in its ruling. This is document 631, the Court's ruling on the admissibility of the hearsay challenge that we brought. And I'm quoting here, "The presumption of reliability is confined to the presumption that the hearsay evidence is admissible. The presumption does not require the magistrate to find the evidence credible or that it supports a finding of probable cause. The magistrate still retains the ultimate decision-making authority on whether probable cause has been established. Admissibility and evidentiary weight remain distinct concepts. Although Article I, Section 12 and Rule 1102 permit the admission of reliable hearsay, they do not require the magistrate to accept that evidence as credible or sufficient to establish probable cause." And that's the Court's ruling, and that's the law of this case.

(04:52:33)
And so, when the State, in its pleading and here before you, gets up and argues that the defendant's DNA was all over the weapon, I think it ignores the Court's ruling on this issue because the Court has to consider not just the report, which they're relying on to make those assertions, but it also has to consider the evidence that the defense was able to elicit over the State's objection that the Court shouldn't even consider that. And if the Court looks at the totality of the evidence that was submitted from the DNA experts and the ballistic experts, I think that the Court will and should conclude that the State's reliance on the DNA evidence and the ballistic evidence is not well taken.

(04:53:28)
Mr. McBride, in his argument, said the defendant's DNA was all over the weapon, but the weapon was tested by Ms. Oliver from the ATF. And in her report, if you just look at the report and not her testimony, what the report says, and this is Exhibit 30, her ultimate conclusion was, "Based on this calculation, there is evidentiary support for the inclusion of Tyler Robinson as a possible contributor." And that's State's Exhibit 30, a possible contributor. And she, as well as Ms. Baker from the FBI, went out of their way to explain to the Court that based on the current state of the science, there is no basis to conclude that based on the DNA testing that was done in this case, that a particular piece of DNA can be traced back to a source based on any of the testing that was done in this case.

(04:54:47)
And that point is made not only in the testimony, but in the exhibits that were submitted to the Court, specifically Karner, I'm sorry, Oliver Exhibit Number 4, which is the DNA policy by the Department of Justice stating that an analyst shall not make a source attribution as to any piece of DNA, and also in Ms. Baker's Exhibit 7, the DOJ policy, again, stating the same thing. And the long and short of it, I think, was summed up by Ms. Oliver when she was asked... This is at Page 51 of her testimony. I'll just read this to the Court. "Question: So from a scientific standpoint, you couldn't read the paragraph that sets out the likelihood ratio in your report, whatever the number, and then blast the headline in the media, 'Mr. Robinson's DNA is found on this item.' That's a source attribution, is it not?" "Answer: Correct. Yes." "And that would not be scientifically defensible, would it?" "Answer: Correct." And she was consistent throughout her testimony on that point, as was Ms. Baker from the FBI. So the State is overreading the DNA evidence in this case when it asserts to the Court that Mr. Robinson's DNA was found all over the weapon. What Ms. Oliver and Ms. Baker said was that Mr. Robinson was a possible contributor to the DNA, not that he was a contributor. And there's a good quote from a Utah case, State versus Rogers, 2020 Utah App 78. And in paragraph 35, the court says, "The fact that something is possible does not make it probable." It's a simple common sense proposition. Mr. McBride urge you to apply common sense, and here's a good common sense proposition. The fact that something is possible does not make it probable. The standard is probable cause, not possible cause. And the DNA evidence in this case goes to the issue of possibilities, not probabilities. And both experts were consistent in saying to the Court that they couldn't reach a source attribution opinion.

(04:57:49)
It was consistent in stating that they could not state with any reasonable degree of scientific certainty that Mr. Robinson's DNA or anybody else's DNA was found on any of the items they tested. And so, it simply is not the case that the Court can leap to the conclusion based on the evidence as opposed to speculation that Mr. Robinson's DNA was all over the weapon or the screwdriver or anything else. Again, the expert spoke possibilities, not probabilities, and certainly not in any way saying that they could identify DNA as coming from anybody, Mr. Robinson or anybody else in this case. In terms of the firearm and Dremel testing, Mr. McBride said that the determination was made that the Dremel tool made markings on the cartridge case. Again, he's attempting a source attribution there. And it's true that Ms. Karner's report reads that way, but it also says that the conclusions she's reaching were made in compliance with the DOJ policy, which in her case was in Karner Exhibit Number 11.

(04:59:18)
And that policy, like the DOJ's policy on DNA evidence, says that an examiner, based on the science, cannot identify a tool mark as having made a particular mark or a cartridge case as coming from a particular weapon. And she was clear that she subscribed to that policy and was doing so in this case. He also said that, Mr. McBride, that the bullet was consistent with the rifle that they are trying to connect to Mr. Robinson. And actually, what Ms. Karner testified to was that, and this is at Page 177, there were several different .30 caliber class firearms that could have fired this bullet. And at Page 47 of Exhibit Karner Number 6, she lists a dozen or more firearms, including rifles and pistols, that she says could have fired this bullet.

(05:00:37)
So again, the State is overreading that evidence when they say to the Court that the ballistics evidence in this case shows that the bullet was fired from the rifle that they want to connect to Mr. Robinson. There is no such evidence. So unless the Court has any questions about the forensic evidence, that's all I had to say.

The Court (05:01:01):

Thank you, Mr. Burt.

Mr. Grunander (05:01:02):

Thank you.

The Court (05:01:10):

Mr. Novak.

Mr. Novak (05:01:11):

Thank you, Your Honor. Your Honor, as Ms. Visser previewed, I'm going to address Count VI. I'm going to address Count VII, and I'm going to address the two alleged enhancements. I know the Court has read our briefing on this, and so I'm going to highlight the factual and legal principles that we think compel this Court to find that the State has not produced sufficient evidence to bind Mr. Robinson over on those two counts and that the enhancements also lack sufficient evidence to proceed in this prosecution. I want to talk first about Count VI. And I'm going to be very, if I may, focused on the text of the allegation because the allegation itself is really what we have to compare to the evidence. Count VI charges Mr. Robinson with the felony offense of tampering with a witness. The information specifically says that the conduct he engaged in that constitutes tampering with a witness was, now, I'm quoting, "to wit directing his roommate to stay silent if police questioned the roommate." Now, Mr. McBride sort of very casually suggests that what Mr. Robinson was doing in that specific moment was trying to protect himself and not trying to protect Mr. Twiggs from what the State is now accusing Mr. Robinson of having done. And we need to look very, very specifically at the statement attributed to Mr. Robinson that forms the basis for that specific allegation, again, to wit, directing his roommate to stay silent if police question the roommate.

(05:04:29)
The State's Exhibit 16.1 is what the State presents as text messages between Mr. Robinson and Lance Twiggs. And if the Court looks at Exhibit 16.1, it is a series of screenshots of text messages. The testimony was that Lance Twiggs was showing law enforcement the text messages, and law enforcement officers took screenshots of the phone that Lance Twiggs was holding when showing law enforcement officers these text messages. The specific words that the information alleges constitute the violation in Count VI are, and now, I'm quoting from Exhibit 16.1, "If any police ask you questions, ask for a lawyer and stay silent. Make sure the police follow the right procedures, proper warrants and stuff, be polite and respectful, of course." So the first thing I want to point out is that this text message-

Mr. Novak (05:06:00):

... that this text message occurred... Excuse me, this text message was sent... Give me a second, please. This is on page 18 of 18 of Exhibit 16.1. The nearest timestamp on this text message is on page 10, which says, "Yesterday at 5:55 PM." So that would've been the day before Mr. Twiggs was speaking with law enforcement, but at 5:55 PM. If the court looks at the text messages that come just before it, what the court sees is somebody who the state alleges is Mr. Robinson saying to Mr. Twiggs, "I'm going to turn myself in willingly. One of my neighbors here is a deputy for the sheriff." And then the text message goes on. Why is that important? That is important because what this court knows from the preliminary hearing testimony is that the person that the state says is Mr. Robinson had left Orem, had returned all the way to St. George, and the court knows this through Mr. Mitchell's 1102, had spoken with Mr. Robinson's father and had arranged for Mr. Mitchell to help Mr. Robinson surrender to the Washington County Sheriff. That has already occurred when Mr. Robinson, according to Mr. Twiggs, is saying, "If any police ask you questions, ask for a lawyer and stay silent." Just before that, he says, "You are all I worry about, love." So the case law which we present basically requires this court to determine whether Mr. Robinson's statements to Mr. Twiggs were intended to obstruct justice or were altruistic. What is more clear in terms of altruism than having already decided to surrender and saying, "You are all I worry about, love. If any police ask you questions, ask for a lawyer and stay silent." That is actually a demonstration of altruism. That is a demonstration of caring for another person.

(05:09:50)
That is a demonstration of what Mr. Robinson said to Mr. Twiggs, "You are all I worry about, love." But he also tells him, "Make sure that the police follow the right procedures, proper warrants and stuff. Be polite and respectful, of course." So I don't see how the court can accept Mr. McBride's suggestion that this is an effort to obstruct an investigation. There is a separate charge concerning what the state refers to as destruction of evidence. That's not what this charge is about. This charge is to wit directing his roommate to stay silent if police question the roommate.

(05:10:42)
Now, Mr. McBride tries to say that, "Oh, it's not a Fifth Amendment issue because Mr. Robinson's the only person who has any Fifth Amendment issues." And that actually ignores this concept in the law that was embodied in Miranda v. Arizona. I think everybody in this courtroom who has a law degree knows that Miranda v. Arizona says that every person in this country has the right to remain silent and the right to ask for an attorney. And it's not just the Fifth Amendment, it's also the Sixth Amendment. That's the essence of that Supreme Court decision.

(05:11:22)
So not only is Mr. McBride misstating the law, but he's misapplying it. What Mr. Robinson is saying to Mr. Twiggs is, "You don't have to answer any questions. You have the right to ask for an attorney. You are all I worry about, love." We cannot allow the state to make that statement in this context a criminal offense because it completely undermines well established constitutional law that applies here and everywhere else. Again, it's after Mr. Robinson has said to Mr. Twiggs, "I'm going to turn myself in willingly." Mr. Twiggs asks, before Mr. Robinson said that, "Is there any way you don't go to prison?" Mr. Robinson doesn't say, "Well, as long as you keep your mouth shut, I won't go to prison." He says, "I highly doubt it. You are all I worry about, love." So I think it's clear that this court needs to strike Count Six because what Mr. Robinson said to his roommate was not for the purpose of obstructing an investigation or a proceeding. It was, as the case law says, altruistic, altruistic.

(05:12:48)
And now we'd like to move on to Count Seven which alleges a misdemeanor subject to the enhancement, but it alleges initially a misdemeanor committing the charged homicide in the physical presence of a child younger than 14 with knowledge that a child was present and may have seen or heard the commission of the criminal homicide.

(05:13:20)
The evidence, now I'm going to echo what Ms. Visser said. The evidence that was actually presented at the preliminary hearing and not the evidence that Mr. McBride tried to testify about today, which wasn't presented at the hearing and has some inferential problems as well, which I address, was a single video taken by a single woman, we have her 1102 in evidence, showing that her child was present. That is not evidence upon which this court can reasonably infer that Mr. Robinson knew that that child or any other child was present. Mr. McBride's comments about Orem and UVU welcoming children and being the center of families, that's nice, but that's not evidence. And it's certainly not evidence that Mr. Robinson, if he was the shooter, knew that there were children present at this rally.

(05:14:25)
What Mr. McBride showed this court was his careful analysis of photographs that had been previously introduced into evidence. And we don't know how long it took Mr. McBride, but he eventually found and was able to circle for this court the three children that he could find in a photograph that he studied in his office as he was preparing his opening statement. The evidence presented at the preliminary hearing was that the shooter was on the edge of that roof from 30 to 43 seconds. So one cannot take Mr. McBride's careful analysis of photographs after the fact and import that into what somebody on the edge of the roof saw. The fact that somebody saw Mr. Robinson wandering around the campus before the rally occurred doesn't mean that Mr. Robinson knew that there were children present at the time of what the state says he did, which was to fire his weapon from the roof. So I don't think every inference has to be treated as a reasonable inference by the court just because the state says you can infer.

(05:15:47)
That's not the same as reasonable inferences being weighed against the defendant or in favor of the state's case. This court needs to decide what inferences are or not reasonable. And I think that the state is stretching considerably the difference between evidence and inferences. So I think that Count 7 suffers from the same problem. And of course, that would therefore apply to all of the victim targeting... I'm sorry, not the victim targeting enhancements, but in the presence of the child enhancements. The argument that this court doesn't need to determine whether or not there's any evidence, let alone probable cause, to support enhancements because they don't increase the punishment is actually not true.

(05:16:43)
There is a difference in the language between Apprendi and what the Utah statute says, but the effect is the same. What the Utah statute says is if you prove a certain fact, the court shall consider that an aggravating circumstance. That means that the court shall create on the scales as to whether or not there should be an enhanced sentence, an aggravator, it's proven. The court is now told, "Here's an aggravator." And if there are no mitigators, then the sentence is enhanced. So I don't think it's as clear cut as Mr. McBride would like the court to conclude. And I think that this court needs to determine whether or not there's probable cause as to that enhancement and then the last enhancement, which I will address. And that of course is whether or not Mr. Kirk was targeted because of his political expressions from Mr. Robinson's perspective.

(05:17:55)
And I think the question here really, which the state can't answer with reasonable inferences from evidence, is there's no evidence as to really what was in Mr. Robinson's mind, if in fact he was the shooter, about Charlie Kirk, because we have no testimony that Mr. Robinson had ever spoken about Charlie Kirk, that he'd ever heard anything he'd said, that he'd ever discussed anything. Mr. Twiggs was asked during his recorded interview whether he'd ever discussed Mr. Kirk with Mr. Robinson. The answer was no. There is no evidence of Mr. Robinson having heard or seen anything specific from Mr. Kirk or having expressed anything about Mr. Kirk until the statement which basically says some hatred can't be negotiated out. So what is it? Is it political expression? Which political expression?

(05:19:06)
It is true that Mr. Kirk spoke hatefully of certain groups of people. He spoke hatefully of people who don't have traditional norm conforming gender identities. He spoke hatefully of people who are not strictly heterosexual. He spoke hatefully of people who have sexual relationships out of marriage. And yes, it is true that the evidence from Mr. Twiggs is that he identified in a non-gender conforming way to his friends and that he was in a romantic relationship with Mr. Robinson. But that doesn't mean that those personal choices by Mr. Twiggs and by Mr. Robinson equate with the hate that at least Mr. Robinson says he had toward Mr. Kirk.

(05:20:12)
So we don't know what that is. We don't know there's a gap between what it is that Mr. Kirk said and stood for, the phrase in the statute is political expression, and what it is that Mr. Robinson felt about him. And it's a significant gap because what it allows the state to do is to make it up. "Oh, it must be about this relationship. It must be. It can't be about foreign policy. It can't be about immigration. It can't be about taxation or economics. It must be about this because look at these two young people and the way they live." And that's an inference without evidence. And it's a very inflammatory inference. And what makes it even more inflammatory is that the state chose to wrap it in religion because now we can't really talk about it because we can't criticize somebody's religious views. But the real problem is that there's this gap between the way in which Mr. Robinson and Lance Twiggs have a relationship and what it is about Mr. Kirk's political expression. And we don't really understand. The state didn't present any evidence as to what the etchings really mean.

(05:21:45)
They are memes. They are something that comes from some digital games. There's some slightly immature expressions, but none of that really is explained by... I mean, as Ms. Visser said, the state had a week to put on any evidence they wanted. The court didn't exclude any proffered witness to explain what those things mean and how they may link up between something Mr. Kirk had said and something in Mr. Robinson's state of mind. And I think they didn't do it. And so I think that the state has utterly failed to prove that there's a particular political expression that Mr. Robinson took issue with.

(05:22:29)
We all know because we live in the real world, the kinds of things that Mr. Kirk said, which some people find hateful, but that's not the same as the state producing evidence about what Mr. Robinson thought, because it's about Mr. Robinson's state of mind as to the political expression. So I'm going to conclude by saying that both enhancements and Count Six and Count Seven cannot go forward in this case because in addition to what Ms. Visser has argued and what Mr. Burt has argued with respect to the aggravator, because the state has failed to produce sufficient evidence. Thank you.

Judge (05:23:14):

Thank you, Mr. Novak. All right, let's take a 15-minute break just so everyone can stretch and we'll then return to the state's final argument and take it from there. Court is in a brief recess.

Speaker 8 (05:23:30):

All rise.

Tony Graf (05:44:01):

... During the presence of all the parties, we just finished with defense's oral arguments turning to the state for rebuttal. Mr. Grunander.

Mr. Grunander (05:44:17):

Thank you, Your Honor. Judge, the law does not protect or better reward an assassin who shoots into a crowd of people and happens to hit his target. The question of whether the aggravating factor applies here is not whether a third party was actually injured. It's a question of risk. And firing a gun into a crowd creates a zone of danger beyond that of a single intended target. Tyler Robinson doesn't get to hide behind the fact that on September 10th, 2025, he was true to his aim. Not when he shot into a crowd of people and shot and killed Mr. Kirk with a person immediately to his right, within a couple of feet, the evidence speaks for itself, with people to his left, with people who were behind him, and certainly people in front of him, especially the questioner, a few feet away from Charlie Kirk standing between Mr. Kirk and the assassin.

(05:45:29)
I want to talk briefly about the margin of error, Judge. The defendant's margin of error when he took that shot was occupied almost entirely by human lives. Innocent people that were there to either protect Mr. Kirk, debate Mr. Kirk, or watch and attend this event. Firing at someone in a crowd at a distance of approximately, or at a distance of 415 feet is rife with peril, not only for the target, which it obviously was because Mr. Kirk was assassinated, but others as well in the immediate area surrounding him. At that distance, a micro movement of the barrel, a fraction of an inch caused by maybe a gust of wind, a nervous breath or a flinch translates into a difference of potentially several feet at the target point. Mr. McBride talked a little bit about what might happen if he had flinched and he was off by one degree.

(05:46:38)
I'm going to talk a little bit more about that, but I'm going to talk about it in terms of inches, Judge. And as attorneys, we get to talk about the evidence. We get to talk about the inferences of what would happen, and that's exactly what we're doing here. 139 yards or 138.33 yards is 415 feet. If the defendant had flinched even a quarter of an inch at that distance, math tells us at the target point it would've been a difference of 41.7 inches, approximately three-and-a-half feet. That would've more than covered the security to Mr. Kirk's right. If he had flinched even a half an inch, that would've resulted in a difference of 83.4 inches at the target point, a seven-foot difference, and that could have impacted a number of people there.

(05:47:39)
Also, Judge, the defendant's target, Mr. Kirk, as well as this zone of danger, this area around Mr. Kirk, it was fluid. It was full of people. People move, they shift, they step forward, they lean. And if Your Honor watches the videos that were submitted as part of evidence, you can see Mr. Kirk moving, others moving, shifting, turning, stepping forward, stepping back. This was a fluid target and that adds to the danger, the great risk of death here.

(05:48:15)
The risk of a stray or ricocheting bullet, firing a weapon from an elevated rooftop into a courtyard full of people filled with concrete, there was a lot of concrete there as well in the steps in the amphitheater, as well as temporary metal fencing, it's incredibly dangerous. If the bullet fired from the defendant's gun had struck a hard surface, it's reasonable to infer that it would've changed directions and/or broken into unpredictable fragments of dangerous, even lethal shrapnel. I'd like to refer the court to state's exhibit number two, and I'm going to bring this up on the screen. And the exhibits I'm going to show, Judge, were all admitted into evidence and shown on all three levels. This is an overhead drone photo. Can we bring that up, Kimberly?

Tony Graf (05:49:13):

And so you requested, do you want it captured on all three levels here in court?

Mr. Grunander (05:49:18):

That's correct, Judge. That is correct.

Tony Graf (05:49:19):

Let's go ahead and position. Well, before I do that, Ms. Nestor, first, any objection or do you have a different recollection about the evidence being played in court?

Ms. Nester (05:49:32):

No, I think it was, but we just would like to stand on the standing objection we made during the preliminary hearing as well, Your Honor.

Tony Graf (05:49:38):

Thank you, Ms. Nestor. All right, let's go ahead and position the monitor so it can be viewed by the camera. And Mr. Grunander, I'll leave it to you as it relates to to double check the exhibit that's being-

Mr. Grunander (05:49:53):

And I have, Judge. And just for the record, the three exhibits I will be showing are State's Exhibit Number Two, which was a drone photo of UVU; state's Exhibit 3.2, which was previously shown by Mr. McBride. That was the shooter's perch looking down into the courtyard. And then State's Exhibit Number Four, I may have that one shown as well, which is a photograph of the perch at the nighttime where you can see the disturbance better in the gravel.

Tony Graf (05:50:23):

All right. [inaudible 05:50:26] Nester as it relates to those remaining exhibits being shown in court and on all three levels.

Ms. Nester (05:50:33):

I agree they were, Your Honor, and we just would reiterate our standing objection.

Tony Graf (05:50:37):

Thank you. I'm going to overrule the standing objection as they were played in court, an open court, to the media and everyone in court and obviously to myself. So they are admitted over the objections cited today. I want to make sure if the media can see, do we need to angle it a little bit so you can see it or can you see it okay? Just to angle a little bit. But I'm assuming that now you guys can see it. Well, let's do it just a little bit, maybe just a little bit more and we'll just have to call it good. Yeah. All right. All right. Mr. Grunander, I'm turning to you.

Mr. Grunander (05:51:24):

Thank you, Judge. So if we could publish State's Exhibit Number Two. And again, this is for the purpose of helping Your Honor orient yourself to the scene.

Speaker 9 (05:51:31):

[inaudible 05:51:36]?

Mr. Grunander (05:51:35):

Right here.

Speaker 9 (05:51:36):

Thank you.

Mr. Grunander (05:51:43):

So just to help the court, and I'm going to approach, Judge, do we have a microphone by chance. Thank you. So we're looking at State's Exhibit Number Two, and Judge, you may recall from the testimony, but we're looking at the Losee building, which is the largest rooftop here in the center of the photograph. So that corner just to the left of the atrium area, that was where the shooter's perch was. If we can move to State's Exhibit 3.2 that was previously shown. So this was the shooter's perch right here, Judge. Can we go to Number Four really quickly, just to orient the court? So we can see the evidence marker number two. You can see the disturbed gravel. That's the shooter's perch looking down into the courtyard, which is to the west, which is up on the photograph.

(05:52:40)
So we can go back to 3.2, Kimberly. So in addition to the concrete that's down, Your Honor, in the courtyard, as well as the metal fencing that a bullet could have ricocheted off, he is firing in between the rooftop overhang of the Sorenson building to the right, as well as a light pole right there. Those are two additional obstructions in the general line of fire that if there was a stray bullet, it could have impacted one of those hard surfaces and ricocheted into the crowd.

(05:53:11)
I would also say, Judge, fortunately for others, not Mr. Kirk, of course, because he was assassinated, but fortunately for others, that 30 caliber bullet did not pass through Mr. Kirk's neck or it didn't ricochet off of his spine and splinter and break into pieces and injure other people. But that is another risk that we're talking about here. The defendant, frankly, Your Honor, was gambling with innocent lives when he took that shot. He gambled on himself that he would make that shot, that he would be true to his aim, but in the process was gambling with the lives of others. He was playing, in effect, a game of ballistic roulette. When he pointed that weapon, that .30-06, in the direction of Mr. Kirk and that crowd, he placed all of them at risk of death. And when he put his finger on that trigger and he pulled that trigger, firing that gun, he put those people at great risk of death, especially the questioner, especially the security detail to Mr. Kirk's right, the people to his left as well.

(05:54:39)
Everyone knows you don't point a loaded weapon in the direction of others, especially you don't fire it. And that's exactly what he did. Those folks were at great risk of death. Knowing what we know now, Judge, what rational person would dare stand within a few feet of Mr. Kirk that day when Tyler Robinson took that shot? I believe that rhetorical question speaks volumes about the risk here. Also, the video that was shown during the preliminary hearing of the homicide, you see the crowd scream and drop immediately. That speaks volumes about what was happening in that courtyard that day.

(05:55:28)
Before we continue, I just want to remind the court, and the court doesn't really need any reminding, but I feel like I need to because of the defense's arguments. This is a probable cause hearing. All reasonable inferences are required to be viewed in the light most favorable to the state. The defense doesn't get to pick apart a case here and there and make all these nuanced arguments. They can do it, but it's not persuasive. It's not legally compelling at a preliminary hearing because of the stage we're at. To the extent there are questions, those are questions for a trier of fact at the time of trial, not your honor, to make rulings based upon as a matter of law and not bind these charges over.

(05:56:16)
I want to talk a little bit about Sosa-Hurtado, which is a controlling case here in Utah, which tells us, which emphasizes the test for the aggravating factor. It's the statute. Did the defendant knowingly create a great risk of death to another individual other than the deceased individual and the actor, of course the defendant. And Sosa-Hurtado identifies some factors and indicates they are considerations. They're not exhaustive and the ultimate test is in fact the statute itself. Speaking of the Sosa- Hurtado factors, Ms. Vissar talked about these, and I obviously have a different opinion because all three factors help the State, Judge.

(05:57:10)
The first factor is the temporal relationship between the actions and the third party. Here, we only have one shot, unlike some of these other cases, but that's significant because we don't have one shot and then a significant break in time and a second shot or another break in time and a third shot and a fourth shot. That would all be taken into consideration if there were breaks in time. We have one shot that killed Mr. Kirk and put others at great risk of death. So that's factor number one.

(05:57:42)
Number two, the spatial relationship between the actions and the third party. There in Sosa-Hurtado, Isabel, the surviving victim, was only a few feet away when the defendant took a shot at the victim that ultimately died. And the court found that Isabel was at great risk of death because of his proximity to the target at that point, and it was within a few feet. Here we have the same thing. We have a number of people within a few feet of Mr. Kirk, and especially security detail to Mr. Kirk's right within probably a couple of feet.

(05:58:26)
The third factor, and I'm quoting this directly from Sosa- Hurtado, because this speaks to the threat, whether it's direct or indirect towards others, towards a third party or third parties, "Whether and to what extent the third party was actually threatened either by direct or indirect threats, such as the risk of stray or ricocheting bullets, the risk of a stray bullet, the risk of a ricocheting bullet." And that is clear here, as I've argued and talked about, and as the reasonable inferences amount to. I would also point out that Sosa-Hurtado, Judge, it took place in a smoke shot, excuse me, a smoke shop. So the firearm when it was fired was in pretty close proximity to the victims there. We're talking 415 feet here, and there is a lot of things that can happen in that space, in that distance that I've already talked about, especially when you fire into a crowd of 3000 people or so.

(05:59:38)
The defense has talked about, well, a likelihood or high probability. First of all, that is not the test. The test is the statute in question, but here we have a likelihood, we have a high probability that others would be injured if just one little thing goes wrong. Again, we're talking about risks, Judge. This is a public policy determination. It doesn't require that that third party or third party actually be injured. It's one of risks. And again, to the extent there's questions, it's for a jury to resolve the fact finder at trial.

(06:00:21)
Defense counsel has cited to a number of cases and argued those facts and compared those facts to our facts here. Most of those cases involve firing more than one shot, but whether the facts of other cases where a defendant has been found to have created a great risk of death to another when he commits murder precisely fit the facts of ours, it doesn't matter. The question is whether the evidence together with reasonable inferences viewed in the light most favorable to the State supports a reasonable belief that the defendant here knowingly created a great risk of death to at least one other person beyond Mr. Kirk and himself.

(06:01:09)
And of course, we do have the case law from other jurisdictions where one shot did it, created a great risk to others. And it's very important to look carefully at the language of Sosa-Hurtado and look at what the court found there. Because the Utah Supreme Court, the controlling court here, found that the defendant there, "Perpetrated two separate acts that created a great risk of death to Isabel, who was the survivor." The first shot was actually directed at Isabel, but missed him shattering some glass, throwing some glass and wood into his leg. And the second shot when the defendant "fired a shot at Stephen, which hit Stephen's hand when Isabel was only a few feet away." The court found that "A reasonable jury could conclude that both of these acts created a great risk of death to Isabel."

(06:02:10)
So in other words, our high court here in the state of Utah has held that even one shot can create, that one shot that kills someone, that injures someone, intended for a target, can create a great risk of death to a third party. And that's exactly what we have here. And we talk about the zone of danger that's reiterated in Sosa-Hurtado. The Johnson case talks about this zone of danger.

(06:02:41)
The Cristobal case, Ms. Vissar spoke a little bit about Cristobal and the state appreciates her candor, but what's important is that the part that the defense relied on in Cristobal is bad law, Judge. The fact that other parts of that opinion may be fine, it's irrelevant for our purposes in this case because of the Ashcraft case, because of State vs. Wall. The defense has accused the state of speculating, Judge. Speculation is a mere guess or a theory formed without firm evidence or supporting facts, whereas a reasonable inference is a logical conclusion based on known evidence or facts. Speculation skips the evidence and jumps to possibility. A reasonable inference bridges the gap between what is seen and known and what is logically true.

(06:03:39)
The state is not stretching in this case. Our arguments are based on reasonable inferences, Judge. And as Mr. McBride argued, he categorized the evidence in four different parts. Even one satisfies probable cause and in all likelihood can satisfy proof beyond a reasonable doubt as well when it's taken to a jury. Apprendi, the United States Supreme Court held that, "Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." So it actually has to increase the penalty for Apprendi to apply when we're talking about the enhancements here. One point with respect to Sosa-Hurtado, I want to circle back on that I just noticed that I forgot. Judge, we're at a preliminary hearing where, and I've indicated this twice now, the reasonable inferences go in favor of the state. Sosa-Hurtado was reviewing a conviction where proof beyond a reasonable doubt is required, where those same inferences are not required to fall in favor of the state. I want to talk a little bit about Judge, some of the other counts and then also the enhancements here, once again, reminding the court that we're at a preliminary hearing. This victim targeting aggravator that's based upon Mr. Robinson's motive for taking out Charlie Kirk, for assassinating him because of his political expression. First of all, the state takes great exception with Mr. Novak attributing all of this hate to Mr. Kirk during his argument today. None of that was presented during the preliminary hearing, that he is hateful towards this group or hateful towards that group. He had an opinion that he would express on politics and religion. That doesn't make it hate, but the fact that Mr. Novak even considered it as hate makes the case for the State. In his client's own words, he hated what Mr. Kirk stood for.

(06:06:16)
On the shell casing that was found in the .30-06, the defendant's gun, grandpa's gun, the murder weapon, "Hey fascist, catch." He's calling him a fascist. And of course in the text, which has been talked about twice already today, State's Exhibit 16.1, when the defendant texted Mr. Twiggs, "I had enough of his hatred. Some hate can't be negotiated out." He hated Charlie Kirk. He hated what he stood for and he took him out because of it. And we presented evidence in State's Exhibit 5.1 about who Charlie Kirk was, what he did as the leader of TPUSA. Tyler Robinson, the reasonable inference clearly from these facts, given his own words, was that he hated him because of his political expression.

(06:07:16)
I want to talk a little bit about how the defendant knew, Judge, the reasonable inference is that he knew that he was creating a great risk of death to at least one other person. Mr. McBride talked about common sense. Common sense is incredibly important. Like he said, we ask our juries to not check their common sense at the door when they come into a trial and ultimately when they deliberate. The record clearly establishes, especially for probable cause purposes, that Tyler Robinson knew that his actions were creating a great risk of death to others. First, when Mr. Robinson was crawling towards and settling into his shooter's perch that day on top of the Losee building and then set his sights on Charlie Kirk, he was looking down into a crowd of people, thousands of people.

(06:08:13)
He not only could see the crowd, but also the people standing within a short distance to Mr. Kirk. He was looking at Mr. Kirk through a scope that magnified the area. He could see Mr. Kirk and he could see those standing right next to him. That's the reasonable inference. It is more than fair to infer that Robinson knew and that he knew he was shooting into a crowd and that his margin of error that I've talked about was very tight, very tight. And this was a very purposeful act on his part. He knew what he was walking into. He had scoped the place out that day. He knew that Charlie Kirk was going to be speaking to a group of people that were going to be assembling right around him. And that's exactly what he saw when he got up onto that shooter's perch. He nonetheless purposefully pulled out that weapon and fired it, killing Mr. Kirk and putting others at great risk of death.

(06:09:19)
Third, as I stated before, his target, Mr. Kirk, as well as those around him were fluid. They were moving targets. They were shifting. They were leaning. And the defendant knew that because he saw it happening as he was looking through his scope, zeroing in on Mr. Kirk. That's the reasonable inference, Judge.

(06:09:42)
Fourth, as we've talked about, Tyler Robinson was no expert marksman and he knew it. And we know it because as Mr. McBride talked about earlier today, his target practice, law enforcement served a search warrant on his place a day or so after his arrest and seized those targets. And very few hit the bullseye, Judge. Very few. And presumably, Judge, those shots when he was taking target practice were not taken under the stress that he was likely feeling when he was about to take the life of an innocent man and shoot into a crowd of people. That's a reasonable inference. And I've already talked about what a flinch of maybe a quarter of an inch would've amounted to or maybe a half of an inch. It could have been a much, much different story had that happened.

(06:10:41)
When they searched his residence, law enforcement, when they searched Mr. Robinson's residence, they found the test shot casing where he had inscribed "test shot". And then there were the unspent rounds. And we can't minimize the significance of those unspent rounds, Judge, that all had inscriptions on them. He was prepared for and planning on taking more than one shot. And just because he didn't eject the first shell that remained there, to take that second shot, he would've had to have ejected it. The inference is that he didn't need to. He watched as he took the life, watching through the scope, as he took the life of Charlie Kirk, he knew he hit him in the neck. He knew he had taken out his target. He didn't need to shoot anymore. So he didn't need to eject the one and shoot the others, but he was prepared to do it. Why? Because he knew he wasn't an expert marksman. And we know that from the target practice and the test shot that he left behind.

(06:11:51)
Your Honor, it's reasonable to infer that Tyler knew he was putting others at great risk of death when he killed Charlie Kirk. The obstruction of justice, I think there was some brief discussion about that today, but he concealed the rifle in the towel and hid both of those in the woods. He admitted to concealing it to his boyfriend, Twiggs, in texts. He admitted to changing his clothes in the wooded area. And he likely knew that there was going to be incriminating evidence all over that towel and that rifle, which there was. And he hid it and he went back to try and retrieve it and was unsuccessful.

(06:12:36)
He admitted to Mike Mitchell, the deputy sheriff friend that helped Mr. Robinson turn himself in, that he had discarded the clothing that he wore during the incident. He admitted to Twiggs that he was hoping his crime would be kept secret if he were able to retrieve his rifle. In some he concealed and/or removed evidence for the purpose of hindering or delaying a criminal investigation.

(06:13:05)
Tampering with the witness. Again, I would remind the court that we are here at a preliminary hearing, a probable cause hearing where all reasonable inferences are to be viewed in the light most favorable to the state. Mr. Novak got up and tried to provide context and explain away Mr. Robinson's direction to Twiggs to not speak to the police. But earlier on, there was the text of "delete this exchange," after he had made several incriminating statements. That provides a lot of context about what they were talking about. It's a reasonable inference to believe that when he directed him not to speak to the police, that it was part of a coverup here. Proof has been provided that there were a few children, at least, younger than 14 years old, that were physically present when the defendant shot and killed ...

Mr. Grunander (06:14:00):

... 14 years old that were physically present when the defendant shot and killed Charlie Kirk. Again, Mr. Robinson was looking down into the crowd. He had scouted out the place before, making at least a couple of visits there, having lunch at the Sorensen Center, which boarded the courtyard. It's therefore reasonable to infer that he would've seen children at that event. But beyond that, the fact that he was looking down into a crowd of thousands of people and there were children there, we know there were children there, but it's reasonable to infer that among those thousands of people would at least be one, if not more, children under the age of 14. And of course there were. It's reasonable to infer that he knew that.

(06:14:53)
I want to talk a little bit about the identity evidence here. It's very interesting that on the night of September 10th, 2025, just a mere few hours after he assassinated Charlie Kirk, he texted his boyfriend, Tyler did. He texted Lance Twiggs, quote, "If I am able to grab my rifle unseen, I will have left no evidence," close quote. The defendant thought he had committed an almost perfect murder, but Judge, nothing could be further from the truth. There is overwhelming and devastating evidence of his guilt. We've talked about the admissions he made. I'm just going to mention a few more. Of course, there was the letter that he left under the keyboard where he admitted to having the opportunity to take out Charlie Kirk and he took it. Again, you ask why? Because he hated him. He hated what he stood for. He hated his political expression. And he's asked by Lance Twiggs, "You weren't the one who did it, right?" "I am. I'm sorry," he texted back.

(06:16:03)
And then he adds this, "Why did I do it? I had enough of his hatred. Some hate can't be negotiated out." Mr. Twiggs then asked him, "How long have you been planning this?" And Robinson replied, "A bit over a week, I believe." So again, we have a premeditated killing here. And then he goes on to talk about, "I'm going to turn myself in willingly. One of my neighbors here is a deputy for the sheriff." And that's exactly what he did, turning himself in. And I'll talk about the significance of that in just a moment. There were the Discord messages to his other friends. So it's not only admissions to Lance Twiggs, his boyfriend, but he makes admissions to other friends on Discord, referring directly to the surveillance video footage that Mr. McBride talked about.

(06:16:52)
He also admitted in person to Lance Twiggs that what he had said the night before was in fact true. And that came out in Mr. Twiggs's interview that was played as part of the evidence in this case. And of course we have the admission to Mike Mitchell that he had discarded the clothing.

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