IN THE SEVENTH DISTRICT COURT WITHIN AND FOR SAN JUAN COUNTY, UTAH STATE OF UTAH, RULING ON BINDOVER AND MOTION TO DISMISS Plaintiff, vs. Case No. 171700054 171700055 RICHARD A. ELDREDGE, 171700056 ROBERT J. WILCOX, and ALAN P. FREESTONE, Judge George M. Harmond Defendants. ‘The court conducted combined preliminary hearings in these cases on August 25, 2017. Just prior to the hearings, the Defendants filed Rule 25 Motions to Dismiss the Charges in each case. The court granted the State time within which to respond to the Motion to Dismiss and to brief any argument on the preliminary hearings. Both parties have submitted briefs on the Motions to Dismiss and on the issue of bindover. The court now rules as follows. 1. Factual Background. Richard Eldredge is the duly elected Sheriff of San Juan County. Alan Freestone is his chief deputy, and Robert J. Wilcox is a sergeant with the San Juan County Sheriff. The alleged victim, Todd Bristol, is a former deputy sheriff with San Juan County. On or around May of 2016, Sheriff Eldredge (hereinafter “Eldredge” assigned Chief Deputy Freestone (hereinafter “Freestone”) to investigate an allegation made against the Sherif by then Deputy Bristol. The allegation came to light on May 12, 2016, when Sergeant Wilcox (hereinafter “Wileox”) inquired of Deputy Bristol (hereinafter “Bristol”) if he was planning to attend firearms qualification, as Bristol had failed to participate, without being excused, in either 1of the mandatory qualification shoots for the Sheriff's Office held on May 8 and May 9, 2016, Bristol told Wilcox that Bristol would qualify through POST (Police Officer Standards and Training.) Wilcox asked Bristol if he would attend rifle qualification on May 17, 2016, along, ‘with two deputies who had been excused from the May 8 and 9 qualifications. Bristol informed Wilcox that Eldredge had pointed a gun at him at the last firearms training, and if Eldredge ‘would not be there, he would attend. Bristol did attend on May 17, 2016. Wilcox reported the allegation that Eldredge had pointed a firearm at Bristol to Eldredge, and Eldredge assigned Freestone to perform an internal investigation into the incident. Eldredge also reported the allegation to Major Scott Stephenson at POST. Freestone interviewed Bristol around May 19, 2016, and Bristol informed Freestone that the gun incident had occurred on October 13 or 14, 2015, at the Sheriff's Office fall qualification shoot. Bristol told Freestone he did not believe it was necessary to report the incident until time for the next firearms training, Bristol agreed with Freestone that the incident did not appear to be ‘a criminal act. Freestone recorded this interview. Freestone then interviewed Eldredge, who did not remember such an incident occurring during the fall qualification shoot. Freestone did not record this interview. Freestone then interviewed Wilcox. Freestone allowed Wilcox to listen to Bristol’s recorded interview. Wilcox did not remember such an incident occurring at a firearm shoot. Freestone reviewed both the radio logs and range logs from the October 2015 firearms qualification shoot, and determined that Bristol and Eldredge were not at the range on the same day. In early August 2016, Eldredge leamed that Bristol had told other deputies in the Sheriff's department that Bristol had proof that Eldredge had falsified reports. Eldredge assigned Freestone to investigate the allegations. When he had completed that investigation, at Eldredge’s direction, Freestone forwarded both investigations to the Attorney General’s office for review and possible investigation Bristol had numerous reprimands and problems with the department beginning in 2011 ‘As aresult, on May 9, 2016, the San Juan County Human Resources Department sent a registered letter to Bristol inviting him to address his concems as a San Juan County employee 2with a representative of the Human Resources Department, not the Sheriff. Bristol did not meet with Human Resources. In January 2017, Bristol had a confrontation with Deputy San Juan County Attorney, Matt Brooks. Bristol approached Brooks in the lobby of the San Juan County Courthouse and, in a loud, aggressive voice, accused Freestone of perjury. Brooks was concerned that this occurred in a public place, and that Bristol was using profanity. Later that day, while speaking with San Juan County Attorney Kendall Laws in the lobby of the Courthouse, Bristol, threatened another law enforcement officer in a loud voice, again using profanity. Laws and Brooks reported the confrontations to Eldredge, and around January 11, 2017, Eldredge asked the Utah County Sheriff to assign deputies to investigate the allegations. The investigation disclosed that Bristol had not only confronted Laws and Brooks, but he had taken a police report from a case not his own and shared it with a lawyer in Salt Lake City, who was not representing the defendant in the case. The Utah County deputies concluded that Bristol had clearly violated San Juan County Sheriff's Office policies. Based on all of Bristol’s actions, on February 23, 2017, Eldredge provided Bristol with his findings and a pre-determination, pursuant to San Juan County Policies, that he recommended Bristol be terminated from his employment. Under the San Juan County Policies, only the Human Resources Director could terminate an employee. Bristol, as was his right under San Juan County policy, asked for a hearing in the matter. The Human Resources Director, Walter Bird, arranged for the hearing, and it was held on March 29, 2017, before an administrative law judge. After the hearing, the ALJ announced that the County had met its ‘burden of proof supporting Bristol’s policy violations, but delayed any further proceedings at the parties’ request to allow the parties to attempt to resolve the issue, On April 21, 2017, Bristol voluntarily resigned from the County. In the meantime, the Attomey General had assigned Agent Aaron Jones (hereinafter “Jones") to conduct an investigation into the allegation that Eldredge had pointed a firearm at Bristol. Jones conducted multiple interviews with Bristol wherein he insisted the incident ‘occurred at the October 2015 qualification shoot. Eldredge and Wilcox initially informed Jones they could not remember any such incident, though Eldredge did not deny it occurred. Over the 3course of the investigation, Eldredge and Wilcox recalled that the incident occurred at the May 2015 shoot because it happened the same day Wilcox received some injuries from the shoot. Bristol did not inform Jones that the incident actually occurred at the May 2015 qualification shoot until May 2017 2. Legal Standards. “A [magistrate's] decision to bind over a criminal defendant for trial presents a mixed question of law and fact and requires the application of the appropriate bindover standard to the underlying factual findings.” Jn re LR.C., 2010 UT 41, 4 12, 232 P.3d 1040. A “reasonable belief” in this context parallels the standard for an arrest warrant, meaning that the level of evidence that the prosecution must show is less than that required to prove guilt beyond a reasonable doubt. Zd. “All that is required is reasonably believable evidence—as opposed to speculation—sufficient to sustain each element of the crime(s) in question.” Id, Also, 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.” State v. Clark, 2001 UT 9, 4 10, 20 P.3d 300 (citation and internal quotation marks omitted). Finally, the ‘magistrate is not to weigh or sift through conflicting evidence presented at the preliminary hearing, See id. State v. Graham 3.Analysis. 3a, Count 1: Retaliation Against a Witness, Victim or Informant. In order to bind the Defendants over for trial under this charge the court must find probable cause that Eldredge and Freestone sought to have Bristol terminated because he had reported the alleged firearms incident with Eldredge and an investigation was pending by the "302 P.3d 824, 826, 2013 UT App 109, 47 (Utah App..2013) 4Attomey General. The State would have the court ignore Bristol’s history with the San Juan County Sheriff's Office, and the varied reasons that Eldredge sought to have Bristol terminated. Under Utah Code 76-8-508.3, Eldredge was not prohibited from seeking to have Bristol terminated for reasons not connected to the Attorney General's investigation. Further, Eldredge himself could not terminate Bristol, only the Human Resources Director could take that final step. Finally, Bristol resigned from his post after a hearing conducted by an administrative law judge who was not connected to the Sheriff's Office. The administrative law judge’s initial determination that Bristol had committed several violations of San Juan County Policy has no reference to the Attorney General investigation. Viewing the entire chain of events, not just the ‘Attorney General investigation, it is clear that Bristol was terminated for his performance as a deputy, and not for his reporting the alleged incident with Eldredge. San Juan County took this action, but Eldredge was justified under this statute as a matter of law, to seek Bristol’s discipline, Accordingly, Count | is dismissed. 3b. Count 2: Reckless Endangerment. It is apparent the State will not be able to provide evidence that the weapon Eldredge allegedly pointed at Bristol was loaded. Wilcox’s statement is that he unloaded the weapon himself, and it was not loaded when Eldredge picked it up. Eldredge, though he did not check to see if the weapon was loaded, did not state, nor is there other evidence, that he loaded the weapon. Bristol had no knowledge of the weapon's status, but later told Freestone he did not believe he was in danger. The State relies on State v Davis*, for the proposition that a firearm is a dangerous weapon whether it is loaded and ready to fire or not, Davis did not address Utah Code 76-5-112. Rather, the issue in that case was whether a firearm, loaded or unloaded, met the statutory definition of a “dangerous weapon.” However, this analysis misses the point of Ulah Code 76-5-112. Simply labeling a firearm as @ “dangerous weapon” for purposes of prohibiting its 2-711 P2d 232, 234 (Utah 1985)possession by certain categories of persons does not fulfill the requirements of that section. A person accused of that section must, by his or her actions, actually create a substantial risk of death or serious bodily injury. Asserting that merely pointing an unloaded weapon is “creating a substantial risk of death or serious bodily injury” does not meet the statutory requirements. Otherwise there would be no need for Utah's threatening a dangerous weapon statute, The State did not present evidence sufficient to show probable cause that the weapon was loaded. As a matter of law, the mere pointing of the weapon cannot create a substantial risk of death or serious bodily injury without proof the firearm was loaded and capable of discharging, Accordingly, Count 2 is dismissed. 3c. Count 3: Obstruction of Justice. The State seeks to show that all three Defendants intended to hinder, delay or prevent the investigation of Bristol’s allegation. The State alleges that the Defendants did so by providing false information to the Attorney General’s investigator. It appears that this allegation is primarily based on the Defendants’ inability to remember the incident, and to insist that nothing happened at the Sheriff's Office shooting qualification in October 2015. Most of their inability to remember seems to stem from the fact that the incident did not occur in October 2015. Bristol originally told Wilcox the incident occurred in October 2015. This was the basis for Freestone’s investigation. The range and radio records he gathered indicated Eldredge and Bristol were not on the range on the same day during the October shoot. Wilcox did not recall the incident at all, nor did Eldredge. It was Eldredge who instructed Freestone to refer his investigation of this incident to the ‘Attorey General for review and further investigation if warranted. Eldredge took the further step of reporting the alleged incident to POST. These two actions do not indicate an intent to hinder, delay or prevent the investigation of the allegations. ‘Aaron Jones began his investigation in August 2016. In September 2016, Jones interviewed Bristol, who in turn informed Jones the incident occurred in October 2015. Although 6Eldredge initially did not remember the incident, he did not discount Bristol's complaint, and continued to work to remember the incident. At his interview with Jones on November 10, he did not deny the incident, and stated he did not think Bristol was lying, but could not remember details. An hour after the interview, Eldredge called Jones and indicated he had in fact begun to recall some details and explained those details to Jones. He continued to keep in touch with Jones, On October 18, 2016, Jones interviewed Wilcox. After the interview, Wileox began to think about the incident, and remembered that the had been injured during the spring ‘qualifications shoot that took place on May 26 and 27, 2015. He further remembered details involving Eldredge and Bristol. He prepared a statement with this information and tumed it in to Freestone. He also informed Jones of the statement, who obtained a copy from Freestone. With this information, Freestone was able to confirm with radio and range logs that Eldredge and Bristol were in fact on the range at the same time on the May 2015 qualification date. In March 2017, Bristol also informed Jones that the incident likely occurred at the May 2015 qualification shoot, not October. Bristol and his wife had discovered an entry in her journal referencing a conversation between Eldredge and Bristol that had occurred at Bristol's house in May 2015. The firearm incident occurred a few weeks later. All three Defendants cooperated in the Attorney General investigation, and when the correct date was finally ascertained, provided information to confirm the date of the incident. ‘There was no evidence presented at the preliminary hearing, let alone enough to meet the probable cause standard, that any of the three Defendants provided any false information, or that they, at any time, hindered, delayed or attempted to prevent the investigation. The evidence is wholly lacking to proceed on this charge, end Count 3 is dismissed. 3d. Count 4: Official Misconduct. The State alleges that Bldredge and Freestone committed official misconduct when they “failed to immediately report the gun-pointing incident,” and Freestone committed official 7misconduct when he failed to properly investigate the incident after it was referred to him by Eldredge. The State points to Freestone’s failure to record his investigation interviews with Eldredge and Wilcox, when he recorded his interview with Bristol. The State refers to Utah Code §53-6-211(1)(d) as the “official duty” imposed on Eldredge and Freestone. That statute authorizes POST to suspend or revoke the certification of a ‘peace officer who engages in any of the activities listed in the statute. The statute does not impose any sort of obligation on a peace officer to report any of those activities or investigate any of those activities. Bristol’s testimony at the preliminary hearing, and his interview with Freestone, indicate that at the time this occurred, he did not believe that Eldredge had engaged in any wrongful act, and that the alleged pointing of the weapon was showing of “a mirthful contempt” on Eldredge’s part toward Bristol. At the time this occurred, none of the involved parties considered it a serious or criminal act that required reporting. In May 2016, when Bristol told Wilcox that he was afraid to go to a qualification shoot with Eldredge, Eldredge did not hesitate to begin an official investigation. As a matter of law, Utah Code §53-6-211(1)(@) does not impose on a peace officer a duty to investigate. It merely authorizes POST to take corrective action if'a peace officer engages in criminal activity. ‘The State does not point out a statute, rule, or San Juan County Sheriff's Office policy that requited Freestone to record the interviews of Eldredge and Wilcox. The policy simply states the interviews “should” be recorded. That the State believes that Freestone not recording these two interviews is a failure to properly perform his duty does not rise to a violation of law. As @ matter of law, the State has failed to provide evidence to support this charge as to Freestone. Count 4 is hereby dismissed Because the State has not met its burden at preliminary hearing, and further based on the applicable law, the court declines to bind over Eldredge, Freestone and Wileox for trial. Further, under Rule 25, Utah Rules of Criminal Procedure, this case is dismissed. This is a final order under Rule 7())(1), Utah Rules of Civil Procedure, and the parties By the Court Digitally signed by George M. Harmond 8 ‘Date: 2017.11.15 eh 16:05155-0700" need not prepare a further order.CERTIFICATE OF NOTIFICATION I certify that a copy of the attached document was sent to the following people for case 171700054 by the method and on the date specified. MANUAL EMAIL: GBFFREY C BRAMBLE jbrambleestirba.com MANUAL EMAIL: HEIDI M NESTEL heidieutahvictimsclinic.org MANUAL EMAIL: CRAIG T PETERSON craigpeterson@agutah.gov MANUAL EMAIL: PETER STIRBA peterastirba.com MANUAL EMAIL: STEVEN A WUTHRICH swuthrich@agutah.gov 11/18/2017 /s/ CONNIE ADAMS Date: Deputy Court Clerk Printed: 11/15/17 1 Page 1 of 1