State v. Clayton

2023 UT App 84

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
WILLIAM BLAINE CLAYTON,
Appellant.

Opinion
No. 20210890-CA
Filed August 3, 2023

Third District Court, West Jordan Department
The Honorable William K. Kendall
No. 191403929

Robert T. Denny, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.

HARRIS, Judge:

¶1 At William Clayton’s preliminary hearing, the State did not
call a live witness; instead, the State offered only documentary
evidence, including written declarations from two police officers.
Based solely on this evidence, the magistrate bound Clayton over
for trial. Clayton later moved to quash the bindover, arguing that
the State’s evidence was insufficient to support it. The district
court denied the motion, and we granted Clayton leave to take an
interlocutory appeal from that decision. We perceive no error in
the court’s actions, and therefore affirm.
State v. Clayton

BACKGROUND

¶2 Clayton was arrested and charged with third-degree-
felony DUI and two misdemeanor drug counts, and the case
proceeded to a preliminary hearing. At that hearing, the State
opted not to call any live witnesses, but instead relied solely on
documentary evidence. Specifically, the State offered a toxicology
report showing that Clayton had drugs in his system, court
records showing that Clayton had prior DUI-related convictions,
and written statements from two police officers (Officer 1 and
Officer 2). In their statements, which were both captioned
“WITNESS STATEMENT FOR USE AT PRELIMINARY
EXAMINATION,” the officers indicated that they were police
officers and that they were “providing th[e] statement[s] in lieu of
[their] personal appearance[s]” at the hearing. Both statements
included a photograph of a man that each officer identified as
Clayton. Each officer then spent several paragraphs describing
their involvement in the events that led to Clayton’s arrest.

¶3 In her statement, Officer 1 recited that she “responded to a
report of a male who would not wake up and was slumped over
in the driver’s seat” of a vehicle that was “stopped in traffic.” The
man “was not breathing, and was foaming at the mouth.” A
“female passenger” in the vehicle told Officer 1 that the man “had
taken ‘spice,’” and Officer 1 “administered two doses of Narcan.”
Soon thereafter, Officer 1 observed the man start to “become alert
and take shallow breaths,” and Officer 1 arranged for the man to
be transported to a hospital. By examining the man’s driver
license, Officer 1 identified the man as Clayton. Later, Officer 1
traveled to the hospital and “made contact with Clayton.” Officer
1 observed that Clayton “had blood shot eyes and was not being
cooperative”; Clayton “initially refused a blood test, but
eventually agreed to a blood draw,” the results of which “showed
the presence of 11 nanograms per milliliter of Lorazepam and 60
nanograms of Trazadone per milliliter of blood.” (Emphasis
added.) Officer 1 also recited that her fellow officer, Officer 2,
informed her “that while he was securing [Clayton’s] car, he

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located suspected spice in the driver’s side door and an apple
bong on the front passenger floorboard.”

¶4 In his statement, Officer 2 recited that he “responded . . . to
a report of a male who was stopped in traffic on the road” and
who “would not wake up and was slumped over in the driver’s
seat.” After Clayton “was transported to the hospital,” Officer 2
was responsible for “securing Clayton’s car,” and in the process
of completing that task, Officer 2 “observed 3 vials of a green leafy
substance in the driver’s side door, which” he “suspected to be
‘spice.’” Officer 2 also located “an apple bong on the passenger
side floor.” He stated that “[t]he leafy substance was sent to the
Utah Bureau of Forensic Services” which identified it as “a listed
controlled substance.”

¶5 Most of the words in both statements were typed, but the
officers wrote their initials next to each individual typed
paragraph and then signed and dated their statements at the
bottom of the page. In Officer 1’s statement, two words had been
inserted by hand into the typed text; those words were “per
milliliter,” the ones emphasized above.

¶6 Both statements contained a separate box at the top of the
page that contained the following text:

I understand that pursuant to Rule 1102, Utah Rules
of Evidence and Section 76-8-504.5, Utah Code
Annotated, the statements I am about to make in
this document may be presented to a magistrate or
a judge in lieu of my sworn testimony at a
Preliminary Hearing. I also understand that any
false statement I make and that I do not believe to
be true may subject me to criminal punishment as a
Class A Misdemeanor. In Utah a class A
misdemeanor carries a potential penalty of up to a
year in jail and a fine of up to $2,500 plus a 90%
surcharge.

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I understand the above statement.

(Emphasis in original.) The officers each provided an additional
signature, located in the box and just below this textual recitation.

¶7 Clayton objected to the admission of these statements,
claiming that “without the [S]tate providing some foundation for
authenticity of the” statements, the magistrate would be unable to
“make the necessary findings that they are . . . [rule] 1102 witness
statements.” The magistrate, however, disagreed, and bound
Clayton over for trial on all charges, based on the evidence
presented by the State.

¶8 Clayton then moved to quash the bindover, asserting that
the officers’ statements were inadmissible and that, without those
statements, the State had failed to present sufficient evidence to
support the bindover. He argued that, under rule 1102(b)(8) of the
Utah Rules of Evidence, witness statements needed to be either
“written by the declarants themselves” or “transcribed verbatim”
by another person. Under this interpretation of the rule, a
witness statement drafted by another person and signed by the
declarant would not qualify as admissible. Building on this
reading of the rule, Clayton asserted that the State had not laid
sufficient foundation to show that the officers’ statements had
been either prepared by the officers themselves or transcribed
verbatim. Clayton also argued that admission of the officers’
statements violated the principles set forth in State v. Bertul, 664
P.2d 1181 (Utah 1983), a case in which our supreme court held that
police reports are inadmissible in criminal trials. Id. at 1184. But
Clayton made no argument regarding subsection (6) of rule
1102(b).

¶9 After oral argument, the district court denied Clayton’s
motion, concluding that rule 1102(b)(8) “contains no requirement
that the witness be the one that writes the statement” and that the
State did not need to provide any additional foundation in order
to admit the officers’ statements into evidence. Clayton then

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State v. Clayton

asked for leave to take an interlocutory appeal from the court’s
order denying the motion to quash, a request that we granted.

ISSUE AND STANDARD OF REVIEW

¶10 “The determination of whether to bind a defendant over
for trial generally involves a mixed question of law and fact . . . .”
State v. Rhinehart, 2006 UT App 517, ¶ 8, 153 P.3d 830. “However,
when a case presents only a question of law, namely whether
hearsay used at the preliminary hearing was admissible . . . or
reliable under rule 1102 of the Utah Rules of Evidence, this court
will review the bindover determination for correctness[,] giving
no deference to the [district] court.” Id. And “the district court’s
interpretation of the Utah Rules of Evidence . . . presents a
question of law that we review for correctness.” State v. Biel, 2021
UT 8, ¶ 21, 484 P.3d 1172.

ANALYSIS

¶11 In a provision sometimes referred to as “Utah’s
Confrontation Clause,” see State v. Timmerman, 2009 UT 58, ¶ 14,
218 P.3d 590, our state constitution guarantees that “[i]n criminal
prosecutions the accused shall have the right to . . . be confronted
by the witnesses against the accused.” Utah Const. art. I, § 12. But
this provision contains an exception applicable to criminal
preliminary hearings, added by amendment in 1995; that
exception provides that “[n]othing in this constitution shall
preclude the use of reliable hearsay evidence as defined by statute
or rule in whole or in part at any preliminary examination.” Id.
Enactment of this amendment “removed the constraints of Utah’s
Confrontation Clause from preliminary hearings.” Timmerman,
2009 UT 58, ¶ 16.

¶12 Following the 1995 constitutional amendment, Utah’s rules
of evidence were also amended to include a definition of “reliable

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hearsay.” That definition is found in rule 1102 of the Utah Rules
of Evidence. See Utah R. Evid. 1102(b) (captioned “Definition of
Reliable Hearsay”). As relevant here, the rule makes clear that
“reliable hearsay includes” the following things:

• “a statement of a non-testifying peace officer to a testifying
peace officer”; and

• “a statement of a declarant that is written, recorded, or
transcribed verbatim which is [either] (A) under oath or
affirmation; or (B) pursuant to a notification to the
declarant that a false statement made therein is
punishable.”

See id. R. 1102(b)(6), (8). Since the enactment of these amendments,
“[a]dmission of evidence at preliminary hearings is exclusively
governed by the reliable hearsay language in the Utah
Constitution and rule 1102 of the Utah Rules of Evidence.”
Timmerman, 2009 UT 58, ¶ 16.

¶13 At the preliminary hearing in this case, the State offered the
officers’ statements under rule 1102(b)(8), arguing that the
statements met the requirements of that rule because they were
“written” and had been made “pursuant to a notification that a
false statement made therein is punishable.” The magistrate (and,
later, the district court in connection with the motion to quash)
accepted the State’s interpretation of the rule, and concluded that
the statements satisfied the rule and were therefore admissible.

¶14 Clayton advances a different interpretation of rule
1102(b)(8). In his view, the rule requires that written rule 1102
statements be either “written by the declarants themselves” or
“transcribed verbatim,” presumably by another person, from the
declarants’ statements. Under this interpretation, a witness
statement drafted by someone other than the declarant, even if
signed by the declarant, would not meet the requirements of the
rule absent the existence of foundational evidence indicating that

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it had been “transcribed verbatim.” Clayton asserts that the State
did not provide any evidence demonstrating that the officers’
statements were either written by the officers themselves or
transcribed verbatim from statements they made, and therefore
maintains that the State has failed to demonstrate that the
statements comport with the rule’s requirements. 1

¶15 The parties thus present to us a question of rule
interpretation. “When interpreting our rules of evidence, we use
general rules of statutory construction.” Snow, Christensen

1. We note that, effective May 2023, our legislature amended rule
1102—pursuant to its power to amend our rules of evidence, see
Brown v. Cox, 2017 UT 3, ¶ 17, 387 P.3d 1040 (noting that the Utah
Constitution gives our legislature the “ability to amend” rules of
evidence “by supermajority”)—to add a provision forbidding any
“prosecutor, or any staff for the office of the prosecutor,” from
“draft[ing] a statement for a declarant.” See Utah R. Evid.
1102(d)(2); see also Act of May 3, 2023, 2023 Utah Laws, S.J.R. 6.
But we must apply the version of rule 1102 that was in effect at
the time of the events at issue in this appeal. See State v. Clark, 2011
UT 23, ¶ 13, 251 P.3d 829 (“[W]e apply the law as it exists at the
time of the event being regulated by the law in question.”). All of
those events—Clayton’s arrest, the creation of the officers’
statements, the preliminary hearing, and the filing of the motion
to quash—occurred in 2019 and 2020, well before the 2023
amendments to rule 1102. We therefore apply the previous
version of the rule, rather than the one that includes the 2023
amendments. At oral argument before this court, both sides were
in agreement on this point, and neither asked us to apply the new
version of the rule. But to the extent that Clayton asks us to apply
the new rule as a “clarifying amendment”—something he alludes
to in his reply brief—we decline that invitation, because our
supreme court has “expressly repudiate[d] the notion of” a
“‘clarification’ exception to the general rule against retroactivity.”
See State v. Steinly, 2015 UT 15, ¶ 11, 345 P.3d 1182.

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& Martineau v. Lindberg, 2013 UT 15, ¶ 30, 299 P.3d 1058 (quotation
simplified). Applying these rules, we interpret the rule in question
in such a way as “to give meaning to all its parts, avoid . . .
render[ing] any portion of it superfluous, and . . . maintain its
harmony with other court rules related to it.” State v. Rothlisberger,
2006 UT 49, ¶ 21, 147 P.3d 1176. We begin with the text of the rule,
see Snow, Christensen & Martineau, 2013 UT 15, ¶ 30, interpreting
the language “in accordance with its plain meaning,” State v. Biel,
2021 UT 8, ¶ 26, 484 P.3d 1172 (quotation simplified).

¶16 The first part of the relevant subsection provides that
reliable hearsay includes “a statement of a declarant that is written,
recorded, or transcribed verbatim.” Utah R. Evid. 1102(b)(8)
(emphases added). 2 Both emphasized phrases are important in
assessing the strength of Clayton’s interpretation of the rule.

¶17 The phrase “statement of a declarant” includes the notion
that the statement in question must belong to the declarant. But
that phrase does not require that the statement actually be
prepared by the declarant; a declarant may ordinarily indicate
ownership of a statement in ways other than by its preparation.
As routinely used in other litigation contexts (e.g., summary
judgment proceedings in civil cases, or motions filed pursuant to
rule 23B of the Utah Rules of Appellate Procedure in criminal
appeals), a declarant’s statement may take the form of affidavits
or declarations typed up by another individual (often, an attorney
for a party) and then signed or attested to by the declarant. We are
aware of no common usage of the phrase “statement of a
declarant”—or even the term “statement”—that implies a
requirement that the declarant must have personally prepared the
statement; certainly, Clayton does not identify any such common
usage. And nothing in the plain meaning of the words “statement

2. The second part of the subsection is not at issue here, since
Clayton acknowledges that the officers’ statements were made
“pursuant to a notification to the declarant that a false statement
made therein is punishable.” See Utah R. Evid. 1102(b)(8)(B).

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of a declarant” requires that the statement be written or prepared
by the declarant personally. We may not, of course, imply
requirements into the rule that are not indicated by its text. See
State v. Rudolph, 970 P.2d 1221, 1229 (Utah 1998) (stating that
“courts are not to infer substantive terms into the text that are not
already there,” and emphasizing that “the court has no power to
rewrite the statute to conform to an intention not expressed”
(quotation simplified)).

¶18 Clayton asserts, however, that the other emphasized
phrase in rule 1102(b)(8)—that the statement be “written,
recorded, or transcribed verbatim”—supports his interpretation.
He argues that the third term in this list—“transcribed
verbatim”—is rendered superfluous under the State’s
interpretation. In his view, “rule 1102(b)(8) must be read to mean
that when a third party prepares a declarant’s statement it must
be ‘transcribed verbatim,’” and that “if a writing prepared by
someone other than the declarant could qualify” as reliable
hearsay, “even if it was not ‘transcribed verbatim,’ there would be
no need to include the ‘transcribed verbatim’ language.”

¶19 We read the phrase differently. The rule’s use of the
disjunctive “or” indicates that each item in this three-item list
operates independently. See Horne v. Flores, 557 U.S. 433, 454
(2009) (stating that “[u]se of the disjunctive ‘or’ makes it clear that
each of the provision’s three grounds for relief is independently
sufficient”). Thus, in order to qualify as reliable hearsay, a
statement of a declarant need only be either (a) written,
(b) recorded, or (c) transcribed verbatim. Each of those three items
stands alone, and has non-superfluous meaning, even in the
absence of a requirement that declarants prepare their own
statements. The “written” and “recorded” options seem fairly
obvious to us: at preliminary hearings, prosecutors may present
statements from declarants that are either written down or audio-
recorded. And in our view, the “transcribed verbatim” option
exists to cover situations where a declarant has provided an oral
recorded statement but where prosecutors—because, for

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example, they anticipate technical problems presenting the
recording in court—wish to present that statement to the court on
paper. In that event, the rule allows them to present a verbatim
transcription of the declarant’s oral statement. And in such cases,
the option for a “written” statement would not apply, because the
actual statement the declarant originally gave was not written.

¶20 Thus, in our view the interpretation of the rule advanced
by the State, and adopted by the district court, is the correct one. 3
It is in keeping with the plain meaning of the text, does not read
additional terms into the text, and does not render any of the
terms superfluous. Under this interpretation, nothing in the rule

3. Both parties argue that the new version of the rule, as amended
by our legislature in 2023, see supra note 1, supports their
interpretation of the previous rule. Clayton points to the new
provision that forbids prosecutors from preparing rule 1102
statements for declarants, and he asserts that this new language
bespeaks consistent intent on the part of the drafters to require
self-prepared statements. The State emphasizes that the new
provision forbids only prosecutors—but no other third parties—
from preparing rule 1102 statements for declarants, and infers
therefrom that there is not now, and never has been, any intent on
the part of the drafters to require all statements to be self-prepared
by the declarant. In the context of this case, however, we find little
value in either of these arguments, largely because we are
skeptical that recent actions taken by our legislature can shed
much light on what the earlier drafters of rule 1102—presumably
our supreme court, informed by an advisory committee—might
have intended in composing the previous version of the rule. See,
e.g., Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S.
102, 117–18 (1980) (stating that “the views of a subsequent
Congress form a hazardous basis for inferring the intent of an
earlier one” and are not “entitled to much weight”). We therefore
give little, if any, weight to the parties’ competing arguments
about which way the 2023 amendment cuts.

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requires that declarants personally prepare their written
statements. The rule requires only that a statement be “of a
declarant,” that it be “written,” and that it be made either “under
oath or affirmation” or “pursuant to a notification to the declarant
that a false statement made therein is punishable.” See Utah R.
Evid. 1102(b)(8). The officers’ statements, on their face, met all of
these requirements: they were written, and they included
signatures indicating not only the officers’ adoption of the content
of the statements but also their awareness of the possibility of
punishment for falsity. Thus, the statements met the conditions of
the rule, and no additional foundation was required. 4

¶21 Next, Clayton asserts—citing State v. Bertul, 664 P.2d 1181
(Utah 1983)—that case law from our supreme court mandates that
the officers’ statements be excluded from consideration at the
preliminary hearing. In Bertul, the court held, among other things,
that police reports are generally inadmissible at trial when offered
by the prosecution under the business records exception to the
hearsay rule. Id. at 1185–86. Clayton suggests that the officers’
statements are akin to police reports, and that a preliminary
hearing is akin to a trial. We reject Clayton’s argument because,
for two related reasons, Bertul is inapposite here.

¶22 As an initial matter, Bertul’s holding applies only to
evidence admissible at trial, not at a preliminary hearing. See id.
Admissibility of reliable hearsay evidence at preliminary hearings
is governed by rule 1102, which (as we have already explained)
allows admission of the officers’ statements. Moreover, and
relatedly, since Bertul was decided, two important developments
have occurred: our state constitution was amended to “remove[]
the constraints of Utah’s Confrontation Clause from preliminary
hearings,” see Timmerman, 2009 UT 58, ¶ 16, and rule 1102 was

4. Indeed, Clayton acknowledged, at oral argument before this
court, that if we adopt the State’s interpretation of the rule, no
additional foundational evidence needed to be presented with
regard to the officers’ statements.

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enacted to give specificity to the new constitutional provision
allowing admission of “reliable hearsay” at preliminary hearings,
see Utah R. Evid. 1102(b). As we have already noted, ever since
these amendments, “[a]dmission of evidence at preliminary
hearings is exclusively governed by the reliable hearsay language
in the Utah Constitution and rule 1102 of the Utah Rules of
Evidence.” Timmerman, 2009 UT 58, ¶ 16. Thus, even assuming
that one could read Bertul to mandate restraints on the admission
of evidence at preliminary hearings (as opposed to trials), those
restraints have been superseded by subsequent events. 5

¶23 Finally, Clayton argues—for the first time on appeal—that
rule 1102(b)(6) of the Utah Rules of Evidence forbids introduction,
at preliminary hearings, of written statements made by law
enforcement officers. As Clayton sees it, “officer hearsay cannot
be introduced through rule 1102(b)(8)” in the form of written
statements, but must instead be introduced orally, pursuant to
rule 1102(b)(6), through the testimony of another testifying
officer. In his view, rule 1102(b)(6) “specifically identifies when an
officer’s out of court statement can be ‘reliable hearsay,’” and he
believes that subsection provides the exclusive avenue for
introduction of such hearsay.

¶24 But we need not engage with the merits of this argument,
because Clayton did not preserve it for our review. See Gowe v.
Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683
(stating that, “to preserve an argument for appellate review, the
appellant must first present the argument to the district court in
such a way that the court has an opportunity to rule on it,” and

5. In his brief, Clayton relies not only on Bertul but also on State v.
Anderson, 612 P.2d 778 (Utah 1980). As relevant here, our supreme
court has already noted that Anderson—at least to the extent that
it “prohibited the use of hearsay evidence at preliminary
examinations”—“has been abrogated by a constitutional
amendment,” namely the 1995 amendment to Article I, Section 12.
See State v. Timmerman, 2009 UT 58, ¶ 15, 218 P.3d 590.

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observing that “we generally do not address unpreserved
arguments raised for the first time on appeal” (quotation
simplified)), cert. denied, 364 P.3d 48 (Utah 2015). At no point
during the proceedings before the magistrate or the district court
did Clayton assert that rule 1102(b)(6) provides the exclusive
means of admitting an officer’s out-of-court statement at a
preliminary hearing. Clayton asserts that his citation to Bertul was
sufficient to preserve the issue, but we disagree; after all, as we
have noted, rule 1102(b)(6) did not exist at the time Bertul was
decided. Because Clayton’s rule 1102(b)(6) argument was not
properly preserved for our review, and because Clayton does not
ask us to apply any of the exceptions to our preservation doctrine,
we decline to discuss the argument further.

CONCLUSION

¶25 Rule 1102(b)(8)—as it existed at the time of the events
giving rise to this appeal—does not require that an out-of-court
written statement offered into evidence at a preliminary hearing
be personally prepared by the declarant. Accordingly, the officers’
statements met the requirements of rule 1102(b)(8) and were
properly admitted into evidence as “reliable hearsay” at Clayton’s
preliminary hearing; with those statements in evidence, the State
submitted sufficient evidence to support bindover. We therefore
discern no error in the district court’s denial of Clayton’s motion
to quash the bindover.

¶26 Affirmed.

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