State v. Virgin

2006 UT 29
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20040715
Plaintiff and Respondent,
v.
F I L E D
Cory Virgin,
Defendant and Petitioner. May 16, 2006
---
Second District, Farmington
The Honorable Darwin C. Hansen
No. 021701705
Attorneys: Mark L. Shurtleff, Att’y Gen., Kris Leonard, Asst.
Att’y Gen., Salt Lake City, Troy S. Rawlings,
Farmington, for plaintiff
Larry R. Keller, Salt Lake City, for defendant
---
On Certiorari to the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1 In this case, we review a magistrate’s decision not to
bind a defendant over for trial. The Defendant, Cory Virgin, was
charged with aggravated sexual abuse of a child. After
considering evidence at a preliminary hearing, the magistrate
declined to bind Virgin over, concluding that the State had
failed to establish the requisite probable cause that Virgin had
committed the crime charged. The court of appeals reversed,
determining that the State had submitted sufficient evidence to
establish probable cause, as this court has defined that term.
We now reverse the court of appeals and, in this opinion, address
both the standard to be applied by magistrates in making bindover
determinations and the standard to be applied by appellate courts
in reviewing those determinations.

No. 20040715 2
BACKGROUND
¶2 The current petition arises from an alleged incident
that occurred on March 6, 2000, when Rebecca Stewart and her
then-boyfriend, Cory Virgin, babysat her four-year-old niece, M.,
and M.’s younger brother. The day after Stewart and Virgin
babysat, M.’s mother heard M. using the words “penis” and
“vagina.” When asked, M. told her mother that she learned these
words from Virgin. Then, while driving to St. George on the
following day, M. told her mother that Virgin had “put his finger
in her bottom.”
¶3 Once in St. George, M.’s parents took her to the
Washington County Children’s Justice Center, where Dr. Kerri
Smith interviewed and examined her. M. told Dr. Smith that she
was in the bathroom when Virgin walked in and “took her underwear
down.” She said that Virgin “put his finger in her bottom” and
pointed at her anus. M. explained that “it hurt when he did that
but he took it out quickly.” Next, she explained that Virgin
told her he was going to get a picture to show her what a penis
looked like; he did, and then he left. Dr. Smith performed a
physical examination and a genital exam and found “no evidence of
any abnormalities.” Dr. Smith noted, however, that “a normal
exam does not rule out the possibility of sexual abuse.”
¶4 On March 9, 2000, after M.’s mother told Stewart about
the accusations, Stewart wrote a statement at Virgin’s request
that described, in detail, their evening babysitting M. In the
statement, Stewart notes that, during dinner, M. told of going
rollerblading with her parents, and described her pink and white,
mermaid rollerblades. Later that night, M.’s mother confirmed to
Stewart that M.’s account was untrue and indicated that M. did
not have any rollerblades. Stewart’s statement also notes two
times where she left Virgin and M. alone for a short time while
she went to the bathroom in the upstairs bathroom. Although
Stewart’s statement notes that Virgin went to the bathroom, it
makes no mention of M. leaving at the same time.
¶5 On March 13, 2000, after the family returned to Salt
Lake, Detective Scott Stevens interviewed M. at the Children’s
Justice Center (“2000 Interview”). In that interview, M. told
Stevens that in the upstairs bathroom Virgin touched her with his
finger on her bottom and that he talked about penises and
vaginas. M. explained that, after she went to the bathroom,
Virgin helped her button up her pants.
¶6 In the interview, M. also said that she, Virgin, and
Stewart then went into her bedroom and played “[b]ottom,” a game

3 No. 20040715
where “[y]ou tried to touch somebodies [sic] bottom when
you . . . you try to touch their pants and their bottom.” M.
stated that she told Stewart what Virgin did and that Stewart
then told Virgin that he “did a no-no.” During the interview, M.
made no mention of Virgin showing her a picture of a penis and
reported that Virgin had his clothes on the whole time. M.
further stated that after the incident she went back downstairs
and played Barbie.
¶7 After the interview, the detective from the City of
North Salt Lake Police Department, attorneys from the County
Attorney’s Office, and the staff of the Children’s Justice Center
decided that there was insufficient evidence to bring a case. At
some point thereafter, the police department destroyed the
videotape of the 2000 Interview, retaining only a transcript.
¶8 In 2002, Detective Tylene Beckstrand reviewed the file
and determined that the case “warranted activation and further
investigation.” After reactivating the case, Detective
Beckstrand subpoenaed the records of Dr. Shireen M. Mooers, who
had interviewed and examined M. on April 6, 2000. The records
show that M. told Dr. Mooers that Virgin touched her between her
legs and showed her his penis.
¶9 Detective Beckstrand then set up another appointment at
the Children’s Justice Center and interviewed M. with Amy Graham,
a Justice Center employee (“2002 Interview”). M. told Detective
Beckstrand that she was playing Barbie and went upstairs to use
the bathroom. She said that Virgin touched her bottom while she
was pulling up her pants. She did not say that Virgin talked
about or showed her pictures of a penis or vagina. M. reported
that Virgin “ha[d] his clothes on the whole time” and “[d]id
[not] show [her] any parts of his body.” M. described the
bathroom where the incident took place, but her description did
not match the bathroom in her old house, which is where the
alleged abuse took place.
¶10 Virgin was charged with aggravated sexual abuse of a
child. Utah Code Ann. § 76-5-404.1 (2003). The court held a
preliminary hearing with the Honorable Darwin C. Hansen acting as
magistrate. The court heard testimony from Detective Stevens,
Detective Beckstrand, and Stewart. The court also reviewed the
transcript from the 2000 Interview, the tape from the 2002
Interview, and Dr. Smith’s and Dr. Mooers’s medical reports.
¶11 At the preliminary hearing, Stewart, who was no longer
dating Virgin, testified that she did not know if the abuse
happened but that at some time that night, while M., Stewart, and

No. 20040715 4
Virgin were playing with blocks and Barbies, Virgin went upstairs
to use the restroom. She said that M. then went upstairs to look
for Barbie clothes and that, “if it did happen[,] it would have
been right there when [Virgin] went to use the bathroom and [M.]
excused herself to go get Barbie clothes.” Stewart also
testified, however, that when M. returned to play with her
Barbies, she did not appear distressed, and Stewart specifically
denied M.’s claim that M. had told her that night of the alleged
abuse.
¶12 Stewart also denied having played the “bottom” game
that M. described in the 2000 Interview. Detective Beckstrand
acknowledged that Stewart did not touch M.’s bottom, and both
Detective Stevens and Detective Beckstrand testified that they
did not investigate Stewart for any crime. In her testimony,
Stewart surmised that M.’s parents accepted that M.’s account
about the “bottom” game was untrue because they “know[] me
and . . . know[] I wouldn’t do that.”
¶13 The magistrate declined to bind Virgin over for trial
and dismissed the information against Virgin without prejudice.
In his order denying bindover, the magistrate stated that “the
evidence lack[ed] sufficient credibility and reliability to form
a reasonable belief that the alleged offense occurred and thus is
wholly lacking and incapable of any reasonable inference that
would support a bind-over.”
¶14 The State appealed the magistrate’s dismissal of the
information against Virgin, and the Utah Court of Appeals
reversed the magistrate’s dismissal. State v. Virgin, 2004 UT
App 251, ¶ 21, 96 P.3d 379. The court of appeals, upon review of
the record, concluded that the evidence was sufficient to
establish probable cause that Virgin committed the crime and
remanded with instructions that he be bound over for trial. Id.
STANDARD OF REVIEW
¶15 On certiorari, we review the court of appeals’ decision
for correctness. State v. Orr, 2005 UT 92, ¶ 7, 127 P.3d 1213
(citing Allstate Ins. Co. v. Wong, 2005 UT 51, ¶ 12, 122 P.3d
589). “Our review extends no further than to determine whether
the court of appeals accurately reviewed the trial court’s
decision under the appropriate standard of review.” Id.
¶16 In deciding this case, we must address three issues:
(1) the appropriate legal standard for a preliminary hearing; (2)
whether magistrates’ bindover determinations are entitled to any
deference on appeal; and (3) whether, under the specific facts of

5 No. 20040715
this case, the magistrate acted within his discretion when he
declined to bind Virgin over for trial. The first two questions
are questions of law, which we review for correctness.
Monticello v. Christensen, 788 P.2d 513, 516 (Utah 1990). As we
discuss at length in Part II of the Analysis, the third question
is a mixed question of law and fact to which we grant some
deference. We will discuss each of these questions in turn.
ANALYSIS
I. TO ALLOW BINDOVER, THE PROSECUTION’S EVIDENCE MUST SUPPORT A
REASONABLE BELIEF THAT THE DEFENDANT COMMITTED THE CRIME
¶17 We first discuss the appropriate legal standard to be
applied at a preliminary hearing. Although there has been some
confusion over the standard, we reaffirm our conclusion in State
v. Clark that the appropriate standard is probable cause. 2001
UT 9, ¶ 10, 20 P.3d 300. In order to establish probable cause,
the prosecution must produce evidence sufficient to support a
reasonable belief that the defendant committed the charged crime.
Id. ¶ 16.
¶18 The confusion over this standard predates Clark. Id.
¶ 11. Before Clark, this court tried multiple times to
articulate a standard of proof that fell “somewhere between the
reasonable belief necessary to support a warrant and the
preponderance of the evidence standard applicable in the civil
context.” Id. But these efforts only resulted in confusion.
Id. ¶ 16. Consequently, we abandoned any effort to articulate an
intermediate standard and in Clark held, in essence, that
probable cause means probable cause. See id. In other words,
the probable cause that the prosecution must establish in a
preliminary hearing pursuant to rule 7 of the Utah Rules of
Criminal Procedure, Utah R. Crim. P. 7(i)(2) (allowing bindover
where a “magistrate finds probable cause to believe that . . .
defendant has committed [the crime]” (emphasis added)), is the
same as the probable cause that the prosecution must show to
obtain an arrest warrant, id. 6(a) (allowing issuance of an
arrest warrant or summons where “there is probable cause to
believe that . . . the accused has committed [the crime]”
(emphasis added)). We explained in Clark that there is “no
principled basis for attempting to maintain a distinction between
the arrest warrant probable cause standard and the preliminary
hearing probable cause standard.” 2001 UT 9, ¶ 16. Thus, in
both instances, “the prosecution must present sufficient evidence
to support a reasonable belief.” Id. As we stated in Clark,
this “‘reasonable belief’ standard has the advantage of
being . . . easily understood while still allowing magistrates to

No. 20040715 6
fulfill the primary purpose of the preliminary hearing,
‘ferreting out . . . groundless and improvident prosecutions.’”
Id. (quoting State v. Anderson, 612 P.2d 778, 783-84 (Utah 1980)
(alteration in original)).
¶19 Despite this court’s attempt to simplify the standard
for preliminary hearings, some confusion remains. In this case,
the court of appeals expressed concern that, “[w]hile [the Utah
Supreme Court] has held that ‘the magistrate’s role in this
process . . . is not that of a rubber stamp for the prosecution,’
the very limited discretion afforded a magistrate under existing
case law suggests otherwise.” State v. Virgin, 2004 UT App 251,
¶ 20 n.5, 96 P.3d 379 (quoting Clark, 2001 UT 9, ¶ 10) (third
alteration in original). The court of appeals then suggested
that this court “revisit the narrow discretion afforded
magistrates in determining whether to bind a defendant over for
trial.” Id. The court of appeals underestimates the breadth of
the discretion afforded magistrates by the probable cause
standard we set forth in Clark. That discretion is not so narrow
as the court of appeals has interpreted it to be. Properly
construed and applied, the probable cause standard does not
constitute a rubber stamp for the prosecution but, rather,
provides a meaningful opportunity for magistrates to ferret out
groundless and improvident prosecutions. We take this
opportunity to reaffirm and elucidate the boundaries of the
probable cause standard in the preliminary hearing context.
¶20 First, the standard serves to ferret out groundless and
improvident prosecutions at the preliminary hearing stage. Under
the probable cause standard, the prosecution has the burden of
producing “believable evidence of all the elements of the crime
charged,” but this evidence does not need to be “capable of
supporting a finding of guilt beyond a reasonable doubt.” Clark,
2001 UT 9, ¶ 15 (internal quotation marks omitted). As we have
explained, “The fundamental purpose served by the preliminary
examination is the ferreting out of groundless and improvident
prosecutions.” Anderson, 612 P.2d at 783-84. This “relieves the
accused from the substantial degradation and expense incident to
a modern criminal trial when the charges against him are
unwarranted or the evidence insufficient.” Id. at 784. Under
Clark, “the prosecution must present sufficient evidence to
support a reasonable belief that an offense has been committed
and that the defendant committed it.” 2001 UT 9, ¶ 16.
¶21 The bindover standard is intended to leave the
principal fact finding to the jury. See State v. Talbot, 972
P.2d 435, 438 (Utah 1998) (explaining that a preliminary hearing
“is not a trial on the merits, only a gateway to the finder of

7 No. 20040715
fact”). But the standard nevertheless gives magistrates
discretion to discontinue groundless prosecutions. Under current
law, magistrates may decline bindover if the prosecution fails to
present sufficiently credible evidence on at least one element of
the crime. Clark, 2001 UT 9, ¶ 15. Moreover, magistrates are
free to decline bindover where the facts presented by the
prosecution provide no more than a basis for speculation--as
opposed to providing a basis for a reasonable belief. See State
v. Hester, 2000 UT App 159, ¶¶ 14-17, 3 P.3d 725.
¶22 The key word that elevates magistrates’ role beyond
that of a mere rubber stamp for the prosecution is “reasonable.”
Indeed, the prosecution has not carried its burden if it merely
shows belief rather than reasonable belief. Inclusion of the
word “reasonable” in this standard suggests that, at some level
of inconsistency or incredibility, evidence becomes incapable of
satisfying the probable cause standard. When that is the case,
magistrates are empowered to deny bindover.
¶23 Second, in their efforts to ferret out groundless
prosecutions, magistrates may also make some limited credibility
determinations at the preliminary hearing. Much of the debate
between the parties in this case in the briefs and at oral
argument focused on how much freedom magistrates have to make
credibility determinations. The State argues that a magistrate’s
authority to make credibility determinations is limited to an
ability to disregard testimony that cannot possibly be true.
Virgin argues that limiting magistrates’ ability to make
credibility determinations to the degree argued by the State
undermines their ability to ferret out groundless prosecutions
and converts preliminary hearings to rubber stamps for the
prosecution. The court of appeals agreed with the State and
concluded that the magistrate exceeded its authority in finding
that M.’s testimony was not credible, but also agreed with Virgin
that this conclusion essentially converts a magistrate into a
rubber stamp. State v. Virgin, 2004 UT App 251, ¶ 20 & n.5, 96
P.3d 379. We take this opportunity to further describe the
bounds of a magistrate’s authority to assess credibility.
¶24 Magistrates may make credibility determinations in
preliminary hearings, but the extent of those determinations is
limited. In Talbot, we recognized that assessing “‘the
credibility of the witnesses [in a preliminary hearing] is an
important element in the determination of probable cause’” and
that preventing magistrates from making credibility
determinations “would undermine the ‘fundamental purpose served
by the preliminary examination.’” 972 P.2d at 438 (quoting
Anderson, 612 P.2d at 783-84, 786). Indeed, that the probable

1 Allowing magistrates to weigh credible but conflicting
evidence at a preliminary hearing would effectively grant them
more authority to weigh evidence than a trial judge. See Cruz v.
Montoya, 660 P.2d 723, 729-30 (Utah 1983) (explaining that a
trial judge may not direct a verdict for the defendant “[u]nless
the evidence is wholly lacking and incapable of reasonable
inference to prove some issue which supports the plaintiff’s
claim”), superseded by statute on other grounds as stated in
State v. McBride, 940 P.2d 539, 545 (Utah Ct. App. 1997).
No. 20040715 8
cause standard demands “reasonable belief” rather than merely
“belief” strongly suggests that magistrates must, to a certain
extent, assess the credibility of the evidence presented. See
Clark, 2001 UT 9, ¶ 16 (holding that “the prosecution must
present sufficient evidence to support a reasonable belief that”
defendant committed a crime (emphasis added)). Nevertheless, we
have also noted that “the magistrate’s evaluation of credibility
at a preliminary hearing is limited to determining that ‘evidence
is wholly lacking and incapable of reasonable inference to prove
some issue which supports the [prosecution’s] claim.’” Talbot,
972 P.2d at 438 (quoting State v. Pledger, 896 P.2d 1226, 1229
(Utah 1995)) (alteration in original). Essentially, magistrates
may only disregard or discredit evidence that is “wholly lacking
and incapable of” creating a reasonable inference regarding a
portion of the prosecution’s claim. Id. It is inappropriate for
a magistrate to weigh credible but conflicting evidence at a
preliminary hearing as a preliminary hearing “is not a trial on
the merits” but “a gateway to the finder of fact.” Id.
Therefore, magistrates must leave all the weighing of credible
but conflicting evidence to the trier of fact1 and must “view the
evidence in a light most favorable to the prosecution[,]
resolv[ing] all inferences in favor of the prosecution.” Id.
(citing Pledger, 896 P.2d at 1229).
¶25 In sum, we hold that magistrates’ ability to make
credibility determinations is not limited to only disregarding
testimony that cannot possibly be true. Rather, although
magistrates may not prefer one piece of credible evidence over a
conflicting piece of credible evidence in making their bindover
determination, they may disregard or discount as incredible
evidence that is not capable of supporting a reasonable belief as
to an element of the prosecutor’s claim. In other words, when
evidence becomes so contradictory, inconsistent, or unbelievable
that it is unreasonable to base belief of an element of the
prosecutor’s claim on that evidence, magistrates need not give
credence to that evidence.

9 No. 20040715
II. MAGISTRATES’ BINDOVER DETERMINATIONS ARE ENTITLED TO SOME
DEFERENCE
¶26 We next address whether magistrates’ bindover
determinations are entitled to any deference. We have previously
held in a number of cases that the decision to bind a criminal
defendant over for trial is a question of law, which we review
without deference to the decision below. State v. Schroyer, 2002
UT 26, ¶ 8, 44 P.3d 730; State v. Howatmeh, 2001 UT 51, ¶ 13, 26
P.3d 223; State v. Clark, 2001 UT 9, ¶ 8, 20 P.3d 300; accord
State v. Jaeger, 896 P.2d 42, 44 (Utah Ct. App. 1995); see also
State v. Talbot, 972 P.2d 435, 437–39 (Utah 1998) (reviewing
evidence with no apparent deference to magistrate); State v.
Pledger, 896 P.2d 1226, 1229–30 (Utah 1995) (same). In those
cases, we have set forth this standard of review without fully
exploring the issue pursuant to the mixed-question analysis we
outlined in State v. Pena, 869 P.2d 932, 938–40 (Utah 1994). We
take the opportunity to do so here and conclude that, in
reviewing a magistrate’s bindover decision, an appellate court
should afford the decision limited deference.
¶27 As we explained in Pena, mixed questions of law and
fact require the application of a stated rule of law to a
specific fact scenario. See id. at 936. This case presents us
with a mixed question because a decision to bind a defendant over
for trial includes the application of the appropriate bindover
standard to the facts presented in each case. Identifying the
issue before us as a mixed question is important because such
questions occasionally “embod[y] a de facto grant of discretion”
to lower courts. Id. at 937. This discretion breeds deference.
Where lower courts have discretion, appellate courts should grant
them commensurate deference. In effect, this discretion allows
district courts a measure of freedom “to reach one of several
possible conclusions about the legal effect of a particular set
of facts without risking reversal.” Id. at 937.
¶28 Thus, to determine the level of deference that we
should afford a lower court’s decision, we must determine the
degree of discretion that the lower court has in making that
decision. Because the amount of discretion varies according to
the nature of the issue being decided, id., we quantify that
discretion by weighing the following factors: (1) whether “the
facts to which the legal rule is to be applied are so complex and
varying that no rule adequately addressing the relevance of all
these facts can be spelled out,” id. at 939; (2) whether “the
situation to which the legal principle is to be applied is
sufficiently new to the courts that appellate judges are unable
to anticipate and articulate definitively what factors should be

2 The adversarial nature of the preliminary hearing,
however, has been somewhat reduced by the Utah constitutional
amendment that now “allow[s] for the admission of reliable
hearsay evidence at preliminary examinations.” Clark, 2001 UT 9,
¶ 16 n.3 (citing Utah Const. art. I, § 12; Utah R. Crim. P.
(continued...)
No. 20040715 10
outcome determinative,” id.; (3) whether “the trial judge has
observed ‘facts,’ such as a witness’s appearance and demeanor,
relevant to the application of the law that cannot be adequately
reflected in the record available to appellate courts,” id.; and
(4) whether there are policy reasons that weigh for or against
granting discretion to district courts, such as when substantial
constitutional rights are implicated, see id. at 938-39
(recognizing the interest of “having uniform legal rules
regarding consent to search, given the substantial Fourth
Amendment interests lost as a result of such consents,” as a
policy reason opposing a grant of discretion to the district
court); see also State v. Brake, 2004 UT 95, ¶¶ 14–15, 103 P.3d
699.
¶29 In this case, a consideration of the these factors
weighs in favor of granting a limited degree of discretion to
magistrates in the context of preliminary hearings. First, while
the facts surrounding the myriad cases brought in this context
may not all be complex, they are sure to be varying, which makes
it difficult to articulate a rule that adequately accounts for
all the variations that arise under each fact scenario. Also, a
de novo review of fact-sensitive cases could create confusing and
inconsistent case law. See Pena, 869 P.2d at 938. Accordingly,
the first factor weighs in favor of granting magistrates
discretion.
¶30 Second, while the preliminary hearing context is not
new, applying a probable cause standard in that context arguably
is. Yet given the familiarity of the probable cause standard,
appellate courts could still anticipate which factors should be
outcome determinative. In 2001, we announced that the bindover
probable cause standard would be the same as the probable cause
standard in the arrest warrant context. Clark, 2001 UT 9, ¶ 16.
While the application of this standard in the preliminary hearing
context was a significant change, the concept of probable cause
is a familiar one to magistrates. This weighs in favor of
limiting magistrates’ discretion.
¶31 Third, preliminary hearings are such that magistrates
are in a position to observe and assess witness demeanor and
credibility. Preliminary hearings are adversarial in nature,2

2 (...continued)
7(h)(2); Utah R. Evid. 1102) (internal quotation marks omitted).
11 No. 20040715
and a defendant has the “opportunity to attack the prosecution’s
evidence and to present any affirmative defenses.” State v.
Anderson, 612 P.2d 778, 783 (Utah 1980). “Although the hearing
is not a trial per se, it is not an ex parte proceeding nor one-
sided determination of probable cause, and the accused is granted
a statutory right to cross-examine the witnesses against him, and
the right to subpoena and present witnesses in his defense.” Id.
(footnotes omitted). Magistrates preside over these proceedings
and may decline to bind a defendant over for trial if the
prosecution fails to present evidence that would support a
reasonable belief that the crime was committed and that the
defendant committed it. Clark, 2001 UT 9, ¶ 16. As discussed
above, supra ¶¶ 23-25, making limited credibility determinations
is an important part of this decision. State v. Talbot, 972 P.2d
435, 438 (Utah 1998). The magistrate’s role in observing witness
demeanor and credibility is, however, limited to determining
whether evidence is wholly incapable of supporting a reasonable
belief as to a part of the prosecution’s case. See id. at 438.
Thus, although magistrates’ discretion is restricted because of
the limited nature of the credibility determinations they make in
this context, their proximity to the facts of the case weighs in
favor of granting them some discretion in bindover decisions.
¶32 Finally, policy considerations favor giving magistrates
some discretion. In State v. Thurman, 846 P.2d 1256 (Utah 1993),
we concluded that affording no deference to a district court’s
ultimate voluntariness conclusion in a Fourth Amendment “consent
to search” context promoted uniformity throughout the state and
more effectively “fix[ed] the limits of acceptable police
behavior.” Id. at 1271; accord Brake, 2004 UT 95, ¶¶ 14–15
(expanding nondeferential review to all search and seizure cases
based on policy considerations). While uniformity and clarity in
the law are always worthy goals, granting no deference in the
bindover context does not necessarily promote those goals. As we
pointed out in Pena, in highly fact-dependant questions, de novo
review can sometimes lead to incoherent and unclear statements of
the law. 869 P.2d at 938. Furthermore, in Thurman, we were
motivated towards uniformity to inform police of “the limits of
acceptable . . . behavior,” thereby limiting Fourth Amendment
violations. See 846 P.2d at 1271. No similar motive exists in
the preliminary hearing context.
¶33 As an additional policy consideration, we have noted in
the past and we reiterate today that magistrates have an
important role in ferreting out groundless prosecutions before

No. 20040715 12
they go to trial. State v. Anderson, 612 P.2d 778, 783–84 (Utah
1980); supra ¶¶ 20-22. Severely limiting magistrates’ discretion
could undermine this role because the probable cause standard
already favors the prosecution, see Talbot, 972 P.2d at 437–38
(explaining that a magistrate must “resolve all inferences in
favor of the prosecution” (internal quotation marks omitted)),
and restricting discretion would give magistrates an incentive to
be a “rubber stamp for the prosecution” in order to minimize the
possibility of reversal. In other words, because the probable
cause standard favors the prosecution, all other factors being
equal, reversal of magistrates’ decisions is more likely if they
decline bindover. As a result, severely limiting magistrates’
discretion in applying the probable cause standard may have the
unintended consequence of causing them to unjustly bind a
defendant over where they would not have otherwise in order to
reduce the possibility of reversal.
¶34 After balancing these factors, we conclude that
magistrates should have some discretion in making their bindover
determinations. Because the many potential fact scenarios in the
preliminary hearing context make it difficult for appellate
courts to make and consistently apply, under de novo review, a
rule that adequately accounts for each varied fact scenario, and
because of magistrates’ proximity to the facts of each case,
magistrates should have some discretion to apply the probable
cause standard to those facts. This discretion is limited,
however, because in the bindover context a magistrate’s authority
to make credibility determinations is limited. Accordingly, an
appellate court should grant commensurate limited deference to a
magistrate’s application of the bindover standard to the facts of
each case.
III. THE MAGISTRATE IN THIS CASE ACTED WITHIN HIS DISCRETION IN
DECLINING TO BIND VIRGIN OVER FOR TRIAL
¶35 With these principles in mind, we turn to the facts of
this case. Granting some deference to the magistrate’s decision,
we conclude that the magistrate acted within his discretion in
finding the prosecution’s evidence insufficient to support a
reasonable belief that the alleged crime occurred and in refusing
to bind Virgin over for trial. In his order denying bindover,
the magistrate stated that “the evidence lack[ed] sufficient
credibility and reliability to form a reasonable belief that the
alleged offense occurred and thus is wholly lacking and incapable
of any reasonable inference that would support a bind-over.” The
magistrate explained that “[t]he only evidence in support of the
alleged touching came from the child herself in two separate
statements—-the first when she was age 3 and the second when she

13 No. 20040715
was age 6” and that “[t]here was a multitude of inconsistencies
between those statements and the statements and testimony of
third-party witnesses.”
¶36 Upon review of the facts of this case and applying the
appropriate level of deference, we cannot say that the magistrate
exceeded his discretion in refusing to bind Virgin over for
trial. The only evidence that Virgin committed the crime came
from M.’s testimony. Stewart testified only as to opportunity,
and even as to that issue her testimony contradicted her earlier
statement. Stewart’s account given during the preliminary
hearing that Virgin and M. were upstairs at the same time without
her is conspicuously absent from her detailed written statement
made three days after the alleged incident. Accordingly, the
case turns on whether M.’s testimony was so inconsistent,
contradictory, or incredible as to render it insufficient to
support a reasonable belief that Virgin committed the crime.
¶37 We conclude that the magistrate acted within his
discretion in concluding that it was. M.’s statements were
inconsistent and contained a significant portion that was
uniformly disbelieved. Her statements regarding what happened in
the bathroom after the alleged abuse are particularly
inconsistent. For example, in her interview with Dr. Smith, M.
reported that Virgin showed her a picture of a penis, but in her
interview with the Dr. Mooers, M. said that Virgin exposed
himself to her. In the 2000 Interview, M. said that Virgin just
talked about penises and vaginas, but in the 2002 Interview, M.
said nothing about learning these words. Finally, in both the
2000 and 2002 Interviews, M. stated that Virgin had his clothes
on the whole time, and in the 2002 interview, M. stated that
Virgin “[d]id [not] show [her] any parts of his body.”
Furthermore, testimony established that M. did not appear
disturbed or distraught at any time throughout the night in
question. Perhaps most significant is the fact that M. reported
that two separate incidents of possible sexually-oriented conduct
occurred on the night in question–-Virgin’s alleged touching in
the bathroom, which is the subject of this case, and a game with
Virgin and Stewart in M.’s bedroom that involved trying to touch
one another’s bottom. But the account of Stewart and Virgin
playing the “bottom” game with M. is universally disbelieved.
Given these and other inconsistencies in the record, we conclude
that the magistrate acted within his discretion in finding the
evidence insufficient to support a reasonable belief that the
crime was committed and that Virgin committed it.
¶38 In making this decision, we emphasize that this is a
unique case. We do not intend this case to close the door to

No. 20040715 14
cases based on the testimony of young children. We are sensitive
to the fact that child sexual abuse cases often rest solely on
the testimony of a young child. We also recognize that it is not
unusual that a child’s testimony be somewhat inconsistent,
especially in sexual abuse cases. This case is made unique,
however, by the fact that Stewart’s testimony about when the
alleged incident could have occurred contradicted her previous
statement; by the fact that M. made other allegations of sexual
misconduct that were disbelieved; and by the fact that M.’s
testimony, the only evidence that the crime was committed,
contained multiple inconsistencies, in part, because the filing
of the case was delayed for over two years.
CONCLUSION
¶39 The preliminary hearing “probable cause” standard
requires that the prosecution present evidence sufficient to
support a reasonable belief that the defendant committed the
crime charged. If the evidence presented is so inconsistent,
contradictory, or incredible as to be insufficient to support
such a reasonable belief, magistrates have the discretion to
decline bindover. We conclude that in this case the magistrate
acted within his discretion in so doing. We reverse the court of
appeals’ decision and order that the charges against Virgin be
dismissed without prejudice.
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¶40 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.