BINGHAM

FINAL
David Schwendiman
January 6, 2022

REPORT AND RECOMMENDATION

07/2021

Date: January 6, 2022

From: Salt Lake County District Attorney’s Conviction Integrity Panel

Justice Christine Durham
Judge Judith Atherton
D. Gilbert Athay
Michelle Love-Day
David Schwendiman

To: Sim Gill, Salt Lake County District Attorney

Thru: Anna Rossi-Anderson, Deputy Salt Lake County District Attorney, Conviction Integrity
Unit Chief

Subj: Bingham, Kelly; Report and Recommendation

Recommendation

After careful consideration, it is the consensus of the Conviction Integrity Panel that:

• It possesses sufficient information to determine by a preponderance of the evidence whether

Mr. Bingham makes a valid claim of innocence or that his conviction or sentence lacks
integrity;1
• Mr. Bingham’s plea, conviction and sentence lack integrity because the statute of limitations
that applied when he was charged was a bar to prosecution; that is, the court did not have
jurisdiction to take his plea, find him guilty or sentence him:

- In 1999, Mr. Bingham fully disclosed to law enforcement authorities the conduct
which is the basis of the charges he pleaded guilty to and was sentenced for in
2016;
- Aggravated sexual abuse of a child and sodomy on a child committed between
1989 and 1995, under Utah law that applied in 1999, had to be charged at least
before 2003 in Mr. Bingham’s case, or prosecution was barred;

1
Conviction Integrity Unit Policy and Procedure (approved and adopted September 15, 2020), ¶5

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- Prosecution was barred by the statute of limitation when the prosecutor charged
Mr. Bingham in July 2016 with aggravated sexual abuse of a child committed
between 1989 and 1995, crimes he admitted to in 1999, and when the prosecutor
amended the charges to attempted sodomy on a child as part of a plea agreement
Mr. Bingham entered into and pursuant to which he pled guilty in December 2016
and for which he was sentenced in January 2017;

The panel recommends that the conviction and sentence in Mr. Bingham’s case be VACATED.

Mr. Bingham does not claim actual innocence. In making its recommendation, the panel takes no
position regarding the crimes Mr. Bingham admits he committed. Nor does it minimize or ignore the
impact of those crimes on the victim, family members and others. Nothing in the record the panel
reviewed suggests that Mr. Bingham has ever minimized the damage he caused.

Based on the information reviewed by the panel it is apparent that Mr. Bingham has done much to
address his deviant behavior, to redress his crimes, and to put his life back together and help the
victim do the same. It may be small comfort for others under the circumstances, but the issue the
panel dealt with is confined to the fact that the court had no jurisdiction to entertain the case against
Mr. Bingham because the statute of limitations that applied in his case was a bar to prosecution.
Going forward despite the statutory bar caused damage to Mr. Bingham, to his victim, to family
members and others that cannot now be easily repaired.

The panel notes that during plea negotiations with Mr. Bingham and Mr. Bingham’s counsel the
prosecutor who charged Mr. Bingham in 2016 did not disclose the fact that the Salt Lake County
District Attorney’s Office previously declined to prosecute Mr. Bingham because it determined the
statute of limitation that applied prevented it. It is the view of the panel, after speaking with Mr.
Bingham’s counsel at the time of the plea and sentence that had this been disclosed, Mr. Bingham
would not have pled guilty.

Application

1. In a handwritten letter addressed to the Conviction Integrity Unit Coordinator, dated

December 10, 2020, Kelly S. Bingham asserted that the eight year time period within which he
might have been criminally charged with sexual misconduct involving a minor which started in
1989 and ended in 1995 began to run in 1999 when he claims he reported what he had done in
detail to authorities in order to satisfy the requirement imposed by LDS Social Services that he
fully disclose his misconduct to law enforcement authorities before he could be considered for
treatment. He contends that the statute of limitations that applies precluded charging him with
the crimes he pleaded guilty to in 2016.

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2. On March 2, 2021, Mr. Bingham supplemented his handwritten submission with a formal
application restating his claim. He provided copies of several items in support of his claim,
including:

• a detailed timeline;
• a letter from Richard Bashaw, an employee of LDS Family Services who attests that prior to
accepting Mr. Bingham into a sex offender treatment and therapy program he confirmed with
law enforcement authorities that Mr. Bingham reported his misconduct as he alleges in his
application;
• a psychosexual evaluation prepared by Dr. Larry Fox in January 2017, based on interviews
conducted on December 17, 2016, and January 6, 2017, which notes Mr. Bingham’s claim that
he disclosed his misconduct to law enforcement authorities in 1999;
• a report of a polygraph examination performed on Mr. Bingham by John Pickup on October 12,
2016, indicating the Mr. Bingham was not deceptive when asked about reporting his misconduct
to West Valley and Salt Lake City Police Departments in 1999;
• a July 3, 2017 letter from Mr. Bingham’s former wife whose brother was the victim in Mr.
Bingham’s case;
• a June 1, 2017 letter from Mr. Bingham’s mother-in-law, the mother of the victim; and
• a presentence report dated February 7, 2017.

Mr. Bingham also provided names of fourteen people who he claims can attest that he
reported his misconduct to police in 1999.

3. Mr. Bingham contends he was not prosecuted until 2016 for the conduct he admitted to in
1999; seventeen years after he disclosed his crimes to authorities.

4. He claims he entered treatment in 1999 only after LDS Family Services confirmed that he had
indeed disclosed his crimes to appropriate law enforcement authorities as required. This, he
says, is corroborated by the therapists (he lists them) who worked with him for three years. (pg.
2-4)

5. He contends that the Salt Lake County District Attorney’s office first declined to prosecute
when the matter was reconsidered in 2016 because it determined the statute of limitation
prevented him from being prosecuted for the crimes he admitted to in 1999. (pg. 3)

6. He further contends that upon reconsideration prompted by the father of the victim’s
spouse, a former police officer in Centerville, the Salt Lake County District Attorney’s office
charged him with the crimes ultimately leading to the sentence he is now serving.

7. Mr. Bingham notes that he was sentenced to three 0-5 year terms to run consecutively.

Material Reviewed by the Panel.

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8. The panel reviewed Mr. Bingham’s application and attachments, including more particularly:

• Mr. Bingham’s handwritten letter asking for review of his conviction, dated December 10, 2020;
• A formal application for review addressed to Anna Rossi Anderson, dated March 2, 2021, with
accompanying items as noted above in ¶2;

9. The panel also reviewed the Salt Lake County District Attorney case file, comprising:

• Notes made by Assistant District Attorney Aaron Flater;

• E-mail correspondence between Assistant District Attorney Aaron Flater and West Valley City
Police Detective Sete Aulai dated January 6, 2016; January 27, 2016, an exchange in which Mr.
Flater indicated to Detective Aulai that he had researched the issue and concluded he would
have to show by a preponderance of the evidence that the statute of limitation did not preclude
charging Mr. Bingham with the crimes he disclosed in 1999;2 and February 4, 2016;
• A letter from Salt Lake County District Attorney’s Office, Broadway Screening Unit, to Detective
Sete Aulai, West Valley City Police Department, dated February 5, 2016, in regards to a
proposed information to be filed against Kelly Shane Bingham, Agency Case Number 151050733,
District Attorney Office Number 15030528, advising Detective Aulai, that “[B]ased on the
information provided to our office for screening, we have determined that we are unable to
proceed with the prosecution of KELLY SHANE BINGHAM at this time due to statute of
limitations.” The letter is signed by Screening Attorney Aaron Flater;
• E-mail correspondence between T. Langdon Fisher, Salt Lake County District Attorney’s Office,
and Adriana Ortiz and Matt J. Hansen, regarding Kelly Shane Bingham, 15030528, dated June 7,
2016, instructing Ms. Ortiz to assign the matter to Mr. Hansen, noting that Mr. Flater had
declined based on statute of limitations problems, but also noting that “it was not reported to
LE until last fall [2015], so the Sodomy of a Child incidents that occurred from ’91 to the victim’s
14th birthday in ’94 may still be viable. The victim apparently sought legal advice, who offered
this opinion regarding limitations. The victim has asked that we reconsider;” undated between
Anthony Najera, a paralegal working in the Special Victim Team, Salt Lake County District
Attorney’s Office, and Paul Tittensor, West Valley City Police Department, asking for information
for Mr. Hansen related to the Bingham case; June 9, 2016, between Langdon Fisher and Matt J.
Hansen, forwarding an e-mail dated June 8, 2016, 9:30 a.m., from KN, the wife of the victim, to
Adriana Ortiz, asserting there was no evidence that Mr. Bingham disclosed as he claimed and
that the statute of limitations should not have been a bar to prosecution since the victim
reported the abuse in 2016; a June 9, 2016, e-mail from Langdon Fisher to Matt J. Hansen,

2
See UCA 76-1-306 (1998), i.e., When an issue concerning the statute of limitations is raised, the judge shall
determine by a preponderance of the evidence whether the prosecution is barred by the limitations in this part.

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forwarding an e-mail dated June 8, 2016, 10:22 a.m., from KN to Langdon Fisher, asserting again
that the statute should not have begun to run until 2016 when the victim reported the abuse;
• A letter dated September 1, 2016, from State of Utah, Department of Human Services to Walter
F. Bugden, subject, Subpoena Duces Tecum Kelly Shane Bingham, DOB 12 Feb 73, informing Mr.
Bugden that the Divison of Child and Family Services database has no records related to Kelly
Shane Bingham;
• A letter dated October 11, 2016, from Walter F. Bugden to Matt J. Hansen, subject State v.
Bingham/Case No. 262907714, acknowledging a meeting between Mr. Bugden and Mr. Hansen,
memorializing that they had discussed Mr. Bingham disclosing his sexual misconduct involving
the victim to law enforcement before LDS Social Services would accept him for treatment; that
Mr. Bingham informed Mr. Hansen that Mr. Bingham had voluntarily paid for all of the victim’s
counseling; and proposing a resolution of the case against Mr. Bingham by offering to have him
plead guilty to two third-degree felonies, and accept a sentence of 30 days jail and probation. A
handwritten note on the letter indicates that the counter from Mr. Hansen was that he would
not agree to a Rule 11 plea that would bind the judge but he would remain silent at sentencing,
there had to be restitution, no contact, and Mr. Bingham would have to go on the sex offender
registry.
• An e-mail exchange between Walter Bugden and Matt J. Hansen, dated October 20, 2016,
forwarding an e-mail Mr. Bugden received from Mr. Bingham on October 20, 2016, 3:31 p.m.,
which in turn forwarded an e-mail Mr. Bingham received from his employer, High Top Outfitters,
which was sent to the employer by “One Concerned Citizen.” The e-mail included a booking
photo of Mr. Bingham and the information on Mr. Bingham’s booking record. It was also sent to
the Salt Lake Tribune, the Ogden Standard Examiner, KUTV 2 News Desk, FOX 13 News, ABC 4,
and KSL, on October 19, 2016. The e-mail identifies Mr. Bingham by name, DOB, and residence.
It advises the employer that Mr. Bingham was arrested in July 2016 and charged with
aggravated sexual abuse of a child. It goes on to ask the employer to consider the implications of
having a “sex offender who sexually abuses children doing work for your company;”
• An e-mail exchange between Josh Wilson and Mr. Bingham, dated October 19, 2016, forwarding
an e-mail with a booking photo of Mr. Bingham, sent to Mr. Wilson, a representative of Farmers
and Hunters Feeding the Hungry, a charity with which Mr. Bingham was associated, by “One
Concerned Citizen,” containing the allegations and warnings sent to Mr. Bingham’s employer on
October 19, 2016;
• An e-mail exchange between Mr. Bugden and Mr. Hansen regarding the psychosexual
evaluation Mr. Bingham underwent in 2016 and 2017. In the e-mail Mr. Budgen acknowledges
“that in the absence of a police report we could not assert the statute of limitations,”
nonetheless he goes on, “But I continue to believe that the circumstantial evidence combined
with the truthful polygraph examination provide compelling evidence that Kelly Bingham did
report to law enforcement 20 years ago.” Mr. Bugden also advises Mr. Hansen that Mr.
Bingham had lost his employment as a consequence of the e-mails “One Concerned Citizen”
sent to High Top Outfitters. He indicates that he hopes Mr. Hansen will not be asking for
incarceration in Mr. Bingham’s case;

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• An undated e-mail from Mr. Hansen to Mr. Bugden, describing the plea deal he is willing to offer
Mr. Bingham; amended information charging three counts of Attempted Sexual Abuse of a Child
(F3). Mr. Hansen indicates he had not decided whether he would be asking for prison and
acknowledges that “[E]ach side will have all the options to argue at sentencing.”
• An e-mail dated April 19, 2017, from Susan Fragoso to Robyn Smith, Legal Secretary, Restitution
Team, Salt Lake County District Attorney’s Office, regarding restitution for the victim.
• A BodyCam recording of an interview of Kelly Bingham conducted at Mr. Bingham’s residence by
two Roy City detectives in 2016.

10. The panel considered additional material, including:

• a Roy City Police Department Case Report Narrative dated 09-29-99, prepared by Detective
Darin Calcut, summarizing an interview conducted by the detective with Mr. Bingham on
September 27, 1999, at the Roy City Police Department. The interview was initiated by Mr.
Bingham. He appeared voluntarily to report sexual conduct he engaged in with two juvenile
females in Roy City in 1996. He told Detective Calcut that he was reporting in order to be able
to receive treatment from LDS Social Services.
• a letter dated July 14, 2021, sent to the panel by L. Bruce Larsen, an attorney who advised Mr.
Bingham in 1999. Mr. Larsen went with Mr. Bingham to the West Valley City Police Department
in 1999 when Mr. Bingham reported the misconduct which is the basis of the charges brought in
2016. LDS Family Services confirmed to Mr. Larsen that Mr. Bingham reported his prior
misconduct to all “relevant jurisdictions and that he then qualified for treatment and therapy at
their institution.”
• a letter from Mr. Leon Eddy, dated July 26, 2021, addressed to the Conviction Review Unit. Mr.
Eddy was Mr. Bingham’s LDS Bishop in 1999. Mr. Eddy attests that Mr. Bingham disclosed to
him the conduct which is the subject of the charges in this case. Mr. Bingham was already
receiving therapy from church services when he spoke with him. Since it was church policy not
to provide therapy until there had been full disclosure to proper government authorities, Mr.
Eddy concluded Mr. Bingham had disclosed as required. Mr. Eddy also noted that he spoke with
the male victim in 1999. The victim told him he was in therapy that was helping him and that it
was Mr. Bingham who paid for the therapy;
• the Third District Court docket for Case No. 161907714, State of Utah vs. Kelly Shane Bingham

11. On July 29, 2021, the members of the panel interviewed, L. Bruce Larson, attorney for Mr.
Bingham in 1999. The panel also reviewed a letter Mr. Larson sent to the panel on July 14,
2021. In both the interview and in the letter, Mr. Larson confirmed he was with Mr. Bingham at
the West Valley Police Department in 1999 when, during a 45-minute interview with a West
Valley City Police Detective, Mr. Bingham disclosed in detail the sexual misconduct that is the
subject of the 2016 criminal information. Mr. Larson confirmed that Mr. Bingham made his
admissions against his advice. According to Mr. Larson, he did it so he could receive treatment
for sexual deviance from LDS Family Services which would not have provided treatment unless
he had fully disclosed his crimes to law enforcement. Mr. Larson told the panel he was notified

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within a month that West Valley City Police would not take the matter further. According to
Mr. Larson, Mr. Bingham told him he had also gone to Roy City Police and Salt Lake City Police
and disclosed to them as well, though Mr. Larson was not present when that was done.

12. On July 29, 2021, the panel also interviewed Aaron Flater, the Deputy Salt Lake County
District Attorney who declined prosecution of Mr. Bingham in 2016, for the conduct he
admitted to in 1999, because, in his view, the statute of limitations that applied was a bar to
prosecution. Mr. Flater’s decision was memorialized in a letter he wrote to Detective Sete
Aulai, West Valley City Police Department, dated February 5, 2016. Mr. Flater told the panel
the decision to decline prosecution was made after he asked Detective Aulai to investigate the
facts surrounding Mr. Bingham’s claim that he had disclosed his misconduct to police in 1999.
Based on information he received from Detective Aulai, he was convinced that in 1999 Mr.
Bingham fully disclosed to law enforcement what he had done between1989 and 1995; the
conduct that was the subject of his review of the case. He concluded that the statute of
limitations that applied prevented him from charging Mr. Bingham with a crime. According to
Mr. Flater, the decision to decline prosecution was made after it was vetted within the office
and approved by his supervisor, T. Langdon Fisher. Mr. Flater further noted that Matt J. Hansen,
the Salt Lake County Deputy District Attorney assigned to review the case later in 2016 after
Mr. Flater was no longer with the office, never spoke with him about the case before or after he
filed the information in Mr. Bingham’s case in July 2016.

13. The panel also interviewed Mr. Walter Bugden, counsel for Mr. Bingham at the time the
plea was negotiated with Mr. Hansen and when Mr. Bingham pled guilty and was sentenced.
During the interview on July 29, 2021, Mr. Bugden told the panel he investigated the statute of
limitations issue and felt there were grounds to move to dismiss the information based on Mr.
Bingham’s disclosures in 1999. He was convinced Mr. Bingham fully disclosed to Roy City Police
and West Valley City Police the conduct for which he was being prosecuted in 1999, despite the
lack of formal documentation of the disclosures. He was satisfied from the investigation he
conducted that the circumstantial evidence strongly supported Mr. Bingham’s claim that he
disclosed so that he could receive therapy and treatment from LDS Family Services. He told the
panel he nonetheless felt the judge assigned to the case would not have ruled favorably for Mr.
Bingham because no formal documentation of the disclosures could be found. He told Mr.
Bingham that and advised him to take what he believed was a generous plea offer from Mr.
Hansen rather than risk raising the statute of limitations issue with the court, losing, and
foregoing the benefits of pleading guilty. Mr. Bugden was not aware of the letter from Mr.
Flater to Detective Aulai advising the detective that the office had formally declined to
prosecute because the statute of limitations prevented it. Indeed, Mr. Bugden told the panel
that he was learning of the letter for the first time when he was shown the letter by the panel
during the interview. According to Mr. Bugden, the declination was never raised nor disclosed
by Mr. Hansen. Had it been, he told the panel, he would not have advised Mr. Bingham to

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plead guilty. He would have sought instruction from Mr. Bingham to have the case dismissed
instead.

14. Mr. Hansen declined to meet with the panel.

Procedural History and Outcomes

15. On July 27, 2016, Kelly Shane Bingham was charged by information signed by Matt J.
Hansen, Salt Lake County District Attorney’s Office with three counts of aggravated sexual
abuse of a child, UCA 76-5-404.1 (first degree felony).

16. On December 16, 2016, pursuant to a plea agreement, Mr. Bingham entered pleas of guilty
to three counts of attempted sodomy of a child, UCA 76-5-403.1 (third degree felony), charged
in an amended information, based on the conduct covered by the original information.

17. On February 10, 2017, Mr. Bingham was sentenced to three 0-5 year terms in prison, to be
served consecutively.

18. No appeal was taken to the pleas or sentences and no collateral review was undertaken on
Mr. Bingham’s behalf.

19. Mr. Bingham was released from prison in late 2021.

Standard of Review

20. In making its recommendation to the District Attorney, the panel is bound to decide
whether it is convinced by a preponderance of the evidence that an application states a valid
claim of actual innocence3 or that a conviction or sentence otherwise lacks integrity.4

21. The panel must be satisfied that it has sufficient information and a sufficient understanding
of the information to make that determination.5

22. The panel is not restricted to the issues raised by an applicant if

3
See United States v. Hisey, #20-3106, 10th Cir., 14 September 2021, pg. 5; see also United States v. Powell, 159
F.3d 500, 502 (10th Cir. 1998); Bousley v. United States, 523 US 614, 623 (1998); i.e., to prevail on a claim of “actual
innocence” it must be shown that “in light of all the evidence, it is more likely than not that no reasonable juror
would have convicted. . . “

4
Conviction Integrity Unit Policy and Procedure (approved and adopted September 15, 2020), ¶5

5
Conviction Integrity Unit Policy and Procedure (approved and adopted September 15, 2020), ¶5

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• in its examination of the claims made in an application; or

• its review of the record; or
• considering the information provided in support of the application, whether or not it
was known at the time charges were filed or a plea was being considered, whether or
not it was presented at trial or in connection with sentencing, on appeal, or in any
submission or proceeding for post-conviction relief; or
• under appropriate circumstances, based on its own initiative and investigation of an
applicant’s case

it becomes apparent, for any reason, that an applicant has a valid claim of actual innocence or
that the charges in his or her case, or his or her plea, conviction or sentence otherwise lack
integrity.

23. As part of any consideration of actual innocence and in deciding whether a charge, plea,
conviction or sentence otherwise lacks integrity, the panel will take into account whether:

• a plea, conviction or sentence was the result of a fundamental mistake in law or fact,
known or unknown at the time charges were brought, or at the time of trial or when a
plea was taken, or sentence was imposed that is more likely than not to have affected
the outcome, resulting in a decision not to charge, a decision not to plead, a dismissal,
an acquittal, or a lesser sentence;
• there was misconduct on the part of any participant in the case that causes serious
doubt about the decision to charge, the decision to plead, the integrity of the trial, or
the plea, the conviction or the sentence;
• new evidence, including reliable medical, psychiatric or psychological evidence and
opinion, emerges which would more likely than not have affected the outcome if it had
been available before any decision to charge was made, was not available at the time of
trial, or known when the plea was negotiated or taken, or when sentence was imposed,
resulting in a decision not to charge, or a decision not to plead, a dismissal, an acquittal
or a lesser sentence;
• reliable evidence known to exist but not presented at trial or not considered in
connection with a decision to charge, a plea or in relation to a sentence, becomes
relevant in a way that would more likely than not have affected the outcome, resulting
in a decision not to charge, a decision not to plead, a dismissal, an acquittal or a lesser
sentence; or
• the emergence or application of reliable science, or reliable technology or methodology
which did not exist or was not available before charges were filed, or before trial or was
not available to be used at the time of trial or when a plea was taken, that if it had
existed or been considered before charges were filed, at trial, in connection with a plea,
or in relation to a sentence, would more likely than not have affected the outcome,

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resulting in no charges, a decision not to plead, a dismissal, an acquittal or a lesser

sentence.

Relevant Facts

24. The facts of the abuse which led to the charges in Mr. Bingham’s case are not in dispute.

25. Mr. Bingham admits he sexually abused the victim, a minor, on numerous occasions
between 1989 and 1995.

26. When the victim was on a mission for the LDS Church in 1999, he revealed to church
authorities that prior to his mission he was repeatedly abused by Mr. Bingham between 1989
and 1995.

27. The victim’s disclosure led Mr. Bingham to acknowledge what he had done to his church
authorities and to his own family and the victim’s family members.

28. Mr. Bingham sought treatment for sexual disorder from LDS Family Services in 1999 and
was advised that before he could be offered help he would have to fully disclose what he had
done to law enforcement authorities and accept the consequences.

29. Against the advice of L. Bruce Larsen, an attorney acquaintance, he and Mr. Larsen met
with officers from West Valley City Police Department in 1999, so that Mr. Bingham could bring
his misconduct to the attention of law enforcement authorities as required by LDS Family
Services.

30. According to Mr. Bingham, Mr. Larsen, and the people who accepted Mr. Bingham for
treatment at LDS Family Services, Mr. Bingham fully, specifically and without reservation
disclosed what he had done to the victim, the conduct which was the basis of the charges
brought against him in 2016, during his interview with the West Valley City Police in 1999.

31. According to Mr. Bingham, as confirmed by Mr. Larsen, and corroborated by a Roy City
Police report dated September 29, 1999, he also disclosed sexual misconduct unrelated to the
conduct which is the subject of this review to officers at Roy City Police Department and the
Salt Lake County Sheriff’s Department, all as part of his effort to meet the pre-conditions for
treatment by LDS Family Services.

32. LDS Family Services confirmed that Mr. Bingham made the required disclosures before
accepting him for treatment.

33. Mr. Bingham entered treatment with LDS Family Services in 1999.

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34. Mr. Bingham was not charged with any crimes related to the abuse of the victim until the
information charging him with three counts of aggravated sexual abuse of a child, UCA 76-5-
404.1 (first degree felony), committed between 1989 and 1995, was filed by Matt J. Hansen,
Deputy Salt Lake County District Attorney, in the Third District Court, on July 27, 2016.

35. Mr. Bingham entered pleas of guilty to three counts of attempted sodomy of a child, UCA
76-5-403.1 (third degree felony), committed between 1989 and 1995, charged in an amended
information dated December 16, 2016, the day he entered his pleas.

36. What Mr. Bingham did between 1989 and 1995, was reviewed for prosecution by Deputy
Salt Lake County District Attorney Aaron Flater when the victim and the victim’s wife first asked
that the case be re-examined in 2016.

37. As noted, Mr. Bingham has never claimed that he did not commit the crimes he was
ultimately charged with and Mr. Flater’s review did not find otherwise. Indeed, Mr. Bingham
has consistently admitted what he did and has taken responsibility for it, including paying for
the victim’s treatment and making restitution to the victim and his family.

38. As part of his review of the case, Mr. Flater asked West Valley City Police Detective Sete
Aulai to determine whether a report was made of Mr. Bingham’s disclosures to West Valley City
officers in 1999, or to any other law enforcement authority around that time.

39. Detective Aulai was unable to find any record of the disclosures Mr. Bingham claimed he
made in 1999. Neither was he able to conclude that Mr. Bingham had not made the
disclosures.

40. The Roy City Police Department Case Report Narrative for Case Number 9903791, dated
September 29, 1999, prepared by Detective Darin Calcut, reports an interview conducted by
Detective Calcut with Mr. Bingham on September 27, 1999, at the Roy City Police Department.
Mr. Bingham sought the interview. He appeared voluntarily and without counsel. He admitted
to sexually abusing one of his wife’s cousins, a female child, in August 1996, in Roy City.

41. When Roy City Police detectives interviewed Mr. Bingham at his residence in 2016, he
spoke openly about his past conduct, including that which involved the victim, confirming that
he disclosed what he had done to law enforcement authorities in West Valley, Roy and Salt
Lake County in 1999.

42. Mr. Flater concluded after receiving Detective Aulai’s report that he could not sustain the
burden of proving by a preponderance that the statute of limitations had not run on Mr.

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Bingham’s conduct,6 depriving the court of jurisdiction in any case he might bring against Mr.
Bingham.

43. Mr. Flater issued a declination letter on February 5, 2016, in which he explained that the
statute of limitations prevented charging Mr. Bingham with the crimes he admitted committing.

44. The matter was taken up again at the insistence of the family of the victim and in June 2016
it was assigned to Deputy Salt Lake County District Attorney Matt J. Hansen.

45. No new facts or evidence regarding the disclosures Mr. Bingham made in 1999 and no
evidence of any other conduct on Mr. Bingham’s part that might have occurred at times within
the applicable statute of limitations, about crimes he did not disclose, were brought to light by
Mr. Hansen’s review.

46. Notwithstanding Mr. Flater’s determination that the applicable statute of limitations
prevented Mr. Bingham from being charged in 2016 with the crimes he admitted committing
between 1985 and 1995, and the office’s formal declination, and despite there being no new
evidence or circumstances that would permit Mr. Hansen to charge Mr. Bingham for those
crimes, on July 27, 2016, Kelly Shane Bingham was charged by information signed by Matt J.
Hansen, Salt Lake County District Attorney’s Office with three counts of aggravated sexual
abuse of a child, UCA 76-5-404.1 (first degree felony).

47. Neither Mr. Bingham’s counsel nor the judge was made aware by Mr. Hansen of the office’s
February 2016 declination.

48. Despite circumstantial evidence he concluded would have justified challenging the
information filed by Mr. Hansen, Mr. Bingham’s counsel in 2016 did not raise the statute of
limitations as a bar to prosecution, choosing instead to negotiate a plea on Mr. Bingham’s
behalf and advise him to accept it as a way of limiting the sentence that might be imposed if the
court found against Mr. Bingham on the statute of limitations issue.

49. Though the facts of the case as pleaded on their face might have suggested to the judge
that there was likely a statute of limitations question that needed to be answered before

6 See UCA 76-1-306. Judge to determine.

When an issue concerning the statute of limitations is raised, the judge shall determine by a preponderance of
the evidence whether the prosecution is barred by the limitations in this part.

Enacted by Chapter 121, 1998 General Session

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entertaining Mr. Bingham’s plea, the judge never inquired whether the statute of limitations
might be a bar to prosecution in Mr. Bingham’s case.

Findings

50. Under Utah law that was in effect in 1999, prosecution for aggravated sexual abuse of a
child and sodomy on a child committed between 1989 and 1995 was barred if charges were not
brought within “four years after the report of the offense to a law enforcement agency,” if the
ordinary four-year statute of limitation had expired. 7

51. The panel concludes that since the four-year statute of limitations had likely run on what
Mr. Bingham admits he did to his victim between 1989 and 1995, he had to be charged with
aggravated sexual abuse of a child or sodomy on a child within the extended four year period
after he brought his crimes to the attention of law enforcement authorities in 1999 as he
claims, that is, at least by the end of 2003, or prosecution was barred.

52. The panel finds that Mr. Bingham’s claim that he told West Valley City Police and Roy City
and Salt Lake County authorities in 1999 what he did to the victim between 1989 and 1994, is
substantially corroborated by the attorney who accompanied him to the meeting with West
Valley City Police and by Mr. Banshaw, the LDS Family Services counsellor who confirmed with
those authorities that Mr. Bingham made the required disclosures in 1999 before accepting him
for treatment.

53. The panel also finds that Mr. Bingham’s account of disclosing his crimes in 1999 is bolstered
by the results of the polygraph administered on the issue of his disclosure, by the report of the

7
UCA 76-1-303.5. Sexual offense against a child.

If the period prescribed in subsection 76-1-302(1) [four years] has expired, a prosecution may
nevertheless be commenced for rape of a child, object rape of a child, sodomy upon a child, sexual abuse
of a child, or aggravated sexual abuse of a child within four years after the report of the offense to a law
enforcement agency.

(Effective April 29, 1996).

In 2008, the Utah Legislature amended UCA 76-1-301 to provide that “Notwithstanding any other provision of this
code, prosecution for . . . . (13) sodomy on a child; (14) sexual abuse of a child; (15) aggravated sexual abuse of a
child . . . . “ could be commenced “at any time.” (Effective May 5, 2008).

In 2009, UCA 76-1-302, was amended to require that “(1) Except as otherwise provided,” a prosecution for
“forcible sexual abuse” had to be commenced “within eight years after the offense is committed, if within four
years after its commission the offense is reported to a law enforcement agency. (Effective May 12, 2009).
Presumably, the provisions of UCA 76-1-301 related to sodomy on a child, sexual abuse of a child and aggravated
sexual abuse of a child, were excepted; that is, they could still be prosecuted at any time.

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 BINGHAM
FINAL
David Schwendiman
January 6, 2022

psychosexual evaluation done on him by Dr. Fox, and by what he told the Roy detectives who
interviewed him in 2016 before he was charged in the case under review.

54. Mr. Bingham could have been charged with the crimes he brought to the attention of law
enforcement authorities in West Valley City and Roy City in 1999 anytime between 1999 and
2003, but he wasn’t.

55. There is no evidence that Mr. Bingham committed additional crimes after 1999.

56. The panel finds there is ample evidence to conclude that time had already run out on
prosecuting Mr. Bingham’s for his crimes when he was charged in 2016 with the crimes in the
original information and for those in the amended information to which he pled guilty and for
which he was sentenced.

57. There is no exception the panel is aware of that tolled the statute of limitations in Mr.
Bingham’s case to allow for filing an information in 2016 charging him with crimes he
committed, and admits to, between 1989 and 1994, as was done in this case.

58. The panel concludes that the court did not have jurisdiction to entertain Mr. Bingham’s
plea in 2016 nor to sentence him in 2017.

14