State v. Homer

2017 UT App 184

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellant,
v.
KAITLIN HOMER,
Appellee.

Opinion
No. 20160163-CA
Filed October 5, 2017

Fifth District Court, St. George Department
The Honorable John J. Walton
No. 151501569

Brock R. Belnap and Bryan J. Wheat, Attorneys
for Appellant
Gary G. Kuhlmann and Todd R. Sheeran, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
DAVID N. MORTENSEN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1 Kaitlin Homer was charged with, among other crimes,
possession of methamphetamine (Count 1). After a preliminary
hearing, the magistrate dismissed Count 1 because the State did
not present any scientific evidence as to the actual identity of the
substance. The State appeals the magistrate’s ruling. We agree
with the State that, in appropriate cases, the probable cause
standard required for bindover can be satisfied with
circumstantial evidence regarding drug identity, and that it is
not always necessary to present scientific evidence of drug
identity at a preliminary hearing. Because the circumstantial
evidence of drug identity was, in this case, sufficient to
State v. Homer

constitute probable cause that Homer possessed
methamphetamine, we reverse.

¶2 In cases like this one where the State appeals a
magistrate’s decision not to bind over a criminal case after a
preliminary hearing, we view the evidence in the light most
favorable to the State and draw all reasonable inferences in its
favor. State v. Schmidt, 2015 UT 65, ¶ 4, 356 P.3d 1204. We recite
the facts with that standard in mind.

¶3 In 2015, a police officer observed Homer in front of her
father’s house in St. George, Utah. Homer was rummaging
through items in a truck parked outside the house, and appeared
to be attempting to hide something underneath one of the floor
mats on the passenger’s side. After Homer saw the officer, she
exited the truck and locked its door. The officer approached
Homer, and observed her “rubbing her arms, chewing on her
cheeks,” speaking inarticulately, repeating herself, and generally
appearing very nervous. The officer testified at the preliminary
hearing that he believed Homer was under the influence of
drugs or alcohol.

¶4 Soon after speaking with Homer, the officer obtained
consent from Homer’s father to search the truck, and in the
vehicle the officer discovered a number of syringes on the
floorboard on the passenger’s side. The syringes contained a
clear liquid residue. Inside the truck, the officer also discovered a
backpack that was later determined to be Homer’s. In the
backpack, among other items, the officer found multiple
syringes as well as a small one-inch-by-one-inch baggie that
contained a light crystal substance.

¶5 The officer testified at the preliminary hearing that he had
been a police officer for nearly three years, and that he had
received drug interdiction training, including specific courses on
identifying particular types of illicit drugs. Based on that
training and experience, the officer testified that he believed the
light crystal substance inside the baggie was methamphetamine.

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State v. Homer

He grounded that conclusion on specific factors, such as the
appearance of the substance and its location in a small baggie,
which the officer testified was consistent with how
methamphetamine is often packaged, as well as his belief that
the syringes found in the truck were “typically used” for
methamphetamine use.

¶6 However, the officer did not field-test the substance. At
the preliminary hearing, the State did not present any other
scientific evidence demonstrating that the substance was in fact
methamphetamine. These facts—that the officer had not tested
the substance and that the State had no other scientific evidence
of the substance’s identity—were dispositive for the magistrate.
Indeed, the magistrate’s ruling was that “[t]here was insufficient
probable cause to bind over Count 1 due to the fact that the
police officer had not field tested the suspected
methamphetamine and thus could not testify to any field test
results.”

¶7 Although magistrates are afforded limited deference in
making credibility determinations, we review any legal
determinations made by the magistrate for correctness, without
affording the magistrate any deference. Schmidt, 2015 UT 65, ¶ 13
(stating that “any departure from the correct legal standard will
always exceed whatever limited discretion the magistrate has in
the bindover decision” (citation and internal quotation marks
omitted)).

¶8 In order to obtain a judicial determination binding a
defendant over for trial at a preliminary hearing, the State must
produce evidence demonstrating “probable cause.” Id. ¶ 17
(citation omitted). This “relatively low” threshold is the same
evidentiary standard used by officers when they determine
whether they may legally arrest someone: there must be “a
reasonable belief that an offense has been committed and that
the defendant committed it.” Id. ¶¶ 17, 22 (citations and internal
quotation marks omitted); see also State v. Jones, 2016 UT 4, ¶ 22,
365 P.3d 1212 (stating that, “[u]nder the probable cause

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State v. Homer

standard” applicable at the preliminary hearing stage, “we are
required to take the perspective of the reasonable arresting
officer”).

¶9 In evaluating the evidence presented at a preliminary
hearing, the magistrate “must draw all reasonable inferences in
the prosecution’s favor,” and there is no requirement that the
State “eliminate alternate inferences that could be drawn from
the evidence in favor of the defense.” Schmidt, 2015 UT 65, ¶ 18
(citation and internal quotation marks omitted). Importantly, the
evidence presented “does not need to be capable of supporting a
finding of guilt beyond a reasonable doubt.” Id. Indeed, our
supreme court has clearly stated that “the quantum of evidence
necessary to support a bindover is less than that necessary to
survive a directed verdict motion.” State v. Clark, 2001 UT 9, ¶ 16,
20 P.3d 300. In fact, “a magistrate has discretion to decline
bindover only where the facts presented by the prosecution
provide no more than a basis for speculation.” Jones, 2016 UT 4,
¶ 13 (citation and internal quotation marks omitted). Although
the magistrate does have limited discretion to make credibility
determinations and to disregard evidence that is “so
contradictory, inconsistent, or unbelievable that it is
unreasonable to base belief of an element of the prosecutor’s
claim on that evidence,” State v. Virgin, 2006 UT 29, ¶ 25, 137
P.3d 787, the magistrate may not engage in a wholesale weighing
of “the totality of the evidence in search of the most reasonable
inference,” Schmidt, 2015 UT 65, ¶ 18 (citation and internal
quotation marks omitted). Choosing between inferences, as well
as weighing the credibility of all but the most unbelievable
evidence, are tasks properly left “to the fact-finder at trial.” Id.

¶10 In this case, the magistrate grounded his decision to
decline bindover on Count 1 on a single fact: that the State
presented no scientific evidence regarding the identity of the
substance found in the baggie inside Homer’s backpack. But the
State introduced other circumstantial evidence regarding the
identity of the substance. The officer testified that Homer was
acting erratically and that he believed that Homer was under the

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State v. Homer

influence of drugs or alcohol. He observed Homer acting
furtively, attempting to hide items (that turned out to be
syringes) under the floor mats of the truck. A search of the truck
revealed that Homer was in possession of baggies and syringes,
both of which the officer testified were of the type typically used
to package and administer methamphetamine. Finally, the
officer gave his opinion that he believed the substance in
question was in fact methamphetamine, and he explained that
his opinion was based on his training and experience, the
appearance of the substance, and the surrounding
circumstances.

¶11 We conclude that, taken together, this evidence was
sufficient to compel bindover. After reviewing the evidence
presented by the State at the preliminary hearing, we are left
with a reasonable belief that the crime of possession or use of
methamphetamine was committed, and that Homer committed
it. See id. ¶ 17. Undoubtedly, the State’s case would have been
stronger if it had included scientific evidence (field test results
or, better yet, more definitive results from the State Crime Lab)
that the substance found in Homer’s backpack was in fact
methamphetamine. But such scientific evidence is not a
necessary condition, in every case, of bindover at the
preliminary hearing stage.1 It is certainly possible for the State to

1. We note that such evidence is not always a necessary
condition for conviction at trial either. For example, convictions
on drug charges have been upheld even in the absence of
conclusive scientific evidence identifying the substance in
question. See Provo City Corp. v. Spotts, 861 P.2d 437, 442–43
(Utah Ct. App. 1993) (holding that drug identity could be
established through circumstantial evidence in appropriate
cases, including through officer testimony, even in the absence
of scientific evidence, and upholding a conviction in the absence
of such evidence based on other circumstantial evidence); see also
State v. Kiriluk, 1999 UT App 30, ¶ 18, 975 P.2d 469 (concluding
that the “detective’s opinion that [a] jar contained” a “precursor
(continued…)

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State v. Homer

present evidence sufficient for bindover in drug cases, even
without chemical analysis of the substance in question. Whether
bindover in the absence of scientific evidence regarding drug
identity is appropriate in any given case will depend upon the
strength of the other evidence, likely largely circumstantial, that
the State is able to present at the preliminary hearing. In this
case, however, the other evidence presented at the preliminary
hearing was sufficient to constitute probable cause that Homer
committed the crime with which she was charged in Count 1.

¶12 It will be up to the trial court and the factfinder to
determine whether this evidence, if not bolstered by the State
prior to trial, is enough to convict Homer of the crime beyond
any reasonable doubt. We offer no opinion on that question. But
the standard for bindover at a preliminary hearing is lower than
the directed verdict standard that applies, upon motion, at trial.
Clark, 2001 UT 9, ¶ 16. The evidence produced by the State at a
preliminary hearing does not need to be sufficient to convict the
defendant beyond a reasonable doubt. Schmidt, 2015 UT 65, ¶ 18.
It only needs to be sufficient to constitute probable cause that the
defendant committed the crime with which she was charged.
And the evidence presented here meets that standard.

¶13 The magistrate’s decision to decline bindover is reversed,
and this case is remanded for further proceedings consistent
with this opinion.

(…continued)
to methamphetamine” was not prejudicial, even though field
tests were “inconclusive”).

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