State v. Clyde

2019 UT App 101

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellant,
v.
JANA CLYDE,
Appellee.

Opinion
No. 20180197-CA
Filed June 13, 2019

Eighth District Court, Duchesne Department
The Honorable Lyle R. Anderson
No. 171800359

Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellant
Peter Stirba, Wendy Brown, and Matthew Strout,
Attorneys for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

POHLMAN, Judge:

¶1 A magistrate must bind over a defendant for trial if he or
she finds probable cause to believe that the defendant committed
the crime charged. The magistrate here declined to bind Jana
Clyde over for negligent homicide because he heard “no direct
evidence that it was a gross deviation” from the standard of care
for Clyde, a jailhouse nurse, not to treat an inmate for
dehydration. The State appeals, and we reverse.
State v. Clyde

BACKGROUND 1

The Inmate’s Medical Treatment

¶2 Clyde was a licensed practical nurse (LPN) at the
Duchesne County Jail. On a Sunday, a young woman (Inmate)
was booked into the jail on drug charges. By Thursday, she was
dead.

¶3 Sunday. The booking report lists Inmate’s weight at 129
pounds. When Inmate was booked, she tested positive for heroin
and informed jail personnel on an intake form that she had a
history of drug abuse and was withdrawing from drugs or
alcohol. Inmate also noted on the intake form that she was
taking medication for high blood pressure. Clyde generally had
access to inmate intake forms.

¶4 Monday. Clyde saw Inmate to discuss her medication.
Inmate appeared to be “a little weak,” and Inmate said that she
“hadn’t been feeling good” and “probably had the flu.” Inmate
also had “been throwing up a little but wasn’t real concerned
about that.” Clyde approved Inmate’s blood-pressure
medication and tested her blood pressure. Clyde concluded that
it was “a little elevated” but that Inmate had not taken her pills
yet. When Clyde asked Inmate about her drug use, Inmate
responded that she did not have “any drugs in her system” and
that it “had been several days since she’d used anything.” Clyde
testified that she thought, “Chick, you do some serious drugs
and I know you’re lying to me.”

1. In reviewing a magistrate’s bindover decision, we “view all
evidence in the light most favorable to the prosecution and draw
all reasonable inferences in favor of the prosecution.” State v.
Schmidt, 2015 UT 65, ¶ 4, 356 P.3d 1204 (cleaned up). We recite
the facts with that standard in mind.

20180197-CA 2 2019 UT App 101
State v. Clyde

¶5 Clyde then gave Inmate her medication with a sports
drink and arranged for Inmate to receive the blood-pressure
medication twice a day. She also told Inmate to let her know if
she wanted her blood pressure taken again and that she could
fill out a medical request form to see the jail’s physician assistant
(PA) who visited on Thursdays.

¶6 Tuesday. A correctional officer at the jail (First Officer)
noticed that Inmate was getting “weaker.” First Officer told
Clyde that Inmate was “not looking good” and that she wanted
to give her a sports drink because “she kept throwing up.” Clyde
said that was fine.

¶7 Later in the day, First Officer again informed Clyde that
Inmate was “not looking good” and was still “throwing up a
lot.” Clyde said to have Inmate fill out a medical request form
for the PA’s next visit.

¶8 Inmate filled out the medical request form, explaining
that she had been “puking for 4 days straight,” had “diarrhea,”
and could not “hold anything down[,] not even water.” Inmate
insisted that she was “not detoxing” and instead had a “stomach
bug.” Once the form was filled out, First Officer delivered it to
Clyde. Clyde did not notify the PA.

¶9 First Officer also decided to move Inmate to a court-
holding cell “to be watched more closely.” 2 The holding cell

2. There is some dispute as to when Inmate was moved, but
Clyde agrees that “if one possible timeline of events is more
helpful to the State’s case, [we] should assume that timeline
applies.” First Officer testified that Inmate was moved to court
holding on Tuesday. A detective assigned to Inmate’s case also
testified about the move and thought Inmate may have been
placed in court holding on Monday or on Thursday but
ultimately was unsure about which day. We assume the move
(continued…)

20180197-CA 3 2019 UT App 101
State v. Clyde

contains a video camera that First Officer believed would help
with Inmate’s medical observation. The camera showed Inmate
using “the restroom several times” and vomiting a “brown
substance.” And though there was a sports drink bottle in the
cell, First Officer stated that the camera did not capture Inmate
taking in “a ton of fluid.”

¶10 Wednesday. Another correctional officer (Second Officer)
took medication to Inmate, but Inmate “said she was too sick to
get out of bed.” Ordinarily, the officers deliver medication at a
“cuff port” so that they do not have to enter the cell. But because
Inmate could not move, Second Officer “walked in there and
gave her [the] medication.” Inmate “didn’t look normal,” and it
appeared that she had been vomiting. Second Officer may have
informed Clyde of Inmate’s condition. Clyde later gave a sports
drink to Inmate through the cuff port.

¶11 Thursday. The PA came to the jail for his weekly visit.
Clyde and the PA discussed Inmate and went to the court-
holding cell to see her. Once there, Inmate did not respond to
Clyde’s voice or knocking on the door, and the PA told Clyde to
call an ambulance. Inmate was found dead, weighing 87
pounds. 3

The Preliminary Hearing

¶12 The State charged Clyde with negligent homicide. At a
preliminary hearing to determine whether Clyde should be

(…continued)
happened on Tuesday, viewing the facts in the light most
favorable to the State. Whether it happened earlier does not
affect our resolution of the case.

3. There was also testimony that Inmate weighed 112 pounds at
the time of her death.

20180197-CA 4 2019 UT App 101
State v. Clyde

bound over for trial on that charge, the State presented, among
other evidence, testimony from the medical examiner who
performed Inmate’s autopsy, a recorded interview with Clyde,
and testimony from a registered nurse (RN) from another jail.

¶13 The medical examiner determined that Inmate “died as a
result of complications of dehydration in the setting of opiate
withdrawal.” In his examination of Inmate’s body, the medical
examiner noted “findings consistent with dehydration such as
sunken eyes, tenting of skin, and reduced . . . tissue turgor.” The
examiner testified that he based his final conclusion about the
cause of death on Inmate’s electrolyte results, which were
“severely in the abnormal range” and indicative of “profound
dehydration.”

¶14 The examiner opined that dehydration is a “reversible
condition” that can generally be cured, absent cardiac
arrhythmia, almost up to the time of death with the use of IV
fluids. He explained that fluids should be given intravenously so
that they are absorbed by the body; giving fluids orally, in the
examiner’s experience, “will not resolve dehydration” once
“there is a problem with either throwing up or diarrhea or a
combination” of the two.

¶15 Next, the State introduced Clyde’s interview with a
detective. In the interview, Clyde explained that she knew it
takes three to five days for the symptoms of heroin withdrawal
to manifest. Clyde knew that the symptoms of heroin
withdrawal include “elevated blood pressure[],” “diarrhea,”
“throwing up,” and being “weak.” As a nurse, Clyde knew the
appropriate protocol in treating someone suffering from heroin
withdrawal is to monitor blood pressure, provide fluids, and
contact the PA. Clyde stated in the interview that if inmates
demanded to see a doctor, she would “do a really good
evaluation on them” by performing a “full set of vital signs,”
running a “dehydration test,” “check[ing] their eyes,”

20180197-CA 5 2019 UT App 101
State v. Clyde

“check[ing] their mouth for saliva,” and “do[ing a] tenting test.”
She would then “keep an eye” on them, observing things like
whether “they [are] up and moving” and whether they are
“keeping anything that they’re taking in down.”

¶16 Finally, the RN 4 testified that “in assessing the risk of
someone who’s been vomiting and having diarrhea for four
days,” an LPN “definitely should see it as . . . a potentially very
dangerous situation.” He testified that in that situation he, as an
RN, would “immediately contact the” PA for orders to test her
blood, “possibly start some IVs,” and “even go to the hospital.”
The RN also explained that he would “continually watch[] vital
signs,” monitor eating and drinking, and run “blood labs” if he
was unable “to get the vomiting and diarrhea under control with
medication.” The RN stated that the cause of the vomiting and
diarrhea—whether heroin withdrawal or the flu—would not
affect the treatment. Based on what he knew about Inmate’s
medical condition, he would have expected Clyde to do three
things: chart Inmate’s vital signs, contact the PA, and “follow up
[a] minimum [of] twice a day.” The failure to do so, in the RN’s
view, was a “deviation from the standard of care” expected from
nurses.

¶17 After hearing the evidence, the magistrate acknowledged
that “the standard for bindover is really very low,” placing the
standard somewhere between that needed for an arrest warrant
and that needed to resist a directed verdict. The magistrate
questioned whether “knowing that someone has been vomiting
and had diarrhea for four days communicates the existence of a
risk of death that’s so significant that immediate action is

4. According to the RN’s testimony, registered nurses generally
have more training than LPNs, giving registered nurses “quite a
bit more breadth [than LPNs in what] they can do before they
contact a medical provider.”

20180197-CA 6 2019 UT App 101
State v. Clyde

warranted.” The magistrate stated that he did not “have any
evidence of how substantial this risk is”—one in ten or one in ten
thousand. Ultimately, the magistrate concluded that he
“definitely ha[d] evidence that [for Clyde] to not do something
immediately was a deviation from the standard of care” but that
there was “no direct evidence that it was a gross deviation,” as
required for criminal negligence. Unable to “bridge” the gap
between ordinary negligence and criminal negligence without
such evidence, the magistrate dismissed the charges against
Clyde.

¶18 The State appeals.

ISSUE AND STANDARD OF REVIEW

¶19 The State contends that the “magistrate erroneously
refused to bind [Clyde] over for negligent homicide.” “Bindover
determinations are mixed questions of law and fact to which
we grant some deference.” State v. Schmidt, 2015 UT 65, ¶ 13,
356 P.3d 1204 (cleaned up). That deference is “commensurate
with the limited discretion under which a magistrate operates
at a preliminary hearing.” Id. (cleaned up). At a
preliminary hearing, a magistrate may make limited credibility
determinations but “may not weigh evidence.” Id. “Any
departure from the correct legal standard will always exceed
whatever limited discretion the magistrate has in the bindover
decision.” Id. (cleaned up).

ANALYSIS

¶20 We must decide whether the State presented enough
evidence for the magistrate to bind Clyde over for trial. As
everyone agrees, the standard for bindover is relatively low. See
State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444. “All that is
required is reasonably believable evidence—as opposed to

20180197-CA 7 2019 UT App 101
State v. Clyde

speculation—sufficient to sustain each element of the crime(s) in
question.” Id. If this standard—the same as to secure an arrest
warrant—is met, the magistrate must bind the defendant over for
trial. State v. Schmidt, 2015 UT 65, ¶ 17, 356 P.3d 1204; see also
Utah R. Crim. P. 7B(b). 5

¶21 The crime in question here is negligent homicide,
which requires evidence that, in addition to “caus[ing] the
death of another,”6 Clyde (1) should have been aware of a
“substantial and unjustifiable risk” of death and (2) “gross[ly]
deviat[ed] from the standard of care that an ordinary person
would exercise in all the circumstances” in failing to perceive
that risk. See Utah Code Ann. §§ 76-2-103(4), 76-5-206(1)
(LexisNexis 2017).

¶22 The State contends that the magistrate erred in
concluding there was insufficient evidence to support that
Clyde’s conduct constituted a gross deviation from the ordinary
standard of care. In response, Clyde defends the magistrate’s
decision while also contending that the State’s evidence
“fell short” in two other respects. Specifically, Clyde invites
this court to affirm the magistrate’s decision based on the
alternative grounds that the State failed to show the applicable
standard of care or the severity of the risk that existed.
Beginning with the applicable standard of care, we address all
three arguments in turn.

5. Before May 1, 2018, this rule was numbered as rule 7(i)(2) of
the Utah Rules of Criminal Procedure. Because the rule in effect
at the time of Clyde’s preliminary hearing does not materially
differ from that now in effect, we cite the current rule.

6. This element is not disputed, at least not for purposes of the
bindover.

20180197-CA 8 2019 UT App 101
State v. Clyde

I. The Applicable Standard of Care

¶23 Clyde first argues that to prove negligent homicide, the
State must establish the standard of care that is expected under
the circumstances. Clyde then contends that we should affirm
the magistrate’s bindover decision because the State failed “to
establish what standard of care applied specifically to . . . an
LPN working at the [j]ail.” She asserts that neither the RN’s nor
the medical examiner’s testimony established the specific
standard of care “applicable to medical personnel.” According to
Clyde, the medical examiner’s testimony—that dehydration was
reversible almost up to the time of death—was “borderline
nonsensical” and “inoperable as a standard of care” because
“there was no discussion as to how to calculate” the time of
death “when there is ‘a recovery.’” And the RN’s testimony
similarly failed to establish a standard of care, in Clyde’s view,
because the RN “talked in terms of what he would do” as a
registered nurse at a larger jail facility, never expressing “what
was standard in the industry.” (Emphasis added.) Clyde then
suggests that the RN, who may simply have been “overly
cautious,” did not necessarily represent the typical standard of
care exercised by a jailhouse medical professional.

¶24 The State counters that the preliminary hearing evidence
was sufficient on this point. It stresses that Clyde, while focusing
on the RN’s and medical examiner’s testimonies, ignores “her
own damning statements.” In her interview, Clyde stated that
she knew the appropriate protocol in treating someone suffering
from heroin withdrawal would be to monitor blood pressure,
provide fluids, and contact the PA. And when asked what she
would do if an inmate demanded medical attention, Clyde
responded that she would “do a really good evaluation,” check
“vital signs,” perform a “dehydration test,” and “keep an eye”
out to ensure that the person was “keeping anything that [he or
she was] taking in down.” The State also defends the medical
examiner’s testimony as “[i]nferentially . . . support[ing] the

20180197-CA 9 2019 UT App 101
State v. Clyde

standard of care established by” Clyde’s statements. The State
argues that “the inability to calculate exactly when death might
occur does nothing to undermine . . . the ordinary standard of
care” but rather “emphasizes the substantial risk of inaction at
the first sign of serious trouble.” And the RN’s testimony,
according to the State, “adequately defined, for preliminary
hearing purposes, the standard of care” because there is a
“reasonable inference” that the RN’s testimony “would address
the standards of care applicable to all nurses.” So when the RN
testified that he would have expected Clyde to chart Inmate’s
vital signs, contact the PA, and “follow-up [a] minimum [of]
twice a day,” the State asserts that he helped define the
applicable standard of care.

¶25 We agree with the State. “The bindover standard is
intended to leave the principal fact finding to the jury.” State v.
Virgin, 2006 UT 29, ¶ 21, 137 P.3d 787. And in criminal
negligence cases, like this one, “the jury decides not only the
facts, but also the legal standard for the kind of conduct that
warrants criminal sanctions.” State v. Warden, 813 P.2d 1146, 1154
(Utah 1991) (Stewart, J., dissenting); see also id. at 1151 (majority
opinion) (indicating that criminal negligence is a jury question).
A “magistrate’s assessment of [the evidence at a preliminary
hearing] is deferential, viewed in the light most favorable to the
prosecution and with all reasonable inferences given to the
prosecution.” State v. Nielsen, 2014 UT 10, ¶ 51, 326 P.3d 645. “A
reasonable inference exists when there is at least a foundation in
the evidence upon which the ultimate conclusion is based, while
in the case of speculation, there is no underlying evidence to
support the conclusion.” Carter v. State, 2019 UT 12, ¶ 75, 439
P.3d 616 (cleaned up).

¶26 Viewing the evidence deferentially, there is enough
evidence here to establish the applicable standard of care. The
State presented evidence that Clyde herself knew that the
appropriate protocol—that is, the standard of care—in treating

20180197-CA 10 2019 UT App 101
State v. Clyde

someone suffering from heroin withdrawal would be to monitor
blood pressure, provide fluids, 7 and contact the PA. Moreover,
Clyde knew that after Inmate requested a doctor, she should
perform a dehydration test and ensure that Inmate was keeping
fluids down. The RN similarly testified that, under the
circumstances, he would have expected Clyde to monitor
Inmate’s vitals, contact the PA, and “follow-up [a] minimum [of]
twice a day.” The RN stated that the failure to do these three
things was a “deviation from the standard of care.” Thus, there
was “reasonably believable evidence” that fixed the standard of
care. See State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444.

II. Severity of the Risk

¶27 Clyde next argues that we should affirm the magistrate’s
bindover decision because there was no evidence of a
“substantial and unjustifiable risk” of Inmate’s death. See Utah
Code Ann. § 76-2-103(4) (LexisNexis 2017). Echoing the
magistrate’s concerns, Clyde argues that there is a lack of
evidence on “the likelihood that the risk alleged would result in
[Inmate’s] death.” See supra ¶ 17. Specifically, she asserts that
“the State presented no evidence on the probability—large or
slight—that [Clyde’s] conduct would cause [Inmate’s] death.”

¶28 The State responds that its evidence at the preliminary
hearing “established that a person experiencing severe vomiting
and diarrhea constitutes ‘a potentially very dangerous situation’
because a person can die from the resultant severe dehydration.”
The State also argues that Clyde “should have been aware of the
risk” to Inmate because she “usually receives an inmate’s intake

7. Clyde did deliver a sports drink to Inmate on Wednesday and
was aware that the officers had also given her fluids. But the
camera, as well as Inmate’s medical request form, showed that
Inmate was unable to “hold anything down[,] not even water.”

20180197-CA 11 2019 UT App 101
State v. Clyde

papers” and heard from First Officer that Inmate was sick and
vomiting “a lot.”

¶29 We again agree with the State. “The magnitude of a given
risk is determined in part by the probability that the risk will be
actualized and in part by the seriousness of the consequence if
the risk is actualized.” State v. Standiford, 769 P.2d 254, 263 n.9
(Utah 1988). This probability to seriousness ratio is fact-
dependent, but “the potential of a risk [of] death . . . is always
serious.” See id. Thus, even a small likelihood of death might
create a “substantial and unjustifiable risk” of death. Id. (cleaned
up).

¶30 Here, the risk of not treating Inmate for dehydration was
death. The RN testified that “vomiting and having diarrhea for
four days” is “definitely . . . a risk” and a “potentially very
dangerous situation.” And the risk was particularly unjustifiable
because, as the medical examiner testified, it is generally
avoidable. According to his testimony, dehydration is a
“reversible condition” that can be cured, absent other conditions,
almost up to the time of death by giving fluids intravenously. In
fact, the magistrate recognized that if the jail “had medical visits
on Wednesday, we probably wouldn’t be here.”

¶31 The State also presented evidence that Clyde should
have been aware of the risk and was in a position to combat it.
Clyde generally would have received Inmate’s intake form,
which stated that Inmate was withdrawing from drugs or
alcohol. Clyde also suspected, despite Inmate’s protestations to
the contrary, that Inmate used drugs recently. When Inmate
said she was not withdrawing from any drugs, Clyde testified
that she thought, “Chick, you do some serious drugs and I
know you’re lying to me.” In addition, Clyde received
reports from at least First Officer that Inmate was sick
and should be moved to court holding for medical observation.
Given the seriousness of the risk (death) and the relative

20180197-CA 12 2019 UT App 101
State v. Clyde

ease with which it can be avoided (IV fluids), we conclude that
there was evidence of a “substantial and unjustifiable risk” of
death. See Utah Code Ann. § 76-2-103(4); Standiford, 769 P.2d at
263 n.9.

III. Gross Deviation

¶32 Having disposed of Clyde’s alternative bases to affirm,
we turn finally to the State’s contention that Clyde’s “near
complete indifference to [Inmate] grossly deviated from the
standard of care” and that the magistrate erred in concluding
otherwise. Despite Clyde’s knowing that she should monitor
Inmate, provide her with adequate liquids, and consult with the
PA, the State asserts that Clyde “did none of this.” And because
“[t]he evidence showed that a person can die from severe
dehydration,” the State argues that Clyde’s “failure to perceive
[that risk] constituted ‘a gross deviation from the standard of
care.’” (Quoting Utah Code section 76-2-103(4).)

¶33 To defend the magistrate’s ruling, Clyde relies on State v.
Warden, 813 P.2d 1146 (Utah 1991), in which the supreme court
held that criminal negligence requires, in Clyde’s words,
“something substantially more than ordinary negligence.” See id.
at 1151 (“[I]t is important to note that criminal negligence differs
substantially from ordinary civil negligence.”). Clyde argues that
“[t]he State failed to show any evidence that [Clyde’s] conduct
was a gross deviation from the standard of care.”

¶34 We agree with the State for a third time. The evidence in
this case, taken in the light most favorable to the State,
adequately established a reasonable inference that Clyde’s
near complete indifference to Inmate grossly deviated from
the standard of care for treating severe dehydration, especially
when the result of a failure to treat is death. Other than checking
Inmate’s blood pressure on Monday and dropping off a
sports drink on Wednesday, Clyde did not take Inmate’s
vital signs or perform other tests, did not check on Inmate in her

20180197-CA 13 2019 UT App 101
State v. Clyde

cell, and did not contact the PA, even after receiving a medical
request form stating that Inmate had been “puking for 4 days
straight” and was unable to “hold anything down.” First Officer,
who was not charged with Inmate’s medical care, informed
Clyde that Inmate “was not looking good” and even moved
Inmate to court holding to facilitate medical observation because
she noticed Inmate’s deteriorating condition. And Second Officer
may have informed Clyde that Inmate was too weak to get
out of bed. Clyde failed to follow the protocol that she identified
by not running tests or even “keep[ing] an eye on [Inmate].”
Thus, according to the State’s evidence at the preliminary
hearing, there is “a wide gulf between the standard of care
[Inmate] should have received and the care [she], in fact,
received.” See id. at 1152. 8

8. In State v. Warden, 813 P.2d 1146 (Utah 1991), the supreme
court upheld a conviction of negligent homicide when the
defendant, an obstetrician, failed to treat a premature infant for
respiratory failure. Id. at 1148, 1153. Evidence at trial established
that the doctor should have placed the infant “in intensive care
immediately after the birth” and “transferred [the infant] to a
hospital with the most sophisticated level of neonatal intensive
care” if the condition deteriorated. Id. at 1152. The obstetrician
did none of those things, leaving the infant instead with the
parents who had no medical training and who were led to
believe that medical attention was unnecessary. Id. Here, we are
not dealing with a jury’s finding of gross negligence beyond a
reasonable doubt, as in Warden. Instead, we address the much
lower standard of probable cause that applies at preliminary
hearings. If the doctor’s inaction in Warden was able to sustain a
conviction for negligent homicide, it follows a fortiori that
Clyde’s inaction here, even if not deemed as extreme as the
obstetrician’s, supports probable cause to believe that Clyde is
guilty of negligent homicide.

20180197-CA 14 2019 UT App 101
State v. Clyde

¶35 We emphasize that a preliminary hearing is not
concerned with the ultimate merits of the State’s case, that is,
whether the State will be able to prove at trial the defendant’s
guilt beyond a reasonable doubt. See State v. Schmidt, 2015 UT 65,
¶ 18, 356 P.3d 1204. Rather, 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.” Id. ¶ 19 (cleaned up). We accordingly
express no opinion on the merits of the State’s case but conclude
that the State presented “reasonably believable evidence . . .
sufficient to sustain each element of” negligent homicide. See
State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444. Therefore, the
magistrate should have bound Clyde over for trial. See Utah R.
Crim. P. 7B(b); Schmidt, 2015 UT 65, ¶ 43.

CONCLUSION

¶36 We reverse the magistrate’s decision and remand with a
mandate to bind Clyde over for trial.

20180197-CA 15 2019 UT App 101