Whether penetration occurred and whether Gomez committed battery with the intent to commit sexual assault are factual matters appropriate for trial. Walker v. State, 91 Nev. 724, 726, 542 P.2d 438, 439 (1975) (holding that it is the function of the jury and not the court to weigh the evidence and pass upon the credibility of the witness). Our review of a probable cause determination through an original writ petition is disfavored, see Kussman v. Eighth Judicial Dist. Court, 96 Nev. 544, 545- 46, 612 P.2d 679, 680 (1980), and Gomez has not demonstrated that his challenge to the probable cause determination fits the exceptions we have made for purely legal issues, see Ostman, v. Eighth Judicial Dist. Court, 107 Nev. 563, 565, 816 P.2d 458, 459-60 (1991); State v. Babayan, 106 Nev. 155, 174, 787 P.2d 805, 819-20 (1990). Having concluded that our intervention is not warranted, we ORDER the petition DENIED.

Saitta

Pickering

SUPREME COURT OF NEVADA (0) 1947A cc: Hon. David B. Barker, District Judge Potter Law Offices Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA (0) 1947A aleto