State v. Kozik, 19514

Citation688 P.2d 459
Decision Date19 July 1984
Docket NumberNo. 19514,19514
PartiesSTATE of Utah, Plaintiff and Respondent, v. Nick KOZIK, Defendant and Appellant.
CourtSupreme Court of Utah

Phil L. Hansen, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Curtis J. Drake, Paul M. Warner, Robert N. Parrish Salt Lake City, for plaintiff and respondent.


Defendant appeals from five jury convictions of theft. 1 He says (1) there was insufficient evidence to show an intention to control the alleged stolen money, and (2) the trial judge improperly instructed the jury on a point of law during their deliberations.

Evidence favorable to the verdicts indicated that the defendant advertised in the news media that he was an expert at obtaining large loans for those seeking capital. He requested from his clients a "deposit," which he agreed to place in escrow and to refund if he were to be unsuccessful in obtaining a loan within a stated period. In the instances testified to in this case, he failed to escrow any of the deposits but rather used the money for his own purposes, after which he failed to obtain the loan as agreed. The victims inquired on numerous occasions about their deposits and their loans. For months on end, the clients could not reach the defendant. When they finally made contact, they were met with further excuses and evasion by the defendant. The pattern was the same in each instance, except for the clients and the amounts deposited and never returned.

Defendant was arrested and charged in January, 1983. The victims have never received the promised loans and have never received any refund as agreed or any prospect as to its return. On the contrary, it was proved without any substantial dispute that defendant converted the money to his own use. The circumstances of this case quite convincingly evidenced an intention at the time of receipt and thereafter to steal the money advanced if the loans were not successfully obtained. The evidence was entirely sufficient to permit us to affirm the decisions of the judge and jury.

After the case went to the jury, the foreman sent a note to the judge, who received it in the presence of the defendant, his counsel and the prosecutor. The note inquired whether, if the jury were "hung" on one count of the information, it would invalidate the others. The court called the jury back and, without first advising counsel as to what the note contained, advised the jurymen in the presence of defendant and his counsel that they must find a verdict on each of the six counts, as they had been previously instructed. The court then told them the answer was given in the instructions and explained it to them, after which the jury retired. The judge then read the question for the record.

Defendant objected to the fact that he did not know the contents of the question before it was answered and asked for a mistrial. He did not ask that the jury be recalled or that he be allowed to argue the matter (which the trial judge had given him time to do), nor did he question...

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6 cases
  • State v. Maestas
    • United States
    • Supreme Court of Utah
    • 27 Julio 2012
    ......67 In State v. Kozik, the jury's foreman sent a note to the judge inquiring whether "if the jury were 'hung' on one count of the [charge], it would invalidate the ......
  • State v. Maestas
    • United States
    • Supreme Court of Utah
    • 24 Septiembre 2012
    ...proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure”). 67.See State v. Kozik, 688 P.2d 459, 460–61 (Utah 1984) (per curiam). 68.Id. at 460. 69.Id. 70.Id. 71.See id. at 461. 72. Although he does raise allegations of juror misconduct co......
  • State v. Lucero
    • United States
    • Court of Appeals of Utah
    • 23 Noviembre 1993
    ...Even if the communication had been improper, it was harmless error because the supplemental instruction was accurate. See State v. Kozik, 688 P.2d 459, 461 (Utah 1984) (error must be substantial and prejudicial in the sense that there is a reasonable likelihood that in its absence there wou......
  • State v. Frausto
    • United States
    • Court of Appeals of Utah
    • 1 Agosto 2002
    ...a more favorable outcome for [Defendant]." (Citation and quotations omitted) (second alteration in original.)); see also State v. Kozik, 688 P.2d 459, 461 (Utah 1984) ("[W]e do not upset the verdict of a jury merely because some error or irregularity may have occurred, but will do so only i......
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