Can the State amend theft charges without a new preliminary hearing? State v. Bush Explained

In State v. Bush, the Utah Court of Appeals addressed when prosecutors may amend theft charges and whether defendants are entitled to new preliminary hearings following such amendments.

Background and Facts

Bush owned Syndicated Storage Solutions, a general contractor that received checks payable jointly to his company and subcontractors. Bush’s employee forged an MBCI employee’s signature on two checks and deposited them into Bush’s account, despite SSS owing MBCI more than the check amounts. The State initially charged Bush with theft by deception under Utah Code § 76-6-405. After the preliminary hearing, during a motion to quash hearing, the prosecution conceded that theft by deception might not be the proper charge and sought to amend the information to charge theft of lost, mislaid, or mistakenly delivered property under § 76-6-407. The trial court allowed the amendment but denied Bush’s request for a new preliminary hearing.

Key Legal Issues

The court addressed three issues: (1) whether amending from one theft theory to another violates Rule 4 of the Utah Rules of Criminal Procedure; (2) whether defendant was entitled to a new preliminary hearing on the amended charge; and (3) whether sufficient evidence supported bindover on the amended charge.

Court’s Analysis and Holding

The court held that Utah’s consolidated theft statute (§ 76-6-403) permits amendments between different theft theories without violating Rule 4’s prohibition on charging “additional or different offenses.” The consolidated theft statute recognizes only “a single offense embracing” various theft crimes, designed to eliminate procedural technicalities. The court rejected Bush’s argument that the State must charge under the general theft provision to invoke the consolidated statute’s benefits, noting that charging under specific provisions actually provides defendants with more notice.

However, the court reversed on the preliminary hearing issue. Despite the State’s argument that no new evidence would be presented, the court emphasized that defendants have the right “to be confronted with and given an opportunity to cross-examine the witnesses” regarding the specific theory being pursued. Since Bush never had the opportunity to cross-examine witnesses regarding the amended theft theory, he was entitled to a new preliminary hearing.

Practice Implications

This decision confirms that Utah’s consolidated theft statute provides prosecutors significant flexibility to amend between theft theories, but defendants retain important procedural protections. When facing amended theft charges, defense counsel should always request a new preliminary hearing to ensure adequate opportunity to challenge the State’s evidence under the new theory. The decision also clarifies that prosecutors may charge under specific theft provisions without losing the ability to amend to different theories later.