State v. Jones , 365 P.3d 1212 ( 2016 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2016 UT 4
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Petitioner,
v.
ADAM HOWARD JONES,
Respondent.
No. 20140753
Filed January 11, 2016
On Certiorari to the Utah Court of Appeals
Third District, Silver Summit
The Honorable L. A. Dever
No. 111500107
Attorneys:
Sean D. Reyes, Att‘y Gen., John J. Nielsen, Asst. Att‘y Gen.,
Salt Lake City, for petitioner
Ronald J. Yengich, Salt Lake City, for respondent
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and JUSTICE
HIMONAS joined.
JUSTICE JOHN A. PEARCE became a member of the Court on December
17, 2015, after oral argument in this matter, and accordingly did not
participate.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶ 1 Adam Jones stands charged with official misconduct under
Utah Code section 76-8-201 and with witness tampering under Utah
Code section 76-8-508(1). At a preliminary hearing in the district
court, the magistrate judge refused to bind him over for trial. The
court of appeals affirmed on appeal. We reverse.
I
STATE v. JONES
Opinion of the Court
¶ 2 At 9:45 p.m. on March 7, 2011, Police Chief Adam Jones—
one–half of the two-person police force in Kamas, Utah—had fifteen
minutes left in his ten-hour shift when he received a call on his
personal cell phone.1 The caller was D.M., the girlfriend of Jones‘s
brother, Travis. D.M. asked Jones ―to come over and talk or take care
of [Travis].‖ Preliminary Hearing, Nov. 28, 2011 at 56–57 (Hearing).
This had happened many times before. Travis had a tendency to get
violent when drunk, and throughout the years Travis‘s girlfriends
had often called Jones, asking him to come calm his brother down.
Travis has had three or four previous domestic violence charges.
¶ 3 Still on duty and in uniform, Jones drove his police car the
few blocks from the police station to Travis‘s house. Upon arriving,
Travis—drunk, but calm—met Jones at the door. Travis was
shirtless. Jones could see scratches on his brother‘s chest. Travis
claimed that D.M. had inflicted them, and directed Jones to the
garage. Jones found D.M. there. She stated that Travis had kicked
her in the shin. Yet Jones observed no marks or bruising, and D.M.
―seemed normal‖ while ―walking around‖ and ―up the stairs in the
garage.‖ Interview of Chief Adam Jones by Utah Attorney General’s Office
Special Agents, (Mar. 7, 2011) at 7–8, 10, 19 (Interview).
¶ 4 Jones asked D.M. if she wanted him to call the Summit
County Sheriff‘s Office for her since he could not get involved with
family. D.M. declined, indicating that they could not afford for
Travis to go to jail again. Instead, she asked that Jones put Travis to
bed. Jones then reiterated his offer to call county law enforcement,
but D.M. again declined.
¶ 5 When Jones returned to his brother, Travis admitted that he
had scratched himself in an attempt to get D.M. in trouble. At that
point Travis was on the verge of passing out, and Jones told him to
go to bed. Jones then returned to D.M. and asked her once more if
she wanted him to call the sheriff‘s office. When she again declined,
Jones directed her to call the sheriff if anything else happened. Jones
spent about fifteen or twenty minutes at his brother‘s home. He then
returned to the police station and clocked out from his shift. He did
not file a report of the incident or give D.M. a ―written notice of her
rights and remedies available‖ as required by Utah Code section 77-
36-2.1(2)(a).
1 The facts are stated ―in the light most favorable to the
prosecution,‖ with all ―reasonable inferences‖ in its favor. State v.
Clark, 2001 UT 9, ¶ 10, 20 P.3d 300 (citation omitted).
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Opinion of the Court
¶ 6 Later that evening D.M. again called Jones. But he refused to
answer when he saw who was calling. Jones then later observed on
his computer at home that a 911 call had been placed from his
brother‘s residence. He turned on his police radio and listened to the
response of the sheriff‘s department and subsequent arrest of his
brother for assaulting and injuring both D.M. and her ten-year-old
son.
¶ 7 Travis was aggressive, violent, and vulgar during his arrest
and transport to the county jail. During the investigation that
evening, the sheriff‘s department learned that Jones had been at
Travis‘s home earlier in the day. A sheriff‘s deputy also observed
―the starting of bruising‖ on D.M.‘s leg. Hearing at 51.
¶ 8 The next morning Jones visited Travis in jail. The deputy on
duty overheard, from about seven feet away, Jones inform his
brother that he was passed out in bed when Jones had arrived at
Travis‘s house the night before. After visiting with his brother, Jones
also conversed with the deputy—informing him that Travis had
been passed out when Jones had showed up at his home.
¶ 9 The State charged Jones with witness tampering, a third–
degree felony, and official misconduct, a class B misdemeanor.2 As to
the first count, the State asserted that Jones violated section 76-8-201
when he, ―with an intent to benefit himself or another . . . knowingly
refrain[ed] from performing a duty imposed on him by [the
Cohabitant Abuse Procedures Act].‖ Ruling & Order at 5–7. That act
requires any ―law enforcement officer who responds to an allegation
of domestic violence‖ to, among other things, ―protect the victim and
prevent further violence‖; ―give written notice to the victim . . .
describing [one‘s legal] rights and remedies‖; and ―arrest without a
warrant or . . . issue a citation to any person that the peace officer has
probable cause to believe has committed an act of domestic
violence.‖ UTAH CODE §§ 77-36-2.1 & 2.2. Regarding the second
count, the State asserted that Jones ―tamper[ed] with a witness‖
when, ―believing that an official proceeding or investigation is
pending or about to be instituted, or with the intent to prevent an
official proceeding or investigation, he attempt[ed] to induce or
otherwise cause [his brother] to testify or inform falsely; [or]
withhold . . . testimony.‖ UTAH CODE § 76-8-508(1).
2 A third, alternative charge to the official misconduct charge—
official neglect and misconduct—was not included in the State‘s
petition for certiorari, and is thus not before this court.
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STATE v. JONES
Opinion of the Court
¶ 10 The magistrate judge concluded that the State had not met its
burden of presenting sufficient evidence to support a reasonable
belief that Jones had committed witness tampering or official
misconduct. Ruling & Order at 10–11. A majority of the court of
appeals affirmed on both counts, observing that ―[t]he Act does not
impose its duties on all police officers at all times but rather on
police officers who are responding to allegations of domestic
violence.‖ State v. Jones, 2014 UT App 142, ¶ 20, 330 P.3d 97. Because
in its view ―[t]he totality of the circumstances of the . . . incident
includes undisputed evidence that [D.M.] called Jones on his
personal cell phone and that Jones responded to that personal call
solely in his capacity as Travis‘s brother,‖ the court concluded that
there was insufficient evidence to support a bindover. Id. ¶ 23. Judge
Christiansen dissented on this point, asserting that Jones‘s legal duty
as a law enforcement officer was triggered when D.M. made an
allegation of domestic violence. Id. ¶ 41. For the second count, the
court of appeals held that ―[w]e cannot infer Jones‘s belief of an
official investigation from his actions when . . . those actions did not
constitute a crime or otherwise suggest the likelihood of an
investigation.‖ Id. ¶ 33. On that count the court of appeals‘ decision
was unanimous.
II
¶ 11 The prosecution bears the burden of proof at a preliminary
hearing. That burden protects our citizens from ―groundless and
improvident prosecutions,‖ State v. Virgin, 2006 UT 29, ¶ 20, 137 P.3d
787, or in other words, from ―the substantial degradation and
expense incident to a modern criminal trial when the charges . . . are
unwarranted or the evidence insufficient,‖ State v. Anderson, 612 P.2d
778, 784 (Utah 1980). It does so by requiring the prosecution to
―present sufficient evidence to support a reasonable belief that an
offense has been committed and that the defendant committed it.‖
State v. Clark, 2001 UT 9, ¶ 16, 20 P.3d 300.
¶ 12 Yet the prosecution‘s burden is light. The question at the
preliminary hearing is whether the prosecution has presented
evidence sufficient to sustain ―probable cause.‖ This is the same
standard that applies on review of an arrest warrant. See State v.
Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444.
¶ 13 To establish probable cause, the evidence need not rise to a
level ―supporting a finding of guilt‖ at trial. Virgin, 2006 UT 29, ¶ 20
(citation omitted). ―[N]or do we require the prosecution ‗to eliminate
alternative inferences that could be drawn from the evidence in favor
of the defense.‘‖ State v. Schmidt, 2015 UT 65, ¶ 18, 356 P.3d 1204
(citation omitted). ―Rather, a magistrate has discretion ‗to decline
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bindover‘ only ‗where the facts presented by the prosecution provide
no more than a basis for speculation.‘‖ Id. (citation omitted). Thus,
the magistrate may ―disregard or discredit‖ the prosecution‘s
evidence only when it is ―‘wholly lacking and incapable of creating a
reasonable inference regarding a portion of the prosecution‘s
claim.‘‖ Virgin, 2006 UT 29, ¶ 24 (citation omitted). ―It is therefore
not appropriate for a magistrate to evaluate ‗the totality of the
evidence in search of the most reasonable inference‘ at a preliminary
hearing.‖ Schmidt, 2015 UT 65, ¶ 18 (emphasis added) (citation
omitted). ―Our justice system entrusts that task to the fact-finder at
trial.‖ Id.
¶ 14 We review the decision of the court of appeals under these
standards. ―We apply a de novo standard of review in assessing the
court of appeals‘ decision . . . .‖ State v. Maughan, 2013 UT 37, ¶ 12,
305 P.3d 1058. In so doing, however, we recognize that the
correctness of the court of appeals‘ decision ―turns in part on
whether it applied an appropriate standard of review in affirming
the magistrate‘s decision, and that a magistrate‘s bindover decision
is a mixed determination that is entitled to some limited deference.‖
Id.
¶ 15 We reverse. We conclude that the State has presented
evidence supporting a reasonable belief that each offense in question
was committed by the defendant. The evidence on at least some
elements of the crimes in question is limited. And the State‘s
evidence may perhaps seem outweighed by evidence cutting the
other way. But we find that the court of appeals—and, in turn, the
magistrate—erred in weighing the evidence in search of the most
reasonable inference. And we reverse on that basis.
A
¶ 16 The first crime in question is a misdemeanor charge of official
misconduct under Utah Code section 76-8-201. Official misconduct is
implicated where a ―public servant . . . knowingly refrains from
performing a duty imposed on him by law or clearly inherent in the
nature of his office,‖ ―with an intent to benefit himself or another or
to harm another.‖ UTAH CODE § 76-8-201.
¶ 17 Jones stands charged with failing to respond to an
―allegation,‖ ―call,‖ or ―complaint[]‖ of domestic violence under
Utah Code sections 77-36-2.1 & 2.2. By statute, law enforcement
officers who respond to an allegation of domestic violence are
required to ―use all reasonable means to protect the victim and
prevent further violence.‖ Id. § 77-36-2.1(1). They are further bound
to ―arrest without a warrant or . . . issue a citation to any person‖
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STATE v. JONES
Opinion of the Court
they have ―probable cause to believe has committed an act of
domestic violence.‖ Id. § 77-36-2.2(2)(a).
¶ 18 Jones‘s alleged crime was in failing to fulfill these statutory
duties ―knowingly‖ and ―with an intent to benefit himself or another
or harm another.‖ Id. 76-8-201. The court of appeals found the
prosecution‘s case lacking on a threshold element—on whether Jones
was responding to a domestic violence call as a law enforcement officer.
It concluded that ―the totality of the evidence‖ undermined ―the
State‘s proposed inference that Jones responded to [D.M.‘s] personal
call as a police officer making an official response to a domestic
violence call.‖ Jones, 2014 UT App 142, ¶¶ 24, 33. Thus, the court of
appeals acknowledged that the prosecution had presented evidence
―consistent with an inference of official capacity.‖ Id. ¶ 24. But it
rejected that evidence on the ground that it was not to be ―viewed in
isolation.‖ Id. And ―in light of all of the evidence presented to the
magistrate,‖ the court of appeals concluded that ―the inference
presented by the State ‗falls to a level of inconsistency or
incredibility‘‖ that it could not reasonably be accepted. Id. (quoting
State v. Machan, 2013 UT 72, ¶ 8, 322 P.3d 655).
¶ 19 The magistrate‘s analysis was along similar lines. He
dismissed the official misconduct charge on the basis of his
determination that there was ―no showing‖ that Jones was
―responding to an allegation of domestic abuse.‖ Ruling and Order at
8.
¶ 20 We view the record differently. We find sufficient evidence to
sustain a reasonable inference that Jones committed official
misconduct in knowingly failing to respond to an allegation of
domestic violence, and that he did so with an intent to benefit
himself or another. And we reverse on the ground that the court of
appeals—and, initially, the magistrate—erred in substituting its own
reasonable inference for that advanced by the prosecution.
¶ 21 As the court of appeals indicated, the evidence presented at
the hearing included grounds supporting Jones‘s view that he was
not responding to an allegation or complaint of domestic violence:
D.M. ―called Jones on his personal cell phone‖; both Jones and D.M.
testified that they believed that Jones responded to the call ―solely in
his capacity as Travis‘s brother‖ and that Jones was not ―present as a
police officer‖; Jones informed D.M. ―at the scene that he could not
become professionally involved because he was Travis‘s brother‖;
and Jones ―repeatedly offered to contact the sheriff‘s office if [D.M.]
desired official law enforcement involvement.‖ 2014 UT App 142,
¶ 23. This evidence may very well support a verdict at trial in Jones‘s
favor.
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¶ 22 But that is not the benchmark. The liberal bindover standard
does not authorize the courts to second-guess the prosecution‘s
evidence by weighing it against the totality of the evidence in search
of the most reasonable inference to be drawn therefrom. Under the
probable cause standard, we are required to take the perspective of
the reasonable arresting officer—and to do so through a lens that
gives the benefit of all reasonable inferences to the prosecution.
Thus, 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. And in
making that assessment we are required to give the benefit of all
reasonable inferences to the prosecution.4
¶ 23 We disagree with the court of appeals‘ (and the magistrate‘s)
assessment of the evidence under this standard. We find sufficient
evidence cutting in favor of a reasonable determination that Jones
was acting in the capacity of a law enforcement officer responding to
an allegation of domestic violence—enough evidence to sustain a
reasonable determination of probable cause to place Jones under
arrest for official misconduct.
¶ 24 In light of this evidence, it cannot properly be said that ―[t]he
undisputed evidence‖ indicates that ―Jones was summoned and
responded solely as a family member.‖ Id. ¶ 24 (emphasis added). At
most it could be said that there is evidence going both ways—and,
perhaps, that a strong argument can be made on this record that
Jones was acting as a family member and not as an officer of the law
when he was summoned to the home shared by his brother and by
D.M. But 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. We think there was enough evidence to sustain an
arresting officer‘s reasonable inference that Jones was acting as a law
enforcement officer when he was summoned by phone to his
brother‘s house.
¶ 25 Second, the evidence in question is not limited to the
circumstances of the initial call to Officer Jones. The applicable
statutes do not require a formal dispatch call on a domestic violence
charge. They require only that the officer ―respond[] to a domestic
violence call,‖ which is framed alternatively in the statute as an
4 See State v. Schmidt, 2015 UT 65, ¶¶ 21–22, 356 P.3d 1204
(clarifying that the bindover standard requires only a reasonable
basis for an arrest, ―not a reasonable basis for a conviction‖ at trial).
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STATE v. JONES
Opinion of the Court
―allegation‖ or ―complaint‖ of domestic violence. UTAH CODE §§ 77-
36-2.1(1), 2.2(1), (3)–(6). So even if Jones‘s initial arrival at his
brother‘s home was not a response to a domestic violence call, it
could have become one after he arrived. See Jones, 2014 UT App 142,
¶¶ 40–41 (Christiansen, J., dissenting) (concluding that Jones was
responding to a domestic violence allegation as a law enforcement
officer ―once he arrived at his brother‘s house and was informed of
the situation‖). And there is evidence in the record to support a
reasonable inference along those lines.
¶ 26 Upon arriving at his brother‘s house, Officer Jones discovered
that his brother was drunk, that D.M. alleged that Travis had kicked
her, and that Travis had scratched himself in an effort to get D.M.
arrested (and, by permissible inference, to try to justify his act of
kicking D.M.). This was enough to sustain a reasonable inference
that Jones was confronted with an allegation or complaint of
domestic violence after arriving at his brother‘s house (even if the
initial call was something else)—particularly in light of the evidence
of Jones‘s knowledge of his brother‘s history of violence while
intoxicated.
¶ 27 As Jones notes, there was apparently no indication of redness
or bruising resulting from Travis‘s alleged kick. But such evidence
isn‘t required to sustain a reasonable determination of a credible
allegation of domestic violence. See State v. Robbins, 2009 UT 23, ¶ 14,
210 P.3d 288 (concluding that a ―jury can convict on the basis of the
‗uncorroborated testimony of the victim‘‖ (citation omitted)). Here,
moreover, we must view the evidence in the light most favorable to
the prosecution. Viewed in that light, we conclude that there is
enough evidence to sustain a reasonable inference that Officer Jones
was faced with a credible complaint of domestic violence after he
arrived at his brother‘s home. And at that point, he became subject to
the statutory duties imposed on law enforcement officers even if his
response to the initial call from D.M. was a mere personal errand. See
UTAH CODE § 76-8-201.
¶ 28 That leaves only the question whether there was probable
cause for a reasonable officer to conclude that Jones‘s alleged failure
to respond to a domestic violence complaint was ―with an intent to
benefit himself or another or to harm another.‖ Id. Again we find
sufficient evidence to support this element. The relevant evidence—
that D.M. stated that she and Travis could not ―afford‖ to have
Travis go to jail ―again,‖ Interview at 8—could support a reasonable
conclusion that Jones was seeking to spare himself or his brother the
trouble and economic consequences of an arrest and possible jail
time and eventual conviction.
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Opinion of the Court
¶ 29 There is also evidence cutting the other way. Jones may not
have ultimately perceived a genuine threat of domestic violence.
And while he was at his brother‘s home, he expressly urged D.M. to
call the Summit County Sheriff‘s Office if she wished to pursue the
matter further, and even offered to contact them himself. In light of
these circumstances, a reasonable officer investigating Jones‘s
activity could properly conclude that there was no legitimate
domestic violence situation to be dealt with, and that any failure on
Jones‘s part was not to benefit himself or his brother but simply to
handle the situation as he thought best.
¶ 30 But again that is not the standard. Jones may ultimately be
acquitted on this count. The factfinder at trial might well decide that
Jones was acting in good faith and not in an attempt to benefit
himself or his brother.
¶ 31 The judicial role at this stage, however, is not to prejudge the
likely outcome of trial. It is simply to ask whether there is a
nonspeculative basis in the evidence to sustain a reasonable basis for
an arrest on the crime in question. We find the record to support
such a basis and accordingly reverse.
B
¶ 32 The second crime in question is witness tampering under
Utah Code section 76-8-508(1). ―A person is guilty of the third degree
felony of tampering with a witness if, believing that an official
proceeding or investigation is pending or about to be instituted, or
with the intent to prevent an official proceeding or investigation, he
attempts to induce or otherwise cause another person to . . . testify or
inform falsely.‖ Id.
¶ 33 The charge against Jones under this statute was based on
statements Jones made when he visited his brother in jail the
morning after the incident in question. Specifically, Jones is charged
with telling his brother that he was asleep when Jones arrived at his
home the night before, and with reiterating that point in a
conversation with the jailer. The theory of the prosecution is that
testimony stating that Travis was asleep throughout Jones‘s visit to
his home would make it less likely that Jones would be investigated
or charged with official misconduct—since a sleeping Travis could
not have engaged in domestic violence while Jones was at his home.
And, because Jones had reason to suspect that the arresting officers
had learned that he had been at his brother‘s home earlier in the
evening, Jones may have had a basis for anticipating an investigation
into his handling of the incident.
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STATE v. JONES
Opinion of the Court
¶ 34 The magistrate dismissed this charge on the ground that there
was no evidence that an official investigation was pending or about
to be instituted when Jones spoke with Travis. Ruling & Order at 9–
10. He also found a lack of evidence of mens rea—as to whether Jones
believed that such an investigation was imminent. Id. at 9.
¶ 35 The court of appeals agreed. First, the court of appeals noted
the basis for its dismissal of the official misconduct charge—that the
evidence established that Jones was at his brother‘s home ―solely on
a family matter or ‗personal frolic.‘‖ Jones, 2014 UT App 142, ¶ 33.
From that premise the court of appeals concluded that there was no
evidence to sustain a reasonable inference that Officer Jones believed
that an investigation was imminent. If there were some basis ―for
Jones to believe that there would be an investigation,‖ the court
acknowledged that Jones‘s ―statement to Travis might give rise to an
inference that he lied to Travis in order to impede that
investigation.‖ Id. ¶ 34. ―But in the absence of other evidence that
Jones believed an investigation was likely,‖ the court concluded that
it could not ―‗reasonably and logically‘ deduce that Jones believed
that an investigation was pending merely from the evidence that he
told Travis that he was passed out.‖ Id.
¶ 36 In so concluding, the court of appeals noted that the ―State‘s
proposed inference‖ from the evidence was ―not the only possible
explanation of Jones‘s statement.‖ Id. ¶ 36. The court deemed it ―just
as likely that Jones visited Travis in jail simply to check on his
condition and told Travis that he had passed out . . . so as not to
prompt a discussion of the prior evening‘s events.‖ Id. And absent
―independent evidence to support the State‘s proposed inference,‖
the court deemed the prosecution‘s case against Jones a matter of
―speculation rather than reasoned and logical deduction.‖ Id.
¶ 37 Again we see the matter differently. We disagree both with
the court of appeals‘ starting premise and with the basis for its
ultimate holding. The court‘s initial premise fails for reasons set forth
above in our analysis of the official misconduct charge: We find
ample grounds for concluding that Jones was in a position of a law
enforcement officer responding to an allegation of domestic violence
and not ―solely on a family matter or ‗personal frolic.‘‖ Id. ¶ 33. And
with that in mind, we see more than a nonspeculative basis for an
arresting officer to find probable cause for a determination that Jones
may have believed that an official investigation was imminent.
¶ 38 As with the official misconduct charge, the factfinder could
well reach a contrary conclusion at trial. There are grounds in the
record for a jury to conclude that Jones was simply checking on his
brother and seeking to avoid a difficult ―discussion of the prior
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evening‘s events.‖ Id. ¶ 36. As Jones noted in his brief to this court,
that conclusion would be supported by evidence that Jones
ultimately cooperated fully in the investigation into his conduct and
was ―more than candid about his actions,‖ telling detectives ―that he
was at his brother‘s house that night and that while he was there, he
had put Travis to bed and that Travis was asleep in his bed before he
left the residence.‖5 Resp. Br. 20.
¶ 39 For these and other reasons, it may be that the factfinder will
draw an inference in Jones‘s favor at trial and render a verdict of
acquittal on this charge. Id. But again, our role is constrained in the
bindover decision. It is not to decide whether we think the charges
are likely to produce a conviction, or even whether we would be
inclined to press charges if we were in a position to exercise
prosecutorial discretion. Our task is much more circumscribed. It is
to decide whether any reasonable police officer, viewing this record
in the light most favorable to the prosecution, could conclude that
Jones committed the offense of witness tampering.
¶ 40 We have no quarrel with the proposition that ―[t]he State‘s
proposed inference is . . . not the only possible explanation of Jones‘s
statement[s]‖ about his brother being asleep when he visited him on
February 15, 2011. Jones, 2014 UT App 142, ¶ 36. But the court of
appeals‘ analysis stems from a misstatement of the governing legal
standard.
¶ 41 At the preliminary hearing, our magistrates may not dismiss a
criminal charge because they think there is a ―possible‖ inference
from the evidence supporting an acquittal. See State v. Schmidt, 2015
UT 65, ¶ 18, 356 P.3d 1204 (the prosecution is not required ―to
eliminate alternative inferences that could be drawn from the
evidence in favor of the defense‖ (citation omitted)). The bindover
bar is quite a bit lower than that. We have said that it is ―not
appropriate for a magistrate to evaluate ‗the totality of the evidence
in search of the most reasonable inference‘ at a preliminary hearing.‖
Id. (citation omitted). So it is error to dismiss a charge at the
5 As the State indicates, Jones‘s subsequent cooperation cannot
conclusively defeat the charge of witness tampering, as ―[t]he crime
is accomplished by committing an act with intent to prevent an
investigation,‖ and subsequent repentance ―does not obviate [the
defendant‘s] culpability.‖ Pet. Reply at 9. But that does not render
Jones‘s subsequent cooperation irrelevant. On an element as difficult
to prove as mens rea, subsequent activity may be particularly
probative.
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preliminary hearing because we deem an acquittal ―just as likely‖
as—or even more likely than—a conviction. Jones, 2014 UT App 142,
¶ 36; see State v. Schmidt, 2015 UT 65, ¶¶ 17–18 (―[T]he state‘s burden
at a preliminary hearing is probable cause—the same evidentiary
threshold it must meet to secure an arrest warrant . . . . The ‗evidence
does not need to be capable of supporting a finding of guilt beyond a
reasonable doubt.‘‖ (citation omitted)).
¶ 42 The operative standard, again, is simply whether a reasonable
officer, viewing the evidence in the light most favorable to the
prosecution, could possibly conclude that each element of the
offense in question was committed by the defendant. We reverse and
hold that Officer Jones is subject to trial on the witness tampering
charge under that permissive standard.
¶ 43 The relevant evidence, viewed in the light most favorable to
the prosecution, shows that Jones was responding as a law
enforcement officer to a domestic violence call at his brother‘s home,
and that Jones had a basis for concluding that the sheriff‘s officers
who arrested Travis knew that Jones had been at the home earlier
the same night. On that basis, a reasonable arresting officer could
properly infer that Jones‘s statements to his brother and to the jailer
were aimed at preventing an investigation into Jones‘s official
misconduct. The relevant evidence suggested that Jones had
probable cause to believe that his brother had committed an act of
domestic violence; that Jones was aware of—and knew he had not
complied with—his statutory duties as a law enforcement officer
faced with this charge of domestic violence; and that Jones knew that
sheriff‘s deputies had responded later the same evening and arrested
his brother on domestic violence charges.
¶ 44 This evidence is sufficient to sustain a reasonable
determination of probable cause on the element of belief ―that an
official proceeding or investigation is pending or about to be
instituted,‖ or ―intent to prevent an official proceeding or
investigation.‖ UTAH CODE § 76-8-508(1). Based on all the
circumstances, and viewing them in the light most favorable to the
prosecution, it is reasonable to infer that Jones believed that an
investigation was imminent or intended to prevent one from being
initiated.
¶ 45 The evidence also sustains a reasonable inference that Jones
―attempt[ed] to induce or otherwise cause another person to . . .
testify or inform falsely.‖ Id. If the factfinder determines that Jones
believed that an investigation was imminent or was seeking to
prevent one from being initiated, it could also infer that Jones was
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trying to influence his hung-over and possibly memory-impaired
brother‘s recollection of events from the night before.
¶ 46 The State‘s proposed inferences may not ultimately be
accepted by the jury at trial. It may prove difficult to persuade a jury
that Jones was not just checking in on his brother but trying subtly to
solicit his false testimony. But that is not the issue. The question
presented concerns probable cause to arrest. And we hold that the
State carried its limited burden on that issue.
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