                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 2015 UT 65


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                              STATE OF UTAH,
                                Appellant,
                                       v.
                         JACOB JAMES SCHMIDT,
                                Appellee.

                              No. 20130326
                          Filed August 10, 2015

                    Fourth District, Provo Dep‘t
                  The Honorable Claudia Laycock
                          No. 121402179

                                 Attorneys:
    Sean D. Reyes, Att‘y Gen., Jeffrey S. Gray, Asst. Att‘y Gen.,
                   Salt Lake City, for appellant
 Walter F. Bugden, Jr., Tara L. Isaacson, Salt Lake City, for appellee

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE PARRISH, and
                       JUDGE ROTH joined.
 Due to his retirement, JUSTICE NEHRING did not participate herein;
           COURT OF APPEALS JUDGE STEPHEN L. ROTH sat.
    JUSTICE DENO G. HIMONAS became a member of the Court on
      February 13, 2015, after oral argument in this matter, and
                  accordingly did not participate.

   CHIEF JUSTICE DURRANT, opinion of the Court:
                               Introduction
   ¶1 We are asked to review a magistrate‘s decision, at the
preliminary hearing stage, to dismiss charges of rape and child
sexual abuse. Under Utah‘s liberal bindover standard, a magistrate
must view the evidence in the light most favorable to the
prosecution. This means that when reasonable inferences from the
evidence cut both for and against the state‘s case, the magistrate
                          STATE v. SCHMIDT
                        Opinion of the Court
lacks discretion to choose between them and must leave such a
determination to the fact-finder at trial. But a magistrate may
disregard any testimony that is so inconsistent and so incredible that
it is incapable of supporting a reasonable belief that the defendant
committed the charged offenses. Here, the magistrate disregarded a
young woman‘s testimony that she had been abused daily over a
four-year period. The magistrate did so for three reasons:
(1) inconsistent testimony regarding the letter that precipitated the
sexual abuse, (2) the young woman‘s prior denials to her mother and
investigators that there was any sexual abuse, and (3) the fact that no
one had seen her engage in sexual activity with the Defendant even
though she claimed to have had sex repeatedly in the common areas
of the home.
    ¶2 We conclude that the magistrate exceeded her discretion.
Although inconsistencies in the young woman‘s testimony and her
prior denials may indicate she is being untruthful, there are plausible
alternative explanations that support her allegations. And there is
also testimony from two of her family members that corroborates her
account of when and where some of the sexual abuse occurred.
Because there is at least a reasonable inference from the evidence
that the victim was telling the truth, the magistrate lacked discretion
to disregard her testimony. And because her testimony described
daily sexual abuse over a four-year period, the magistrate exceeded
her discretion in refusing to bind the Defendant over for trial.
   ¶3 In reversing the magistrate‘s decision, we also take the
opportunity to clarify statements in two recent cases—State v.
Ramirez and State v. Maughan—that could be read as slight
departures from the liberal bindover standard we have applied for
more than a decade. In 2001, we held in State v. Clark that a
magistrate must bind a defendant over for trial if the state presents
enough evidence to support a reasonable belief that the defendant
committed the crime charged—a threshold equivalent to the
probable cause standard the state must meet to secure an arrest
warrant. But prior to 2001, some of our decisions imposed a higher
standard in preliminary hearings, requiring the state to put on
evidence ―from which the trier of fact could conclude the defendant
was guilty of the offense as charged.‖1 Although there is language in
Maughan and Ramirez that has echoes of the more stringent standard
we repudiated in 2001, both of those decisions reaffirmed the


   1State v. Anderson, 612 P.2d 778, 783 (Utah 1980) (emphasis
added), overruled by State v. Clark, 2001 UT 9, ¶ 16, 20 P.3d 300.

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probable cause standard we adopted in State v. Clark. Accordingly,
neither case should be read as modifying the probable cause
standard magistrates currently apply at preliminary hearings.
                             Background
    ¶4 To determine whether a defendant should be bound over
for a trial, a magistrate must ―view all evidence in the light most
favorable to the prosecution‖ and ―draw all reasonable inferences in
favor of the prosecution.‖2 We recite the facts consistent with that
standard.
   ¶5 Jacob James Schmidt began dating C.E.‘s mother in 2002
when C.E. was eleven years old. Mother‘s relationship with
Mr. Schmidt became serious, and he moved in with Mother and her
four children later that year. They became engaged in November
2005, but their relationship began to deteriorate the following spring,
culminating in a physical altercation in late April 2006. Mr. Schmidt
―pinned‖ Mother in the hallway during an argument, she pushed
him to get away, and then called the police. Mother was charged
with assault, a charge the prosecutor eventually dismissed, and
Mr. Schmidt moved out soon after the incident.
    ¶6 One week later, Mother found a shirtless picture of
Mr. Schmidt on C.E.‘s cell phone. Mother filed a petition for a civil
stalking injunction, which the court granted, prohibiting
Mr. Schmidt from contacting her or any of her children. Mother also
began to suspect that C.E. and Mr. Schmidt had an inappropriate
relationship. In the fall of 2006, Mother discovered that he had
picked up C.E. from a high school football game and did not bring
her home until the next morning. C.E. had told Mother that she ―was
going to stay at a friend‘s house‖ after the game. When confronted,
she admitted spending the night at Mr. Schmidt‘s parents‘ home, but
she claimed that she ―slept in the spare bedroom.‖ She denied ever
engaging in sexual activity with Mr. Schmidt, and she repeated these
denials in separate interviews with the police and a social worker at
the Children‘s Justice Center.
   ¶7 Three years later, C.E. was married and pregnant with
twins. After the twins were born, her marriage began to deteriorate,
and she eventually moved back in with her mother. Then in early
2010, C.E.‘s husband sent a text message to Mother asking whether


   2State v. Maughan, 2013 UT 37, ¶ 14, 305 P.3d 1058 (internal
quotation marks omitted).

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                         Opinion of the Court
C.E. was ―acting weird because of what [Mr. Schmidt] did to her.‖
Several months later, after conversations with Mother and Mother‘s
new boyfriend, C.E. ―came clean‖ and decided to tell police that Mr.
Schmidt had sexually abused her repeatedly between 2002 and 2006.
    ¶8 Detective Joshua Christiansen of the American Fork Police
Department interviewed C.E. in September 2010. C.E. told him that
she and Mr. Schmidt had sex every day between June 2002 and the
day he moved out in April 2006. The abuse began after Mr. Schmidt
wrote her a letter ―asking for her reaction if he were to touch her or
she were to touch him.‖ Mr. Schmidt eventually began touching C.E.
under her clothing. The abuse progressed rapidly—within a week,
Mr. Schmidt would have C.E. come downstairs to his room after
Mother left for work each morning, where he would remove her
clothing and engage in sexual intercourse. Eventually, he began
―showing [C.E.] hard core pornography while having intercourse
with her.‖ And he also had sex with C.E. upstairs while the rest of
the family was downstairs in the living room. Mr. Schmidt would
lean C.E. over the half-wall that separated the basement stairs from
the kitchen so C.E. could watch out for any family members coming
up the stairs.
    ¶9 C.E. also told Detective Christiansen that Mr. Schmidt had
sex with her outside on the hood of her mother‘s car. C.E. was eleven
or twelve at the time, and Mother was asleep after taking a strong
sleeping pill. According to Detective Christiansen‘s report, C.E. also
told him that Mr. Schmidt bribed her to have anal sex with him. He
paid her anywhere between $40 and $100, and on one occasion, he
bought her a prepaid cell phone. Mr. Schmidt‘s last sexual encounter
with C.E. occurred when he picked her up from a high school
football game and spent the night with her at a hotel in Salt Lake
County.
   ¶10 Based on C.E.‘s allegations, the State charged Mr. Schmidt
with aggravated sexual abuse of a child, two counts of attempted
sodomy upon a child, five counts of rape of a child, two counts of
sodomy upon a child, and one count of rape. At the preliminary
hearing, C.E. testified for the prosecution, and the defense called
Mother, C.E.‘s brother and sister, and Detective Christiansen. After
the hearing, Mr. Schmidt moved to dismiss all eleven charges, and
the magistrate granted his motion.
   ¶11 In a written decision dismissing the charges, the magistrate
began by observing that the ―case depends solely on the testimony of
[C.E].‖ She then noted that C.E. ―gave conflicting testimony about
the letter that allegedly started the abuse,‖ initially testifying ―about
very specific language regarding the touching‖ of specific body parts
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and later claiming that the letter contained general language that
was code for sexual touching. C.E. also testified that her mother
found the letter and confronted her. But Mother said she could not
remember finding any sexually explicit communications between
her daughter and Mr. Schmidt. The magistrate also observed that
C.E. claimed that ―sexual intercourse was happening every day from
age eleven to fifteen . . . in places where one would think that the
family would have seen it—in the bedroom, in the hallway, by the
kitchen, yet no one saw it.‖ Finally, the magistrate noted that C.E.
―either lied to the police and the interviewer at the CJC in 2006, or
she has lied in 2010 when she went to the police as well as at the
preliminary hearing.‖
      ¶12 The magistrate characterized the letter as ―the lynchpin in
many ways because‖ it was ―the beginning . . . of the defendant‘s
attempts to seduce [C.E.] and the start of the sexual abuse.‖ And
because C.E.‘s testimony was ―inconsistent about what was
contained in the letter‖ and Mother‘s testimony was ―inconsistent
with [C.E.‘s] description about her mother discovering the letter,‖
the magistrate was ―left to consider incredible and conflicting
evidence.‖ Ultimately, the magistrate concluded that the evidence
presented was ―so contradictory, so inconsistent, and so
unbelievable‖ that she need not ―give credence‖ to C.E.‘s testimony.
And as a consequence, the magistrate found that the ―prosecution
. . . failed to present evidence sufficient to support a reasonable belief
that the defendant committed the crimes charged.‖ The State
appeals. We have jurisdiction under Utah Code section 78A-3-
102(3)(j).
                             Standard of Review
   ¶13 The State argues that the magistrate improperly denied its
request to bind Mr. Schmidt over for trial. We have previously held
that bindover determinations are mixed questions of law and fact ―to
which we grant some deference.‖3 The deference we afford such a
decision is ―commensurate‖ with the limited discretion under which
a magistrate operates at a preliminary hearing.4 In particular, unlike

   3 State v. Virgin, 2006 UT 29, ¶ 16, 137 P.3d 787; see also State v.
Maughan, 2013 UT 37, ¶ 12, 305 P.3d 1058 (―[A] magistrate‘s
bindover decision is a mixed determination that is entitled to some
limited deference.‖).
   State v. Ramirez, 2012 UT 59, ¶ 7, 289 P.3d 444 (internal quotation
   4

marks omitted).

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                            STATE v. SCHMIDT
                          Opinion of the Court
fact-finders at trial, magistrates may not weigh evidence and have
only limited discretion to make credibility determinations.5
Although this discretion provides ―a measure of freedom to reach
one of several possible conclusions about the legal effect of a
particular set of facts without risking reversal,‖6 any departure from
the correct legal standard ―will always exceed whatever limited
discretion the magistrate has in the bindover decision.‖7
                                   Analysis
    ¶14 We conclude that the magistrate exceeded her discretion in
refusing to bind Mr. Schmidt over for trial. By disregarding C.E.‘s
testimony, the magistrate improperly weighed the evidence and
failed to construe all reasonable inferences in the prosecution‘s favor.
Although C.E.‘s testimony contained inconsistencies and some
incredible allegations, there was enough evidence presented to
support a reasonable belief that Mr. Schmidt sexually abused her.
    ¶15 In so doing, we also take the opportunity to clarify
statements we have made in two recent cases that could be read as
imposing a higher evidentiary burden at a preliminary hearing than
our traditional probable cause standard. Despite language in these
opinions that could be read as requiring sufficient evidence to
support a reasonable jury‘s decision to convict a defendant beyond a
reasonable doubt, those cases—and our decision today—reaffirm
that the state need only produce sufficient evidence to support a
reasonable belief that the defendant committed the crime charged.
   ¶16 We begin by clarifying our precedent and articulating the
legal standard magistrates should apply at preliminary hearings. We
then discuss the magistrate‘s decision to dismiss the charges against
Mr. Schmidt.
       I. The State Does Not Need to Produce Evidence Sufficient
                         to Sustain a Conviction
    ¶17 For more than a decade, we have recognized that the state‘s
burden at a preliminary hearing is probable cause—the same
evidentiary threshold it must meet to secure an arrest warrant. In
practice, that means a magistrate must bind a defendant over for
trial if the prosecution presents evidence sufficient ―to support a
reasonable belief that an offense has been committed and that the

   5   Id. ¶¶ 7, 17.
   6   Virgin, 2006 UT 29, ¶ 27 (internal quotation marks omitted).
   7   Ramirez, 2012 UT 59, ¶ 7.

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defendant committed it.‖8 So even though the Utah Constitution
provides criminal defendants with a fundamental right to a
preliminary hearing,9 ―the evidentiary threshold at such hearing is
relatively low.‖10
    ¶18 In evaluating the evidence presented at a preliminary
hearing, the magistrate must draw all reasonable inferences in the
prosecution‘s favor.11 The ―evidence does not need to be capable of
supporting a finding of guilt beyond a reasonable doubt,‖12 nor do
we require the prosecution ―to eliminate alternative inferences that
could be drawn from the evidence in favor of the defense.‖13 Rather,
a magistrate has discretion ―to decline bindover‖ only ―where the
facts presented by the prosecution provide no more than a basis for
speculation—as opposed to providing a basis for a reasonable
belief.‖14 It is therefore not appropriate for a magistrate to evaluate
―the totality of the evidence in search of the most reasonable
inference‖ at a preliminary hearing.15 Our justice system entrusts
that task to the fact-finder at trial.
    ¶19 The evidentiary threshold at preliminary hearings has not
always been so low. The primary purpose of preliminary hearings is
to allow magistrates to ―ferret out groundless and improvident
prosecutions‖ without usurping the jury‘s role as the ―principal‖
fact-finder.16 Perhaps to strengthen magistrates‘ ability to dismiss
frivolous prosecutions, several of our cases prior to 2001 ―equated
the preliminary hearing probable cause standard with the motion for
directed verdict standard,‖ requiring the state to present ―evidence
sufficient to survive a motion for directed verdict with respect to each



   8   State v. Clark, 2001 UT 9, ¶ 16, 20 P.3d 300.
   9UTAH CONST. art. I, § 13; State v. Hernandez, 2011 UT 70, ¶ 29, 268
P.3d 822.
   10   State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444.
   11   State v. Virgin, 2006 UT 29, ¶ 24, 137 P.3d 787.
   12   Id. ¶ 20 (internal quotation marks omitted).
   13   Ramirez, 2012 UT 59, ¶ 9.
   14   Virgin, 2006 UT 29, ¶ 21.
   15   State v. Maughan, 2013 UT 37, ¶ 17, 305 P.3d 1058.
   16   Virgin, 2006 UT 29, ¶¶ 19, 21.

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                             STATE v. SCHMIDT
                           Opinion of the Court
element of the crime.‖17 These cases seemed to require a magistrate
―to submit the case to the jury‖ only ―if the evidence [was] sufficient
that a reasonable jury could find the defendant guilty beyond a
reasonable doubt.‖18 In other cases, we described the standard
somewhat differently, holding that ―the minimum quantum of
evidence [was] more than [what is] required to establish probable
cause for arrest but less than would prove the defendant guilty
beyond a reasonable doubt.‖19 We characterized the standard as one
that was ―lower, even, than a preponderance of the evidence
standard applicable to civil cases.‖20
   ¶20 We disavowed these cases in State v. Clark.21 In that case, we
held that ―unlike a motion for a directed verdict,‖ the evidence
necessary to bind a defendant over for trial ―need not be capable of
supporting a finding of guilt beyond a reasonable doubt.‖22 And we
observed that there was ―no principled basis for attempting to
maintain a distinction between the arrest warrant probable cause
standard and the preliminary hearing probable cause standard.‖23
Instead, we concluded 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.‖24
   ¶21 Our decisions in two recent cases—State v. Ramirez and State
v. Maughan—correctly apply this standard. But we take this
opportunity to clarify statements in both cases that could be read as
modifying the probable cause standard. In Ramirez, for example, we


   17 Clark, 2001 UT 9, ¶ 12 (internal quotation marks omitted); see
also State v. Anderson, 612 P.2d 778, 783 (Utah 1980) (―[T]he probable
cause showing at the preliminary examination must establish a
prima facie case against the defendant from which the trier of fact
could conclude the defendant was guilty of the offense as charged.‖).
   18   Clark, 2001 UT 9, ¶ 13.
   19   Anderson, 612 P.2d at 783 n.13.
   20State v. Pledger, 896 P.2d 1226, 1229 (Utah 1995) (internal
quotation marks omitted).
   21   2001 UT 9.
   22   Id. ¶ 15.
   23   Id. ¶ 16.
   24   Id.

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reaffirmed that the ―‗reasonable‘ belief formulation‖ in a bindover
determination ―parallels the standard for an arrest warrant.‖25 In
applying that standard, however, we concluded that bindover was
proper because there was a ―non-speculative basis for the jury to find
against Ramirez on each of the elements of his crimes,‖26 language that
could be read as requiring a reasonable basis for a conviction instead
of merely a reasonable belief that the defendant committed the crime
in question. Similarly, in Maughan, we correctly characterized the
bindover standard as requiring ―evidence sufficient to support a
reasonable belief that the defendant committed the charged crime.‖27
But later in the opinion, we stated that the bindover standard ―asks
only whether the evidence could support a reasonable jury‘s decision
to convict, through a lens that view[s] all evidence in the light most
favorable to the prosecution.‖28
   ¶22 Mr. Schmidt has not argued that these decisions implicitly
overruled our prior precedent, and in both Ramirez and Maughan, we
explicitly reaffirmed the probable cause standard adopted in Clark.29
But to avoid any potential confusion, we now make clear that neither
case altered our liberal bindover standard—rather, ―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




   25   Ramirez, 2012 UT 59, ¶ 9.
   26   Id. ¶ 16 (emphasis added).
   27   2013 UT 37, ¶ 14 (internal quotation marks omitted).
   28Id. ¶ 17 (alteration in original) (emphasis added) (internal
quotation marks omitted).
   29 See id ¶ 14 (―To bind a defendant over for trial, the prosecution
is required only to produce believable evidence of all the elements of
the crime charged, or, in other words, evidence sufficient to support
a reasonable belief that the defendant committed the charged crime.‖
(internal quotation marks omitted)); Ramirez, 2012 UT 59, ¶ 9 (―As
we have emphasized, a showing of probable cause entails only the
presentation of evidence sufficient to support a reasonable belief that
the defendant committed the charged crime. The reasonable belief
formulation parallels the standard for an arrest warrant.‖ (internal
quotation marks omitted)).

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                             STATE v. SCHMIDT
                           Opinion of the Court
it,‖30 not a reasonable basis for a conviction beyond a reasonable
doubt.
  II. We Conclude That the Magistrate Exceeded Her Discretion in
            Refusing to Bind Mr. Schmidt Over for Trial
    ¶23 Having articulated the legal standard courts should apply at
preliminary hearings, we now examine whether the magistrate
exceeded her discretion in this case. We conclude that she did. The
magistrate refused to bind Mr. Schmidt over for trial because she
found C.E.‘s testimony so inconsistent and unreliable that ―it would
be unreasonable to base belief on the element of sexual intercourse
or any other sexual conduct‖ on her assertions. In so doing, the
magistrate improperly weighed the evidence rather than drawing all
reasonable inferences in the prosecution‘s favor. Although there are
certainly some inconsistencies and incredible allegations in C.E.‘s
testimony, we cannot conclude that her assertions were so lacking in
reliability that the State failed to establish probable cause,
particularly in light of other testimony that corroborates some of her
allegations.
            A. The Victim’s Allegations, if Credible, Are Sufficient to
                       Support a Finding of Probable Cause
    ¶24 We begin by noting that C.E.‘s allegations of sexual abuse—
if credible—provide probable cause to bind Mr. Schmidt over for
trial.31 There are ten charges at issue on appeal: aggravated sexual
abuse of a child, attempted sodomy upon a child,32 five counts of
rape of a child, two counts of sodomy upon a child, and rape. Sexual
offenses are often committed in secrecy.33 For that reason, we have


   30   Clark, 2001 UT 9, ¶ 16.
   31 See State v. Virgin, 2006 UT 29, ¶ 25, 137 P.3d 787 (noting that
magistrates may only disregard evidence at a preliminary hearing if
it is ―so contradictory, inconsistent, or unbelievable that it is
unreasonable to base belief of an element of the prosecutor‘s claim
on that evidence‖).
   32 The information contains two counts of attempted sodomy
upon a child, but the prosecutor voluntarily dismissed the second
count at the preliminary hearing.
   33 See Virgin, 2006 UT 29, ¶ 38 (noting that ―child sexual abuse
cases often rest solely on the testimony of a young child‖); State v.
Studham, 572 P.2d 700, 701 (Utah 1977) (noting that rape is often
committed ―in such secrecy as can be effected‖ and that therefore
                                                        (Continued)
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recognized that a ―jury can convict on the basis of the
uncorroborated testimony of the victim‖ as long as the testimony is
not so inherently incredible that no reasonable person could accept
it.34 If uncorroborated testimony is enough to demonstrate guilt
beyond a reasonable doubt, it also satisfies the less stringent
probable cause standard at a preliminary hearing. And here, C.E.‘s
testimony, if credible, provides a reasonable basis to conclude that
Mr. Schmidt committed each of the offenses at issue. We discuss
each charge in turn.
   ¶25 First, C.E.‘s testimony would support a reasonable belief
that Mr. Schmidt committed at least one count of aggravated sexual
abuse of a child. That offense occurs when a person touches ―the
anus, buttocks, or genitalia of any child, the breast of a female child,
or otherwise takes indecent liberties with a child.‖35 C.E. testified
that soon after she and Mr. Schmidt wrote to each other about sexual
touching, she ―started coming down at like 6:00 in the morning
when [her] mom would leave for work‖ and ―crawling in bed‖ with
Mr. Schmidt. In the bed, she would touch his penis and he would
touch her vagina—―It started out over the clothes, and then it would
progress to under the clothes.‖
    ¶26 Second, C.E.‘s allegations support a reasonable belief that
Mr. Schmidt committed attempted sodomy upon a child and two
counts of sodomy upon a child. ―A person commits sodomy upon a
child if the actor engages in any sexual act upon or with a child who
is under the age of 14, involving the genital or anus of the actor or
the child and the mouth or anus of either person . . . .‖ 36 C.E. testified
that she ―probably‖ had anal sex with Mr. Schmidt ―more than ten‖
times total, and ―[m]aybe three times‖ before she turned thirteen.
The first time, when she was eleven or twelve, Mr. Schmidt
attempted to have anal intercourse with C.E. in Mother‘s bed but


―the question of guilt or innocence often depends upon the weighing
of the credibility of the victim against that of the accused‖).
   34 State v. Robbins, 2009 UT 23, ¶¶ 14, 16, 210 P.3d 288 (internal
quotation marks omitted); see also Studham, 572 P.2d at 701–02
(―[T]he rule is that if there is nothing so inherently incredible about
the victim‘s story that reasonable minds would reject it, a conviction
may rest upon her testimony alone.‖).
   35   UTAH CODE § 76-5-404.1(2).
   36   Id. § 76-5-403.1(1).

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                                STATE v. SCHMIDT
                               Opinion of the Court
stopped at C.E.‘s request because ―it hurt way too bad.‖ On another
occasion, Mr. Schmidt offered to buy C.E. a cell phone in exchange
for anal sex. She agreed, and ―just let it happen‖ in the hallway
before Mother came home from work because C.E. ―wanted the
phone.‖ C.E. also testified that most of her sexual encounters with
Mr. Schmidt were preceded by oral sex.
    ¶27 Third, C.E.‘s testimony supports a reasonable basis to
believe Mr. Schmidt committed five counts of rape of a child. ―A
person commits rape of a child when the person has sexual
intercourse with a child who is under the age of 14.‖37 C.E. testified
that when she was ―thirteen or fourteen,‖ she left school with
Mr. Schmidt and drove up American Fork Canyon, where they
engaged in vaginal intercourse. She also stated that Mr. Schmidt had
sex with her ―[a]ll the time. . . . Almost every day‖ between the ages
of eleven and fourteen, ―sometimes more than once.‖ She claimed
that sometimes they would have sex in Mr. Schmidt‘s room in the
morning after Mother left for work while Mr. Schmidt played
pornographic videos. At other times, he would take her upstairs to
have sex while the rest of the family watched TV in the basement.
C.E. also claimed that one night after her mother had taken a
sleeping pill, Mr. Schmidt had sex with her outside on the hood of
Mother‘s car. C.E. was twelve or thirteen at the time. And during a
family trip to Lava Hot Springs when C.E. was thirteen, Mr. Schmidt
had sex with her ―[d]own by the pool behind a tree‖ while her
inebriated mother relaxed by the pool.
    ¶28 Finally, C.E.‘s testimony also supports a reasonable belief
that Mr. Schmidt committed one count of rape. ―A person commits
rape when the actor has sexual intercourse with another person
without the victim‘s consent.‖38 By statute, a victim cannot
consensually participate in sexual activity if the victim is ―younger
than 18 years of age and at the time of the offense[,] the actor was the
victim‘s parent, stepparent, adoptive parent, or legal guardian or
occupied a position of special trust in relation to the victim.‖39 Utah
law in this context defines ―position of special trust‖ to include ―a
cohabitant of‖ the victim‘s ―parent‖ or any other person ―in a
position of authority‖ who ―enables the person to exercise undue



   37   Id. § 76-5-402.1(1).
   38   Id. § 76-5-402(1).
   39   Id. § 76-5-406(10).

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influence over the child.‖40 C.E. testified that when she was fifteen,
Mr. Schmidt picked her up from a high school football game soon
after he moved out of the family‘s home. They drove to a motel
somewhere in Salt Lake County—possibly Midvale—where they
spent the night and had sex. Although Mr. Schmidt was not living
with Mother at the time, the evidence supports a reasonable belief
that he was in a position of special trust and exercised undue
influence over C.E. Mr. Schmidt lived with the family for five years,
and he and Mother were briefly engaged before he moved out.
During that time, he went on trips with the family, picked C.E. up
from school, and was someone C.E. claimed she could ―turn to
because he would listen to me and he would be there.‖
    ¶29 In summary, these allegations—if credible—are sufficient to
support a reasonable belief that Mr. Schmidt committed aggravated
sexual abuse of child, attempted sodomy upon a child, two counts of
sodomy upon a child, five counts of rape of a child, and rape. The
question, then, is whether C.E.‘s allegations were ―wholly lacking
and incapable of creating a reasonable inference regarding a portion
of the prosecution‘s claim.‖41 If so, the magistrate had discretion to
disregard them. But if the totality of the evidence presented two
plausible alternatives, even if one appeared more plausible than the
other, the magistrate was required to ―leave all the weighing of
credible but conflicting evidence to the trier of fact.‖42
    ¶30 Consequently, we now turn to the inconsistent testimony
and incredible allegations that prompted the magistrate to dismiss
all charges. For a number of reasons, we conclude that the magistrate
exceeded her discretion by disregarding C.E.‘s testimony.
   B. Conflicting Testimony and C.E.’s Prior Denials Are Not Enough
                       to Discredit Her Allegations
   ¶31 As we have discussed, magistrates ―may make credibility
determinations in preliminary hearings, but the extent of those
determinations is limited.‖43 It is not appropriate ―for a magistrate to
weigh credible but conflicting evidence at a preliminary hearing,‖
because such a hearing ―is not a trial on the merits.‖44 Rather,

   40   Id. § 76-5-404.1(1)(c)(vi), (xxii).
   41   Virgin, 2006 UT 29, ¶ 24 (internal quotation marks omitted).
   42   Id.
   43   Id. (internal quotation marks omitted).
   44   Id. (internal quotation marks omitted).

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                           Opinion of the Court
magistrates ―must leave all the weighing of credible but conflicting
evidence to the trier of fact and must view the evidence in a light
most favorable to the prosecution[,] resolv[ing] all inferences‖ in its
favor.45 Accordingly, magistrates may disregard evidence as
incredible only where it is ―so contradictory, inconsistent, or
unbelievable that it is unreasonable to base belief of an element of
the prosecutor‘s claim on that evidence.‖46
    ¶32 Here, although there were inconsistencies in the testimony
presented at the preliminary hearing and some seemingly incredible
allegations, we conclude that they were insufficient to render C.E.‘s
testimony wholly unreliable. In its written decision refusing to bind
Mr. Schmidt over for trial, the magistrate identified three reasons for
disregarding C.E.‘s testimony: (1) inconsistent testimony regarding
the letter that precipitated the sexual abuse, (2) C.E.‘s prior denials to
her mother and investigators that there was any sexual abuse, and
(3) the fact that no one had seen C.E. engage in sexual activity with
Mr. Schmidt even though she claimed to have had sex repeatedly in
the common areas of the home. We address each of these in turn.
    ¶33 First, the magistrate overlooked a reasonable explanation for
the inconsistent testimony about the letter C.E. claimed led to the
sexual abuse. C.E. testified that when she was eleven, she and
Mr. Schmidt wrote a letter back and forth that eventually ―led into[,]
like[,] what if I did this to you or what if I touched you here.‖ When
the prosecutor asked for more detail, C.E. claimed the letter said,
―Like what if I touch your boobs or what if I touch your vagina.‖ But
on cross-examination, in response to a question about the specific
terms Mr. Schmidt used, C.E. admitted that the letter ―didn‘t have
words like that. He would use words like pay the price‖—terms that
she understood in the context of their communications as ―clearly
sexual.‖ Additionally, C.E. claimed that her mother found the letter
and confronted her the next day, but Mother testified she had no
memory of finding and discussing the letter with C.E.
   ¶34 These inconsistencies may provide a basis to undermine
C.E.‘s credibility at trial, but they are insufficient to allow a
magistrate to wholly disregard her testimony. In responding to the
prosecutor‘s initial questioning about the letter, C.E. may have
simply recounted what she understood from reading the letter, not


   45   Id. (alterations in original) (internal quotation marks omitted).
   46   See id. ¶ 25; see also State v. Ramirez, 2012 UT 59, ¶ 10, 289 P.3d
444.

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                          Opinion of the Court

reported its contents verbatim. If so, her statements during cross-
examination that the letter contained more general terms that were
code for sexual touching are not inconsistent with her direct
testimony, but a clarification in response to a more specific question.
And if that‘s the case, her testimony is also consistent with how
Mother and Detective Christiansen described the letter. Mother
testified that she remembered her daughter ―writing back and forth‖
with Mr. Schmidt, but she did not recall anything sexual, and there is
no reason that she would have if the letter were written in vague,
general terms. Detective Christiansen testified that after his initial
interview with C.E., he could not ―recall the exact content‖ of the
letter. He said he did not ―remember the specifics,‖ and that ―[w]hen
[he] talked to her, it was generalized.‖
    ¶35 The general language in the letter may also explain why C.E.
remembered discussing it while Mother did not. According to her
testimony, Mother was aware that Mr. Schmidt wrote notes back and
forth with C.E., and she may have asked C.E. about them without
realizing their significance. But C.E., who may have wanted to
conceal the nature of the letters from her Mother, could have
interpreted Mother‘s innocent inquiry as confrontational
questioning. As a result, years later C.E. might have vivid memories
of concealing sexual communications from her Mother, while
Mother would have trouble recalling a short conversation about
notes she believed were innocuous.
    ¶36 Mother‘s and Detective Christiansen‘s testimony suggests
that it is not implausible to read C.E.‘s seemingly inconsistent
testimony about the letter as truthful responses to different
questions, one general and the other more specific. And there is also
a plausible explanation for why C.E. remembered her Mother
confronting her about the letter, but Mother had no such recollection.
Of course, it is also plausible that C.E.‘s story seems hard to pin
down because she‘s making it up as she goes along. But in the face of
two plausible inferences from the evidence—one that supports
bindover and one that does not—a magistrate lacks discretion to
engage in ―an assessment of whether such inference is more
plausible than an alternative that cuts in favor of the defense.‖47
These inconsistencies are therefore insufficient to justify the court‘s
decision to disregard C.E.‘s testimony.



   47   Ramirez, 2012 UT 59, ¶ 10.

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                        Opinion of the Court
    ¶37 Second, C.E.‘s prior denial of sexual abuse does not wholly
discredit her testimony. The magistrate noted that because C.E. had
previously denied suffering any sexual abuse in a 2006 interview
with a social worker at the Children‘s Justice Center, she was ―left to
consider incredible and conflicting evidence.‖ But common
experience with rape and child sexual abuse cases indicates that it is
not unusual for a victim to initially deny the abuse before later
developing enough courage to come forward.48 Here, it is certainly
possible that C.E. told investigators the truth in 2006 and lied in
2010, but it is just as plausible that C.E.—like other victims of child
sexual abuse—developed an affinity for Mr. Schmidt over time and
denied the abuse because she feared the legal consequences of their
relationship. And that is exactly how she explained her denials at the
preliminary hearing. She claimed that she ―was devastated‖ when
Mr. Schmidt moved out of the house because she ―did love him,‖
and she concealed their relationship from her mother and
investigators because she ―still cared‖ about Mr. Schmidt and
―didn‘t want him or I to get in trouble.‖ Consequently, there were
two plausible inferences from C.E.‘s initial denials, and the
magistrate lacked the discretion to weigh the evidence and choose
between them.
   ¶38 Third, although some of C.E.‘s allegations of sexual abuse
seem incredible, other testimony corroborated aspects of C.E.‘s story,
creating a reasonable inference that she was telling the truth. The
magistrate noted that C.E. claimed ―sexual intercourse was
happening every day from age eleven to fifteen when the defendant
moved out‖ in ―places where one would think that the family would
have seen it—in the bedroom, in the hallway, by the kitchen, yet no
one saw it.‖ The magistrate‘s concern is not unfounded. C.E. testified
that she had sex in the kitchen with Mr. Schmidt ―[m]ore than 50
times‖ while her whole family was downstairs. She also claimed in a
written statement to police that she had sex with Mr. Schmidt

   48 See State v. Curtis, 2013 UT App 287, ¶ 37, 317 P.3d 968 (noting
that in a case involving rape and provision of drugs to a minor, the
victim denied any sexual activity with the defendant in an interview
with DCFS but later came forward and ―recanted her previous
denials‖); Elizabeth Mertz & Kimberly A. Lonsway, The Power of
Denial: Individual and Cultural Constructions of Child Sexual Abuse, 92
NW. U. L. REV. 1415, 1426 (1998) (noting that in one study of
―children with confirmed histories of sexual abuse,‖ only ―11% of
the children actually told their stories in a clear and unhesitating
fashion‖ and many ―expressed . . . denial or hesitation‖).

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                         Opinion of the Court

―almost 365 days a year for four years,‖ sometimes ―two or three
times a day.‖
    ¶39 These allegations may be difficult to accept wholesale. But
in her written decision dismissing all charges, the magistrate did not
discuss other testimony that corroborated C.E.‘s description of her
relationship with Mr. Schmidt. In particular, C.E.‘s brother testified
that she had a ―fairly close‖ connection with Mr. Schmidt and
perceived that C.E. was jealous of Mother‘s relationship with him.
When C.E.‘s brother was about ten or eleven, he ―walked downstairs
in [his] mom‘s bedroom‖ and saw C.E. ―in the bed, [Mr. Schmidt]
was in the bed with her‖ with the covers ―up to their necks,‖ and
there was ―porn playing‖ on the television. He said ―[i]t was late,‖
―definitely bedtime,‖ and the pornography was quite graphic,
depicting ―[m]ultiple partners‖ engaged in ―anal or vaginal
intercourse.‖ And C.E.‘s brother and sister both testified that
Mr. Schmidt slept nude ―[p]robably every night.‖ Mother also
noticed alarming conduct between Mr. Schmidt and her daughter.
Mother testified that one evening, she walked upstairs and saw them
―both standing in the kitchen and [Mr. Schmidt] had his boxers on
and . . . she ha[d] her hand . . . on his penis through his boxers.‖ She
further testified that Mr. Schmidt and C.E. ―[q]uite often . . . would
be off alone.‖
       Yeah, they would go into her room and then I would,
       you know, because I‘d be downstairs with them, all of
       a sudden they‘d disappear and then they‘d be in her
       room, you know, and the door would be open, but
       they‘d be in her room and so then I‘d go hang out with
       them in their room and then they‘d take off and go
       downstairs. Many times he would take her and just
       her.
              Take her where?
       Take her to the store, you know, saying he was going
       to go pick up her friend and they would take a long
       time.
    ¶40 The testimony from these witnesses, standing alone, may be
insufficient to establish probable cause that Mr. Schmidt committed
any of the charged offenses. But when coupled with C.E.‘s
description of the abuse—which included intercourse in the kitchen
and in Mother‘s room while Mr. Schmidt played pornography on the
television—this additional testimony provides at least a plausible
basis to conclude that many of C.E.‘s allegations are true. And at a
preliminary hearing, a magistrate‘s role ―does not encompass an
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                            STATE v. SCHMIDT
                          Opinion of the Court
assessment of whether such inference is more plausible than an
alternative that cuts in favor of the defense.‖49
   ¶41 In summary, despite inconsistent testimony, C.E.‘s prior
denials of sexual abuse, and some incredible allegations, none of
these concerns rendered C.E.‘s testimony wholly implausible,
particularly in light of other testimony that corroborated aspects of
her basic story. And even if it appears more likely than not after the
preliminary hearing that C.E. has fabricated some of her allegations
against Mr. Schmidt, the magistrate had an obligation to view the
evidence in a light most favorable to the prosecution and lacked
discretion to credit a plausible inference in Mr. Schmidt‘s favor over
evidence that would support a plausible alternative to the contrary.50
    ¶42 For these reasons, we conclude that the magistrate exceeded
her discretion in refusing to bind Mr. Schmidt over for trial. By
wholly disregarding C.E.‘s testimony, the magistrate impermissibly
weighed the evidence instead of viewing witnesses‘ testimony in the
light most favorable to the prosecution.
                               Conclusion
   ¶43 We reverse the magistrate‘s decision refusing to bind
Mr. Schmidt over for trial. At the preliminary hearing stage, even if
C.E.‘s allegations appear facially implausible, the magistrate lacked
discretion to disregard them in light of other evidence that
corroborated aspects of her basic story, and C.E.‘s testimony
provides a reasonable basis to believe that Mr. Schmidt committed
the offenses at issue. The inconsistent testimony, C.E.‘s prior denials
of sexual abuse, and her perhaps incredible allegations are
insufficient to eliminate plausible explanations that weigh in favor of
submitting the case to a jury. And at a preliminary hearing,
magistrates have an obligation to construe all evidence in the
prosecution‘s favor. We therefore conclude that the magistrate
exceeded her discretion and remand for further proceedings
consistent with this opinion. In so doing, we reaffirm that at a

   49   Ramirez, 2012 UT 59, ¶ 10.
   50 See Virgin, 2006 UT 29, ¶ 18 (noting that probable cause in a
preliminary hearing ―is the same as the probable cause that the
prosecution must show to obtain an arrest warrant‖); State v. Poole,
871 P.2d 531, 535 (Utah 1994) (noting that probable cause ―is a
flexible, common-sense standard‖ and that it ―does not matter if the
officer‘s belief ‗was correct or more likely true than false‘‖ (quoting
Texas v. Brown, 460 U.S. 730, 742 (1983)).

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                       Opinion of the Court

preliminary hearing, the state need only produce evidence sufficient
to support a reasonable belief that the defendant committed the
crime charged, not evidence that would support a conviction beyond
a reasonable doubt.




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