Skip to main content
Clayton A. Simms
Avvo
Pro

Clayton Simms’s Answers

46 total


  • I was given a criminal trespassing warning paper from a target store in Layton Utah for swapping a couple tags. What now?

    When I got to the register the cashier noticed the 2 tags I swapped were wrong and rang me up for the correct amount. I payed and before I left the store the security officer caught up with me and told me he saw me switching the tags and that beca...

    Clayton’s Answer

    The crime of retail theft in Utah includes altering, transferring or removing "any label, price tag, marking...or any marking which aid in determining the value of any merchandise". Target could have filed a police report on you immediately, but did not. This does not mean that Target will not pursue charges at a later time.

    I've had a case arise out of alleged under-ringing in which the person was questioned by Target and released. Target then pulled the surveillance video of all of the suspects recent transition (presumably through credit/debit card records) and discovered additional violations. The suspect received a court summons through the mail. If you receive a summons in the mail, don't panic just because you're charged don't mean you are convicted. Fight the case.

    It is still unlikely that Target will seek criminal charges against you because you did not receive a citation at the time of the stop. Nevertheless, the trespass is still valid and you cannot return to the store, regardless of the outcome of criminal charges.

    Good Luck, Clayton Simms

    See question 
  • What is the statute of limitations for a Class B Misdemeanor Retail Theft? And what are my options?

    I was arrested on February 22, 2010. The charge was filed in April 2010, however I was not aware of a warrant until a couple of months ago. It doesn't make any sense to me because I have been under the supervision or in custody of the State for ...

    Clayton’s Answer

    You ask "what are my options" on this old retail theft case? The answer is simple: Fight The Case! The probability of a conviction on 2010 retail theft is very low. The security guard who stopped you most likely has a new job and the police officer who took the report has no independent memory of this misdemeanor offense all these years later. Don't panic or worry about the injustice of being charged with a crime many years later, just beat the case and move on with your life.

    Just ask your attorney to set the matter for jury trial. If your attorney is a well respected and talented trial attorney, my guess is that the case will be dismissed before trial.

    Good Luck, Clayton Simms

    See question 
  • How many times can the state fail to file in time on a dui case

    District attorney failed to file in time. The judge closed the case and was told to call back for the 3rd time now to see if they will file

    Clayton’s Answer

    The prosecutors will not file a DUI until they run a background check on you to determine if you have any previous DUI convictions. As you may know, DUI is an enhanceable offense. A DUI with two previous DUI convictions within a 10 year period turns a misdemeanor DUI into a Third degree felony DUI. The criminal background check is probably the reason for the delay. If you have lived out of State and have an out of state DUI that is the most common reason for a long delay.

    Another possibility is that the Utah state crime lab has not yet processed the DUI blood draw and the prosecutors are waiting for the results.

    Good Luck, Clayton

    See question 
  • First retail theft offense...what will happen?

    Sister got caught with friend at a store stealing. Merchandise was found in her purse and she says it was her friend who put it in there. Was upfront and honest about everything that happened when the officer took her statement. What will happen ...

    Clayton’s Answer

    If convicted, It is likely that your sister will be placed on probation, pay a fine and not serve any jail time. However, it is important that your sister's attorney fight the case because a jury or a judge may be persuaded that your sister did not know that her friend put merchandise into your sister's purse.

    Just because a first time retail theft charge doesn't generally land you in jail does not mean that the charge is not serious. Many employers will not hire a person with a retail theft on their record. Landlords are requesting criminal background checks and they may find a way to not rent a place to her sister if she has a theft charge on her record. In addition, websites often list criminal charges and this case may haunt your sister well after the criminal court case is over.

    It is always advisable to fight the case. Contact an attorney who regularly goes to trial because even a misdemeanor charge can impact someone's future.

    Good Luck, Clayton Simms

    See question 
  • Do i need to worry about charges being files against me?

    had a heated argument with an off duty coworker. Yes some language was exchanged. I was in the middle of serving lunch and needed them out of the kitchen. In the heat of the argument i just walked up to the coworker and did lightly bump up aga...

    Clayton’s Answer

    In Utah you always need to worry about being falsely accused of a crime you didn't commit. A simple bump or slight push against a co-worker should not result in charges, but they might. The office may have a policy that requires any physical contact between employees must be reported to the police. Work place violence is a serious issue, but this incident is clearly not violent or threatening. Nevertheless, your employer's human resources department may contact the police. This would be unfortunate because no harm was suffered.

    The police may take a quick report and then forward that report to the local misdemeanor prosecutor's office.

    It is very unlikely that charges will get filed, but it's not impossible for charges to get filed. I would not worry about the incident.

    Good Luck, Clayton Simms

    See question 
  • Took a plea in abeyance for a misdemeanor charge (Fake ID) in 2009. Will I be denied full time job opp? I have had 2 jobs since.

    Took a plea in abeyance for a misdemeanor charge (Fake ID) in 2009, I was 19 years old. I have passed two other background checks since, but am now applying for a full time career and must pass a background check again. Should I assume that if I p...

    Clayton’s Answer

    More and more employers are looking at charges that have been dismissed. Your future employer may not care that your charges were dismissed. Your Misdemeanor involves a crime of dishonesty (fake ID) and this may be a concern.

    You should simply get this charge expunged, so that you can apply to jobs and move through life with confidence. Don't let a minor mistake at age 19 impact the rest of your life!

    See question 
  • When I plead guilty to Domestic Violence Charges the city judge said something about not being able to own a fire arm...

    Looking back it seems like he said that I may never, or that It might be a while before I can own a firearm or ammunition? are there automatic restrictions now? what are they? the charges if I recall right where Domestic violence in front of a chi...

    Clayton’s Answer

    A domestic violence conviction prohibits you from possessing a firearm. Because you entered into a straight guilty plea to a domestic violence charge this is a lifetime ban. Unfortunately prosecutors don't do a great job of informing people of their rights. That's because prosecutors are working against you. They are trying to put you in jail and punish you. How many people would stop pleadng guilty at the first opportunity if they fully understood the rights they were giving up? 99% of criminal defendants simply plead gulity instead of fighting their charges. You are not alone. The system is designed to get you to quickly plead guilty without understanding your Constitutional rights, including your gun rights under the Second Amendment. You may wish to have an attorney review your plea to determine if it was done correctly, but you may be stuck with the consequences of a guilty plea.

    See question 
  • Does my criminal record remain clean since the charge against me was dismissed?

    Does my criminal record remain clean since the charge against me was dismissed? or do I still get the criminal record?

    Clayton’s Answer

    Without an expungement the dismissed charges will show up on a background check. However, the charges should show up as dismissed. You should take the extra step it takes to get the charge expunged. In addition, you need to erase all mentions of your arrest from the internet. Jail booking photo websites may have your arrest information on them. You need to petition then to have your arrest information removed from jail booking photo websites.

    See question 
  • What is the Gap law for underage teens in Utah?

    I have a great nephew 15 years old & a niece 13 years old who think they are in love. 2nd cousins are not the biggest issue for us (even though it's hard to wrap our head around), its the age. I have been looking for the gap law and can't seem ...

    Clayton’s Answer

    The age gap is not be the biggest issue. The immediate issue is that they might be "related persons" and may be in violation of Utah's incest laws. Utah Code Annotated Section 76-7-102 outlaws incest and defines a "related person" as "ancestor, descendant, brother, sister, uncle, aunt, nephew, niece or first cousin". This includes stepchildren and adopted children. Regardless of the ages, the laws against incest may prohibit this union. Incest is a Third Degree Felony and is punishable by up to 5 years in the Utah State Prison and a fine of $5,000.00.

    It is best to break up this relationship before it goes any further.

    Good Luck,
    Clayton Simms
    Utah Criminal Defense Attorney

    See question 
  • Authority determining if actor/actress in pornographic image is under age

    Question 1. Say for whatever reason your computer was seized (not from a child porn sting operation) And forensic found pornographic images. How would the authorities determine if the actor/actress on said film/image is under age? (Not nece...

    Clayton’s Answer

    One way the police can determine if an image is child porn is if the image is of a known victim. The police have a database of known child porn images. The images on your computer would be analyzed to determine if there is a match with known prohibited images. If the police verify that one of the images on your computer is of even one known child porn victim, then you are in serious trouble.

    You don’t need to go to law school to understand that possessing child porn could land you in state or federal prison. Google, Bing and other search engines generally do a good job of eliminating child porn from general websites and website searches. Thus you generally need to engage in peer-to-peer file sharing to obtain child porn.

    If you have a small amount of child porn on your computer, you may argue that you did not intentionally seek out those images. However, possession of child porn is a strict liability offense, and the court may not look at intent. Nevertheless, you search history will become important and the search terms or techniques you used to obtain those images may become important.

    You may need a computer expert, and you definitely need a criminal attorney who understands technology.

    Good Luck,

    Clayton Simms
    Utah Criminal Defense Attorney

    See question