State v. Glosenger

2022 UT App 129THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellant,
v.
TONI DANNELLE GLOSENGER,
Appellee.
Opinion
No. 20210136-CA
Filed November 17, 2022
Seventh District Court, Monticello Department
The Honorable Don Torgerson
No. 201700078
Sean D. Reyes, Nathan H. Jack, and Christopher D.
Ballard, Attorneys for Appellant
Emily Adams and Sara Pfrommer, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this
Opinion, in which JUDGE DAVID N. MORTENSEN and
SENIOR JUDGE KATE APPLEBY concurred.1
CHRISTIANSEN FORSTER, Judge:
¶1 While driving from North Dakota to Utah, Toni Dannelle
Glosenger steered her truck into oncoming traffic and collided
with an SUV. The collision caused the death of Glosenger’s
passenger and the two people in the SUV. The State charged
Glosenger with three counts of manslaughter and a traffic
infraction. Following a preliminary hearing, the magistrate
declined to bind over Glosenger on the charges on the ground that
the State had introduced no evidence other than the fact of the
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
State v. Glosenger
collision to prove that Glosenger was criminally reckless. The
State appeals the district court’s bind over decision, and we
reverse.
BACKGROUND2
¶2 On a “hot and dry” day in August 2019, Glosenger was
driving her pickup truck to Utah, heading southbound on a
straight section of a two-lane highway. An SUV towing a boat was
driving northbound on the same section of road. Without
warning, Glosenger’s truck veered into the northbound lane and
collided with the SUV. Glosenger sustained serious injuries in the
collision; the passenger in Glosenger’s truck and the two people
in the SUV were killed.3
¶3 After the collision, medical and law enforcement personnel
arrived on scene and a state trooper (Trooper) began interviewing
witnesses. One witness stated that he was following the SUV on
the highway “when suddenly . . . a silver pickup truck headed
southbound veered into the northbound lane causing a collision
with the SUV head-on. The SUV tried steering away, to stop [the
collision] from happening, but had no time to make the sudden
move.” Another witness stated that he was following the SUV
when a truck “headed south[] drifted at full speed into the
northbound lane and collided into the [SUV]. . . . It happened too
quick for the [SUV] to brake or adequately maneuver. The [truck]
made no corrective action. . . . The [truck] came . . . over too
2. “When we review 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. Prisbrey, 2020 UT App
172, n.1, 479 P.3d 1126 (quotation simplified).
3. Evidence in the record suggests that Glosenger was also
traveling with “at least one cat” at the time of the collision. It is
unclear if the cat was in a crate. The cat was killed in the collision.
20210136-CA 2 2022 UT App 129State v. Glosenger
quickly.” Trooper did not see or talk to anyone traveling
southbound (behind Glosenger’s truck) who had witnessed the
collision, nor did he see any vehicles other than the truck and the
SUV “that appeared to be tied up or involved in [the] crash.”
¶4 Trooper also examined the crash scene. He observed
“[gouges] and markings in the northbound travel lane” closer to
“the white line on the shoulder rather than the [yellow] center line
. . . in the middle of the road,” which indicated that the collision
occurred in the northbound lane. Most of the damage to both the
truck and the SUV was on “the passenger front,” meaning that “it
was a front passenger to front passenger collision.” There were
skid marks on the northbound side of the roadway, caused by the
SUV, but there were no skid marks on the southbound side where
Glosenger’s truck had been.
¶5 A few days after the collision, an agent (Agent) for the State
Bureau of Investigation was contacted to perform a follow-up
investigation regarding the collision. Agent assisted the Major
Collision Investigation Team in preparing a report (the Report),
using information from, among other things, an internal module
in Glosenger’s truck that records driving data. The Report showed
that Glosenger was driving 67.2 miles per hour 5 seconds before
the collision and 68 miles per hour at the time of the collision (the
speed limit was 65 miles per hour). There were no “spikes” or
“drop[s]” in speed, “which would be consistent with drowsy
driving.”
¶6 The Report also showed that five seconds before the
collision, Glosenger’s steering wheel was angled slightly to the
left as she navigated a “slight curve” in the highway. As the road
transitioned into a “straightaway,” the wheel “started to come
back straight between 3.5 seconds to 0.3 seconds prior to the
crash.” However, in the last 0.3 seconds prior to impact, the wheel
abruptly turned to the left “from 5 percent to almost 36.5 percent.”
The point of collision occurred as the vehicles traversed the
straightaway.
20210136-CA 3 2022 UT App 129State v. Glosenger
¶7 Included in the Report was information Agent obtained
from Glosenger’s cell phone records and from an interview with
Glosenger. According to the cell phone records, which Agent
obtained via a warrant, “there was no phone activity at the time
of the crash.” However, the records would indicate only whether
there were incoming calls or text messages, not whether the phone
was being manipulated at the time of the collision.
¶8 Agent also interviewed Glosenger at the hospital after the
collision. Glosenger indicated that she had been “driving for a
long time, from North Dakota back to Monticello,” and that she
stopped in Colorado to take “one nap.” She did not remember
“any specific details . . . about the actual crash and what
happened.”
¶9 The State charged Glosenger with three counts of
manslaughter and a traffic infraction. At a preliminary hearing,
the State presented the evidence detailed above. Agent explained
the summary of findings in the Report, namely that speed,
weather, the condition of the roadway, and mechanical issues
were not factors in the collision. Moreover, there was “no
indication of drowsy driving or a medical issue at the time of the
collision.” And although Glosenger had “a history of seizures,”
she “was taking medication to manage them” and the medication
“was all within therapeutic ranges.” In light of these findings, the
Report noted that “[d]istracted driving is a possible reason for the
sudden swerve into the oncoming [SUV’s] path.”
¶10 In addition, Agent testified about a conversation he had
with Glosenger approximately three months after the collision.
According to Agent, Glosenger called him to discuss details she
had since remembered about the collision. During the call,
Glosenger stated that
she was in [the] passing lane just prior to the area of
the crash and there was a [semi-truck] in front of her
that she was going to pass, and she started to pass
20210136-CA 4 2022 UT App 129State v. Glosenger
them. And then as the lane ended, she found herself
in the opposite lane of travel.
She . . . felt at the time the best option she had
was to go into oncoming traffic and try to cross the
road versus just applying the brakes and slowing
down and then veered into oncoming traffic, and
that’s where she struck the other vehicle.
But Agent explained that based on the other evidence in the case,
including the other witness statements, the Report, and
photographs of the accident scene, he did not believe there was
another vehicle in front of Glosenger at the time of the collision.
In addition, he opined that the speed data contained in the Report
was not reflective of a vehicle that was either accelerating or
decelerating to pass someone, but instead it “appear[ed] as if . . .
the cruise control [was] set and the vehicle [was] just traveling
down the road.”
¶11 At the close of evidence, the magistrate told the parties that
“[t]his looks like res ipsa loquitur in the criminal world.” The
magistrate directed the parties to brief two issues: the legal
standard for bind over at a preliminary hearing and the difference
between negligence and recklessness.
¶12 Following briefing, the magistrate declined to bind over
Glosenger on the charges. The magistrate reasoned the State did
not “have any evidence to say what the [criminal] act was or the
omission that [Glosenger] did . . . to cause [the] accident.” The
magistrate recognized the collision was caused when Glosenger
crossed the midline on the road and that driving across the
midline is “not reasonable.” However, the magistrate concluded
that “[c]rossing the middle line is a result of [an] act,” and that
although the State had provided multiple “different options for
why [Glosenger] might have been reckless”—including that she
was distracted or drowsy—all the reasons were merely
20210136-CA 5 2022 UT App 129State v. Glosenger
“speculative.” Because the State could not point to any “fact that
[was] nonspeculative,” bind over was not appropriate.
ISSUE AND STANDARD OF REVIEW
¶13 The State now appeals the magistrate’s decision declining
to bind over Glosenger for three counts of manslaughter and a
traffic infraction. “A 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.” State v. Prisbrey, 2020 UT App 172,
¶ 18, 479 P.3d 1126 (quotation simplified). “In the bindover
context,” appellate courts give “limited deference to a
magistrate’s application of the bindover standard to the facts of
each case.” State v. Ramirez, 2012 UT 59, ¶ 7, 289 P.3d 444(quotation simplified).
ANALYSIS
¶14 To bind over a defendant for trial, the State must establish
at a preliminary hearing that probable cause exists for all the
elements of the crimes charged. “The evidentiary threshold” to
establish probable cause at a preliminary hearing is “relatively
low.” State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444. All the State
must do to establish probable cause is to “present reasonably
believable evidence—as opposed to speculation—sufficient to
sustain each element of the crime(s) in question.” State v. Prisbrey,
2020 UT App 172, ¶ 21, 479 P.3d 1126 (quotation simplified).
Indeed, at this stage of a criminal case, the State need not
“produce evidence sufficient to support a finding of guilt at trial
or even to eliminate alternative inferences that could be drawn
from the evidence in favor of the defense.” Id. (quotation
simplified). And when assessing the evidence, 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.” Id. (quotation simplified).
20210136-CA 6 2022 UT App 129State v. Glosenger
¶15 After the collision, the State charged Glosenger with three
counts of manslaughter. A person is guilty of manslaughter when
the person “recklessly causes the death of another individual.”
Utah Code Ann. § 76-5-205(2)(a) (LexisNexis Supp. 2022). Thus, to
obtain a bind over on manslaughter, the State had to present
evidence sufficient to support a reasonable belief that Glosenger
(1) recklessly (2) caused the deaths of the other people. Because
the second element is undisputed, we focus our analysis on
whether the State presented sufficient evidence that Glosenger
acted recklessly when driving the truck.
¶16 A person acts recklessly when he or she “is aware of but
consciously disregards a substantial and unjustifiable risk” that
the harm will occur. Id. § 76-2-103(3) (2017). “The risk must be of
such a nature and degree that its disregard constitutes a gross
deviation from the standard of care that an ordinary person
would exercise under all the circumstances as viewed from the
actor’s standpoint.” Id. Accordingly, the magistrate was required
to bind over Glosenger on the manslaughter charges once the
State offered reasonably believable evidence that Glosenger was
aware of but consciously disregarded a substantial and
unjustifiable risk.
¶17 At the preliminary hearing, the State offered evidence to
support multiple theories of recklessness, one of which is that the
collision occurred when Glosenger was trying to pass a semi-
truck. To credit this theory, the State elicited testimony from
Agent, who described the conversation he had with Glosenger
approximately three months after the collision. During the call,
Glosenger explained that prior to the crash she was in a passing
lane attempting to pass a truck. When the passing lane ended,
“she found herself in the opposite lane of travel.” At that point,
Glosenger “felt . . . the best option she had was to go into
oncoming traffic and try to cross the road versus just applying the
brakes and slowing down.” As she “veered into oncoming
traffic,” she “struck the other vehicle.” Despite this testimony, the
magistrate concluded the State failed to offer nonspeculative
20210136-CA 7 2022 UT App 129State v. Glosenger
evidence to support a finding that Glosenger was driving
recklessly. This conclusion was error.
¶18 In denying bind over, the magistrate noted the State had
not put forth “any evidence to say what the [criminal] act was.”
The magistrate recognized the collision was caused when
Glosenger “cross[ed] the middle line,” but concluded that because
there was “no explanation for it,” a crime had not been
committed. But this conclusion ignores the information Glosenger
provided to Agent during their phone call after the collision. As
noted, Glosenger told Agent that prior to the collision, she was
attempting to pass a semi-truck in a passing lane. When the
passing lane ended, “she found herself in the opposite lane of
travel” and decided “the best option she had was to go into oncoming
traffic and try to cross the road versus just applying the brakes and
slowing down.” (Emphasis added.) As a result, Glosenger
“veered into oncoming traffic, and that’s where she struck the
other vehicle.”
¶19 Glosenger’s account of the collision shows she was aware
of but consciously disregarded the risk of harm to herself, her
passenger, and the people in the oncoming vehicle. According to
her own recollection of the collision, Glosenger was on the wrong
side of the road after the passing lane ended and had the
opportunity to brake and slow down. But she chose not to do so.
Instead, she made the conscious decision to turn the wheel and
steer the truck into oncoming traffic.
¶20 To be sure, evidence contrary to Glosenger’s account exists
in the record. But that is not the point. At this stage of the
proceedings, the State is not required “to eliminate alternative
inferences that could be drawn from the evidence in favor of the
defense.” See State v. Schmidt, 2015 UT 65, ¶ 18, 356 P.3d 1204(quotation simplified). The State was not required to prove the
specific reason Glosenger decided to turn into oncoming traffic; it
needed to prove only that she was aware of and consciously
disregarded the risk of harm to herself and others by doing so. See
In re B.W., 103 N.E.3d 266, 277–78 (Ohio Ct. App. 2017) (“When
20210136-CA 8 2022 UT App 129State v. Glosenger
presented with alternate credible theories of the case at the
bindover hearing, a [magistrate] is not permitted to choose a
theory; this is the function of the jury at trial . . . .”). Accordingly,
Glosenger’s account of the collision is sufficient to satisfy the
“relatively low” bind over standard. See State v. Clark, 2001 UT 9,
¶ 10, 20 P.3d 300 (quotation simplified). Viewed in the light most
favorable to the State and including all reasonable inferences that
can be drawn therefrom, Glosenger’s description of the collision
is sufficient to support a conclusion that she was driving
recklessly.
¶21 Some evidence was presented that may support a verdict
at trial in Glosenger’s favor (including that at the time of the
collision she “was going the speed limit,” “[h]er medication was
within therapeutic range,” “[s]he wasn’t on her cell phone,” and
there was no indication that there was a “mechanical failure”), but
“the liberal bindover standard does not authorize [a magistrate]
to second-guess the prosecution’s evidence by weighing it against
the totality of the evidence in search of the most reasonable
inference to be drawn therefrom.” See State v. Jones, 2016 UT 4,
¶ 22, 365 P.3d 1212 (quotation simplified). “Weighing evidence in
search of the most reasonable inference to be drawn therefrom is
the role of the factfinder at trial.” Id. ¶ 24.
CONCLUSION
¶22 After examining the evidence here, and based on
Glosenger’s own statements, we conclude the State carried its
burden to support each element of the charged crimes. Thus, the
magistrate erred in refusing to bind over Glosenger for trial. We
reverse and remand for further proceedings consistent with this
opinion.
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