               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 39102

STATE OF IDAHO,                                   )
                                                  )    2013 Opinion No. 5
       Plaintiff-Appellant,                       )
                                                  )    Filed: January 23, 2013
v.                                                )
                                                  )    Stephen W. Kenyon, Clerk
CHRIS J. McLELLAN,                                )
                                                  )
       Defendant-Respondent.                      )
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Ronald J. Wilper, District Judge.

       Order dismissing charge of video voyeurism, affirmed.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for appellant. John C. McKinney argued.

       Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy
       Appellate Public Defender, Boise, for respondent. Sarah E. Tompkins argued.
                  ________________________________________________
MELANSON, Judge
       The State of Idaho appeals from the district court’s order dismissing a charge of video
voyeurism against Chris J. McLellan based on a finding that probable cause did not exist. For
the reasons set forth below, we affirm.
                                                 I.
                                 FACTS AND PROCEDURE
       From 2004 to the beginning of 2007, McLellan was involved in a romantic relationship
with the victim in this case. During that time, McLellan and the victim created a video that
depicted the victim undressing and exposing her fully naked body. In July 2009, after the
relationship had ended, the victim became aware that a video depicting her naked body had been
posted to multiple websites on the internet. The victim suspected McLellan of posting the video
and contacted police. Officers questioned McLellan, and he admitted to posting the video on the
internet. McLellan told the investigating officer he was upset with the victim due to an ongoing



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custody dispute. The state filed a complaint, charging McLellan with video voyeurism under
I.C. § 18-6609(2)(b). The complaint specifically alleged:
               That the Defendant . . . did with the purpose of sexually degrading and/or
       abusing another person, to-wit: [victim], did intentionally disseminate, publish or
       sell any image or images of the intimate areas of [victim] without the consent of
       [victim] and with the knowledge that the image or images would sexually abuse
       or degrade her.

       At the preliminary hearing, the state presented testimony from the victim, the victim’s
current husband, and an officer. The victim’s husband testified that he became aware of the
video through an acquaintance and that, when the husband subsequently searched the internet
using the victim’s name, the video appeared on multiple websites. The husband testified that the
video depicted the victim undressing for the camera; that the video contained very strange noises
in the background; and that, at the end, a caption contained vulgar invective. The victim testified
that, while she recalled making a nude video with McLellan, she did not know the video still
existed. The victim never gave McLellan permission to publish or disseminate such video. The
investigating officer testified that the video depicted a woman--appearing to be the
victim--undressing for the camera. The officer stated that the woman looked at the camera
several times, leading to the inference she knew the camera was there, and that her entire naked
body was exposed. The state did not offer the video into evidence. The magistrate found
probable cause existed to support the charge of video voyeurism and bound McLellan over to the
district court. The state then filed its information, alleging the same facts as set forth in the
initial complaint. McLellan filed a motion to dismiss pursuant to I.C. § 19-815A. The district
court found that, based on the charges as alleged by the state, the state failed to present any
evidence on the intent of McLellan when he obtained the video--a material element of the crime.
Therefore, the district court dismissed the case. The state appeals.
                                                II.
                                   STANDARD OF REVIEW
       The legal standard applicable to a finding of probable cause at a preliminary hearing does
not require the state to prove the defendant guilty beyond a reasonable doubt. State v. Phelps,
131 Idaho 249, 251, 953 P.2d 999, 1001 (Ct. App. 1998). Rather, the state need only show that a
crime was committed and that there is probable cause to believe the accused committed it. Id. A
finding of probable cause must be based upon substantial evidence as to every material element


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of the offense charged. I.C.R. 5.1(b). This requirement may be satisfied through circumstantial
evidence and reasonable inferences to be drawn from that evidence by the committing
magistrate. State v. Munhall, 118 Idaho 602, 606, 798 P.2d 61, 65 (Ct. App. 1990). A reviewing
court will not substitute its judgment for that of the magistrate as to the weight of the evidence.
Id. The decision of a magistrate that there exists probable cause to hold a defendant to answer
before the district court should be overturned only on a clear showing that the committing
magistrate abused its discretion. State v. O’Mealey, 95 Idaho 202, 204, 506 P.2d 99, 101 (1973).
                                               III.
                                           ANALYSIS
       The state argues that the district court erred by concluding the evidence presented at the
preliminary hearing did not constitute probable cause to believe McLellan committed video
voyeurism. In this case, the prosecution alleged that McLellan had violated I.C. § 18-6609(2)(b)
under a specific theory--that the video was obtained when the editing and captions were added,
and the intent was to abuse or degrade the victim. 1 The state proceeded to argue this theory
before the magistrate and subsequently to the district court. At no point did the state proffer its
argument that the video was obtained when recorded and with one of the alternate intents.
Because the state limited itself to this narrow theory of the case, the district court properly
reviewed probable cause under this theory. We agree with the district court that, under this
theory, probable cause was lacking. As alleged, the state had to show that the video was
obtained to abuse or degrade the victim, which it did not show. The state’s present argument that
the video was obtained to satisfy sexual desires or prurient interests was not argued below, but is
the state’s theory on appeal. The state’s argument hinges, therefore, upon the interpretation that,

1
       Idaho Code Section 18-6609(2)(b) provides:

                (2)    A person is guilty of video voyeurism when, with the intent of
       arousing, appealing to or gratifying the lust or passions or sexual desires of such
       person or another person, or for his own or another person’s lascivious
       entertainment or satisfaction of prurient interest, or for the purpose of sexually
       degrading or abusing any other person:
               ....
                       (b)    He intentionally disseminates, publishes or sells any
               image or images of the intimate areas of another person or persons
               without the consent of such other person or persons and with
               knowledge that such image or images were obtained with the intent
               set forth above.

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under I.C.R. 5.1(b), the offense charged is any offense described in the statute cited in the state’s
complaint and information, as opposed to the allegations set forth and argued by the state. This
would require the magistrate to find probable cause if the evidence presented fit under any
subsection contained within the statute. McLellan argues that the offense charged constitutes the
crime as alleged by the state and, here, there was no probable cause to bind McLellan over on the
crime of video voyeurism as charged. Alternatively, McLellan argues that, even if he could be
bound over on any theory under the statute cited, the information and evidence adduced at the
preliminary hearing still failed to establish probable cause.
       This case requires us to examine the role of a magistrate during a preliminary hearing. At
a preliminary hearing, the state is required to present evidence “upon every material element of
the offense charged.” I.C.R. 5.1(b). While Rule 5.1 does not refer to the “offense as charged,”
the state presents its theory of the charge, both through argument and by the complaint filed.
The magistrate is required to examine the charge from the state, along with the evidence
presented, and determine whether “a public offense has been committed and [if] there is probable
or sufficient cause to believe that the defendant committed such offense.” I.C.R. 5.1(b). In
doing so, the magistrate is entitled to rely on the theory and argument set forth by the state.
There is no requirement that the magistrate search the record and the law to find alternate
theories of the case for the state to proceed under. Indeed such a requirement would impose an
undue burden upon our judiciary. 2 The duty to proffer theories of a case under which the state
wishes to proceed rests solely with the state, as it possesses the power to bring and subsequently
seek to amend and prosecute charges. Thus, the district court correctly dismissed the case
pursuant to I.C. § 19-815A.
                                                 IV.
                                         CONCLUSION
       The state’s argument that the magistrate or district court should have found probable
cause under a theory it did not proffer is without merit. Therefore, we affirm the district court’s
order dismissing the charge of video voyeurism against McLellan based on its finding that
probable cause did not exist.
       Chief Judge GUTIERREZ and Judge GRATTON, CONCUR.


2
       We do not hold that a magistrate may not determine that an alternative theory exists
under which the state may wish to proceed.

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