State v. Prisbrey

2020 UT App 172

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellant,
v.
CLARE EUGENE PRISBREY,
Appellee.

Opinion
No. 20190569-CA
Filed December 24, 2020

Fifth District Court, Iron County Department
The Honorable Keith C. Barnes
No.181500247

Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellant
Gary W. Pendleton, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGE DAVID N. MORTENSEN concurred. JUDGE JILL M. POHLMAN
dissented, with opinion.

HARRIS, Judge:

¶1 One New Year’s Eve, Clare Eugene Prisbrey’s house
caught fire. It took firefighters more than an hour to get the fire
under control, and the house sustained severe damage. After
examining the scene that night and the next day, fire officials
came to suspect that Prisbrey had set the blaze intentionally, and
the State later charged him with aggravated arson and filing a
false insurance claim. At a preliminary hearing, however, the
magistrate found no probable cause that Prisbrey had committed
those crimes, and declined to bind the case over for trial. The
State appeals that determination, and we affirm.
State v. Prisbrey

BACKGROUND 1

¶2 On December 31, 2017, Prisbrey and his girlfriend
(Girlfriend) were together at Prisbrey’s house, celebrating the
holiday. A few weeks earlier, Prisbrey had decorated his living
room (the great room) with Christmas decorations, including a
miniature Christmas village—a collection of decorative ceramic
houses arranged on foam blocks, wood, and synthetic snow—set
up on a table against the wall. Around 9:30 that evening,
Prisbrey lit several candles in the Christmas village display and,
later, around 10:00 p.m., he and Girlfriend opened a bottle of
sparkling grape juice and watched New Year’s Eve fireworks
displays happening in “different time zones.”

¶3 A few minutes later, Prisbrey and Girlfriend left the
house; Prisbrey explained to fire officials that he had made a
“last minute” decision to propose marriage to Girlfriend that
evening, and wanted to do so on the grounds of the local temple
of the Church of Jesus Christ of Latter-day Saints. So, a few
minutes after 10:00 p.m., Prisbrey, Girlfriend, and Prisbrey’s dog
got into Prisbrey’s car and made the short drive to the temple.
No one remained in Prisbrey’s house. Before leaving the house
for the proposal, however, Prisbrey did not extinguish the six
candles in the Christmas village display. Girlfriend testified that
she and Prisbrey, in the moment, did not think about it, and
merely forgot. The State takes a different view.

¶4 Just as Prisbrey and Girlfriend arrived at the temple and
pulled into a parking spot, Prisbrey received a phone call from
one of his neighbors informing him that his house was on fire.
Someone called the fire department at 10:22 p.m. and the local

1. When we review a “magistrate’s bindover decision, we view
all evidence in the light most favorable to the prosecution, draw
all reasonable inferences in favor of the prosecution, and recite
the facts with that standard in mind.” State v. Nihells, 2019 UT
App 210, n.1, 457 P.3d 1121 (quotation simplified).

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fire chief (Chief) arrived on scene at 10:29 p.m. Fire crews
arrived at “about the same time” and began attempts to
extinguish the fire. At that point, the fire was already “50 percent
involved,” with “fire showing from the roof and from the
windows.” Chief found that the fire was already “so intense”
that he could not approach the house to turn off the gas and the
power. Having been informed that there were no people or pets
in the house, firefighters took “a defensive strategy,” choosing to
fight “the fire from the outside” instead of “going inside.”

¶5 Firefighters began by deploying a “deck gun” from their
fire truck, which dispenses between 500 and 1,000 gallons of
water per minute. However, use of the deck gun “didn’t seem to
knock the fire down,” so the fire crews used an “aerial
apparatus” to fight the fire from above, and “that’s when [they]
started getting control” of the fire. In total, it took the fire crews
“just over an hour” to get the blaze contained.

¶6 Once the fire was contained, Chief began inspecting the
damaged remains of the house, and noticed some “red flags”
that he thought might indicate that the fire had been
intentionally set. First, he thought that “the [house] appeared to
be sparsely furnished,” in that “it just didn’t seem to have the
stuff that a regular [house] would have in it.” Chief did not
inventory the contents of the house, but simply developed this
viewpoint from walking through the various rooms of the house
after the fire. Another officer on the scene, whose identity Chief
could not recall, told him that Prisbrey “had placed some stuff in
a storage unit,” but Chief did not follow up on the “storage unit”
lead, or investigate the source of the other officer’s statement or
the extent to which it might be correct. Second, Chief noticed
that “[t]here were some holes that were pushed through the
wall” between the great room and the garage, about “a foot and
a half off the floor,” and he thought those holes might have been
intended to facilitate the spread of the fire into the garage.

¶7 After noticing these things, Chief spoke with Prisbrey and
asked him if he had any idea how the fire may have started.

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Prisbrey told Chief that, about two weeks earlier, his dog had
tracked paint through the house, and that within the previous
couple of days Prisbrey had used paint thinner to spot-clean the
dog’s paint tracks. Not all paint thinners are flammable, and
Chief did not ask Prisbrey what kind of paint thinner he used or
specifically where he had used it. Nevertheless, this piece of
information added to Chief’s suspicions, and based on all of the
information he had at the time, he made the decision to notify
the office of the Utah State Fire Marshal to ask it to investigate.
Chief made that notification by phone call at about 11:30 p.m.
that night. He also decided to station a fire crew at the house
overnight to make sure the scene remained undisturbed, until
someone from the State Fire Marshal’s office could arrive.

¶8 The following morning, New Year’s Day 2018, a section
manager from the State Fire Marshal’s office (Marshal) arrived
on the scene. Before entering the house, Marshal spoke with
Prisbrey, who was sitting in his vehicle in front of the house.
Prisbrey told Marshal about leaving the six candles lit in the
Christmas village. When Marshal asked about flammable liquids
in the house, Prisbrey informed Marshal that he had some camp
fuel stored in a closet, and again recited the events that had
occurred with his dog tracking paint into the house and cleaning
it up “all over the place” with paint thinner. Like Chief, Marshal
did not ask Prisbrey what kind of paint thinner he used or
specifically where he had used it.

¶9 After interviewing Prisbrey, Marshal then inspected the
house. He discovered “very heavy fire damage” in the great
room near where the Christmas village display had been, and
“very heavy” damage to the second floor of the house, such that
it was unsafe for him to proceed up the stairs. Prisbrey also
pointed out where his “overly dry” Christmas tree had been
located. During his walk-through, Marshal saw signs that the
fire may have spread quickly through the house, “more quickly
than [he] would have expected.”

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¶10 When Marshal went into the garage—which shared a wall
with the great room—he noticed that the garage was
“significantly undamaged,” either from fire or water damage. A
water heater was located along the wall next to the great room,
and right next to the water heater—within just a few inches—
were stacked several one-gallon containers of gasoline, one of
which had its top removed. Near the gas cans was a “plastic
garbage can full of various aerosols and flammable liquids.”

¶11 Perhaps most significantly, Marshal noticed, along the
wall between the garage and the great room, “two holes in the
wall” that were located very close to where the Christmas village
display had been (on the great room side) and where the gas
cans were (on the garage side). Marshal asked Chief and the
local fire marshal whether the two holes had been created
“during suppression” by high-pressure water hoses, and Chief
and the local marshal stated that “they didn’t make [the holes]
with a water stream,” and that if they had, there would have
been extensive water damage in the garage and the items in the
garage, including the gas cans, would have been moved
around. 2 But Marshal did not ask any of the line firefighters

2. The dissent states that Marshal posed only “a more general
question,” asking only “if the holes were made by the fire
department’s suppression, and the answer was no.” See infra
¶ 46 note 9. But in our view, the evidence indicates otherwise.
While Marshal, in his testimony, did describe his question in
rather general terms, he then testified that the answer to his
question was that crews “did not” make the hole “during
suppression,” and that the crews “said if they had, their water
pressure from their hose streams would have likely knocked
over everything on the other side of the great room and moved
the gas cans and other things around and created more water
damage in the garage, which we had very little of.” And he later
stated that Chief and the local fire marshal told him, in answer to
his question, that “they didn’t make those [holes] with a water
stream.” From context, then, it is clear that the question Marshal
(continued…)

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whether the holes had been created after the fire had been
controlled, when crews were searching the house for hot spots,
and Marshal conceded on cross-examination that it was
“[p]ossibl[e]” that the holes had been made by fire crews after
the fire was under control. 3 When asked about the two holes,
Prisbrey denied any knowledge of them, and Girlfriend testified
that she had not noticed them when she was in the garage on
New Year’s Eve before leaving for the temple, although she
acknowledged she had not been looking for them.

¶12 After his inspection of the garage, Marshal “believed [he]
had uncovered elements of an arson,” so he “backed out of the
scene” and informed the officers on scene that they “would need
a warrant to proceed any further.” He testified that this was “the
end of [his] investigation,” and that, at that point, he “left the
scene and never returned to the premises.” However, the record
contains no indication that a search warrant was ever sought or
obtained, and no evidence of any further investigation of the
incident by any governmental entity—whether by local law
enforcement or by the office of the State Fire Marshal—was
submitted to the magistrate at the preliminary hearing.

(…continued)
asked had to do with whether the holes were created by water
streams during fire suppression efforts, and not whether the
holes were created while looking for hot spots after the fire was
already out.

3. The dissent contends that “[t]he only suggestion that the holes
could have been made by the fire department in search of a hot
spot came from defense counsel in cross examination of Chief.”
See infra ¶ 46 note 9. We view the record differently. As noted,
the subject came up during Marshal’s testimony as well, and
although the question was posed by defense counsel, Marshal
acknowledged in response that the holes could “[p]ossibly” have
been made by fire crews after the fire had been controlled.

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¶13 Despite conducting no further investigation, Marshal
testified at the preliminary hearing that, in his opinion, “this was
an arson.” In response to a question about the basis for this
opinion, Marshal testified as follows:

The holes in the wall that weren’t caused by fire
department suppression streams, the gas cans up
against the water heater, the candles on the other
side of the garage wall in the great room that were
left burning with combustible material around
them, that was certainly some of my red flags as far
as elements of an arson go.

Marshal acknowledged that he had not reached any conclusion
that the house had been sparsely furnished, and was not basing
his opinion on any such notion, and that his opinion was
likewise not based on the presence of paint thinner (or any other
accelerant) on the floor, even stating that he “wasn’t concerned
with accelerant being used” in the great room. Indeed, upon
direct questioning from the magistrate, Marshal reaffirmed that
his opinion was not based on the presence of accelerants, but
was instead based on “the hole[s] in the walls, [the] location of
the gas cans, as well as the lit candles.”

¶14 Soon after the fire, Prisbrey notified his insurance
company and submitted a claim, therein representing to the
insurance company that he did not intentionally cause the fire.
On January 2, 2018, the insurance company hired its own
investigator (Investigator) to inspect the home and offer an
opinion as to whether the fire was arson, so that the insurance
company could make a decision about whether to pay the claim.
Investigator traveled to the scene on January 4, 2018, and spent
“four or five hours” on the premises. In his view, the house was
not sparsely furnished. While he was in the house, Investigator
took photographs and samples of various items. In particular, he
filled four lined one-gallon cans, designed to keep gases inside,
with various fire debris, with the intent to test the debris samples

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for the presence of accelerants. Those samples were later tested,
and Investigator testified that they showed no sign of accelerants
anywhere near where the fire had started, in the great room.

¶15 Investigator also focused on the two holes in the wall
between the great room and the garage. In particular, he
examined the relative damage on the two sides of the wall, as
well as on the gypsum and the paper in the drywall along the
sides of the holes, and concluded that the holes had been created
after the fire, and not before. In particular, Investigator observed
that the gypsum inside the drywall along the edges of the holes
was less discolored than the torn paper covering the drywall
around the holes, and concluded that the paper had not been
torn—an event that would have occurred when the holes were
created—until after the fire was over. Investigator also noted the
absence of any fire damage inside the garage, observing that a
fire burning intensely enough to burn the drywall inside the
room “would have gone into the garage” if the holes had existed
while the fire was burning.

¶16 After completing his investigation, Investigator notified
the insurance company that his preliminary conclusion was that
the fire was accidental, and he later submitted a final written
report reaffirming that conclusion and detailing the basis for it.
Based in part on Investigator’s conclusion, the insurance
company approved Prisbrey’s claim, ultimately paying him
“over $350,000 in benefits” for, among other things, repair to the
house and for temporary housing.

¶17 After the insurance company paid the claim, the State
charged Prisbrey with aggravated arson, a first-degree felony,
and with filing a false insurance claim, a second-degree felony.
The district court, sitting in the capacity of a magistrate, held a
preliminary hearing to decide whether to bind Prisbrey over for
trial on these charges; the hearing took place over two days,
spaced eleven months apart. During that hearing, the State
called three witnesses: Chief and Marshal, who testified as to the
events described above; and a witness from the Insurance Fraud

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Division of the Utah Insurance Department, who testified that
Prisbrey had submitted a claim to his insurance company. After
the State rested, Prisbrey called Investigator and Girlfriend.
During his testimony, Investigator described his investigation,
the conclusion he had drawn from it—that the fire had been
accidental—and the reasons for his conclusion. At the end of the
hearing, the magistrate declined to bind Prisbrey over on either
charge, determining that, even though the State’s burden “is not
very high,” the State had failed to meet that burden.

ISSUE AND STANDARD OF REVIEW

¶18 The State now appeals the magistrate’s decision not to
bind Prisbrey over for trial. A “decision to bind over a criminal
defendant for trial presents a mixed question of law and fact and
requires the application of the appropriate bindover standard to
the underlying factual findings.” In re I.R.C., 2010 UT 41, ¶ 12,
232 P.3d 1040 (quotation simplified). In this context, appellate
courts give “limited deference to a magistrate’s application of
the bindover standard to the facts of each case.” See State v.
Ramirez, 2012 UT 59, ¶ 7, 289 P.3d 444 (quotation simplified);
accord State v. Virgin, 2006 UT 29, ¶ 34, 137 P.3d 787.

ANALYSIS

¶19 “The preliminary hearing is a fundamental procedural
right guaranteed by article I, section 13 of the Utah
Constitution.” Ramirez, 2012 UT 59, ¶ 8. Under that provision, a
defendant charged with any felony or any class A misdemeanor
is entitled to a preliminary hearing. See State v. Hernandez, 2011
UT 70, ¶ 29, 268 P.3d 822; see also Utah Const. art. I, § 13. Under a
separate constitutional provision, the people of Utah have
declared that the “function” of a preliminary hearing “is limited
to determining whether probable cause exists” to bind a
defendant over for trial. See Utah Const. art. I, § 12.

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¶20 Our supreme court has noted that “probable cause never
had and never will have a precise meaning.” See State v. Clark,
2001 UT 9, ¶ 11 n.1, 20 P.3d 300 (quotation simplified). In Clark,
the court held that the “probable cause” standard applicable in
preliminary hearings was the same as the “probable cause”
standard applicable in the context of arrest warrants, stating
that, “at both the arrest warrant and the preliminary hearing
stages, the prosecution must present sufficient evidence to
support a reasonable belief that an offense has been committed
and that the defendant committed it.” Id. ¶ 16; accord Utah R.
Crim. P. 7B(b); State v. Schmidt, 2015 UT 65, ¶ 17, 356 P.3d 1204.
And the Clark court noted that this “reasonable belief”
formulation of the probable cause standard was not materially
different from the “fair probability” formulation of the probable
cause standard applicable in the context of search warrants. See
2001 UT 9, ¶ 11 n.1 (stating that, “[t]hough phrased differently,
there is little, if any, difference” between the “reasonable belief”
standard for obtaining an arrest warrant and the “fair
probability” standard for obtaining a search warrant); see also
State v. Decorso, 1999 UT 57, ¶ 59, 993 P.2d 837 (stating that a
search warrant is proper where there is a “fair probability that
evidence of the crime will be found in the place or places named
in the warrant” (quotation simplified)), abrogated on other grounds
by State v. Thornton, 2017 UT 9, 391 P.3d 1061.

¶21 While the State bears the burden of establishing the
existence of probable cause at a preliminary hearing, see State v.
Lopez, 2020 UT 61, ¶ 46, 474 P.3d 949, that burden is “relatively
low,” see Ramirez, 2012 UT 59, ¶ 9; see also Lopez, 2020 UT 61, ¶ 46
(stating that the burden is “light”). To make the necessary
showing, the State “need not produce evidence sufficient to
support a finding of guilt at trial or even to eliminate alternative
inferences that could be drawn from the evidence in favor of the
defense.” Lopez, 2020 UT 61, ¶ 46 (quotation simplified). The
State need only present “reasonably believable evidence—as
opposed to speculation—sufficient to sustain each element of the
crime(s) in question.” Ramirez, 2012 UT 59, ¶ 9. And in
considering the evidence presented, the magistrate conducting

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the preliminary hearing “must view all evidence in the light
most favorable to the prosecution and must draw all reasonable
inferences in favor of the prosecution.” Clark, 2001 UT 9, ¶ 10
(quotation simplified).

¶22 But “[d]espite the relatively low evidentiary threshold at a
preliminary hearing, a magistrate may deny bindover in certain
situations.” State v. Graham, 2013 UT App 109, ¶ 9, 302 P.3d 824.
Indeed, when “[p]roperly 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.” State v. Virgin, 2006 UT 29, ¶ 19, 137 P.3d 787. For
instance, “when the evidence, considered under the totality of
the circumstances, is wholly lacking and incapable of reasonable
inference to prove some issue which supports the prosecution’s
claim, the magistrate is not required to bind a criminal defendant
over for trial.” Graham, 2013 UT App 109, ¶ 9 (quotation
simplified). Similarly, a magistrate may properly deny bindover
“where the facts presented by the prosecution provide no more
than a basis for speculation.” See State v. Jones, 2016 UT 4, ¶ 13,
365 P.3d 1212 (quotation simplified).

¶23 To be sure, the line separating “speculation” from
“reasonable inference” can at times be faint. See Salt Lake City v.
Carrera, 2015 UT 73, ¶¶ 11–12, 358 P.3d 1067 (stating that the
“distinction between a reasonable inference and speculation” is a
“difficult” one “for which a bright-line methodology is elusive”);
see also State v. Cristobal, 2010 UT App 228, ¶ 16, 238 P.3d 1096
(referring to the distinction between reasonable inference and
speculation as “sometimes subtle”), abrogated on other grounds as
recognized by State v. Law, 2020 UT App 74, 464 P.3d 1192. An
“inference” is “a conclusion reached by considering other facts
and deducing a logical consequence from them.” Carrera, 2015
UT 73, ¶ 12 (quotation simplified). “On the other hand,
‘speculation’ is the act or practice of theorizing about matters
over which there is no certain knowledge at hand.” Id.
(quotation simplified). As our supreme court has explained, “the

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difference between an inference and speculation depends on
whether the underlying facts support the conclusion.” Id.; see also
Salt Lake City v. Gallegos, 2015 UT App 78, ¶ 10, 347 P.3d 842
(stating that “inferences drawn from facts in evidence are
appropriate,” but “inferences drawn from inferences are not”
(quotation simplified)).

¶24 In this case, the State charged Prisbrey with aggravated
arson, a crime that occurs when a person, “by means of fire,”
“intentionally and unlawfully damages . . . a habitable
structure.” Utah Code Ann. § 76-6-103(1)(a) (LexisNexis 2017).
Arson, like all crimes, may be proved through circumstantial
evidence. See State v. Nickles, 728 P.2d 123, 126 (Utah 1986)
(stating that, in the context of arson, “circumstantial evidence
alone may be sufficient to establish the guilt of the accused”).
After Chief and Marshal walked through the burned house on
New Year’s Eve and New Year’s Day, they made several
circumstantial observations that they thought pointed toward
the conclusion that Prisbrey had intentionally set his house on
fire. Specifically, the State points to seven such observations that
it contends support bindover: (1) that Prisbrey told fire officials
that he had used paint thinner to clean up dog-tracked paint in
the days leading up to the fire; (2) that Marshal believed the fire
had spread more quickly than he would have anticipated; (3)
that flammable materials were present in the house, including an
“overly dry” Christmas tree, camp fuel in a closet, and gasoline
cans in the garage; (4) that Chief believed the house was sparsely
furnished, and had heard that Prisbrey had removed items to a
storage unit prior to the fire; (5) that Prisbrey failed to extinguish
the six candles in the Christmas village display before leaving
the house on New Year’s Eve; (6) that Prisbrey, Girlfriend, and
dog had all left the house prior to the fire; and (7) that two holes
were punched into the wall between the great room and the
garage, right between where the Christmas village display and
the gas cans were located, and that these holes had not been
created by fire department water streams.

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¶25 After making these observations, Chief and Marshal left
the scene, with Marshal commenting that they “would need a
[search] warrant to proceed any further.” But no warrant was
ever sought or obtained; neither Chief nor Marshal conducted
any further investigation, and no evidence was presented to the
magistrate that any other governmental entity did either.

¶26 Because the State never sought a search warrant, no
magistrate was ever asked to evaluate the State’s evidence—as it
existed at that moment in time—to consider whether probable
cause existed to support a search warrant to further investigate
the possibility that Prisbrey had committed arson. And we are
not asked to consider that question either, although we certainly
acknowledge that a request for a warrant, if the State had made
one on New Year’s Day, may very well have been appropriately
granted, given the incomplete information that then existed.

¶27 The question we are asked to consider is not whether
probable cause existed to support a search warrant on New
Year’s Day, but instead whether probable cause existed to
support bindover at the conclusion of the preliminary hearing, in
light of all of the evidence presented at that hearing. Even if we
assume, for the sake of argument, that the State could have
demonstrated probable cause for a search warrant on New
Year’s Day, it does not necessarily follow from that conclusion
that probable cause will continue to be present at all subsequent
stages of the case. Over the course of a case, inferences that once
appeared reasonable may, upon further investigation, be proven
to be unreasonable or no longer based on facts in evidence. And
in exceptional cases, evidence put forward by a defendant at a
preliminary hearing may overcome a prima facie showing of
probable cause. See Lopez, 2020 UT 61, ¶¶ 46–48 (noting the “low
bar” the State must surmount at a preliminary hearing, and
stating that, given the low bar, “it may be difficult for the
defense to overcome a prima facie showing of probable cause”).

¶28 The magistrate adjudged this case to be one of those rare
cases in which the State’s evidence did not surmount the low

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probable cause bar. And in this unique case, for two related
reasons, we discern no abuse of the magistrate’s limited
discretion in reaching that conclusion.

¶29 First, the State’s evidence consisted largely of innocuous
facts coupled with unexamined supposition. As noted above, the
difference between “speculation” and “reasonable inference”
turns on whether there are facts that underlie the conclusion. See
Carrera, 2015 UT 73, ¶ 12. For many of Chief’s and Marshal’s
“red flags,” no underlying facts supported their speculative
suspicion. For instance, Chief’s supposition about the use of
accelerants was based on Prisbrey’s account that, some days
prior to the fire, he had used paint thinner to spot-clean dog-
tracked paint. But paint thinner evaporates over time, and
neither Chief nor Marshal knew the date on which Prisbrey had
applied the paint thinner, nor did they know whether the paint
thinner Prisbrey used was even flammable, or whether he had
applied any paint thinner anywhere near the Christmas village
display. And neither conducted any follow-up investigation to
attempt to ascertain these facts. Under the circumstances, Chief’s
suspicion that Prisbrey had applied flammable accelerants on a
location near the Christmas village display on a date recent
enough to matter amounted to nothing more than a “theor[y]
about matters over which there is no certain knowledge.” See id.
(quotation simplified). Indeed, during his testimony, Marshal
specifically disavowed reliance on any such supposition,
informing the magistrate, in response to a direct question, that
he “wasn’t concerned with accelerant being used” in the great
room. The State’s attempted reliance upon it now is misplaced.

¶30 Similarly, Chief’s supposition that the house was sparsely
furnished was, in context, not a reasonable inference supportive
of arson. By itself, the fact that a house is sparsely furnished is
hardly evidence of arson; what triggered Chief’s suspicion was
that the reason the house was sparsely furnished might have
been because Prisbrey had taken items out of the house prior to
the fire and placed them in a storage unit. That fact, if true,
would potentially be circumstantial evidence of arsonous intent.

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But here, nothing other than unexamined supposition supports
any such notion. Chief could not even remember who told him
about the storage unit, let alone any details about the type and
number of items that might have been moved there prior to the
fire. And no additional investigation was apparently ever
conducted to locate or inspect any such storage unit. Chief’s
suspicion along these lines was speculative, and Marshal again
distanced himself from it, testifying that he included no
observations in his report about the house being sparsely
furnished. The State’s attempted reliance upon this fact now is
likewise misplaced.

¶31 In addition, some of the other facts to which the State now
points are entirely innocuous, and do almost nothing to support
an inference of arson. For instance, the fact that Prisbrey had
flammable materials in his house and in his garage was entirely
unremarkable. Many Americans have an overly dry Christmas
tree in their house on New Year’s Eve. And if the presence of
camping fuel in a closet and gas cans in the garage were
indicative of arsonous intent, it would be the exceptional
homeowner who would not fall under suspicion.

¶32 Second, the evidence of the insurance company’s
investigation presented by the defense at the preliminary
hearing served to overcome any remnants of reasonable
inference that remained in the State’s references to accelerants or
the holes in the wall. It bears noting that—at the time it
investigated the claim—the insurance company was fully aware
that local fire officials were wondering about arson; indeed, that
is why the company dispatched its own investigator to the scene.
And it goes almost without saying that the insurance company—
given the $350,000 insurance claim at stake—had every interest
in making sure the fire had not been started intentionally. But
despite the insurer’s awareness and incentives, its investigation
resulted in a conclusion that the fire had been an accident.

¶33 Specifically, Investigator took samples, preserved in lined
cans, with the intention of determining whether there was any

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evidence that Prisbrey applied paint thinner or other accelerants
in locations designed to spread the fire. Tests of the samples
yielded no such evidence.

¶34 And Investigator carefully examined the two holes in the
wall between the great room and the garage. This piece of
evidence was arguably the State’s most powerful, and the item
upon which Marshal almost entirely rested his conclusion that
Prisbrey had intentionally set the fire. But Investigator
concluded, based on his analysis of the components of the
drywall on each side of the wall and the lack of fire damage in
the garage, that the holes had been created after the fire.

¶35 The State asserts that Marshal’s conclusion to the
contrary—that the holes are indicative of arson—is sufficient to
compel bindover, pointing out that “when reasonable inferences
from the evidence cut both for and against the [S]tate’s case, the
magistrate lacks discretion to choose between them and must
leave such a determination to the fact-finder at trial.” See
Schmidt, 2015 UT 65, ¶ 1. But while Investigator’s conclusion
represents a reasonable inference drawn from evidence,
Marshal’s conclusion—on this record—does not. In contrast to
Investigator’s conclusion, which was based on facts following an
investigation, Marshal’s conclusion was simply a “theor[y] about
matters over which there is no certain knowledge.” See Carrera,
2015 UT 73, ¶ 12 (quotation simplified). After all, the presence of
the holes themselves is not, in itself, indicative of arson; the holes
lead to a reasonable inference of arson only if they were created
before the fire. Only Investigator—and not Marshal—made
efforts to thoroughly investigate when the holes were created.
Marshal simply asked two individuals (rather than all of the fire
crews) if the holes had been created by their water streams
(rather than through any other means). After being told that the
holes had not been created by fire crews’ water streams, Marshal
jumped to the unexamined conclusion that the holes must have
been created prior to the fire. He did not attempt to ground that
conclusion in any actual investigatory facts. He did not examine
the holes to compare the burn or water damage on each side of

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State v. Prisbrey

the wall, and did not talk to any members of the fire crews other
than Chief and the local fire marshal.

¶36 After considering all of the evidence as presented at the
preliminary hearing, the magistrate determined that the State’s
case was based on speculation and not on reasonable inferences
grounded in evidentiary facts. To be sure, Prisbrey lit six candles
in a Christmas village display in his house, and did not
extinguish them in his haste to leave the house—with his dog—
to propose to Girlfriend. The fire did seem to have spread
quickly, perhaps due to the presence of a dry Christmas tree in
the vicinity. But beyond that, the State’s inferences of arson are
simply theoretical, and not grounded in evidence. The State did
nothing—or, at least, presented no evidence that it did
anything—more to investigate its suspicions. And the State’s
theories did not hold up against an actual investigation by an
entity with every incentive to validate them. Under these unique
circumstances, we cannot conclude that the magistrate abused
his limited discretion in determining that the State’s case was too
speculative to support bindover, on either an aggravated arson
charge or an insurance fraud charge, which charges in this case
rise and fall together.

CONCLUSION

¶37 Accordingly, we affirm the magistrate’s decision to
decline bindover.

POHLMAN, Judge (dissenting):

¶38 The magistrate, and the majority alike, recognizes that the
State’s burden of proof at the preliminary hearing is light. Our
supreme court characterizes the standard as setting a “low bar,”
equating it to the “reasonable belief” formulation of the probable
cause standard applicable to arrest warrants. See State v. Lopez,
2020 UT 61, ¶¶ 46, 48, 474 P.3d 949; State v. Jones, 2016 UT 4, ¶ 12,
365 P.3d 1212. Similarly, the majority likens it to the “fair

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State v. Prisbrey

probability” formulation of the probable cause standard
applicable to search warrants. See supra ¶ 20.

¶39 Without affirmatively stating that the State could have
met that standard with the evidence it amassed had it sought a
search warrant on New Year’s Day, the majority assumes for the
sake of its analysis that the standard would have been met. But it
then concludes that this is an “exceptional” case where the
defense overcame that showing in the preliminary hearing. See
supra ¶¶ 27–28. I respectfully disagree.

¶40 The lens through which we must view the evidence
presented at the preliminary hearing is from the perspective of a
reasonable arresting officer. Jones, 2016 UT 4, ¶ 22. “We ask
whether any officer, viewing the evidence in the light most
favorable to the prosecution, could reasonably conclude that a
crime was committed and that the defendant committed it.” Id.
(quotation simplified). “And in making that assessment we are
required to give the benefit of all reasonable inferences to the
prosecution.” Id. Applying these principles here, I believe the
State presented enough evidence to sustain a reasonable
determination of probable cause to arrest Prisbrey for
aggravated arson and insurance fraud, 4 and I do not share my
colleagues’ view that Prisbrey undermined that evidence in such
a way as to defeat that showing.

¶41 The evidence, when viewed in the light most favorable to
the State, paints an incriminating picture. No more than two
days before the fire, Prisbrey applied paint thinner all over the
house, and he made two large holes in the wall between the

4. The State presented evidence at the preliminary hearing that
Prisbrey represented to his insurance company, as part of an
insurance claim, that he did not intentionally set the fire. Thus,
to the extent there was probable cause to bind Prisbrey over for
arson, there was also probable cause to bind him over for
knowingly making a false or fraudulent insurance claim.

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State v. Prisbrey

garage and the great room. On the garage side of the wall, he
stacked up three containers of gasoline in line with the two holes
and within inches of the water heater. He also left a plastic
garbage can full of various aerosols and flammable liquids in the
garage. On the great room side of the wall, Prisbrey created a
Christmas village display, decorated with candles, fake snow,
wood, and other combustible materials. And on New Year’s Eve,
Prisbrey lit the six candles and then left the house at 10:00 p.m.,
taking Girlfriend and his dog with him. The house was in flames
minutes later, and after surveying the scene Marshal opined that
the fire was intentionally set. In my opinion, this is enough
evidence to sustain an arresting officer’s reasonable belief that
Prisbrey took intentional steps to burn down his house.

¶42 The majority disagrees, concluding that these facts were
largely innocuous or speculative. See supra ¶ 29. I see it
differently. For example, the majority labels the evidence of
Prisbrey’s application of flammable accelerants in the house as
speculative, stating that neither Chief nor Marshal had gathered
enough evidence to know whether “Prisbrey had applied
flammable accelerants on a location near the Christmas village
display on a date recent enough to matter.” Supra ¶ 29. But even
if these details were not established with fine precision,
Prisbrey’s own statements were incriminating enough. As far as
whether the paint thinner Prisbrey applied was of the flammable
variety, Prisbrey admitted it was when he identified the paint
thinner in response to Marshal’s inquiry about whether there
were any ignitable or flammable liquids in the house. 5 And
regarding when and where the paint thinner was applied,

5. In addition to Prisbrey’s own suggestion that the paint thinner
he applied was flammable, Marshal testified that “the
overwhelming majority” of paint thinner “is flammable” and
that while there probably is a non-flammable variety “out there,”
it was not something he had seen. This testimony lends further
support to the inference that Prisbrey’s paint thinner was
flammable.

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State v. Prisbrey

Marshal testified that Prisbrey told him that he had applied it
recently—“over the last two days”—and that he had applied it
“all over the place.” 6

¶43 Similarly, the majority labels Chief’s testimony that the
house was sparsely furnished as supposition, stating that his
testimony about a storage unit “was speculative.” See supra ¶ 30.
But Chief’s testimony about the furnishings, or lack thereof, in
the house was based on his own personal observations of the
house when he inspected it on the night of the fire. And his
testimony about the storage unit was based on a report he
received from another officer who told him that Prisbrey “had
put stuff” there. 7 Thus, while Chief’s testimony on this point
may have been less than compelling, I do not believe it was
improper for the State to rely on it as one piece of the evidentiary
puzzle. 8 See Carter v. State, 2019 UT 12, ¶ 75, 439 P.3d 616 (“The

6. In my view, Prisbrey’s admission that he spread paint thinner
in his home could be indicative of guilt even if the paint thinner
was not found near the Christmas village display. If Prisbrey
intended to burn down his house, he could have distributed the
paint thinner in other areas to aid the fire’s spread.

7. While not speculative, Chief’s testimony about the storage
unit was admittedly hearsay. However, rule 7B(b) of the Utah
Rules of Criminal Procedure provides that “findings of probable
cause may be based on hearsay, in whole or in part.” Utah R.
Crim. P. 7B(b); see also Utah R. Evid. 1102(a) (“Reliable hearsay is
admissible at criminal preliminary examinations.”); State v.
Lopez, 2020 UT 61, ¶ 45, 474 P.3d 949 (recognizing that hearsay
evidence may be relied upon to establish probable cause in
preliminary hearings).

8. Prisbrey and the majority fault the State for not investigating
the existence of the storage unit. See supra ¶ 30. The State did not
introduce evidence of the storage unit, but the absence of that
evidence does not establish that no other investigation was
(continued…)

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State v. Prisbrey

line between a reasonable inference and speculation can be
difficult to draw, but a reasonable inference exists when there is
at least a foundation in the evidence upon which the ultimate
conclusion is based, while in the case of speculation, there is no
underlying evidence to support the conclusion.” (quotation
simplified)).

¶44 Next, the majority concludes that certain evidentiary facts
“are entirely innocuous, and do almost nothing to support an
inference of arson.” See supra ¶ 31. In particular, it finds that the
existence of flammable materials in Prisbrey’s garage and his
house “was entirely unremarkable.” See supra ¶ 31. Even putting
aside the overly dry Christmas tree and camping fuel, I do not
consider the flammable materials in Prisbrey’s garage to be
unremarkable. Marshal did not suspect arson simply because
Prisbrey was storing some gasoline in his garage. Rather, it was
the presence of a plastic garbage can full of various aerosols and
flammable liquids along with three containers of gasoline, one
with the top removed, stacked up within inches of a water heater
bearing a warning label to keep flammable liquids away and
lined up directly behind two holes in the wall of the great room
in which six lit candles were left unattended that caused him
concern. My colleagues believe it would be the exceptional
homeowner who would not fall under suspicion if these facts

(…continued)
undertaken and that no additional evidence was adduced. The
State may have believed Marshal’s testimony on this point was
sufficient for purposes of the preliminary hearing. Plus, there is
an assumption at the preliminary hearing stage “that the
prosecution’s case will only get stronger as the investigation
continues.” State v. Clark, 2001 UT 9, ¶ 10, 20 P.3d 300 (quotation
simplified). The fact that the State could have presented a
stronger case had it brought more witnesses or done a more
thorough investigation before the preliminary hearing is not a
relevant consideration as long as the liberal bindover standard is
met.

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State v. Prisbrey

were indicative of arson. See supra ¶ 31. I submit that these are
exceptional facts.

¶45 Finally, I do not agree that evidence of the insurance
company’s investigation presented by the defense overcame the
probable cause established by the State. The evidence presented
by Prisbrey is compelling, and a jury could very well doubt
Prisbrey’s guilt in light of the evidence produced by the
insurance company’s investigation. But our role “is not to decide
whether we think the charges are likely to produce a conviction,
or even whether we would be inclined to produce charges if we
were in a position to exercise prosecutorial discretion.” Jones,
2016 UT 4, ¶ 39. Rather, our task is to decide whether a
reasonable police officer, viewing the record in the light most
favorable to the State, could conclude that Prisbrey committed
arson. See id. And the insurance company’s evidence does not
conclusively disprove the State’s evidence; it instead presents a
conflict in the evidence that neither we, nor the magistrate, are
permitted to weigh. See id. ¶ 24.

¶46 In particular, the fact that Investigator’s samples yielded
no evidence of paint thinner in the house, see supra ¶ 33, does not
disprove Prisbrey’s own admissions that he spread accelerant
throughout the home. It instead presents a conflict for the
factfinder to resolve. Similarly, that Investigator opined that the
two holes in the wall between the great room and the garage
were created after the fire, and not before, see supra ¶ 34, does
not establish it as fact. Marshal testified that he asked Chief and
the local fire marshal if the fire department made the holes
“during suppression” of the fire, and they said they did not. 9

9. The majority states that Marshal specifically asked if the holes
were created by the firefighters’ water streams. See supra ¶ 35. To
be sure, there was discussion of what evidence would have been
present had the holes been created by water streams. But
Marshal asked a more general question. He twice testified that
he asked if the holes were made by the fire department’s
(continued…)

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State v. Prisbrey

While a factfinder may not be allowed to rely on such hearsay at
trial, for purposes of the preliminary hearing, the State was
entitled to rely on it to demonstrate probable cause. See supra
¶ 43 note 7. And while a factfinder would have every right to
reject the firefighters’ recollections in favor of Investigator’s
opinion and scientific investigation, the State was not obligated
to rebut the defense’s theories to meet the liberal bindover
standard. “A strong argument the other way isn’t enough to
foreclose a trial on the merits. Weighing evidence in search of the
most reasonable inference to be drawn therefrom is the role of
the factfinder at trial.” Jones, 2016 UT 4, ¶ 24 (quotation
simplified).

¶47 In sum, I conclude that the magistrate exceeded his
discretion in refusing to bind Prisbrey over for trial, and I would
reverse its decision and remand this case for further
proceedings. The State’s case was met with a persuasive rebuttal,
and weaknesses in its case were exposed in the preliminary
hearing. But the question before us is whether the State,
considering the evidence in the light most favorable to it,
demonstrated probable cause to arrest Prisbrey for arson. For all
these reasons, I believe that it did.

(…continued)
suppression, and the answer was no, the firefighters “did not
make them.” The only suggestion that the holes could have been
made by the fire department in search of a hot spot came from
defense counsel in cross-examination of Chief. And Chief
testified that at times drywall is pulled down to look for hot spot
exposure, but that the department tries to do minimal overhaul
in the area where it believes the fire originated.

20190569-CA 23 2020 UT App 172