2020 UT App 172



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appell ant
,

v. C LARE E UGENE P RISBREY , Appell ee

.
Opinion

N o. 20190569

- CA
Filed December 24, 2020

Fifth District Court, Iron County Department
The Honorable Keith C . Barnes
No.1 81500247

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

, Attorney for Appellee

J UDGE R YAN M. H ARRIS authored th is Opinion

, in which J UDGE D AVID N. M ORTENSEN concurred. J UDGE J ILL M. P OHLMAN 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

20190569

- CA 2 2020 UT App 172 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 b locks, 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; Pris brey 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 C hurch of Jesus Christ of Latter

- d ay 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 n o t think about it, and merely forgot. The St ate 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
A pp 210, n.1, 457 P.3d 1121 (quotation simplified).State v. Prisbrey

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.” C hief 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, firef ighters 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, us e 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 ho ur” to get the blaze contained.

¶6 On ce the fire was contained, C hief 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.” C hief 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. A nother 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 statem ent or the extent to which it might be correct. Second, C hief 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 th ings, C hief spoke with Prisbrey and asked him if he had any idea how the fire may have started.State v. Prisbrey

20190569

- CA 4 2020 UT App 172 Prisbrey told Ch ief that , about two weeks earlier, his do g 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, t his piece of
information added to C hief’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 S tate F ire M arshal to ask it to invest igate.
C hief 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 M arshal’s office could arrive.

¶8 Th e following morning, New Year’s Day 2018, a section

manager from the S tate F ire M arshal’s office (Marshal) arrived
on the scene. B efore 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

occurr ed 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 specifica lly 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. Prisb rey also pointed out where his “ overly dry” Christmas tree had been
located. During his walk

- through, M arshal saw signs that the fire may have spread quickly through the house, “more quickly than [he] would have expected.”State v. Prisbrey

20190569

- CA 5 2020 UT App 172 ¶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 inch es

— 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 a erosols and flammable liquids.”

¶11 Perhaps most significantly, Marshal noticed, along the
wall between t he 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 C hief and the
local fire marshal whe ther the two holes had been created “during suppression” by high

- pressure water hoses, and C hief
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 “s aid 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...)State v. Prisbrey

20190569

- CA 6 2020 UT App 172 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 knowl edge 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 “belie ved [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 l aw enforcement or by the office of the S tate F ire M arshal

— 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.State v. Prisbrey

20190569

- CA 7 2020 UT App 172 ¶13 Despite conducting no further investigation, Marshal testified at the preliminary hearing that, in his opinion, “this was an arson.” In re sponse 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, tha t 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 an y 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
h is 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 can s, as well as the lit candles.”

¶14 Soon after the fire, Prisbrey notified his insurance company and submitted a claim, th erein 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 photograph s 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 samplesState v. Prisbrey

20190569

- CA 8 2020 UT App 172 for the presence of accelerants. Those sa mples were later tested, and Investigator testified that they showed no sign of accelerant s 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 partic ular, 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, Investigato r 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

c reated

— 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
wh ile 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 detai ling 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 insuranc e 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 I nsurance F raudState v. Prisbrey

20190569

- CA 9 2020 UT App 172 D ivision 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.
D uring his testimony, Investigator described his investigation,
the conclusion he had drawn from it

— th at 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
char ge, determining that , even though the State’s burden “is not very high,” the State had failed to meet that burden.

ISSUE AND STANDARD O F 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 cont ext, 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 ha ve 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.State v. Prisbrey

20190569

- CA 10 2020 UT App 172 ¶20 Our supreme court has noted that “probable cause never
had and never will h ave 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 committe d it.” Id. ¶ 16; accord Utah R. Crim. P. 7B(b); State v. Schmidt , 2015 UT 65, ¶ 17, 3 56 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” f ormulation 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 arr est 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, ” s ee 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 conductingState v. Prisbrey

20190569

- CA 11 2020 UT App 172 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 opp ortunity 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 reaso nable 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 wh ich there is no certain knowledge at hand.” Id. (quotation simplified). As our supreme court has explained, “theState v. Prisbrey

20190569

- CA 12 2020 UT App 172 difference between an inference and speculation depends on whether the underlying facts support the conclusion.” Id. ; see also
S alt 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,”
“intent ionally 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.2 d 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 Yea r’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) t hat 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 p resent 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 sp arsely furnished, and had heard that Prisbrey had removed items to a storage unit prior to the fi re; (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 int o 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.State v. Prisbrey

20190569

- CA 13 2020 UT App 172 ¶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 investi gation, 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 co nsider 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 warran t, 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 Ne w 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
dem onstrated 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

appea red 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 caus e

. 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 adjud ged this case to be one of those rare cases in which the State’s evidence did not surmount the lowState v. Prisbrey

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
Carrer a , 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 Prisbre y 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 app lied 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 s uspicion 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 arsonou s intent

.State v. Prisbrey

20190569

- CA 15 2020 UT App 172 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 th e 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 fu el 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 preliminar y 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
i s 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 s ure 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 i ntention of determining whether there was anyState v. Prisbrey

20190569

- CA 16 2020 UT App 172 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 th e 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, bas ed 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 indicativ e 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 fol lowing 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, t he presence of the holes themselves is not, in itself, indicativ e 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 hole s 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 ofState v. Prisbrey

20190569

- CA 17 2020 UT App 172 the wall, and did not talk to any members of the fi re 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 fact s . 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 a n 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 “fairState v. Prisbrey

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- CA 18 2020 UT App 172 probabili ty” 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 major ity 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 le ns 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 prosecut ion, 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 th ese 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 ev idence 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 l arge 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 ae rosols 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 arresti ng 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 th e 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 vill age 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

v ariety, 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 majorit y” 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
testim ony 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, Pri sbrey’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
evi dence 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 founda tion 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 entire ly 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. Rathe r, 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 a way 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 assumpt ion 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

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- CA 22 2020 UT App 172 we re 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 pr esented 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
favorab le 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 permitt ed 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 testifie d 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 h oles 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 he aring, 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 S tate 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 therefr om 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,
demo nstrated 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

- exam ination 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.