July 5, 2013, Utah Court of Appeals Case Summaries

July 5, 2013

Utah Court of Appeals Cases

State v. Christensen, 2013 UT App 163, No. 20120747-CA (July 5, 2013)

ISSUE: Briefing a Rule 23B Motion to Remand for Findings

PER CURIAM:

Sandra  Denise  Christensen  appeals  her  conviction  of insurance fraud. We affirm.

At ¶ 1.      

Christensen asserts that she received ineffective assistance of counsel at trial. Specifically, she argues that trial counsel should have admitted into evidence certain medical records and an insurance report regarding the condition of the deck attached to Christensen’s rented house. Because these materials are not in the record on appeal, Christensen filed a motion for remand pursuant to rule 23B of the Utah Rules of Appellate Procedure.

At ¶ 2.

The purpose of rule 23B “is for appellate counsel to put on evidence he or she now has” regarding ineffective assistance of trial counsel. State v. Johnston, 2000 UT App 290, ¶ 7, 13 P.3d 175 (per curiam). An appellant “must present this court with the evidence he intends to present on remand and explain how that evidence supports both prongs” of the ineffective assistance of counsel test. Id. ¶ 11. Christensen’s motion does not comply with the requirements of rule 23B and State v. Johnston. It is supported only by an affidavit from appellate counsel reporting portions of the proposed evidence. Although the evidence apparently is in Christensen’s possession, the evidence is not included with the motion for remand. Absent the evidence that is the subject of the motion for remand, this court is left with only speculation about the content and value of the proposed evidence as a whole. Because the motion is not properly supported, we deny it.

At ¶ 4.

State v. Swogger, 2013 UT App 164, No. 20120043-CA (July 5, 2013)

ISSUE: Invited Error Doctrine, Sentencing of Defendants with Mental Illness

Judge Roth,

Charles Adam Swogger pleaded guilty with a mental illness at the time of the offenses to aggravated sexual assault, attempted murder, and aggravated burglary. The district court imposed statutory prison terms for each offense, and Swogger appeals the court’s sentencing decision. We affirm.

At ¶ 1.      

Failure to conduct a Mental Illness Hearing      

Swogger first contends that the district court erred when it failed to conduct a hearing to assess whether he currently had a mental illness, as required by Utah Code section 77-16a-103 (section 103). Section 103 reads, “Upon a plea of guilty with a mental illness at the time of the offense being tendered by a defendant to any charge, the court shall hold a hearing within a reasonable time to determine whether the defendant currently has a mental illness.” Utah Code Ann. § 77-16a-103(1) (LexisNexis 2012).  At the time Swogger entered his pleas, however, he represented to the court, through counsel, that “the State is willing to stipulate that [Swogger] is suffering from a mental illness which would take away the necessity for the Court to have a hearing on whether he’s currently suffering from a mental illness.” (Emphasis added.) The State affirmed its agreement, and the court accepted the stipulation, stating, “[T]hat’s sufficient, then.” Thus, if the district court erred in failing to hold a hearing, it did so at Swogger’s invitation. It is well settled that “a party cannot take advantage of an error committed  at  trial  when  the  party  led  the  trial  court  into committing the error,” and accordingly, we “decline[] to engage in even plain error review when counsel, either by statement or act, affirmatively represented to the [trial] court that he or she has no objection  to  the  [proceedings].” Pratt  v.  Nelson,  2007  UT  41, ¶¶ 16–17, 164 P.3d 366 (alterations in  original) (citations and internal quotation marks omitted).

At ¶ 3.      

In his reply brief, Swogger “concedes that the invited error doctrine may apply to [his] first claim.” He argues that we should nevertheless overlook the invitation because he did not intentionally mislead the court so as to “‘preserve a hidden ground for reversal on appeal.’” (Quoting id. ¶ 17.) The invited error doctrine, however, serves an additional purpose beyond preventing a defendant from taking advantage of an error he or she created: it allows the district court an opportunity to address the issue in the first instance. State v. Geukgeuzian, 2004 UT 16, ¶ 12, 86 P.3d 742. This second purpose has been the basis for application of the invited error doctrine even when the statement inviting the error was “likely inadvertent and not a conscious attempt to mislead the trial court.” Id. . . .  We therefore conclude that Swogger’s representation to the court that no hearing was required, even if not intended to mislead, falls within the realm of invited error. Accordingly, we will not consider Swogger’s claim that the court plainly erred by not holding a hearing regarding his mental condition as a part of his plea process. Instead, we turn to Swogger’s claim that the district court erred in sentencing him directly to prison rather than first to the state hospital.

At ¶ 4.     

Sentencing

Applicable law requires that once the district court has concluded that a defendant who offers to enter a plea of guilty with a mental illness actually suffers from a mental illness, it must accept the plea and then sentence the defendant “in accordance with Section 77-16a-104” (section 104). Utah Code Ann. § 77-16a-103(4). Section 104 directs the court to “impose any sentence that could be imposed under law upon a defendant who does not have a mental illness and who is convicted of the same offense” and then to determine how that sentence will be served: (1) at the state hospital, (2) on probation, or (3) if “commitment to the [state hospital] or probation . . . is not appropriate,” in prison. Id. § 77-16a-104(3). Swogger contends that the plain language of the statute contemplates that imprisonment be the placement of last resort, an option available only after the court determines that the state hospital is not an appropriate placement.

At ¶ 5.      

This court need not decide whether Swogger’s interpretation of section 104 is correct because it appears that the district court actually engaged in an evaluation of the sentencing options in accordance with the statutory interpretation Swogger advances. Specifically, in connection with deciding that Swogger should serve his time at the prison, the district court determined that placement at the state hospital was not appropriate.

At ¶ 6.      

After examining the extensive information available, the court made an explicit determination that committing Swogger to the state hospital was clearly inappropriate. Under the statute, commitment to the state hospital is an option only if the court finds both that the defendant’s mental illness causes “an immediate physical danger to self or others, including jeopardizing the defendant’s own or others’ safety, health, or welfare if placed in a correctional . . . setting,” and that the state hospital is equipped to provide the defendant with the appropriate “treatment, care, custody, and security.” Id. § 77-16a-104(3)(a)(ii) (emphasis added). The information before the court, however, did not demonstrate that Swogger would be too dangerous to deal with in prison and supported a conclusion that the state hospital itself was not equipped to provide either adequate treatment or security.

At ¶ 7. 

The court describes the trial court’s reasoning for sentencing Swogger to statutory prison terms. 

At ¶ 8.      

Thus, the district court determined that the state hospital was not a viable placement prior to sentencing him to prison, as Swogger claims section 104 requires. In arriving at this conclusion, the court appropriately evaluated the statutory criteria and determined both that the Department of Corrections could adequately manage Swogger’s risk to himself and others “in a correctional . . . setting” and that the state hospital was unlikely to be able either to treat him or to safely deal with his aggression. See Utah Code Ann. § 77-16a-104(3)(a)(ii) (LexisNexis 2012). The court’s conclusions were amply supported by the record. Thus, Swogger has not established that the court made any error, much less an obvious one, in its sentencing decision. See State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (requiring the defendant to show an obvious error to support a claim of plain error).

At ¶ 9.    

Swogger next complains about the process by which the district court came to its sentencing decision. Swogger appears to assert two statutory bases to support his claim that the court must conduct a sentencing hearing. First, he argues that sections 103 and 104 require such a hearing. . . . Under the present version of section 104, a district court is required to hold a hearing to assess the defendant’s current mental state only after the defendant is adjudicated guilty with a mental illness at a trial. Utah Code Ann. § 77-16a-104(1) . . .  Swogger  was not  tried,  but  rather pleaded guilty  with  a  mental  illness, and the  plea  process is governed by section 103, not section 104. See id. § 77-16a-103 (entitled “Plea of guilty with a mental illness at the time of the offense”). . . .  As we have already concluded, any error in not conducting the designated hearing at the plea stage was invited. See supra ¶¶ 3–4.

At ¶ 10.    

Swogger  seeks  to  avoid  the  invited  error  problem  by arguing that the court was required to conduct a second hearing prior to sentencing, under section 104, where the state hospital must be afforded an opportunity to evaluate him. See id. § 77-16a-104(3)(a)(i) (requiring “the court [to] give[] the [state hospital] the opportunity to provide an evaluation and recommendation” prior to the court deciding to send the defendant to the state hospital); see also id. § 77-16a-104(4). In the context of a plea, however, section 104 only requires the court to make a determination as to whether a defendant should be committed to the state hospital, not necessarily to hold an evidentiary hearing in order to reach that decision. Rather, section 104 provides that with regard to a defendant who “currently has a mental illness,” the court is to “commit the defendant to the [state hospital]” only if “the court gives the [state hospital] the opportunity to provide an evaluation and recommendation” by “notify[ing] the [hospital’s] executive director of the proposed placement and provid[ing] the [state hospital] with an opportunity to evaluate the defendant and make a recommendation to the court regarding placement prior to commitment.” Id. § 77-16a-104(3)(a), (4) (emphasis added).

At ¶ 11.           

Although we agree that a hearing may be helpful to the court in reaching a sentencing decision regarding state hospital placement, we are not convinced that section 104 plainly requires a second hearing as a part of sentencing where the court is required to hold a hearing only in connection with accepting the plea under section 103. Indeed, the section 103 hearing might well provide information useful to the sentencing. In this case, the court did not hold a section 103 hearing—at the parties’ invitation—but it clearly had  ample evidence about Swogger’s mental state from the extensive evaluations that occurred before Swogger entered his pleas, including a significant report from the state hospital itself. In fact, the abundance of available information appears to have been the underlying motivation for each side (and the court) to forego the hearing in the first place. We conclude that the commitment provisions of section 104 did not require a separate hearing to determine whether Swogger should be committed to the state hospital. And we have already concluded that the district court had ample relevant information on which to base its determination that commitment to the state hospital was not appropriate and that commitment to prison was.

At ¶ 12.    

Thus, the decision to commit Swogger to the Utah State Prison was well within the court’s discretion under the statute. Because Swogger has not shown any error on the part of the district court, much less a harmful error, Swogger’s claims of plain error must fail. Accordingly, we affirm the district court’s sentencing decision.

At ¶ 13.

Green v. Labor Commission, 2013 UT App 165, No. 201203750-CA (July 5, 2013)

ISSUE: Sufficiency of evidence to support the Labor Commission’s findings of fact.

Judge Davis,

William Logan Green seeks review of the Utah Labor Commission’s decision reversing the Administrative Law Judge’s (ALJ) award of workers’ compensation benefits. We decline to disturb the Commission’s decision.

At ¶ 1.

The issue at hand is whether Green timely informed his employer, ABF Freight Systems (ABF), that he was injured in an industrial accident on May 24, 2009, as required by the Utah Code. See generally Utah Code Ann. § 34A-2-407(1), (3) (LexisNexis 2011) (requiring an employee to report an industrial accident to his employer or the Division of Industrial Accidents within 180 days of the accident). The ALJ concluded that the preponderance of the evidence indicated that Green had timely reported the accident, while the Commission reached the opposite conclusion based on the same evidence.

We will not disturb the Commission’s findings of fact if they are “based on substantial evidence, even if another conclusion from the evidence is permissible.” Hurley v. Board of Review of the Indus. Comm’n, 767 P.2d 524, 526–27 (Utah 1988). “[A] party challenging the [Commission]’s findings of fact must marshal[] all of the evidence supporting the findings and show that despite the supporting facts, and in light of the conflicting or contradictory evidence, the findings are not supported by substantial evidence.” See Grace Drilling Co. v. Board of Review of the Indus. Comm’n, 776 P.2d 63, 68 (Utah Ct. App. 1989) (emphasis omitted).

At ¶¶ 2-3.

The Court Reviews the marshaled evidence and Petitioner’s arguments for why the Commission’s findings were not supported by substantial evidence.

At ¶¶ 4-7.

Although both the ALJ’s and the Commission’s interpretations of the facts are reasonable, the applicable standard of review limits our analysis to a determination of whether the Commission’s findings are supported by substantial evidence. We conclude that they are. The Commission apparently found Manager’s and Supervisor’s testimonies more convincing than Green’s and interpreted the absence of affirmative evidence establishing that the accident was reported to ABF or to any of Green’s physicians as evidence that it was not, in fact, reported on time. Even if the absence of affirmative evidence could also reasonably be interpreted to support the ALJ’s conclusion and indicate the opposite—that there is no evidence that a report was not timely filed—“this court will not substitute its judgment as between two reasonably conflicting views,” Grace Drilling Co. v. Board of Review of the Indus. Comm’n, 776 P.2d 63, 68 (Utah Ct. App. 1989). “It is the province of the [Commission], not appellate courts, to resolve conflicting evidence, and where inconsistent inferences can be drawn from the same evidence, it is for the [Commission] to draw the inferences.” See id. Accordingly, we do not disturb the Commission’s decision.

At ¶ 8.

State v. Ruiz, 2013 UT App 166, No. 20110796-CA (July 5, 2013)

ISSUE: Criminal Restitution, Causation

Jonathan A. Ruiz appeals the trial court’s order that he pay $51,995 in restitution in connection with his convictions for attempted unlawful sexual activity with a minor. We reverse and remand.

At ¶ 1.

The Court reviews the background of the case. Specifically, the victim’s treatment for depression and anxiety after Ruiz’s assault, and the Victim’s pre-existing mental illnesses that contributed to the decision to institutionalize her.

At ¶¶ 2-5. 

“In the case of restitution, a reviewing court will not disturb a district court’s determination unless the court exceeds the authority prescribed by law or abuses its discretion.” State v. Laycock, 2009 UT 53, ¶ 10, 214 P.3d 104.

At ¶ 6.

“In determining restitution, the court shall determine complete restitution and court-ordered restitution.” Utah Code Ann. § 77-38a-302(2); see also Laycock, 2009 UT 53, ¶ 20. Complete restitution is the amount of “restitution necessary to compensate a victim for all losses caused by the defendant.” Utah Code Ann. § 77-38a-302(2)(a). Court-ordered restitution, on the other hand, is “the restitution the court having criminal jurisdiction orders the defendant to pay.” Id. § 77-38a-302(2)(b).

At ¶ 7.

Ruiz first asserts that the trial court erred in its calculation of complete restitution because it did not appropriately consider the impact of Victim’s preexisting conditions on her need for inpatient therapy in determining the loss attributable to Ruiz. In determining the amount of complete restitution, Utah courts employ “[a] modified ‘but for’ test,” which “requires (1) that the damages would not have occurred but for the conduct underlying the [defendant’s] . . . conviction and (2) that the causal nexus between the [criminal] conduct and the loss . . . not [be] too attenuated (either factually or temporally).” State v. Harvell, 2009 UT App 271, ¶ 12, 220 P.3d 174 (alterations and omissions in original) (citations and internal quotation marks omitted).

At ¶ 8.

Accordingly, a defendant may be ordered to pay restitution only for pecuniary loss resulting from a crime he either was convicted of or admitted responsibility for. See Utah Code Ann. § 77-38a-302(1); State v. Mast, 2001 UT App 402, ¶ 16, 40 P.3d 1143.

At ¶ 9.

Although the trial court in this case recognized that Victim had a number of preexisting conditions and that the inpatient therapy provided by La Europa likely addressed those conditions, it nevertheless determined that complete restitution—the amount relating to losses caused by Ruiz—included the entire cost of the therapy provided to Victim during the year following the incident. Although the trial court determined that Ruiz’s actions were the “but for” cause of Victim’s enrollment in La Europa, triggering the “severe suicidal ideations [she] expressed” as a consequence of the incident, it failed to explain the causal nexus between the incident and the nine months of intensive inpatient therapy Victim underwent and failed to examine how Victim’s preexisting conditions impacted her need for that level of therapy. Thus, the trial court’s findings in support of its determination of complete restitution were insufficient, and we must remand for the trial court to make more detailed findings in support of its determination of complete restitution, taking into account the extent to which the therapy at La Europa was necessitated by preexisting conditions that were neither caused nor exacerbated by Ruiz’s actions and thus were too temporally or factually attenuated to have been the result of Ruiz’s criminal conduct.3 See Harvell, 2009 UT App 271, ¶ 12. See generally Utah Code Ann. § 77-38a-302(3) (LexisNexis 2012) (“If the court determines that restitution is appropriate or inappropriate . . . , the court shall make the reasons for the decision part of the court record.”).

At ¶ 11.

Ruiz next contends that the trial court did not adequately consider the factors outlined in Utah Code section 77-38a-302(5)(c)(i)–(iv) relating to his ability to pay restitution and that it therefore exceeded its discretion by declining to impose court-ordered restitution in an amount less than complete restitution. The amount of court-ordered restitution need not be equal to the amount of complete restitution, and its determination is highly discretionary. See State v. Laycock, 2009 UT 53, ¶ 28, 214 P.3d 104. Nevertheless, in determining the amount of court-ordered restitution, the trial judge must consider

(i) the financial resources of the defendant and the burden that payment of restitution will impose, with regard to the other obligations of the defendant;

(ii) the ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court;

(iii) the rehabilitative effect on the defendant of the payment of restitution and the method of payment; and

(iv) other circumstances which the court determines may make restitution inappropriate.

Utah Code Ann. § 77-38a-302(5)(c)(i)–(iv).

At ¶ 12.

Here, while the amount of complete restitution may or may not have been appropriate, it appears that the trial court adequately considered the necessary factors with respect to court-ordered restitution. Specifically, the court determined that although Ruiz was not in a position to pay the money immediately, he was young and able to work and could therefore pay off the restitution in installments over the course of his working life. The court also found that restitution would have a rehabilitative effect for Ruiz. Furthermore, the court allowed for the amount of the installments to be determined by Ruiz’s probation officer, taking into account all of his other obligations. Though it does seem rather harsh (depending on the amount of restitution ordered on remand) to expect Ruiz to continue paying restitution throughout his entire working life, we cannot say that such an order was beyond the court’s discretion, given that the court clearly considered the statutory factors. See generally Laycock, 2009 UT 53, ¶ 23 n.2 (“[Section 77-38a-302(3)] unambiguously cedes to trial courts the discretion to either award or to decline to make an award so long as the court explains its reasoning on the record.”).

At ¶ 13.

State v. Vigil, 2013 UT App 167, No. 20110698-CA (July 5, 2013)

ISSUE: Confrontation Clause. Harmless Error

Judge Voros,

Paul Raymond Vigil appeals from his convictions for aggravated kidnapping, rape, and related crimes.  On appeal he contends that the trial court erred by denying his request to recall the victim, J.B., for a third cross-examination. We affirm.

At ¶ 1.

The Court Recounts J.B,’s false trial testimony, Defendant’s desire to corxx-examine J.B. a third time to expose the falsity, the State’s stipulation that J.B.’s testimony was false, and the Trial Court’s determination not to allow a third croos examination because Defendant got everything it desired via the State’s stipulation.

At ¶¶ 2-7.

Confrontation Clause

Vigil first contends that the trial court’s denial of his request to recall J.B. to the stand for a third time resulted in a violation of his Confrontation Clause rights. “The Sixth Amendment to the United States Constitution states in relevant part, ‘In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .’” State v. Marks, 2011 UT App 262, ¶ 13 n.6, 262 P.3d 13 (omissions in original) (quoting U.S. Const. amend. VI). Nevertheless, a defendant’s Sixth Amendment right to confront his accuser “is not absolute,” State v. Tarrats, 2005 UT 50, ¶ 36, 122 P.3d 581, and “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process, Michigan v. Lucas, 500 U.S. 145, 149 (1991) (citation and  internal quotation marks omitted). Thus, “trial judges retain wide latitude to limit reasonably a criminal defendant’s right to cross-examine a witness based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Id. (citation and internal quotation marks omitted).

At ¶ 10.

“[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness . . . .” Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986); see also Chavez, 2002 UT App 9, ¶ 18. Even if a defendant does so, the Supreme Court has “repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. at 681; see also Chavez, 2002 UT App 9, ¶ 22 (stating that where we conclude that a trial court committed a Confrontation Clause error, “we must [then] consider whether the error was harmless beyond a reasonable doubt”). Accordingly, upon a showing of Confrontation Clause error, reversal is required unless a reviewing court determines that the error was harmless beyond a reasonable doubt.

At ¶ 11.

Assuming without deciding that the trial court erred by refusing to recall J.B. to the stand, we turn to the second part of this test. “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. at 684. A reviewing court considers “a host of factors,” including “the importance of the witness’[s] testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Id. For convenience, we refer to these as the Van Arsdall factors.

At ¶ 12.

Vigil contends that the denial of a third cross-examination harmed him in two ways. He asserts that had he been able to crossexamine J.B. again “[1] the jury could have become aware of [J.B.’s] true intentions for going to [Witness’s] house the night before trial, and [2] the jury would have had the seriousness of [J.B.’s] second perjured testimony more memorable in their minds.”

At ¶ 13.

“[a]n assessment of harmlessness cannot include consideration of whether the witness’[s] testimony would have been unchanged . . . ; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.” Coy v. Iowa, 487 U.S. 1012, 1021–22 (1988). Accordingly, we will not speculate on what testimony Vigil might have been able to elicit from J.B. during a third opportunity for cross-examination and turn, instead, to the remaining evidence.

At ¶ 16.

Although our analysis must assume that any damaging potential of crossexamination would have been fully realized, Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986), we may not assume the existence of verdict-altering testimony in the absence of any evidentiary Support. 

At ¶ 17.

The Court evaluates the case considering the Van Arsdall factors.

At ¶¶ 12-26.

After considering the factors enumerated in Van Arsdall, we conclude that any Confrontation Clause error by the trial court in denying Vigil’s request to cross-examine J.B. a third time was harmless beyond a reasonable doubt. Specifically, J.B.’s testimony was important to the case but was also corroborated by other, uncontested evidence; Vigil was permitted to cross-examine J.B. about the large majority of her testimony; the denied crossexamination would likely have been cumulative; the jury was made aware of the untruthfulness of J.B.’s testimony by stipulation; and the State’s case was relatively strong. See Van Arsdall, 475 U.S. at 684.

At ¶ 27.

New Trial

Vigil also contends that the trial court erred when it denied his motion for a new trial. The Utah Rules of Criminal Procedure provide that a “court may . . . grant a new trial in the interest of justice if there is any error or impropriety which had a substantial adverse effect upon the rights of a party.” Utah R. Crim. P. 24(a). For the purposes of our analysis in Part I, we assumed, without deciding, that an error occurred. However, we concluded that any error was harmless beyond a reasonable doubt. It follows that an error that is harmless beyond a reasonable doubt cannot have had a “substantial adverse effect upon the rights of a party.” See id. Consequently, any possible error in denying Vigil’s motion for new trial was harmless.

At ¶ 28.

State v. Pullman, 2013 UT App 168, No. 20110212-CA (July 5, 2013)

ISSUE: Sodomy of a Child: Sufficiency of Evidence, “Touching”,

Judge Voros,

Donald J. Pullman appeals from his convictions for one count of sodomy on a child and two counts of aggravated sexual abuse of a child, first degree felonies. See Utah Code Ann. §§ 76-5-403.1, -404.1 (LexisNexis 2012).  He contends (1) that the evidence presented was insufficient to support his conviction, (2) that the jury was improperly instructed, (3) that a definitional statute is unconstitutionally vague, (4) that the trial court erred in admitting certain evidence, and (5) that his trial counsel was ineffective. We affirm in part and reverse and remand in part.

At ¶ 1.

The Court sets for the issues and standards of review.

At ¶¶ 2-8.

Sufficiency of the Evidence

Pullman first contends that the evidence presented at trial was insufficient to support his convictions because Victim’s testimony “lacked specificity as to time, place, or circumstance.”

At ¶ 9.

Victim’s testimony was sufficient on this point. Our supreme court noted in State v. Fulton that “time is not a statutory element of the offense” of sodomy on a child. 742 P.2d 1208, 1213 (Utah 1987). The Fulton court held that because the defendant had not “asserted a statute of limitations, age, or other analogous defense,” the State was not required to prove the time of the offense. Id. Moreover, “the mere assertion of an alibi defense does not impose on the prosecution the additional burden of proving the precise date of the act.” Id. Pullman has not asserted any of these defenses. The only elements of the offense at issue were whether Defendant touched Victim and with what intent; thus “the State did not need to prove the precise year in which the abuse occurred.” See State ex rel. D.T., 2006 UT App 132, ¶ 13, 134 P.3d 1148 (citing State v. Marcum, 750 P.2d 599, 601 (Utah 1988) (affirming conviction for sexual abuse of a child under the age of fourteen)). Moreover, our supreme court has “acknowledged that in child sexual abuse prosecutions, identifying the specific date, time, or place of the offense is often difficult owing to the inability of young victims to provide this information.” State v. Taylor, 2005 UT 40, ¶ 12, 116 P.3d 360. “Responding to the realities of cognitive development,” the court wrote, “we have been less demanding of exact times and dates when young children are involved.” Id.

At ¶ 10.

Pullman also argues that “the testimony [was] not precise as to the touching itself or the intent behind it.” Specifically, he complains that while Victim’s testimony uses the terms “boobs” and “butt,” “they are not precisely addressed as the anus, buttocks, [genitalia,] or breasts of [Victim].” However, the law does not require anyone, much less a child, to use technical or anatomically accurate terminology in describing sexual abuse where, as here, the words actually used are clear.

At ¶ 11.

Finally, Pullman argues that the evidence of sodomy was insufficient, not because of the terminology used, but simply because the acts Victim described fall short of the statutory definition of sodomy on a child. Sodomy on a child is “any sexual act upon or with a child who is under the age of 14, involving the genitals or anus of the actor or the child and the mouth or anus of either person.” See Utah Code Ann. § 76-5-403.1 (LexisNexis 2012). In a prosecution for this offense, “any touching, even if accomplished through clothing, is sufficient to constitute the relevant element of the offense.” Id. § 76-5-407(3). Pullman asserts that Victim’s testimony fell short of describing a sexual act involving the touching of Victim’s anus.

At ¶ 12.

Here, Victim’s testimony lacked a similarly specific description of the elements of the crime of sodomy on a child. Although she described a sexual act involving Pullman’s penis and her buttocks, the relevant statutes require involvement—indeed “touching”—of the anus. Our cases have drawn a distinction between anus and buttocks. For example, in construing a related statute, we have concluded that “touching the anus of any child” and “touching the buttocks of any child” are “alternative ways” to commit the crime of sexual abuse of a child. State v. Escamilla-Hernandez, 2008 UT App 419, ¶ 13, 198 P.3d 997; see also State v. Jacobs, 2006 UT App 356, ¶ 6 n.2 (distinguishing between “buttocks” and “anus” in the context of forcible sexual abuse). Moreover, Victim here was an articulate fourteen-year-old capable of drawing the relevant distinction if questioned about it. Her testimony that Pullman “tried to take [her] panties off and stick his dick into [her] butt” and that “it hurt,” is “sufficiently inconclusive . . . that reasonable minds must have entertained a reasonable doubt,” see State v. Mead, 2001 UT 58, ¶ 65, 27 P.3d 1115 (citation and internal quotation marks omitted), as to whether Pullman’s act involved the touching of her anus, even through her clothing. We therefore agree with Pullman that the evidence was not sufficient to support his conviction for sodomy on a child.

At ¶ 16.

The Court, viewing the evidence in the light most favorable to the verdict, finds that the testimony was sufficient to establish the elements of attempted sodomy of a child.

At ¶¶ 17-19.

Accordingly, we vacate Pullman’s conviction for the crime of sodomy on a child, enter a conviction for the crime of attempted sodomy on a child, see id. § 76-5-403.1, and remand to the trial court for imposition of sentence on the latter crime.

At ¶ 20.

Jury Instruction Defining “Touching”

Pullman contends that the trial court gave an erroneous jury instruction and that the giving of this instruction constituted a manifest injustice.  . . . Instruction 14 defined touching for the jury:

You are instructed that in any prosecution for Sodomy on a Child and Aggravated Sexual Abuse of a Child, any touching, even if accomplished through clothing, is sufficient to constitute the relevant element of the offense.

At ¶ 21.

We conclude that any possible error was invited. Under the invited error doctrine, a party cannot take “advantage of an error committed at trial when that party led the trial court into committing the error.” See State v. Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742 (citation and internal quotation marks omitted). And “if the defendant invited the error, we will not review the error for manifest injustice.” State v. Cooper, 2011 UT App 234, ¶ 5, 261 P.3d 653 (citation omitted). Here, Pullman’s trial counsel approved Instruction 14. Accordingly, we decline to review Instruction 14 for manifest injustice.

At ¶ 23.

In any event, the jury instructions when read as a whole did not suggest that “innocent” touching could satisfy all the elements of the charged offenses. See State v. Taylor, 2005 UT 40, ¶ 24, 116 P.3d 360 (reiterating that jury instructions must be considered as a whole). Instruction 11 required the jury to find that Pullman “engaged in a sexual act upon or with” Victim in order to convict Pullman of sodomy on a child. And Instructions 12 and 13 required the jury to find that Pullman intended to “cause substantial emotional pain” or intended to “arouse or gratify sexual desire” in addition to the physical act of touching in order to convict him of aggravated sexual abuse of a child. When read together, these instructions properly instructed the jury as to both the physical and mental elements required for conviction.

At ¶ 25.

Constitutional Challenge to Section 76-5-407

Pullman next contends that Utah Code section 76-5-407(3), which defines the types of touching necessary to satisfy the actus reus elements of several sexual offenses, is unconstitutional because it is “so broad as to include even lawful or appropriate contact.” See Utah Code Ann. § 76-5-407 (LexisNexis 2012).

At ¶ 26.

The Court declines to address this argument because it was not preserved at the trial court level.

At ¶ 27.

Evidentiary Argument Regarding Ex-Wife’s Testimony

Pullman contends that the trial court improperly admitted evidence of “activity . . . which his ex-wife testified to at trial.” In August 2007, Pullman remarried his ex-wife (Wife). During their first marriage, Pullman had repeatedly asked Wife for anal sex. Wife did not enjoy it and, before remarrying Pullman, she warned, “Don’t even ask, don’t even think about it, don’t try it.” Nevertheless, during the second marriage, Pullman again sought anal sex with Wife. She testified that Pullman would “curl up in bed next to [her] and try and insert himself.” She would “have to smack him away [or] get up and leave the room.”

At ¶ 28.

Admission of other acts evidence involves a three-step analysis. First, “the trial court must . . . determine whether the bad acts evidence is being offered for a proper, noncharacter purpose, such as one of those specifically listed in rule 404(b).” State v. Nelson-Waggoner, 2000 UT 59, ¶ 18, 6 P.3d 1120. If so, “the court must determine whether the bad acts evidence meets the requirements of rule 402, which permits admission of only relevant evidence.” Id. ¶ 19. “Finally, the trial court must determine whether the bad acts evidence meets the requirements of rule 403 of the Utah Rules of Evidence.” Id. ¶ 20. “A trial court’s admission of prior bad acts evidence is reviewed for abuse of discretion, but the evidence ‘must be scrupulously examined by trial judges in the proper exercise of that discretion.’” State v. Verde, 2012 UT 60, ¶ 13, 296 P.3d 673 (quoting State v. Decorso, 1999 UT 57, ¶ 18, 993 P.2d 837).

At ¶ 29.

The Court determines that the evidence was admitted for the permissible purpose of establishing motive.

At ¶¶ 30-34.

The Court determines that the evidence was relevant as it went to Defendant’s motive.

At ¶¶ 34-38.

Here, Pullman contends that the trial court “failed to appreciate the devastating impact that the admission of such evidence would have in being prejudicial under Rule 403,” but offers no further explanation, analysis, or authority in support of that claim. He does not explain why any prejudice was unfair and fails to assert, much less demonstrate, that the danger of unfair prejudice substantially outweighed the testimony’s probative value. An issue is inadequately briefed “when the overall analysis  of the issue is so lacking as to shift the burden of research and argument to the reviewing court.” State v. Thomas, 961 P.2d 299, 305 (Utah 1998). That is the case here. Therefore, we do not address the issue further.

At ¶ 41.

Evidentiary Argument Regarding Pornography Viewing

Victim testified that Pullman viewed pornography in her presence, that he was naked while doing so, and that he would “usually just [tell Victim] to go away.” Pullman asserts that this testimony was irrelevant to the charged offenses. Assuming without deciding that Pullman is correct, we cannot agree with his additional assertion that “there can be no doubt about the prejudicial effect on the jury.” Pullman offers no support for this assertion. It is certainly plausible that Pullman’s pornography viewing, particularly in front of a child, would cast a negative light on him at trial. On the other hand, absent any explanation on Pullman’s part, we are unwilling to assume that a jury would be so prejudiced by testimony that the defendant viewed pornography as to convict that defendant on unrelated charges. See Strickland, 466 U.S. at 694 (in order to demonstrate ineffective assistance of counsel, an appellant must show that “but for counsel’s unprofessional errors, the result of the proceeding would have been different”).

At ¶ 44.

The evidence was insufficient to sustain Pullman’s conviction for sodomy on a child but sufficient to convict him of the lesser included offense of attempted sodomy upon a child. Any error in the jury instructions was invited, and Pullman’s constitutional claims are not properly before us. Furthermore, Pullman has not demonstrated that his trial counsel was ineffective. Finally, Pullman has not demonstrated that admission of Wife’s testimony violated Utah Rules of Evidence 403 or 404(b). We affirm in part and reverse and remand for resentencing in part.

At ¶ 46.