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.
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BACKGROUND1

¶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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20190569-CA 3 2020 UT App 172

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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20190569-CA 14 2020 UT App 172

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 dogtracked 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 
State v. Prisbrey

20190569-CA 17 2020 UT App 172

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 
State v. Prisbrey

20190569-CA 18 2020 UT App 172

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.
State v. Prisbrey

20190569-CA 19 2020 UT App 172

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.
State v. Prisbrey

20190569-CA 20 2020 UT App 172

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...)
State v. Prisbrey

20190569-CA 21 2020 UT App 172

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.
State v. Prisbrey

20190569-CA 22 2020 UT App 172

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...)
State v. Prisbrey

20190569-CA 23 2020 UT App 172

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.