Date: 06-10-2014

Case Style: State of Utah v. Adam Howard Jones

Case Number: 2014 UT App 142

Judge: Greenwood

Court: The Utah Court of Appeals on appeal from the Third District Court, Silver Summit Department

Plaintiff's Attorney: Sean D. Reyes and John J. Nielsen, Attorneys for Appellant

Defendant's Attorney: Ronald J. Yengich, Attorney for Appellee

Description: ¶1 The State appeals from the magistrate’s dismissal of criminal
charges against defendant Adam Howard Jones. The State charged
Jones with one count of official neglect and misconduct, a class A
misdemeanor, see Utah Code Ann. § 10‐3‐826 (LexisNexis 2012);
one count of official misconduct, a class B misdemeanor, see id. §
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11‐201(6).
State v. Jones
76‐8‐201; and one count of tampering with a witness, a third degree
felony, see id. § 76‐8‐508(1). The magistrate dismissed all three
counts after a preliminary hearing, determining that there was
insufficient evidence to bind Jones over for trial on any of the three
counts. We affirm.
BACKGROUND
¶2 At the time of the events giving rise to this case, Jones was
the police chief of Kamas, Utah. Jones’s brother, Travis, lived in
Kamas with his girlfriend (Girlfriend). Jones knew that Travis had
a history of alcohol abuse and resulting violent behavior and that
Travis’s alcohol abuse had led to incidents of domestic violence
with Girlfriend. In the past, Girlfriend had called Jones for help
with Travis when Travis was drunk, although these calls had
previously occurred only when Jones was off duty. Some of these
calls occurred as much as six years earlier, when Travis and
Girlfriend lived in West Valley City. Girlfriend had not called Jones
about problems with Travis for approximately one year.
¶3 On February 15, 2011, Jones was on duty in his office. His
shift was to end at 10:00 p.m. At about 9:45 p.m., Girlfriend called
Jones on his personal cell phone and asked him to come to the
house that she shared with Travis. Jones later told the State’s
investigator that he asked Girlfriend why she wanted him to come
over, but she did not give him a reason, and that he assumed the
call was about problems concerning her son. In any event, Jones
immediately left his office, in uniform, and drove his police cruiser
the four blocks to Travis’s house.
¶4 When Jones arrived at the house, he was met by a drunken
Travis clad only in his underwear. Travis was calm, although
inebriated. Travis pointed to scratch marks on his chest and told
Jones, “[L]ook what [Girlfriend] did to me.” Jones then located
Girlfriend in the garage, where she told Jones, “[Travis] can’t do
this to me anymore,” that Travis was “out of control,” and that he
20120754‐CA 2 2014 UT App 142
State v. Jones
had kicked her in the leg. Jones examined Girlfriend’s leg but
observed no injury or impairment in her ability to walk.
¶5 While Jones and Girlfriend were talking, Travis entered the
garage and again accused Girlfriend of scratching his chest.
Girlfriend told Jones that Travis had scratched himself and asked
Jones to calm Travis down. Jones responded that he could not deal
with Travis because the two were brothers and asked Girlfriend if
she wanted to call the Summit County Sheriff’s Office to file a
report. She declined, telling Jones that she was not afraid of Travis.
Jones then spoke with Travis alone, and Travis admitted that he
had scratched himself in an effort to get Girlfriend arrested.
¶6 Travis appeared to be on the verge of passing out, so Jones
put him to bed and told the couple to stay away from each other.
Jones also told them that if they wanted to make a police report
they would have to call the sheriff’s office because Jones could not
become professionally involved in his own family matters. Jones
left Travis’s house after being there a total of fifteen to twenty
minutes and clocked out from his shift a little after 10:00 p.m. Jones
did not arrest or cite Travis, write a report about the incident, or
give Girlfriend written notice of her rights as a domestic violence
victim.
¶7 A short time later, Jones observed on his home computer
that sheriff’s deputies had been dispatched to Travis’s house. When
the deputies arrived there, they found Girlfriend crying and
obviously distraught, with injuries that included bruising on her
leg. Girlfriend’s ten‐year‐old son had also suffered injuries. The
deputies arrested Travis, who was loud, vulgar, and very
aggressive. Deputies also learned that Jones had been at the house
earlier. Jones monitored the situation on his police radio, but the
details of what he may have heard are unknown. Later that night,
Girlfriend called Jones again. Jones assumed that Girlfriend was
calling about Travis and did not answer his phone.
¶8 The next morning, Jones went to visit Travis in jail. Travis
was in a holding cell near the booking counter, and the sheriff’s
20120754‐CA 3 2014 UT App 142
State v. Jones
deputy working at the counter overheard parts of their
conversation. Jones told Travis that Jones had been at Travis’s
house the night before, that Travis was passed out in his bed while
Jones was there, and that Travis needed to do something about his
drinking. As Jones was leaving, he spoke with the deputy directly
about the prior evening’s events and repeated his statement that
Travis was passed out while Jones was at the house. He also told
the deputy that Girlfriend had indicated in the phone call that he
needed to come over to “talk or take care of” Travis.
¶9 As a result of these incidents, the State charged Jones with
official neglect and misconduct—or, in the alternative, the lesser
offense of official misconduct—for his handling of the incident
between Travis and Girlfriend on the night of February 15. The
State’s theory of misconduct under both counts was that Jones had
failed to comply with the requirements imposed on law
enforcement officers by Utah’s Cohabitant Abuse Procedures Act,
see Utah Code Ann. §§ 77‐36‐1 to ‐10 (LexisNexis 2012 & Supp.
2013). The State also charged Jones with witness tampering because
of his statements to Travis during the jail visit the next morning,
where he told Travis that he had been passed out during Jones’s
visit.
¶10 At Jones’s preliminary hearing, the State called only three
witnesses. Craig Gibson, the State’s investigator, testified about his
March 7, 2011 interview of Jones, a transcript of which was
admitted into the record.2 Sheriff’s Deputy Richard Jones described
his response to the dispatch call from Travis’s house on the night
of February 15 after Jones had been there. And Sheriff’s Deputy
Trace Thomsen testified about statements that Jones made to both
him and Travis at the jail on the morning of February 16.
¶11 After the preliminary hearing, Jones filed a motion to
dismiss, which the magistrate granted as to all three counts. In its
2. The interview focused on Jones’s actions on the night of February
15, and there were no questions or discussions about his visit to
Travis in jail the next morning.
20120754‐CA 4 2014 UT App 142
State v. Jones
dismissal order, the magistrate ruled that the State had failed to
demonstrate probable cause to believe that Jones had committed
any of the three charged crimes. As to the official neglect and
misconduct charge, the magistrate ruled that Jones was only
alleged to have violated his duty as a police officer, not as a
municipal officer as required by Utah Code section 10‐3‐826, and
that the appropriate misconduct charge was therefore official
misconduct pursuant to section 76‐8‐201. As to the official
misconduct charge, the magistrate ruled that Jones was under no
obligation to comply with the duties imposed upon police officers
responding to domestic violence incidents because he went to
Travis and Girlfriend’s house as a family member, Girlfriend’s call
did not mention domestic violence, and there was no altercation
occurring when Jones arrived at the house. Finally, as to the charge
of witness tampering, the magistrate ruled that there was no
evidence of one of the elements of the crime: that Jones believed
that an official proceeding relating to his actions was pending or
about to be initiated at the time he spoke to Travis in the jail. The
State appeals from the magistrate’s dismissal order.
ISSUE AND STANDARD OF REVIEW
¶12 The State argues that the magistrate erred in dismissing each
of the three charges against Jones at the bindover stage. The
magistrate’s bindover decision “is a mixed determination that is
entitled to some limited deference.” State v. Maughan, 2013 UT 37,
¶ 12, 305 P.3d 1058; see also State v. Machan, 2013 UT 72, ¶ 18, 322
P.3d 655 (describing the magistrate’s discretion at the bindover
stage as “limited discretion”). The State is entitled to have a
defendant bound over for trial if it presents “evidence sufficient to
support a reasonable belief that the defendant committed the
charged crime,” and in making its bindover determination the
magistrate “must view all evidence in the light most favorable to
the prosecution and must draw all reasonable inferences in favor
of the prosecution.” Maughan, 2013 UT 37, ¶ 14 (citations and
internal quotation marks omitted).
20120754‐CA 5 2014 UT App 142
State v. Jones
ANALYSIS
¶13 The magistrate dismissed the three counts against Jones on
three distinct rationales. We examine each of the magistrate’s
rulings in turn and determine that each ruling was an appropriate
exercise of the magistrate’s “limited discretion.” See Machan, 2013
UT 72, ¶ 18.
I. Official Neglect and Misconduct
¶14 The magistrate first addressed the charge of official neglect
and misconduct. Official neglect and misconduct, a class A
misdemeanor, occurs when “any municipal officer shall at any time
wilfully omit to perform any duty, or wilfully and corruptly be
guilty of oppression, malconduct, misfeasance, or malfeasance in
office.” Utah Code Ann. § 10‐3‐826 (LexisNexis 2012).3 The State
charged Jones with one count of official neglect and misconduct,
alleging that, as the Kamas police chief, Jones was a municipal
officer and that he failed to perform his duties when he did not
comply with the requirements of the Cohabitant Abuse Procedures
Act (the Act) while responding to an incident of domestic violence
at Travis’s house.4
3. In addition to constituting a class A misdemeanor, conviction of
a municipal officer for official neglect and misconduct also
mandates removal from office and ineligibility “for any municipal
office thereafter.” See Utah Code Ann. § 10‐3‐826 (LexisNexis 2012).
4. The Act imposes various duties on law enforcement officers
responding to reports of domestic violence. Among these duties are
that “[a] law enforcement officer who responds to an allegation of
domestic violence shall use all reasonable means to protect the
victim and prevent further violence,” Utah Code Ann. § 77‐36‐
2.1(1) (LexisNexis 2012), and “shall give written notice to the victim
in simple language, describing the rights and remedies available”
to the victim under Utah statutes addressing cohabitant abuse and
child protective orders, id. § 77‐36‐2.1(2)(a). The Act requires that
(continued...)
20120754‐CA 6 2014 UT App 142
State v. Jones
¶15 In dismissing the official neglect and misconduct charge, the
magistrate concluded that Utah Code section 10‐3‐826 “talks about
official neglect and misconduct and encompasses the special
functions of the municipal officer” and that “[t]hose types of
functions do not relate to the general duties of a police officer.” The
magistrate also referred to Kamas City Ordinance #02‐1, which
governs the Kamas police department,5 to determine that Jones was
alleged to have violated not his duties as the police chief but rather
his general duties as a police officer under paragraph 3 of the
ordinance. See Kamas, Utah, Ordinance #02‐1, para. 03 (May 28,
2002) (enumerating the additional powers and duties of
policemen). Accordingly, the magistrate concluded that the
4. (...continued)
a law enforcement officer responding to a domestic violence call
“shall arrest without a warrant or shall issue a citation to any
person that the peace officer has probable cause to believe has
committed an act of domestic violence.” Id. § 77‐36‐2.2(2)(a) (Supp.
2013). The Act also imposes certain reporting requirements,
including the requirement that an officer “who does not make an
arrest after investigating a complaint of domestic violence . . . shall
submit a detailed, written report specifying the grounds for not
arresting any party.” Id. § 77‐36‐2.2(5)(a). Additionally, “[a] law
enforcement officer responding to a complaint of domestic violence
shall prepare an incident report that includes the officer’s
disposition of the case.” Id. § 77‐36‐2.2(6)(a). It is undisputed in this
case that Jones did not give Girlfriend written notice of her rights
and remedies, did not arrest or cite Travis for domestic violence,
and did not file either a failure‐to‐arrest report or an incident
report.
5. Kamas City Ordinance #02‐1 establishes both the Kamas Police
Department and the position of chief of police. See Kamas, Utah,
Ordinance #02‐1, para. 01 (May 28, 2002). Certain duties under the
ordinance are exclusive to the municipal office of police chief,
including the duty to “organize, supervise, and be responsible for
all the activities of the police department” and to “execute all
lawful orders of the Mayor and City Council.” See id. para. 02.
20120754‐CA 7 2014 UT App 142
State v. Jones
appropriate charge was official misconduct under Utah Code
section 76‐8‐201 and declined to bind Jones over on official neglect
and misconduct under section 10‐3‐826.
¶16 We agree with the magistrate’s legal ruling regarding the
meaning of the statute and ordinance. There was no evidence that
Jones was acting in his capacity as the police chief—i.e., failing to
perform a duty arising exclusively from his status as the police
chief—when he went to Travis’s house on the night of February 15.
Cf. State v. Tolman, 775 P.2d 422, 425 (Utah Ct. App. 1989)
(interpreting official misconduct statute to apply only to public
servants acting in their capacity as public servants). Any duties
under the Act arose only due to Jones’s general status as a police
officer. See, e.g., Utah Code Ann. § 77‐36‐2.1(1) (LexisNexis 2012)
(“A law enforcement officer who responds to an allegation of
domestic violence shall use all reasonable means to protect the
victim . . . .” (emphasis added)). Further, to the extent that Kamas
City Ordinance #02‐1 imposed an independent duty on Jones to
comply with the Act, that duty applied to all Kamas police officers
and not exclusively to the police chief. See Kamas, Utah, Ordinance
#02‐1, para. 03 (“The chief of police and all police officers of the
City shall have the following powers and duties . . . .”).
¶17 In sum, the magistrate correctly interpreted Utah Code
section 10‐3‐826 as being limited to acts or omissions relating to the
special functions of a municipal officer in his or her capacity as a
municipal officer. The magistrate also properly determined that
there is no evidence that Jones failed to perform any duty imposed
upon him by virtue of his status as the Kamas police chief, as
opposed to his status as a Kamas police officer or a police officer
generally. Accordingly, the magistrate appropriately declined to
bind Jones over for trial on the charge of official neglect and
misconduct under Utah Code section 10‐3‐826.
II. Official Misconduct
¶18 The magistrate next addressed the State’s alternative charge
of official misconduct, a class B misdemeanor. See Utah Code Ann.
§ 76‐8‐201 (LexisNexis 2012). Official misconduct is committed
20120754‐CA 8 2014 UT App 142
State v. Jones
when “[a] public servant . . . knowingly refrains from performing
a duty imposed on him by law or clearly inherent in the nature of
his office” and does so “with an intent to benefit himself or another
or to harm another.” See id. The State’s theory of official misconduct
against Jones was that he was a public servant by virtue of his
status as a police officer, that he failed to comply with his law
enforcement duties under the Act when he responded to
Girlfriend’s allegation of domestic violence against Travis, and that
he did so to benefit either himself or Travis.
¶19 The magistrate dismissed the official misconduct charge,
stating that a police officer’s duties under the Act “are predicated
on the . . . officer responding to an allegation of domestic violence.”
The magistrate determined that Jones was not responding to an
allegation of domestic violence because Girlfriend called him as
Travis’s brother, not as a police officer; Girlfriend’s call did not
mention domestic violence; and there was no ongoing altercation
when Jones arrived at Travis’s house. The magistrate concluded
that “[t]here is no showing that [Jones] was responding to an
allegation of domestic abuse, [and] therefore the [Act] and the
duties arising under it have no application to [Jones] in this
incident.”
¶20 Again, we agree with the magistrate. The Act does not
impose its duties on all police officers at all times but rather on
police officers who are responding to allegations of domestic
violence. See, e.g., Utah Code Ann. § 77‐36‐2.1(1) (LexisNexis 2012)
(“A law enforcement officer who responds to an allegation of domestic
violence shall use all reasonable means to protect the victim . . . .”
(emphasis added)). Further, this court has previously determined
that a public servant does not commit the crime of official
misconduct unless he or she acts in the “capacity” of a public
servant. See State v. Tolman, 775 P.2d 422, 425 (Utah Ct. App. 1989)
(“[T]he prosecution was required to prove that Tolman . . . acted in
his capacity as a public servant . . . .”). Thus, Jones committed
official misconduct under Utah Code section 76‐8‐201 only if he
failed to perform a duty in his “capacity” as a police officer. See id.
20120754‐CA 9 2014 UT App 142
State v. Jones
¶21 Although the Act does not provide a definition of the type
of police response that triggers the Act’s various duties, a reading
of the Act as a whole indicates that it is intended to apply only to
official police responses to domestic violence. For example, the Act
refers variously to “respond[ing] to an allegation of domestic
violence,” Utah Code Ann. § 77‐36‐2.1(1); “domestic violence
call[s],” id. § 77‐36‐2.2(1) (Supp. 2013); and “complaints of domestic
violence,” id. § 77‐36‐2.2(3). Read in the context of a statute
governing the activities of law enforcement officers, the language
employed by the legislature indicates that the Act’s duties apply
only when a police officer is making an official police response to
a domestic violence incident.6
¶22 The State argues that the circumstances surrounding Jones’s
visit to Travis’s house give rise to a reasonable inference that Jones
was responding in a law enforcement capacity. These
circumstances include the facts that Jones was on duty, in uniform,
and driving a police vehicle; responded immediately to Girlfriend’s
call rather than waiting the fifteen minutes until he went off duty;
and investigated the incident at Travis’s house “as a police officer
would.” We must accept an inference as reasonable “unless it falls
to a level of inconsistency or incredibility that no reasonable jury
could accept it.” State v. Machan, 2013 UT 72, ¶ 8, 322 P.3d 655
(citation and internal quotation marks omitted). However, we
evaluate proposed inferences under the totality of the
circumstances, not just those circumstances that support the
inference. See State v. Graham, 2013 UT App 109, ¶ 9, 302 P.3d 824
(stating that inferences to support a bindover must be evaluated
“under the totality of the circumstances”).
6. Although we determine that the Act’s duties are triggered only
by official responses to domestic violence, we agree with the State
that the Act is not limited to situations where a call to authorities
specifically alleges domestic violence. Police officers have many
different types of official interactions with the public, and whether
any particular incident triggers the Act’s duties depends on the
circumstances.
20120754‐CA 10 2014 UT App 142
State v. Jones
¶23 The totality of the circumstances of the February 15 incident
includes undisputed evidence that Girlfriend called Jones on his
personal cell phone and that Jones responded to that personal call
solely in his capacity as Travis’s brother. Gibson, the State’s
investigator, testified that he interviewed both Jones and Girlfriend
and that both of them indicated that Jones was not called there in
his police capacity. Thus, neither Jones nor Girlfriend believed
Jones was present as a police officer. The evidence further indicates
that Jones informed Girlfriend at the scene that he could not
become professionally involved because he was Travis’s brother
and that Jones repeatedly offered to contact the sheriff’s office if
Girlfriend desired official law enforcement involvement.
¶24 Under the totality of the circumstances, we cannot accept as
reasonable the State’s proposed inference that Jones responded to
Girlfriend’s personal call as a police officer making an official
response to a domestic violence call. The undisputed evidence is
that Jones was summoned and responded solely as a family
member. The evidence that the State relies on—Jones’s police
uniform and other accoutrements of official involvement—are
consistent with an inference of official capacity when viewed in
isolation but not when viewed in light of the undisputed testimony
that Jones’s visit to Travis’s house was purely an unofficial family
matter. In other words, in light of all of the evidence presented to
the magistrate, the inference presented by the State “falls to a level
of inconsistency or incredibility that no reasonable jury could
accept it.” Machan, 2013 UT 72, ¶ 8 (citation and internal quotation
marks omitted).
¶25 In reaching this conclusion, we take some guidance from
two Utah cases addressing the crime of assaulting a peace officer
and, in particular, that crime’s element that an assaulted officer be
“acting within the scope of authority as a peace officer” at the time
of the assault. See Utah Code Ann. § 76‐5‐102.4(2)(a) (LexisNexis
Supp. 2013). In State v. Gardiner, 814 P.2d 568 (Utah 1991), a divided
supreme court affirmed the defendant’s conviction despite the fact
that the assault occurred as the defendant was resisting an illegal
search by the officer. See id. at 570–75. The court held that, despite
the illegality of the search the officer was still acting within the
20120754‐CA 11 2014 UT App 142
State v. Jones
scope of his authority at the time of the assault. See id. at 575. In
analyzing the scope of authority question, the court employed the
test of “whether an officer is doing what he or she was employed
to do or is ‘engaging in a personal frolic of his [or her] own.’” Id. at
574 (alteration in original) (quoting United States v. Heliczer, 373
F.2d 241, 245 (2d Cir. 1967)).
¶26 In Salt Lake City v. Christensen, 2007 UT App 254, 167 P.3d
496, this court affirmed a conviction for assaulting a peace officer
that arose from a uniformed officer’s off‐duty employment as a
hospital security guard. Id. ¶¶ 12–13. The court concluded that the
officer was acting within the scope of his authority as a peace
officer at the time of the assault despite his private employment
status, explaining,
It is true that upon Defendant’s arrival at the
emergency room, [the officer] was acting as [a
hospital] employee and not as a peace officer. But
when Defendant took a defensive stance, clenched
his fists, and made verbal threats of physical
violence, [the officer’s] primary role shifted from that
of a security guard to that of a peace officer. It was in
his law enforcement capacity that [the officer] took
Defendant under control and prevented the
escalation of further violence.
Id. ¶ 14. The court ultimately held that “when a law enforcement
officer responds to preserve law and order or to detect and deter
crime, he is acting ‘within the scope of his authority as a peace
officer’ even though he may be working at another job.” Id.
(citation omitted).
¶27 Thus, at least for purposes of the crime of assaulting a peace
officer,7 we know that even a uniformed, on‐duty police officer is
7. In Christensen, the court expressly stated,
Questions about the scope of a peace officer’s
(continued...)
20120754‐CA 12 2014 UT App 142
State v. Jones
not acting within the scope of his law enforcement capacity while
he engages in a “personal frolic.” Gardiner, 814 P.2d at 574 (citation
and internal quotation marks omitted). Conversely, even off‐duty
officers may act within the scope of their law enforcement capacity
when they act “to preserve law and order or to detect and deter
crime.” Christensen, 2007 UT App 254, ¶ 14; see also id. (“[E]ven
peace officers who are ‘off duty’ will typically spring into action
when circumstances so require, i.e., when the law has been or is
about to be broken.”).
¶28 Analyzing the evidence presented below through the lenses
of Gardiner and Christensen, Jones’s initial decision to go to Travis’s
house in response to Girlfriend’s personal call can be reasonably
characterized only as a personal frolic to attend to family matters.
When Jones arrived at the house and became aware of Girlfriend’s
allegation of domestic violence, he declined to “spring into action”
and treat the situation as a law enforcement matter. See Christensen,
2007 UT App 254, ¶ 14. To the contrary, Jones advised Girlfriend
that he could not become professionally involved because of his
relationship to Travis, and he repeatedly offered to involve the
sheriff’s office to respond to the incident in an official law
enforcement capacity. Girlfriend did not object to Jones’s
statements and, in fact, endorsed those statements. Furthermore,
Jones observed no visible signs of domestic abuse—other than
Travis’s self‐inflicted scratches—and, when Jones left the house, all
was calm and Travis was sleeping in his bed. In short, nothing
7. (...continued)
authority arise in many different contexts, including
respondeat superior, workers’ compensation, and
civil rights cases. We specifically note that our
analysis and holding in this case should not be
construed as applying in all contexts in which the
question of an officer’s authority may arise.
Salt Lake City v. Christensen, 2007 UT App 254, ¶ 13 n.3, 167 P.3d
496.
20120754‐CA 13 2014 UT App 142
State v. Jones
occurred during Jones’s visit to the house to convert the incident
from a purely personal incident into a law enforcement matter.8
¶29 For all of these reasons, we agree with the magistrate that it
cannot be reasonably inferred from the State’s evidence that Jones’s
interaction with Travis and Girlfriend on the night of February 15
was anything other than a family matter. Because the evidence
below, presented as a whole, does not support a reasonable
inference that Jones was responding to a domestic violence
allegation in his official capacity, we affirm the magistrate’s refusal
to bind Jones over for trial on the charge of official misconduct.
III. Witness Tampering
¶30 Finally, the magistrate addressed the charge of witness
tampering.
A person is guilty of the third degree felony of
tampering with a witness if, believing that an official
proceeding or investigation is pending or about to be
instituted, or with the intent to prevent an official
proceeding or investigation, he attempts to induce or
otherwise cause another person to . . . testify or
inform falsely . . . .
8. We note that the officer in Christensen was not deemed to be
acting in a law enforcement capacity until he reacted to the
defendant’s threat of immediate physical violence. See 2007 UT
App 254, ¶ 14. The officer initially remained in his unofficial,
security guard capacity despite his knowledge that the defendant
was a suspect in a recent and serious domestic violence incident. Id.
¶ 3. The officer also remained in his unofficial capacity as he
endured fifteen to twenty minutes of the defendant’s “obscene
outbursts,” twice heard the defendant threaten to kill his brother
upon being released from the hospital, and requested police
backup due to the defendant’s “large size, belligerent behavior, and
the fact that he was a suspect in a domestic violence incident.” Id.
¶ 4.
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State v. Jones
Utah Code Ann. § 76‐8‐508(1) (LexisNexis 2012). The State’s theory
of witness tampering against Jones was that Jones believed that
there would be an official investigation into his handling of the
incident with Girlfriend and Travis. Jones then attempted to get
Travis to cover up the events of that incident by telling Travis the
next morning that he had been passed out during the time that
Jones was at his house.
¶31 The magistrate dismissed the witness tampering charge after
determining that there was no evidence that an official
investigation into Jones’s actions was pending or about to be
instituted at the time he spoke with Travis. Perhaps more
importantly, the magistrate found no evidence that Jones believed
such an investigation was pending. See Melessa v. Randall, 121 F.
App’x 803, 807 (10th Cir. 2005) (interpreting Utah Code section 76‐
8‐508(1) as requiring a defendant’s subjective belief “that an official
proceeding or investigation is currently pending or will be initiated
in the future”); State v. Bradley, 752 P.2d 874, 876–77 (Utah 1985)
(per curiam) (“The statute requires no more than that a defendant
believe an official proceeding or investigation to be underway.”). In
the absence of evidence that Jones believed that an official
investigation into his actions at Travis’s house was underway or
would be initiated in the future, the magistrate concluded that the
State had failed to adequately establish an element of the crime of
witness tampering and declined to bind Jones over on that charge.9
¶32 On appeal, the State argues that Jones knew that Travis had
been arrested for domestic violence shortly after Jones left the
house. The State asks us to draw a reasonable inference that the
9. The magistrate also ruled that Travis’s potential testimony
would have been irrelevant to any investigation into Jones’s actions
because Girlfriend was the only witness to Jones’s allegedly
improper response to her allegation of domestic violence against
Travis. We do not address this portion of the magistrate’s ruling,
but we note that Girlfriend and Jones both told the State’s
investigator that Travis was awake when Jones arrived at the
house.
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State v. Jones
resulting investigation of Travis would have necessarily led to an
investigation of Jones’s actions. The State also argues that the
evidence that Jones “falsely told a certainly hung over and possibly
memory‐impaired Travis” that he was passed out during the
incident gives rise to a reasonable inference that Jones wanted
Travis to repeat the lie to investigators. We cannot accept either of
the State’s proposed inferences.
¶33 As discussed above, the totality of the evidence presented at
the preliminary hearing shows that Jones went to Travis’s house on
the evening of February 15 solely on a family matter or “personal
frolic” that did not constitute an official response to a domestic
violence allegation. See State v. Gardiner, 814 P.2d 568, 574 (Utah
1991) (citation and internal quotation marks omitted). Further,
there is nothing in the evidence to support an inference that, at any
time during Jones’s visit, his “primary role shifted from that of a
[family member] to that of a peace officer.” See Salt Lake City v.
Christensen, 2007 UT App 254, ¶ 14, 167 P.3d 496. Thus, the mere
fact that Jones knew of both his own actions and Travis’s domestic
violence arrest provided Jones with no reason to believe that his
actions were likely to be the subject of any sort of official
investigation. We cannot infer Jones’s belief of an official
investigation from his actions when—based on the evidence
presented below—those actions did not constitute a crime or
otherwise suggest the likelihood of an investigation.
¶34 We also cannot agree that the mere fact that Jones told
Travis that he was passed out gives rise to a reasonable inference
that Jones believed an investigation was impending. See generally
State v. Garcia‐Vargas, 2012 UT App 270, ¶ 17 n.5, 287 P.3d 474
(“[A]n inference is a deduction as to the existence of a fact which
human experience teaches us can reasonably and logically be
drawn from proof of other facts.” (alteration in original) (citation
and internal quotation marks omitted)). If there was some
independent reason for Jones to believe that there would be an
investigation, then his statement to Travis might give rise to an
inference that he lied to Travis in order to impede that
investigation. But in the absence of other evidence that Jones
believed an investigation was likely, we cannot “reasonably and
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State v. Jones
logically” deduce that Jones believed that an investigation was
pending merely from the evidence that he told Travis that he was
passed out. See id.
¶35 “Under Utah law, a magistrate is ‘free to decline bindover
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.’” State v. Graham, 2013 UT App 109, ¶ 17, 302
P.3d 824 (quoting State v. Virgin, 2006 UT 29, ¶ 21, 137 P.3d 787).
“[S]peculation is defined as the ‘act or practice of theorizing about
matters over which there is no certain knowledge.’” State v. Hester,
2000 UT App 159, ¶ 16, 3 P.3d 725 (quoting Black’s Law Dictionary
1407 (7th ed. 1999)), abrogated on other grounds by State v. Clark, 2001
UT 9, 20 P.3d 300. In the absence of any other evidence that Jones
believed that he would be subject to an official investigation, the
State’s proposed inference of Jones’s belief from his alleged
falsehood to Travis constitutes such speculation.
¶36 The State’s proposed inference is also not the only possible
explanation of Jones’s statement such that the inference might be
supported as the only explanation available. Indeed, it seems just
as likely that Jones visited Travis in jail simply to check on his
condition and told Travis that he had passed out—which Travis
had apparently done before Jones left the house—so as not to
prompt a discussion of the prior evening’s events. If there was
independent evidence to support the State’s proposed inference,
then there would be a question for a jury to resolve. See State v.
Maughan, 2013 UT 37, ¶¶ 15–21, 305 P.3d 1058. But we see no other
evidence to support the theory that Jones sought to impede an
investigation of his actions.10 In the absence of such evidence, the
State’s proposed inference asks us to infer Jones’s belief in an
investigation merely from the allegation that Jones told a falsehood
about the past event that would have been the subject of the
purported investigation. This represents speculation rather than
10. To the contrary, Jones freely discussed the events at Travis’s
house with the State’s investigator, including the fact that Travis
was not passed out when Jones arrived at the house.
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State v. Jones
reasoned and logical deduction. See generally Garcia‐Vargas, 2012 UT
App 270, ¶ 17 n.5 (recognizing the “difference between drawing a
reasonable inference and merely speculating about possibilities”).
¶37 For these reasons, the magistrate appropriately determined
that the State failed to produce evidence that Jones believed that
there was, or would be, any official investigation into his actions at
the time he made the alleged false statement to Travis. Because
belief in a present or pending investigation is an element of the
crime of witness tampering as charged against Jones, the
magistrate properly declined to bind Jones over for trial on the
witness tampering charge.
CONCLUSION
¶38 The magistrate appropriately concluded that the State did
not present “evidence sufficient to support a reasonable belief” that
Jones violated any official duties during his visit to Travis’s house
on February 15 or that he believed that he would face official
investigation when he falsely told Travis the next morning that
Travis had been passed out during the visit. See Maughan, 2013 UT
37, ¶ 14 (citation and internal quotation marks omitted). The
magistrate therefore acted within its “limited discretion” in
dismissing the charges of official neglect and misconduct, official
misconduct, and witness tampering against Jones. See State v.
Machan, 2013 UT 72, ¶ 18, 322 P.3d 655. Accordingly, we affirm the
magistrate’s dismissal order.
CHRISTIANSEN, Judge (concurring in part, concurring in the
result in part, and dissenting in part):
¶39 I concur in the lead opinion’s analysis in Section I regarding
official neglect and misconduct in violation of Utah Code section
10‐3‐826 and concur in the result as to the conclusion reached in
Section III regarding witness tampering in violation of Utah Code
section 76‐8‐508(1). I disagree, however, with the lead opinion’s
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State v. Jones
determination in Section II that the magistrate correctly dismissed
the charge of official misconduct in violation of Utah Code section
76‐8‐201, which provides that “[a] public servant is guilty of a class
B misdemeanor if, with an intent to benefit himself or another,
he . . . knowingly refrains from performing a duty imposed on him
by law or clearly inherent in the nature of his office.” Utah Code
Ann. § 76‐8‐201 (LexisNexis 2008). The magistrate determined, and
the lead opinion agrees, that because Jones did not initially respond
as a police officer to his brother’s house on a domestic‐violence call
but rather as Travis’s brother, and because no altercation occurred
in Jones’s presence between Travis and Girlfriend, Jones was not
acting in his official capacity as a law enforcement officer and was
thus not required to perform the duties imposed on law
enforcement officers by the Act. See id. § 77‐36‐2.1(1) (“A law
enforcement officer who responds to an allegation of domestic
violence shall use all reasonable means to protect the victim and
prevent further violence . . . .”); id. § 77‐36‐2.2(2)(a) (providing that
an officer responding to a domestic violence call “shall arrest
without a warrant or shall issue a citation to any person that the
peace officer has probable cause to believe has committed an act of
domestic violence”). I respectfully dissent as to Section II.
¶40 To begin, I agree that the Act “does not impose its duties on
all police officers at all times, but rather on police officers who are
responding to allegations of domestic violence.” See supra ¶ 20. I
also agree that the circumstances that prompted Jones’s visit to
Travis and Girlfriend’s house on February 15, 2011, even while he
was on duty, in uniform, and traveling in his police vehicle, do not
alone give rise to a reasonable inference that Jones was responding
in a law enforcement capacity to a domestic‐violence call. And I
agree that Jones’s visit to Travis’s house was initially “a purely
unofficial family matter.” See supra ¶ 24. However, I disagree with
the magistrate’s and the lead opinion’s conclusion that, once he
arrived at his brother’s house and was informed of the situation for
which it turns out he had been summoned, Jones did not at that
point have a duty to officially respond as a law enforcement officer
to Girlfriend’s allegation of domestic violence. See id. § 77‐36‐2.1(1).
20120754‐CA 19 2014 UT App 142
State v. Jones
¶41 In my view, the lead opinion incorrectly concludes that
“nothing occurred during Jones’s visit to the house to convert the
incident from a purely personal incident into a law enforcement
matter.” See supra ¶ 28. Rather, what admittedly started out as a
“personal frolic” turned into a situation requiring Jones to respond
as a law enforcement officer once he discovered the situation at
Travis and Girlfriend’s house. Specifically, Jones arrived at his
brother’s residence armed with the knowledge of the violent
history between Travis and Girlfriend and of Travis’s tendency to
become violent after consuming alcohol. Upon his arrival, Jones
observed that Travis was intoxicated, found Girlfriend in her car
talking on the phone, and learned from Girlfriend that “Travis was
out of control,” had allegedly kicked Girlfriend in the leg,11 and had
harmed himself.12 Once he received Girlfriend’s statement that
Travis had allegedly assaulted her, Jones had a duty as a sworn
peace officer “to preserve law and order [and] to detect and deter
crime, [and act] within the scope of his authority as a peace
officer.” Salt Lake City v. Christensen, 2007 UT App 254, ¶ 14, 167
P.3d 496 (citation and internal quotation marks omitted). Jones was
therefore obligated to discharge his duties under the Act. See Utah
Code Ann. §§ 77‐36‐2.1, ‐2.2.
¶42 In passing the Act, our legislature has removed some of the
discretion a police officer has in responding to allegations of
11. A criminal assault is, among other things, “an act, committed
with unlawful force or violence, that causes bodily injury to
another or creates a substantial risk of bodily injury to another.”
Utah Code Ann. § 76‐5‐102(1)(c) (LexisNexis 2012). An allegation
of a kick in the leg can therefore constitute an allegation of assault.
12. It is less clear what duty Jones may have had in response to
Travis’s initial allegation of domestic abuse against Girlfriend,
given Travis’s later admission that the allegation was false. See
supra ¶ 5. However, because Girlfriend’s allegation was sufficient
to trigger Jones’s duties under the Act, I express no opinion as to
whether Travis’s initial allegations would have also triggered those
duties.
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State v. Jones
domestic violence and has statutorily mandated certain procedures
on the part of those police officers. “[B]ecause domestic violence is
serious in nature and has a high likelihood of repeated violence,
incidents of domestic abuse require the mandatory and immediate
attention of law enforcement.” State v. Farrow, 919 P.2d 50, 54 (Utah
Ct. App. 1996) (discussing the policy underlying the legislature’s
enactment of Utah Code title 77, chapter 36, then called the Spouse
Abuse Procedures Act); see also Utah Code Ann. § 77‐36‐2.2(1)
(“The primary duty of law enforcement officers responding to a
domestic violence call is to protect the victim and enforce the
law.”). Given the mandatory response required by law, once he
became aware of Girlfriend’s allegation of domestic violence, Jones
had a duty to use all reasonable means to protect her and to
prevent further violence between Travis and Girlfriend that night.
Whether Jones failed to comply with his law enforcement duties as
required by the Act, and whether such failure was committed
knowingly and with the intent to benefit himself or Travis, see Utah
Code Ann. § 76‐8‐201, are ultimately questions for the fact‐finder.
Consequently, I would reverse the magistrate’s dismissal of the
official misconduct charge and remand for further proceedings. I
therefore dissent from the lead opinion on this point.
20120754‐CA 21 2014 UT App 142

Outcome: Affirmed

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