2023 UT App 84

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

WILLIAM BLAINE CLAYTON,

Appellant.

Opinion

No. 20210890-CA

Filed August 3, 2023

Third District Court, West Jordan Department

The Honorable William K. Kendall

No. 191403929

Robert T. Denny, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik,

Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY

concurred. 

HARRIS, Judge:

¶1 At William Clayton’s preliminary hearing, the State did not 

call a live witness; instead, the State offered only documentary 

evidence, including written declarations from two police officers. 

Based solely on this evidence, the magistrate bound Clayton over 

for trial. Clayton later moved to quash the bindover, arguing that 

the State’s evidence was insufficient to support it. The district 

court denied the motion, and we granted Clayton leave to take an 

interlocutory appeal from that decision. We perceive no error in 

the court’s actions, and therefore affirm. 
State v. Clayton

20210890-CA 2 2023 UT App 84

BACKGROUND

¶2 Clayton was arrested and charged with third-degreefelony DUI and two misdemeanor drug counts, and the case 

proceeded to a preliminary hearing. At that hearing, the State

opted not to call any live witnesses, but instead relied solely on

documentary evidence. Specifically, the State offered a toxicology 

report showing that Clayton had drugs in his system, court 

records showing that Clayton had prior DUI-related convictions, 

and written statements from two police officers (Officer 1 and 

Officer 2). In their statements, which were both captioned 

“WITNESS STATEMENT FOR USE AT PRELIMINARY 

EXAMINATION,” the officers indicated that they were police 

officers and that they were “providing th[e] statement[s] in lieu of 

[their] personal appearance[s]” at the hearing. Both statements 

included a photograph of a man that each officer identified as 

Clayton. Each officer then spent several paragraphs describing 

their involvement in the events that led to Clayton’s arrest.

¶3 In her statement, Officer 1 recited that she “responded to a 

report of a male who would not wake up and was slumped over 

in the driver’s seat” of a vehicle that was “stopped in traffic.” The 

man “was not breathing, and was foaming at the mouth.” A 

“female passenger” in the vehicle told Officer 1 that the man “had 

taken ‘spice,’” and Officer 1 “administered two doses of Narcan.” 

Soon thereafter, Officer 1 observed the man start to “become alert 

and take shallow breaths,” and Officer 1 arranged for the man to 

be transported to a hospital. By examining the man’s driver 

license, Officer 1 identified the man as Clayton. Later, Officer 1 

traveled to the hospital and “made contact with Clayton.” Officer 

1 observed that Clayton “had blood shot eyes and was not being 

cooperative”; Clayton “initially refused a blood test, but 

eventually agreed to a blood draw,” the results of which “showed 

the presence of 11 nanograms per milliliter of Lorazepam and 60 

nanograms of Trazadone per milliliter of blood.” (Emphasis 

added.) Officer 1 also recited that her fellow officer, Officer 2, 

informed her “that while he was securing [Clayton’s] car, he 
State v. Clayton

20210890-CA 3 2023 UT App 84

located suspected spice in the driver’s side door and an apple 

bong on the front passenger floorboard.”

¶4 In his statement, Officer 2 recited that he “responded . . . to 

a report of a male who was stopped in traffic on the road” and 

who “would not wake up and was slumped over in the driver’s 

seat.” After Clayton “was transported to the hospital,” Officer 2 

was responsible for “securing Clayton’s car,” and in the process 

of completing that task, Officer 2 “observed 3 vials of a green leafy 

substance in the driver’s side door, which” he “suspected to be 

‘spice.’” Officer 2 also located “an apple bong on the passenger 

side floor.” He stated that “[t]he leafy substance was sent to the 

Utah Bureau of Forensic Services” which identified it as “a listed 

controlled substance.”

¶5 Most of the words in both statements were typed, but the 

officers wrote their initials next to each individual typed 

paragraph and then signed and dated their statements at the 

bottom of the page. In Officer 1’s statement, two words had been 

inserted by hand into the typed text; those words were “per 

milliliter,” the ones emphasized above. 

¶6 Both statements contained a separate box at the top of the 

page that contained the following text:

I understand that pursuant to Rule 1102, Utah Rules 

of Evidence and Section 76-8-504.5, Utah Code 

Annotated, the statements I am about to make in 

this document may be presented to a magistrate or 

a judge in lieu of my sworn testimony at a 

Preliminary Hearing. I also understand that any 

false statement I make and that I do not believe to 

be true may subject me to criminal punishment as a 

Class A Misdemeanor. In Utah a class A 

misdemeanor carries a potential penalty of up to a 

year in jail and a fine of up to $2,500 plus a 90% 

surcharge.
State v. Clayton

20210890-CA 4 2023 UT App 84

I understand the above statement.

(Emphasis in original.) The officers each provided an additional 

signature, located in the box and just below this textual recitation. 

¶7 Clayton objected to the admission of these statements, 

claiming that “without the [S]tate providing some foundation for 

authenticity of the” statements, the magistrate would be unable to 

“make the necessary findings that they are . . . [rule] 1102 witness 

statements.” The magistrate, however, disagreed, and bound

Clayton over for trial on all charges, based on the evidence 

presented by the State. 

¶8 Clayton then moved to quash the bindover, asserting that 

the officers’ statements were inadmissible and that, without those 

statements, the State had failed to present sufficient evidence to 

support the bindover. He argued that, under rule 1102(b)(8) of the 

Utah Rules of Evidence, witness statements needed to be either

“written by the declarants themselves” or “transcribed verbatim” 

by another person. Under this interpretation of the rule, a 

witness statement drafted by another person and signed by the 

declarant would not qualify as admissible. Building on this 

reading of the rule, Clayton asserted that the State had not laid 

sufficient foundation to show that the officers’ statements had 

been either prepared by the officers themselves or transcribed 

verbatim. Clayton also argued that admission of the officers’ 

statements violated the principles set forth in State v. Bertul, 664 

P.2d 1181 (Utah 1983), a case in which our supreme court held that 

police reports are inadmissible in criminal trials. Id. at 1184. But 

Clayton made no argument regarding subsection (6) of rule 

1102(b). 

¶9 After oral argument, the district court denied Clayton’s 

motion, concluding that rule 1102(b)(8) “contains no requirement 

that the witness be the one that writes the statement” and that the 

State did not need to provide any additional foundation in order 

to admit the officers’ statements into evidence. Clayton then 
State v. Clayton

20210890-CA 5 2023 UT App 84

asked for leave to take an interlocutory appeal from the court’s 

order denying the motion to quash, a request that we granted. 

ISSUE AND STANDARD OF REVIEW

¶10 “The determination of whether to bind a defendant over 

for trial generally involves a mixed question of law and fact . . . .” 

State v. Rhinehart, 2006 UT App 517, ¶ 8, 153 P.3d 830. “However, 

when a case presents only a question of law, namely whether 

hearsay used at the preliminary hearing was admissible . . . or 

reliable under rule 1102 of the Utah Rules of Evidence, this court 

will review the bindover determination for correctness[,] giving 

no deference to the [district] court.” Id. And “the district court’s 

interpretation of the Utah Rules of Evidence . . . presents a 

question of law that we review for correctness.” State v. Biel, 2021 

UT 8, ¶ 21, 484 P.3d 1172.

ANALYSIS

¶11 In a provision sometimes referred to as “Utah’s 

Confrontation Clause,” see State v. Timmerman, 2009 UT 58, ¶ 14, 

218 P.3d 590, our state constitution guarantees that “[i]n criminal 

prosecutions the accused shall have the right to . . . be confronted 

by the witnesses against the accused.” Utah Const. art. I, § 12. But 

this provision contains an exception applicable to criminal 

preliminary hearings, added by amendment in 1995; that 

exception provides that “[n]othing in this constitution shall 

preclude the use of reliable hearsay evidence as defined by statute 

or rule in whole or in part at any preliminary examination.” Id.

Enactment of this amendment “removed the constraints of Utah’s 

Confrontation Clause from preliminary hearings.” Timmerman, 

2009 UT 58, ¶ 16. 

¶12 Following the 1995 constitutional amendment, Utah’s rules 

of evidence were also amended to include a definition of “reliable 
State v. Clayton

20210890-CA 6 2023 UT App 84

hearsay.” That definition is found in rule 1102 of the Utah Rules 

of Evidence. See Utah R. Evid. 1102(b) (captioned “Definition of 

Reliable Hearsay”). As relevant here, the rule makes clear that 

“reliable hearsay includes” the following things:

• “a statement of a non-testifying peace officer to a testifying 

peace officer”; and 

• “a statement of a declarant that is written, recorded, or 

transcribed verbatim which is [either] (A) under oath or 

affirmation; or (B) pursuant to a notification to the 

declarant that a false statement made therein is 

punishable.”

See id. R. 1102(b)(6), (8). Since the enactment of these amendments, 

“[a]dmission of evidence at preliminary hearings is exclusively 

governed by the reliable hearsay language in the Utah 

Constitution and rule 1102 of the Utah Rules of Evidence.” 

Timmerman, 2009 UT 58, ¶ 16.

¶13 At the preliminary hearing in this case, the State offered the 

officers’ statements under rule 1102(b)(8), arguing that the 

statements met the requirements of that rule because they were 

“written” and had been made “pursuant to a notification that a 

false statement made therein is punishable.” The magistrate (and, 

later, the district court in connection with the motion to quash) 

accepted the State’s interpretation of the rule, and concluded that 

the statements satisfied the rule and were therefore admissible. 

¶14 Clayton advances a different interpretation of rule 

1102(b)(8). In his view, the rule requires that written rule 1102

statements be either “written by the declarants themselves” or 

“transcribed verbatim,” presumably by another person, from the 

declarants’ statements. Under this interpretation, a witness 

statement drafted by someone other than the declarant, even if 

signed by the declarant, would not meet the requirements of the 

rule absent the existence of foundational evidence indicating that 
State v. Clayton

20210890-CA 7 2023 UT App 84

it had been “transcribed verbatim.” Clayton asserts that the State 

did not provide any evidence demonstrating that the officers’ 

statements were either written by the officers themselves or 

transcribed verbatim from statements they made, and therefore 

maintains that the State has failed to demonstrate that the 

statements comport with the rule’s requirements.1

¶15 The parties thus present to us a question of rule 

interpretation. “When interpreting our rules of evidence, we use 

general rules of statutory construction.” Snow, Christensen 

1. We note that, effective May 2023, our legislature amended rule 

1102—pursuant to its power to amend our rules of evidence, see

Brown v. Cox, 2017 UT 3, ¶ 17, 387 P.3d 1040 (noting that the Utah 

Constitution gives our legislature the “ability to amend” rules of 

evidence “by supermajority”)—to add a provision forbidding any 

“prosecutor, or any staff for the office of the prosecutor,” from 

“draft[ing] a statement for a declarant.” See Utah R. Evid. 

1102(d)(2); see also Act of May 3, 2023, 2023 Utah Laws, S.J.R. 6. 

But we must apply the version of rule 1102 that was in effect at 

the time of the events at issue in this appeal. See State v. Clark, 2011 

UT 23, ¶ 13, 251 P.3d 829 (“[W]e apply the law as it exists at the 

time of the event being regulated by the law in question.”). All of 

those events—Clayton’s arrest, the creation of the officers’

statements, the preliminary hearing, and the filing of the motion 

to quash—occurred in 2019 and 2020, well before the 2023 

amendments to rule 1102. We therefore apply the previous 

version of the rule, rather than the one that includes the 2023 

amendments. At oral argument before this court, both sides were

in agreement on this point, and neither asked us to apply the new 

version of the rule. But to the extent that Clayton asks us to apply 

the new rule as a “clarifying amendment”—something he alludes 

to in his reply brief—we decline that invitation, because our 

supreme court has “expressly repudiate[d] the notion of” a 

“‘clarification’ exception to the general rule against retroactivity.” 

See State v. Steinly, 2015 UT 15, ¶ 11, 345 P.3d 1182. 
State v. Clayton

20210890-CA 8 2023 UT App 84

& Martineau v. Lindberg, 2013 UT 15, ¶ 30, 299 P.3d 1058 (quotation 

simplified). Applying these rules, we interpret the rule in question 

in such a way as “to give meaning to all its parts, avoid . . . 

render[ing] any portion of it superfluous, and . . . maintain its 

harmony with other court rules related to it.” State v. Rothlisberger,

2006 UT 49, ¶ 21, 147 P.3d 1176. We begin with the text of the rule, 

see Snow, Christensen & Martineau, 2013 UT 15, ¶ 30, interpreting 

the language “in accordance with its plain meaning,” State v. Biel, 

2021 UT 8, ¶ 26, 484 P.3d 1172 (quotation simplified). 

¶16 The first part of the relevant subsection provides that 

reliable hearsay includes “a statement of a declarant that is written, 

recorded, or transcribed verbatim.” Utah R. Evid. 1102(b)(8)

(emphases added).2 Both emphasized phrases are important in 

assessing the strength of Clayton’s interpretation of the rule. 

¶17 The phrase “statement of a declarant” includes the notion

that the statement in question must belong to the declarant. But 

that phrase does not require that the statement actually be 

prepared by the declarant; a declarant may ordinarily indicate

ownership of a statement in ways other than by its preparation.

As routinely used in other litigation contexts (e.g., summary 

judgment proceedings in civil cases, or motions filed pursuant to 

rule 23B of the Utah Rules of Appellate Procedure in criminal 

appeals), a declarant’s statement may take the form of affidavits 

or declarations typed up by another individual (often, an attorney 

for a party) and then signed or attested to by the declarant. We are 

aware of no common usage of the phrase “statement of a 

declarant”—or even the term “statement”—that implies a 

requirement that the declarant must have personally prepared the

statement; certainly, Clayton does not identify any such common 

usage. And nothing in the plain meaning of the words “statement 

2. The second part of the subsection is not at issue here, since 

Clayton acknowledges that the officers’ statements were made 

“pursuant to a notification to the declarant that a false statement 

made therein is punishable.” See Utah R. Evid. 1102(b)(8)(B).
State v. Clayton

20210890-CA 9 2023 UT App 84

of a declarant” requires that the statement be written or prepared 

by the declarant personally. We may not, of course, imply 

requirements into the rule that are not indicated by its text. See

State v. Rudolph, 970 P.2d 1221, 1229 (Utah 1998) (stating that 

“courts are not to infer substantive terms into the text that are not 

already there,” and emphasizing that “the court has no power to 

rewrite the statute to conform to an intention not expressed”

(quotation simplified)). 

¶18 Clayton asserts, however, that the other emphasized 

phrase in rule 1102(b)(8)—that the statement be “written, 

recorded, or transcribed verbatim”—supports his interpretation. 

He argues that the third term in this list—“transcribed 

verbatim”—is rendered superfluous under the State’s 

interpretation. In his view, “rule 1102(b)(8) must be read to mean 

that when a third party prepares a declarant’s statement it must 

be ‘transcribed verbatim,’” and that “if a writing prepared by 

someone other than the declarant could qualify” as reliable 

hearsay, “even if it was not ‘transcribed verbatim,’ there would be 

no need to include the ‘transcribed verbatim’ language.” 

¶19 We read the phrase differently. The rule’s use of the 

disjunctive “or” indicates that each item in this three-item list 

operates independently. See Horne v. Flores, 557 U.S. 433, 454 

(2009) (stating that “[u]se of the disjunctive ‘or’ makes it clear that 

each of the provision’s three grounds for relief is independently 

sufficient”). Thus, in order to qualify as reliable hearsay, a 

statement of a declarant need only be either (a) written, 

(b) recorded, or (c) transcribed verbatim. Each of those three items 

stands alone, and has non-superfluous meaning, even in the 

absence of a requirement that declarants prepare their own 

statements. The “written” and “recorded” options seem fairly 

obvious to us: at preliminary hearings, prosecutors may present 

statements from declarants that are either written down or audiorecorded. And in our view, the “transcribed verbatim” option 

exists to cover situations where a declarant has provided an oral 

recorded statement but where prosecutors—because, for 
State v. Clayton

20210890-CA 10 2023 UT App 84

example, they anticipate technical problems presenting the 

recording in court—wish to present that statement to the court on 

paper. In that event, the rule allows them to present a verbatim 

transcription of the declarant’s oral statement. And in such cases, 

the option for a “written” statement would not apply, because the 

actual statement the declarant originally gave was not written. 

¶20 Thus, in our view the interpretation of the rule advanced 

by the State, and adopted by the district court, is the correct one.3

It is in keeping with the plain meaning of the text, does not read 

additional terms into the text, and does not render any of the 

terms superfluous. Under this interpretation, nothing in the rule 

3. Both parties argue that the new version of the rule, as amended

by our legislature in 2023, see supra note 1, supports their 

interpretation of the previous rule. Clayton points to the new 

provision that forbids prosecutors from preparing rule 1102 

statements for declarants, and he asserts that this new language 

bespeaks consistent intent on the part of the drafters to require 

self-prepared statements. The State emphasizes that the new 

provision forbids only prosecutors—but no other third parties—

from preparing rule 1102 statements for declarants, and infers 

therefrom that there is not now, and never has been, any intent on 

the part of the drafters to require all statements to be self-prepared 

by the declarant. In the context of this case, however, we find little 

value in either of these arguments, largely because we are 

skeptical that recent actions taken by our legislature can shed 

much light on what the earlier drafters of rule 1102—presumably 

our supreme court, informed by an advisory committee—might 

have intended in composing the previous version of the rule. See, 

e.g., Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 

102, 117–18 (1980) (stating that “the views of a subsequent 

Congress form a hazardous basis for inferring the intent of an 

earlier one” and are not “entitled to much weight”). We therefore 

give little, if any, weight to the parties’ competing arguments 

about which way the 2023 amendment cuts. 
State v. Clayton

20210890-CA 11 2023 UT App 84

requires that declarants personally prepare their written 

statements. The rule requires only that a statement be “of a 

declarant,” that it be “written,” and that it be made either “under 

oath or affirmation” or “pursuant to a notification to the declarant 

that a false statement made therein is punishable.” See Utah R. 

Evid. 1102(b)(8). The officers’ statements, on their face, met all of 

these requirements: they were written, and they included 

signatures indicating not only the officers’ adoption of the content 

of the statements but also their awareness of the possibility of 

punishment for falsity. Thus, the statements met the conditions of 

the rule, and no additional foundation was required.4

¶21 Next, Clayton asserts—citing State v. Bertul, 664 P.2d 1181 

(Utah 1983)—that case law from our supreme court mandates that 

the officers’ statements be excluded from consideration at the 

preliminary hearing. In Bertul, the court held, among other things,

that police reports are generally inadmissible at trial when offered

by the prosecution under the business records exception to the 

hearsay rule. Id. at 1185–86. Clayton suggests that the officers’ 

statements are akin to police reports, and that a preliminary 

hearing is akin to a trial. We reject Clayton’s argument because, 

for two related reasons, Bertul is inapposite here. 

¶22 As an initial matter, Bertul’s holding applies only to 

evidence admissible at trial, not at a preliminary hearing. See id.

Admissibility of reliable hearsay evidence at preliminary hearings

is governed by rule 1102, which (as we have already explained) 

allows admission of the officers’ statements. Moreover, and

relatedly, since Bertul was decided, two important developments 

have occurred: our state constitution was amended to “remove[] 

the constraints of Utah’s Confrontation Clause from preliminary 

hearings,” see Timmerman, 2009 UT 58, ¶ 16, and rule 1102 was 

4. Indeed, Clayton acknowledged, at oral argument before this 

court, that if we adopt the State’s interpretation of the rule, no 

additional foundational evidence needed to be presented with 

regard to the officers’ statements. 
State v. Clayton

20210890-CA 12 2023 UT App 84

enacted to give specificity to the new constitutional provision 

allowing admission of “reliable hearsay” at preliminary hearings, 

see Utah R. Evid. 1102(b). As we have already noted, ever since 

these amendments, “[a]dmission of evidence at preliminary 

hearings is exclusively governed by the reliable hearsay language 

in the Utah Constitution and rule 1102 of the Utah Rules of 

Evidence.” Timmerman, 2009 UT 58, ¶ 16. Thus, even assuming 

that one could read Bertul to mandate restraints on the admission 

of evidence at preliminary hearings (as opposed to trials), those 

restraints have been superseded by subsequent events.5

¶23 Finally, Clayton argues—for the first time on appeal—that 

rule 1102(b)(6) of the Utah Rules of Evidence forbids introduction, 

at preliminary hearings, of written statements made by law 

enforcement officers. As Clayton sees it, “officer hearsay cannot 

be introduced through rule 1102(b)(8)” in the form of written 

statements, but must instead be introduced orally, pursuant to

rule 1102(b)(6), through the testimony of another testifying 

officer. In his view, rule 1102(b)(6) “specifically identifies when an 

officer’s out of court statement can be ‘reliable hearsay,’” and he 

believes that subsection provides the exclusive avenue for 

introduction of such hearsay. 

¶24 But we need not engage with the merits of this argument, 

because Clayton did not preserve it for our review. See Gowe v. 

Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683 

(stating that, “to preserve an argument for appellate review, the 

appellant must first present the argument to the district court in 

such a way that the court has an opportunity to rule on it,” and 

5. In his brief, Clayton relies not only on Bertul but also on State v. 

Anderson, 612 P.2d 778 (Utah 1980). As relevant here, our supreme 

court has already noted that Anderson—at least to the extent that 

it “prohibited the use of hearsay evidence at preliminary 

examinations”—“has been abrogated by a constitutional 

amendment,” namely the 1995 amendment to Article I, Section 12.

See State v. Timmerman, 2009 UT 58, ¶ 15, 218 P.3d 590.
State v. Clayton

20210890-CA 13 2023 UT App 84

observing that “we generally do not address unpreserved 

arguments raised for the first time on appeal” (quotation 

simplified)), cert. denied, 364 P.3d 48 (Utah 2015). At no point 

during the proceedings before the magistrate or the district court 

did Clayton assert that rule 1102(b)(6) provides the exclusive 

means of admitting an officer’s out-of-court statement at a 

preliminary hearing. Clayton asserts that his citation to Bertul was 

sufficient to preserve the issue, but we disagree; after all, as we 

have noted, rule 1102(b)(6) did not exist at the time Bertul was 

decided. Because Clayton’s rule 1102(b)(6) argument was not 

properly preserved for our review, and because Clayton does not 

ask us to apply any of the exceptions to our preservation doctrine, 

we decline to discuss the argument further. 

CONCLUSION

¶25 Rule 1102(b)(8)—as it existed at the time of the events 

giving rise to this appeal—does not require that an out-of-court 

written statement offered into evidence at a preliminary hearing 

be personally prepared by the declarant. Accordingly, the officers’ 

statements met the requirements of rule 1102(b)(8) and were 

properly admitted into evidence as “reliable hearsay” at Clayton’s 

preliminary hearing; with those statements in evidence, the State 

submitted sufficient evidence to support bindover. We therefore 

discern no error in the district court’s denial of Clayton’s motion 

to quash the bindover. 

¶26 Affirmed.