State v. Elliott - Criminal Bindover Appeal

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April 2, 2026 Get Citation Alerts Download PDF Add Note

State v. Elliott

Court of Appeals of Utah

• Citations: 2026 UT App 49

• Docket Number: Case No. 20240990-CA

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (39.6K)

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Combined Opinion

2026 UT App 49

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellant,
v.
DAVID ELLIOTT,
Appellee.

Opinion
No. 20240990-CA
Filed April 2, 2026

Fifth District Court, St. George Department
The Honorable Jay Winward
No. 241500111

Derek E. Brown and Michael Gadd,
Attorneys for Appellant

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

ORME, Judge:

¶1 A district court judge, sitting as a magistrate, declined to
bind David Elliott over for trial on one count each of attempted
forcible sexual abuse, forcible sexual abuse, and rape. The State
appeals, arguing that it presented sufficient evidence at the
preliminary hearing to establish probable cause that Elliott
committed each charged offense. Because Elliott has not filed a
brief or otherwise appeared in this appeal, we apply a lower
standard of review than we ordinarily do in bindover cases. And
because the State has satisfied this lower standard, we reverse the
State v. Elliott

magistrate’s denial and remand the case with instructions to bind
Elliott over for trial on each count. 1

BACKGROUND 2

The Alleged Sexual Assaults

¶2 The State originally charged Elliott with one count of rape
and one count of forcible sexual abuse allegedly committed
against Mary. The State also charged him with one count of
forcible sexual abuse—that it later amended to attempted forcible
sexual abuse—allegedly committed against Diane. 3 At the
preliminary hearing, Mary and Diane testified as to the
underlying events for each charge. Their testimony is
summarized below.

¶3 One night in August 2023, Mary and Diane—both college
freshmen—encountered Elliott in the parking lot of Mary’s
student housing complex. Elliott, who introduced himself as
“Chris,” 4 told them about an off-campus party they could all

1. “Given the lack of adversarial briefing on the matter at hand,
   . . . our reversal is a non-merits decision that is not intended to
   have precedential value.” Zions Bancorporation, NA v. Schwab, 2023
   UT App 105, ¶ 15, 537 P.3d 273 (quotation simplified).

2. “In reviewing a magistrate’s bindover decision, we view all
   evidence in the light most favorable to the prosecution, draw all
   reasonable inferences in favor of the prosecution, and recite the
   facts with that standard in mind.” State v. Nihells, 2019 UT App
   210, n.1, 457 P.3d 1121 (quotation simplified).

3. Mary and Diane are pseudonyms.

4. Elliott later disclosed his actual first name—David—to Diane,
   but he asked her not to tell Mary.

20240990-CA 2 2026 UT App 49
State v. Elliott

attend. The three then drove to the party together but did not
remain there long before returning to Mary’s apartment with a
bottle of vodka.

¶4 At the party and later at the apartment, Mary and Diane
consumed large amounts of alcohol. Elliott did not drink any
alcohol. At one point, Diane began feeling ill, and the last thing
she remembered from that night was vomiting in the bathroom
while Elliott rubbed her back. The last thing Mary remembered
from that night was lying down and falling asleep in her full-sized
bed while Diane and Elliott were still in the bathroom.

¶5 The following morning, Diane awoke in Mary’s bed with
Elliott’s arm on the waistband of her pants. Diane was unsure
how she came to be in bed and felt “uncomfortable” and “upset.”
The zipper on her pants was pulled down. Mary was still asleep
on the other side of Elliott in the bed. When Diane removed the
blanket covering them, she discovered that Mary and Elliott were
both naked from the waist down. Diane started yelling at Elliott
to leave and threw his pants, which were located on the other side
of the room, at him. Elliott responded, “[Y]our friend wants me to
stay.”

¶6 The yelling woke Mary. She soon realized that she was not
wearing her pants or underwear, and she had no memory of
removing them. Mary also observed blood coming from her
vagina. Mary joined Diane in telling Elliott to leave, and he then
complied. Mary testified that she never consented to Elliott
touching her “in any way.”

¶7 At the behest of Diane’s mother, Mary and Diane went to a
hospital to undergo sexual assault exams. Mary continued to
bleed from her vagina for the next “two or three weeks.”

20240990-CA 3 2026 UT App 49
State v. Elliott

The Denial of Bindover

¶8 At the beginning of the preliminary hearing, prior to any
witness testimony, the magistrate called a sidebar conference. The
magistrate first asked whether there was “any movement” in plea
negotiations. After the State answered that they were “not even
close at this point,” the magistrate replied that they “should be
closer.” The magistrate then indicated that he had “read the case”
and stated, “I could be totally wrong. But it sounds like buyer’s
remorse with these two girls that invited him to hang out with
them. It’s a tough case.” The State answered that although it was
“a tough case,” it would “rather go to trial than take
misdemeanors.” The magistrate then suggested something along
the lines of “a 402 reduction.” 5

¶9 After the sidebar ended, the magistrate addressed Elliott,
stating that “there may be some middle ground here” that was
“worth, at least, exploring.” To that end, the magistrate gave the
parties “ten minutes to talk.” But the parties did not reach a plea
agreement during that time and informed the magistrate that they
were ready to proceed with the preliminary hearing. The State
then called its witnesses. In addition to Mary and Diane, the State
called a detective to testify regarding the results of Mary’s sexual
assault exam. The detective testified that Elliott’s DNA was found
around Mary’s mouth and on her breast.

¶10 At the end of its presentation of evidence, the State moved
to amend the forcible sexual abuse count relating to Diane to
attempted forcible sexual abuse. The magistrate stated that he
wanted to hear the State’s argument on the rape charge relating
to Mary before ruling on the motion to amend.

1. A “402 reduction” refers to a motion filed pursuant to Utah Code section 76-3-402, which authorizes a trial court to reduce the degree of a criminal conviction under certain circumstances.

20240990-CA 4 2026 UT App 49
State v. Elliott

¶11 Following argument, the magistrate declined to bind
Elliott over for trial on any of the three counts. Apparently having
granted the State’s motion to amend, the magistrate first
addressed the attempted forcible sexual abuse count, stating that
although “Elliott may have wanted something to happen” with
Diane, “he wasn’t trying to force it to happen.” Rather, according
to the magistrate, Elliott left after Diane told him, “I don’t want
this.”

¶12 As for the rape count relating to Mary, the magistrate
indicated that “[t]here is not evidence of intercourse.” The
magistrate added that there was “no evidence that [Mary] was
drugged in any way,” although he conceded that she had
consumed “some alcohol.” Addressing Mary directly, the
magistrate further stated, “I cannot find a reasonable inference, in
part, because it’s not reasonable that you fell asleep and don’t
know what happened without an explanation.”

¶13 Similarly, the magistrate declined to bind Elliott over on
the forcible sexual abuse charge relating to Mary for “lack of
evidence.” The magistrate stated that although the State
presented direct evidence of Elliott’s DNA on Mary’s breast, the
magistrate had “no idea where that came from or how it got
there,” adding, “It could have come from anywhere,” including
Mary “rolling over on” Elliott while in bed.

¶14 Accordingly, the magistrate dismissed all three charges.
The State appeals.

ISSUE AND STANDARD OF REVIEW

¶15 The State challenges the magistrate’s decision not to bind
Elliott over for trial. Ordinarily, a bindover determination
“presents a mixed question of law and fact and requires the
application of the appropriate bindover standard to the

20240990-CA 5 2026 UT App 49
State v. Elliott

underlying factual findings.” State v. Prisbrey, 2020 UT App 172,
¶ 18, 479 P.3d 1126 (quotation simplified), cert. denied, 485 P.3d 946
(Utah 2021). We also ordinarily “give limited deference to a
magistrate’s application of the bindover standard to the facts of
each case.” Id. (quotation simplified). But here, because Elliott did
not file a brief or otherwise appear in this appeal, that is not the
governing standard.

¶16 An appellee’s “failure to file a brief” is not “a confession of
error on the part of the appellee,” nor does it “amount to an
automatic default and consequent reversal of the lower court.”
AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d
76 (quotation simplified). Nevertheless, the failure deprives
appellate courts “of adversarial briefing on the matter at hand.”
Zions Bancorporation, NA v. Schwab, 2023 UT App 105, ¶ 15, 537
P.3d 273. Accordingly, although in such situations “we still must
consider whether the appellant has carried its burden of
persuasion on appeal,” that burden “is significantly lower.” Id.
¶¶ 14–15 (quotation simplified). That is, the appellant “need only
establish a prima facie showing of a plausible basis for reversal.”
AL-IN Partners, 2021 UT 42, ¶ 19 (quotation simplified). See Prima
Facie, Black’s Law Dictionary (12th ed. 2024) (defining “prima
facie” as “[a]t first sight; on first appearance but subject to further
evidence or information”).

ANALYSIS

¶17 “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.” State v. Schmidt, 2015 UT 65, ¶ 19, 356 P.3d 1204
(quotation simplified). The State’s evidentiary burden at this stage
of a criminal proceeding is the “relatively low” probable cause
standard. Id. ¶ 17 (quotation simplified). See Utah R. Crim. P.
7B(b). This standard requires “only the presentation of evidence

20240990-CA 6 2026 UT App 49
State v. Elliott

sufficient to support a reasonable belief that the defendant
committed the charged crime.” State v. Ramirez, 2012 UT 59, ¶ 9,
289 P.3d 444 (quotation simplified). See State v. Clark, 2001 UT 9,
¶ 15, 20 P.3d 300 (stating that the evidence presented at a
preliminary hearing “need not be capable of supporting a finding
of guilt beyond a reasonable doubt”). Moreover, circumstantial
evidence alone is sufficient to establish probable cause. Cf. Salt
Lake City v. Carrera, 2015 UT 73, ¶ 11, 358 P.3d 1067 (“It is a
well-settled rule that circumstantial evidence alone may be
sufficient to establish the guilt of the accused.”) (quotation
simplified).

¶18 At the preliminary hearing stage, the State need
not “eliminate alternative inferences that could be drawn from
the evidence in favor of the defense,” Ramirez, 2012 UT 59,
¶ 9, because doing so would encroach upon the jury’s role
of fact-finder, id. ¶ 10. See Schmidt, 2015 UT 65, ¶ 18 (stating that
at the preliminary hearing stage, it is “not appropriate for a
magistrate to evaluate the totality of the evidence in search of
the most reasonable inference”) (quotation simplified).
Accordingly, in making a bindover decision, a magistrate
“must view all evidence in the light most favorable to
the prosecution and must draw all reasonable inferences in
favor of the prosecution.” State v. Maughan, 2013 UT 37, ¶ 14,
305 P.3d 1058 (quotation simplified). A magistrate
“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.” Schmidt, 2015 UT 65, ¶ 31 (quotation
simplified).

¶19 Thus, in applying the probable cause standard, a
magistrate may decline to bind a defendant over for trial “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.” Id. ¶ 18 (quotation simplified). Speculation,

20240990-CA 7 2026 UT App 49
State v. Elliott

as opposed to a reasonable belief, occurs when “there is no
underlying evidence to support the conclusion.” Carrera, 2015 UT
73, ¶ 12.

¶20 Here, the State’s burden on appeal is even lower than the
already “lenient” probable cause standard. Maughan, 2013 UT 37,
¶ 14. As discussed above, because Elliott did not file a brief in this
appeal, the State must make only a prima facie showing that the
evidence plausibly supports a finding of probable cause to secure
a reversal. See AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42,
¶ 19, 496 P.3d 76. And the State has carried that burden in this
case.

¶21 Relating to Mary, the State charged Elliott with rape and
forcible sexual abuse. As for Diane, at the preliminary hearing, the
State moved to amend the third charge to attempted forcible
sexual abuse. And while the magistrate did not expressly grant
the motion, the magistrate did address attempted sexual abuse
when denying bindover. We address each count in turn.

I. Rape Charge: Mary

¶22 A person commits rape when, with “intent, knowledge, or
recklessness,” the person “has sexual intercourse with another
person without the victim’s consent.” State v. Newton, 2018 UT
App 194, ¶ 26, 437 P.3d 429 (quotation simplified), aff’d, 2020 UT
24, 466 P.3d 135. See id. ¶ 27; Utah Code Ann. § 76-5-402 (2)(a)
(LexisNexis Supp. 2025); id. § 76-2-102 (2017). 6 Sexual intercourse
is without consent when, among other possibilities, the person
“knows the victim is unconscious, unaware that the act is

1. Because the applicable provisions of the Utah Code in effect at the relevant time do not differ from those in the current version of the Utah Code in any way material to this appeal, we cite the current version of the printed code for convenience.

20240990-CA 8 2026 UT App 49
State v. Elliott

occurring, or is physically unable to resist.” Utah Code Ann.
§ 76-5-406 (2)(e) (LexisNexis Supp. 2025).

¶23 In denying bindover on this count, the magistrate
determined that the State failed to establish that Elliott had sexual
intercourse with Mary, stating, “There is not evidence of
intercourse.” The magistrate also pointed to the lack of evidence
that Mary had been drugged and stated that it could not find a
reasonable inference because it was “not reasonable” for Mary to
fall asleep and not “know what happened without an
explanation.”

¶24 The State points to the following evidence as satisfying the
probable cause standard for this count:

• Mary consumed large amounts of alcohol that night.

• Elliott did not drink any alcohol that night.

• Mary was fully clothed when she passed out on her bed.

• The next morning, Elliott and Mary were found in bed
together, both completely naked from the waist down.

• Elliott’s DNA was found on Mary’s breast and around her
mouth.

• Mary was bleeding from her vagina when she awoke, and
the bleeding continued for the next couple of weeks.

¶25 The State argues that this evidence, largely provided
through Mary’s and Diane’s testimony, supports the reasonable
inferences that “Elliott felt sexual attraction towards Mary and
acted on his attraction”; that “Elliott knowingly, intentionally, or
recklessly removed his clothing, removed Mary’s clothing, and
penetrated Mary’s vagina with his penis, causing Mary’s injury”;
and that Mary did not consent to the sexual intercourse because

20240990-CA 9 2026 UT App 49
State v. Elliott

she was passed out from overconsumption of alcohol. The State
further takes issue with the magistrate’s statement that it was “not
reasonable” for Mary not to “know what happened.” The State
asserts that Mary not waking up during the alleged rape is readily
explained by her having passed out due to excessive alcohol
consumption.

¶26 This evidence and the reasonable inferences derived
therefrom are sufficient to make a prima facie showing of a
plausible basis for probable cause to bind Elliott over on the rape
charge. That is, because there appears to be a sufficient
“evidentiary foundation” supporting the State’s theory of the
charge, it does not amount to mere speculation. Salt Lake City v.
Carrera, 2015 UT 73, ¶ 12, 358 P.3d 1067. See State v. Schmidt, 2015
UT 65, ¶ 18, 356 P.3d 1204. And without adversarial briefing on
the matter, we have no occasion to delve further into the
magistrate’s ruling.

¶27 Accordingly, we reverse the magistrate’s denial of
bindover on the rape charge.

II. Forcible Sexual Abuse Charge: Mary

¶28 As relevant here, a person “commits forcible sexual abuse
if” the person, “without the consent of the individual,” “touches
the female breast of another individual” who is over 14 years of
age with the intent to “arouse or gratify the sexual desire of any
individual.” Utah Code Ann. § 76-5-404 (2)(a) (LexisNexis Supp.
2025). The magistrate denied bindover on this charge, citing “lack
of evidence.” The magistrate was unpersuaded by the evidence of
Elliott’s DNA on Mary’s breast, stating he had “no idea where that
came from or how it got there,” and he suggested that “[i]t could
have come from anywhere,” including Mary “rolling over on”
Elliott while they slept.

20240990-CA 10 2026 UT App 49
State v. Elliott

¶29 The State argues that the following evidence and the
reasonable inferences derived therefrom supported a showing of
probable cause that Elliott committed forcible sexual abuse of
Mary:

• Elliott’s DNA was found on Mary’s breast.

• Elliott and Mary were found in bed together, both
naked from the waist down.

• Mary was passed out and remained asleep when
Elliott touched her breast.

The State argues that the fact that Elliott and Mary were both
naked from the waist down supports the reasonable inference that
Elliott’s DNA was transferred onto Mary’s breast “as part of his
overall assault against Mary” and not from, as the magistrate
suggested, Mary rolling over on Elliott as they slept.

¶30 Again, we are persuaded that the State has made a prima
facie showing of a plausible basis for probable cause for this
charge. All the circumstances identified by the State and cited
above support a reasonable inference that Elliott’s DNA was
transferred onto Mary’s breast during the course of sexual activity
while Mary was passed out on the bed. And absent a response
from Elliott, we have no occasion to address this argument
further.

¶31 Accordingly, we also reverse the magistrate’s bindover
decision on the forcible sexual abuse charge.

III. Attempted Forcible Sexual Abuse Charge: Diane

¶32 A person attempts to commit an offense if the person
“engages in conduct constituting a substantial step toward
commission of the crime” and “intends to commit the crime.”
Utah Code Ann. § 76-4-101 (1)(a), (b)(i) (LexisNexis 2017).

20240990-CA 11 2026 UT App 49
State v. Elliott

“[C]onduct constitutes a substantial step if it strongly
corroborates the actor’s [intent].” Id. § 76-4-101(2). The magistrate
declined to bind Elliott over for trial on attempted forcible sexual
abuse, stating that although “Elliott may have wanted something
to happen” with Diane, “he wasn’t trying to force it to happen,”
as evidenced by him leaving after Diane told him to.

¶33 In support of probable cause on this charge, the State
points to the above-detailed evidence and reasonable inferences
relating to the rape and forcible sexual abuse of Mary, see supra
Parts I & II, as well as to Diane’s testimony that she awoke the
next morning to find the zipper of her pants down and Elliott’s
arm on the waistband of her pants. The State argues that this
evidence supports the reasonable inference that “in addition to
assaulting Mary, Elliott turned his attention to [Diane] and
unzipped her pants as a substantial step towards also committing
forcible sexual abuse against [Diane] while she slept” and that
“Elliott intended to also sexually abuse [Diane] when he unzipped
her pants.” The State further argues that in concluding that Elliott
“wasn’t trying to force [anything] to happen,” the magistrate
failed to address the reasonable inference that Elliott unzipped
Diane’s pants while she lay asleep on the bed.

¶34 Once more, the State has made a prima facie showing that
evidence existed supporting a plausible basis for a finding of
probable cause that Elliott attempted to commit forcible sexual
abuse of Diane. Diane’s testimony of Elliott’s hand on her
waistband and of her open zipper supports a reasonable inference
that Elliott had been the one to unzip her pants. This, combined
with the above-discussed reasonable inference that, while Mary
was unconscious, Elliott removed her pants and underwear and
engaged in sexual activity with her, also supports a reasonable
inference that Elliott may have had similar intentions with Diane
when he unzipped her pants. Further, the act of unzipping her
pants constitutes a “substantial step” toward committing forcible
sexual abuse of Diane. And absent argument to the contrary, we

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State v. Elliott

end our analysis at this prima facie showing of a plausible basis
for probable cause.

¶35 We therefore also reverse the magistrate’s denial of
bindover on the attempted forcible sexual abuse charge.

CONCLUSION

¶36 In light of the State’s prima facie showing of a plausible
basis for finding probable cause on all three counts, we reverse
the magistrate’s bindover decision and remand the case with
instructions to bind Elliott over for trial on each charge.

20240990-CA 13 2026 UT App 49