State v. Virgin
| Decision Date | 16 May 2006 |
| Docket Number | No. 20040715.,20040715. |
| Citation | 137 P.3d 787,2006 UT 29 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Cory VIRGIN, Defendant and Petitioner. |
| Court | Utah Supreme Court |
Mark L. Shurtleff, Att'y Gen., Kris Leonard, Asst. Att'y Gen., Salt Lake City, Troy S. Rawlings, Farmington, for plaintiff.
Larry R. Keller, Salt Lake City, for defendant.
On Certiorari to the Utah Court of Appeals.
INTRODUCTION
¶ 1 In this case, we review a magistrate's decision not to bind a defendant over for trial. The Defendant, Cory Virgin, was charged with aggravated sexual abuse of a child. After considering evidence at a preliminary hearing, the magistrate declined to bind Virgin over, concluding that the State had failed to establish the requisite probable cause that Virgin had committed the crime charged. The court of appeals reversed, determining that the State had submitted sufficient evidence to establish probable cause, as this court has defined that term. We now reverse the court of appeals and, in this opinion, address both the standard to be applied by magistrates in making bindover determinations and the standard to be applied by appellate courts in reviewing those determinations.
¶ 2 The current petition arises from an alleged incident that occurred on March 6, 2000, when Rebecca Stewart and her then-boyfriend, Cory Virgin, babysat her four-year-old niece, M., and M.'s younger brother. The day after Stewart and Virgin babysat, M.'s mother heard M. using the words "penis" and "vagina." When asked, M. told her mother that she learned these words from Virgin. Then, while driving to St. George on the following day, M. told her mother that Virgin had "put his finger in her bottom."
¶ 3 Once in St. George, M.'s parents took her to the Washington County Children's Justice Center, where Dr. Kerri Smith interviewed and examined her. M. told Dr. Smith that she was in the bathroom when Virgin walked in and "took her underwear down." She said that Virgin "put his finger in her bottom" and pointed at her anus. M. explained that "it hurt when he did that but he took it out quickly." Next, she explained that Virgin told her he was going to get a picture to show her what a penis looked like; he did, and then he left. Dr. Smith performed a physical examination and a genital exam and found "no evidence of any abnormalities." Dr. Smith noted, however, that "a normal exam does not rule out the possibility of sexual abuse."
¶4 On March 9, 2000, after M.'s mother told Stewart about the accusations, Stewart wrote a statement at Virgin's request that described, in detail, their evening babysitting M. In the statement, Stewart notes that, during dinner, M. told of going rollerblading with her parents, and described her pink and white, mermaid rollerblades. Later that night, M.'s mother confirmed to Stewart that M.'s account was untrue and indicated that M. did not have any rollerblades. Stewart's statement also notes two times where she left Virgin and M. alone for a short time while she went to the bathroom in the upstairs bathroom. Although Stewart's statement notes that Virgin went to the bathroom, it makes no mention of M. leaving at the same time.
¶5 On March 13, 2000, after the family returned to Salt Lake, Detective Scott Stevens interviewed M. at the Children's Justice Center ("2000 Interview"). In that interview, M. told Stevens that in the upstairs bathroom Virgin touched her with his finger on her bottom and that he talked about penises and vaginas. M. explained that, after she went to the bathroom, Virgin helped her button up her pants.
¶6 In the interview, M. also said that she, Virgin, and Stewart then went into her bedroom and played "[b]ottom," a game where "[y]ou tried to touch somebodies [sic] bottom when you . . . you try to touch their pants and their bottom." M. stated that she told Stewart what Virgin did and that Stewart then told Virgin that he "did a no-no." During the interview, M. made no mention of Virgin showing her a picture of a penis and reported that Virgin had his clothes on the whole time. M. further stated that after the incident she went back downstairs and played Barbie.
¶ 7 After the interview, the detective from the City of North Salt Lake Police Department, attorneys from the County Attorney's Office, and the staff of the Children's Justice Center decided that there was insufficient evidence to bring a case. At some point thereafter, the police department destroyed the videotape of the 2000 Interview, retaining only a transcript.
¶8 In 2002, Detective Tylene Beckstrand reviewed the file and determined that the case "warranted activation and further investigation." After reactivating the case, Detective Beckstrand subpoenaed the records of Dr. Shireen M. Mooers, who had interviewed and examined M. on April 6, 2000. The records show that M. told Dr. Mooers that Virgin touched her between her legs and showed her his penis.
¶9 Detective Beckstrand then set up another appointment at the Children's Justice Center and interviewed M. with Amy Graham, a Justice Center employee ("2002 Interview"). M. told Detective Beckstrand that she was playing Barbie and went upstairs to use the bathroom. She said that Virgin touched her bottom while she was pulling up her pants. She did not say that Virgin talked about or showed her pictures of a penis or vagina. M. reported that Virgin "ha[d] his clothes on the whole time" and "[d]id [not] show [her] any parts of his body." M. described the bathroom where the incident took place, but her description did not match the bathroom in her old house, which is where the alleged abuse took place.
¶10 Virgin was charged with aggravated sexual abuse of a child. Utah Code Ann. § 76-5-404.1 (2003). The court held a preliminary hearing with the Honorable Darwin C. Hansen acting as magistrate. The court heard testimony from Detective Stevens, Detective Beckstrand, and Stewart. The court also reviewed the transcript from the 2000 Interview, the tape from the 2002 Interview, and Dr. Smith's and Dr. Mooers's medical reports.
¶11 At the preliminary hearing, Stewart, who was no longer dating Virgin, testified that she did not know if the abuse happened but that at some time that night, while M., Stewart, and Virgin were playing with blocks and Barbies, Virgin went upstairs to use the restroom. She said that M. then went upstairs to look for Barbie clothes and that, "if it did happen[,] it would have been right there when [Virgin] went to use the bathroom and [M.] excused herself to go get Barbie clothes." Stewart also testified, however, that when M. returned to play with her Barbies, she did not appear distressed, and Stewart specifically denied M.'s claim that M. had told her that night of the alleged abuse.
¶ 12 Stewart also denied having played the "bottom" game that M. described in the 2000 Interview. Detective Beckstrand acknowledged that Stewart did not touch M.'s bottom, and both Detective Stevens and Detective Beckstrand testified that they did not investigate Stewart for any crime. In her testimony, Stewart surmised that M.'s parents accepted that M.'s account about the "bottom" game was untrue because they "know[] me and . . . know[] I wouldn't do that."
¶ 13 The magistrate declined to bind Virgin over for trial and dismissed the information against Virgin without prejudice. In his order denying bindover, the magistrate stated that "the evidence lack[ed] sufficient credibility and reliability to form a reasonable belief that the alleged offense occurred and thus is wholly lacking and incapable of any reasonable inference that would support a bind-over."
¶ 14 The State appealed the magistrate's dismissal of the information against Virgin, and the Utah Court of Appeals reversed the magistrate's dismissal. State v. Virgin, 2004 UT App 251, ¶ 21, 96 P.3d 379. The court of appeals, upon review of the record, concluded that the evidence was sufficient to establish probable cause that Virgin committed the crime and remanded with instructions that he be bound over for trial. Id.
¶ 15 On certiorari, we review the court of appeals' decision for correctness. State v. Orr, 2005 UT 92, ¶ 7, 127 P.3d 1213 (citing Allstate Ins. Co. v. Wong, 2005 UT 51, ¶ 12, 122 P.3d 589). "Our review extends no further than to determine whether the court of appeals accurately reviewed the trial court's decision under the appropriate standard of review." Id.
¶ 16 In deciding this case, we must address three issues: (1) the appropriate legal standard for a preliminary hearing; (2) whether magistrates' bindover determinations are entitled to any deference on appeal; and (3) whether, under the specific facts of this case, the magistrate acted within his discretion when he declined to bind Virgin over for trial. The first two questions are questions of law, which we review for correctness. Monticello v. Christensen, 788 P.2d 513, 516 (Utah 1990). As we discuss at length in Part II of the Analysis, the third question is a mixed question of law and fact to which we grant some deference. We will discuss each of these questions in turn.
¶ 17 We first discuss the appropriate legal standard to be applied at a preliminary hearing. Although there has been some confusion over the standard, we reaffirm our conclusion in State v. Clark that the appropriate standard is probable cause. 2001 UT 9, ¶ 10, 20 P.3d 300. In order to establish probable cause, the prosecution must produce evidence sufficient to support a reasonable belief that the defendant committed the charged crime. Id. ¶ 16.
¶ 18 The confusion over this standard predates Clark. Id. ¶ 11. Before Clark, this court tried multiple times to articulate a standard of proof that fell "somewhere between the reasonable belief necessary to support a warrant and the...
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