In State v. Kirby, 2016 UT App 193, defendant Kevin Darrell Kirby and a female acquaintance partied together in a motel room in Salt Lake City. Their room eventually became a crime scene, and Kirby was charged and later convicted of tampering with a witness, aggravated assault, and aggravated kidnapping.
Kirby bought crack cocaine and vodka, which he and Victim both consumed along with several of Victim’s prescription painkillers. Victim obtained more drugs before Kirby awoke the next day, which they also consumed. Kirby accused Victim of sleeping with the drug dealer to obtain the drugs and told Victim he would beat her if she did not tell him the truth about how she obtained the drugs. Victim denied the accusation, so Kirby kicked down the bathroom door, knocked Victim to the floor, and kicked her in the head and face until she was bleeding profusely. Kirby wouldn’t let Victim get help with her injuries because he didn’t want to go back to prison.
Victim was able to pull herself up, but Kirby knocked her back down to the ground and beat her again. He also threatened to continue beating her if she got close to the exterior door, so Victim complied. Victim eventually packed her suitcase, but Kirby grabbed it from her, unpacked it, and resumed beating Victim with his fists and a knotted sock containing a telephone handset and metal padlock. The final day of being trapped in the room, Victim fled and made her way to a nearby bus stop. Kirby followed her and tried to coerce her to come back to the motel, but a man saw the dispute when he got off the bus and called 911. Kirby was arrested, and he accused Victim of making false accusations to the police.
Paramedics discovered that Victim had extensive injuries, including a fractured left orbital bone, a laceration on the back of her head, and open cuts above each eye. Officers found physical evidence in the motel room supporting Victim’s account. The jury convicted Kirby of all three offenses. Kirby challenged the sufficiency of the evidence for the three charges. A finding that a defendant is guilty beyond a reasonable doubt is necessarily a finding that any alternative hypothesis of innocence presented at trial was not reasonable under the jury’s view of the evidence. As long as there is some evidence from which all the necessary elements of the charged offenses can be proved, there is sufficient evidence to find the defendant guilty beyond a reasonable doubt. From the facts mentioned above, this court concluded that the State introduced some evidence as to each of the essential elements of each charge. A motion to dismiss for insufficient evidence would have been futile.
In addition, the trial court did not err in refusing to grant a continuance to allow Kirby time to procure the testimony of a witness. When a defendant in a criminal action moves for a continuance in order to procure the testimony of an absent witness, the defendant must show that the testimony sought is material and admissible. The evidence Kirby sought to present was hearsay and inadmissible.