State v. Morrison , 717 Utah Adv. Rep. 49 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) OPINION
)
Plaintiff and Appellant, ) Case No. 20110018‐CA
)
v. ) FILED
) (September 13, 2012)
Xavier Morrison, )
) 2012 UT App 258Defendant and Appellee. )
‐‐‐‐‐
Fourth District, Provo Department, 101401807
The Honorable Steven L. Hansen
Attorneys: Sherry Ragan, Provo, for Appellant
Lisa Crawford and Douglas J. Thompson, Provo, for Appellee
‐‐‐‐‐
Before Judges Voros, Orme, and Thorne.
THORNE, Judge:
¶1 The State charged eighteen‐year‐old Xavier Morrison with supplying alcohol to a
minor after Morrison admitted to sharing some of his beer with other minors at a party.
Upon Morrison’s motion, the district court dismissed the charge, concluding that the
charge would work an “absurd result” in light of Morrison’s own minority. See
generally In re Z.C., 2007 UT 54, ¶¶ 11–24, 165 P.3d 1206. We reverse the district court’s
dismissal order and remand for further proceedings.
BACKGROUND
¶2 On March 13, 2010, a Utah County deputy sheriff determined that Morrison and
several other minors had been consuming alcohol at a campsite party in Hidden
Hollow, near Eagle Mountain. Morrison was eighteen years old at the time. Two of the
other minors, both eighteen themselves but slightly older than Morrison, told the
deputy that Morrison had provided them with the alcohol, and Morrison admitted that
he had shared some of his beer with other individuals at the party. Morrison told the
deputy that he had obtained the beer by pulling a “Hey, Mister,” meaning that he had
gone to a gas station and found someone of age who would purchase beer for him.
¶3 The State charged Morrison with both unlawful possession or consumption of
alcohol by a minor, see generally Utah Code Ann. § 32A‐12‐209 (Supp. 2010) (current
version at id. § 32B‐4‐409 (2011)), and supplying alcohol to a minor, see id. § 32A‐12‐203
(2005) (current version at id. § 32B‐4‐403 (2011)).1 Morrison moved to dismiss the
supplying charge, arguing that prosecuting a minor for providing alcohol to other
minors created the same sort of “absurd result” that the Utah Supreme Court precluded
in In re Z.C., 2007 UT 54, 165 P.3d 1206. See id. ¶¶ 11–24 (concluding that a delinquency
adjudication for sexual abuse of a child against a thirteen‐year‐old girl for her sexual
activity with a twelve‐year‐old boy would, absent circumstances indicating a true
perpetrator and a true victim, work an absurd result).
¶4 The district court agreed with Morrison and dismissed the charge of supplying
alcohol to a minor. The district court concluded that Morrison was under the age of
twenty‐one at the time of the alleged offense and that Utah Code section 32A‐12‐203
was meant to protect those under the age of twenty‐one. The district court, relying on
In re Z.C., thus concluded that Morrison was in the protected class for purposes of
section 32A‐12‐203 and that, “under [In re] Z.C., that the charge of Supplying Alcohol to
a Minor, would lead to an ‘absurd result’ if [Morrison] is charged with the crime, as
[Morrison] is both in the protected class and was younger than those who consumed the
alcohol.” The State appeals from the order of dismissal.
ISSUE AND STANDARD OF REVIEW
¶5 The State argues that charging a minor with supplying alcohol to another minor
under Utah Code section 32A‐12‐203 is not precluded by the supreme court’s “absurd
result” analysis in In re Z.C. Issues of the proper interpretation of statutes and existing
1
The minor in possession of alcohol charge is not at issue in this appeal.
20110018‐CA 2
case law present questions of law, which we review for correctness. See State v. Leyva,
951 P.2d 738, 741 (Utah 1997) (“A lower court’s interpretation of binding case law
presents a question of law which we review for correctness.”); State v. Graham, 2011 UT
App 332, ¶ 14, 263 P.3d 569 (“Questions of statutory interpretation are matters of law,
which we review for correctness.”).
ANALYSIS
¶6 The State argues that the district court erred when it concluded that this case is
so analogous to In re Z.C. as to require the dismissal of the supplying alcohol to a minor
charge against Morrison. We agree with the State that the concerns that led to the In re
Z.C. holding are simply not applicable where, as here, one minor provides alcohol to
another minor.
¶7 In In re Z.C., the supreme court determined that a thirteen‐year‐old girl could not
be adjudicated delinquent for engaging in sexual activity with a twelve‐year‐old boy,
notwithstanding Utah Code section 76‐5‐404.1’s prohibition against “any person”
sexually touching a “child,” see Utah Code Ann. § 76‐5‐404.1(2) (2003). The supreme
court rejected the argument that a “child” such as Z.C. did not qualify as “any person”
for purposes of the sex abuse statute, observing that the statute defined children as a
subset of persons generally.2 In light of this definition, the supreme court concluded
that, “under the plain language of the statute, a child is a person and may be
adjudicated delinquent for sexually touching another child with the requisite intent.”
See In re Z.C., 2007 UT 54, ¶ 10, 165 P.3d 1206.
¶8 However, the supreme court then turned to the question of whether it would
work an absurd result to adjudicate children to be child sex abusers for their consensual
sexual contact with other children.3 See id. ¶¶ 11–24. After reviewing the historical
2
For purposes of Utah Code section 76‐5‐404.1, “child” was defined as “a person
under the age of 14.” See Utah Code Ann. § 76‐5‐404.1(1) (2003).
3
The supreme court acknowledged, as do we, that Utah law does not recognize
the consent of children under the age of fourteen in matters of sexual activity. See In re
(continued...)
20110018‐CA 3
application of the absurd results doctrine, see id. ¶¶ 12–16, the supreme court concluded
that “the legislature could not possibly have intended to punish both children under the
child sex abuse statute for the same act of consensual heavy petting,” id. ¶ 17.
Accordingly, the court held “that applying the plain language of the statute in this case
produces an absurd result.” See id.
¶9 The supreme court expressed several interrelated concerns about Z.C.’s
adjudication as a child sex abuser, including the heinousness of that crime and the
likelihood that such an adjudication could have future consequences for Z.C. in child
custody and support matters. See id. ¶¶ 18, 23. However, the supreme court’s primary
concern was that the State’s theory of delinquency “simultaneously punish[ed] both
children for child sex abuse” even though that crime “clearly envisions a perpetrator
and a victim.” See id. ¶ 20. This concern with the need for a clear perpetrator and a
clear victim was emphasized by the supreme court in its holding:
We hold that the application of Utah Code section 76‐5‐404.1
is absurd where no true perpetrator or victim exists. And
the State may not create a perpetrator and a victim through
selective prosecution. Rather, charges against the
perpetrator must be based upon a material gap in the
maturity of the two participants, evidence of coercion or
force, or a wider age differential than exists in this case.
Id. ¶ 24 n.10.
¶10 In light of the considerations underlying the holding of In re Z.C., we see
inadequate support for the district court’s dismissal of the supplying alcohol to a minor
charge against Morrison. The district court based its conclusion that the charge against
Morrison was absurd on two factors: that Morrison is a member of the class of
persons—those under twenty‐one years of age—protected by the applicable statute and
that Morrison was younger than the minors to whom he provided alcohol. We do not
3
(...continued)
Z.C., 2007 UT 54, ¶ 1 n.1, 165 P.3d 1206 (“Throughout this opinion, we employ the term
‘consensual’ in its conventional, rather than its legal, sense.”).
20110018‐CA 4
disagree with either of these observations, but neither warrants the dismissal of the
charge under In re Z.C.
¶11 The district court correctly concluded that Morrison, as a minor, was himself in
the class of persons protected by Utah Code section 32A‐12‐203. See State v. Souza, 846
P.2d 1313, 1319 (Utah Ct. App. 1993) (“[T]he prohibition against supplying alcohol to
minors expresses a state policy to protect minors as a particular class of people.”). But
Morrison’s status as a protected class member does not grant him free rein to violate
laws intended to protect the class as a whole. In In re Z.C., both children were members
of the class protected by the child sex abuse statute; however, the supreme court was
clear that a delinquency adjudication was allowable when there was a clear victim and a
clear perpetrator. See 2007 UT 54, ¶ 24, 165 P.3d 1206. The supreme court also strongly
suggested that, in certain circumstances, a “true perpetrator” of child sex abuse might
be a child who was even younger than his or her child victim. See id. ¶ 24 & n.10 (“Even
among children under the age of fourteen, there are unfortunately situations where an
older or more physically mature child abuses a younger or smaller child.” (emphasis
added)). Just as In re Z.C. does not necessarily preclude child sex abuse charges against
a perpetrator who is both a child and younger than his or her victim, neither the fact
that Morrison is in the protected class nor the fact that he is younger than his “victims”
necessarily precludes a supplying alcohol charge against him.
¶12 Rather, the overriding concern of the In re Z.C. analysis was whether “there is an
identifiable distinction between the perpetrator and the victim.” See id. ¶ 24. In the
child sexual abuse context, that distinction must be demonstrated by “a material gap in
the maturity of the two participants, evidence of coercion or force, or a wide[] age
differential.” See id. ¶ 24 n.10. However, in the context of supplying alcohol to a minor,
almost every case involves a clear perpetrator and a clear victim—the perpetrator is the
one who supplies the alcohol, and the victim is the one who receives it.4
4
We acknowledge the occasional instance where the distinction between
perpetrator and victim might blur, as when two minors who each possess a different
brand of beer might exchange one or more beers so that each could sample the other’s
contraband in equal measure. While we express no opinion on the matter, we note that
even this scenario might be characterized as two separate acts of supplying, unlike the
simultaneous sexual activity addressed in In re Z.C.
20110018‐CA 5
¶13 In this case, it is undisputed that Morrison acquired sole possession and control
over some beer and then chose to share it with other minors.5 By statute, those other
minors were to be protected against access to alcohol, and yet Morrison nevertheless
provided it to them in violation of the statute. Thus, as between Morrison and the other
minors, only Morrison—and not the other minors—perpetrated the crime of supplying
alcohol to a minor. For this reason, we conclude that Morrison’s prosecution for
supplying alcohol to a minor is not precluded by the supreme court’s “absurd result”
analysis in In re Z.C., which relied primarily on the lack of an identifiable perpetrator.6
5
This is not a situation where the other minors accompanied Morrison on the
“Hey, Mister,” or even one where the several minors pooled their funds and sent
Morrison in search of alcohol on behalf of the group. It is possible that such situations
might be characterized as joint possession by all of the minors and not as an act of
distribution by the one who first obtained the alcohol. Cf. United States v. Swiderski, 548
F.2d 445, 450 (2d Cir. 1977) (“[W]here two individuals simultaneously and jointly
acquire possession of a drug for their own use, intending only to share it together, their
only crime is personal drug abuse simple joint possession, without any intent to
distribute the drug further. Since both acquire possession from the outset and neither
intends to distribute the drug to a third person, neither serves as a link in the chain of
distribution.”); State v. Carithers, 490 N.W.2d 620, 622–23 (Minn. 1992) (holding that a
husband who went to buy drugs for himself and his wife did not distribute drugs to the
wife, as she constructively possessed the drugs from the moment of husband’s
acquisition thereof). Here, however, Morrison was clearly “a link in the chain of
distribution” between the adult who purchased the alcohol and the minors who
ultimately consumed it. See Swiderski, 548 F.2d at 450.
6
We also observe that the supplying alcohol charge in this case presents a much
less serious and stigmatizing crime than the child sex abuse charge in In re Z.C. and is
much less likely to have lingering negative effects on Morrison after he completes any
punishment that he might receive if convicted. Cf. In re Z.C., 2007 UT 54, ¶¶ 18, 23
(considering the heinousness of child sex abuse and the likelihood that an adjudication
for that crime could have future consequences for Z.C. in child custody and support
matters).
20110018‐CA 6
CONCLUSION
¶14 In this case, Morrison was correctly charged with supplying alcohol to a minor.
Despite Morrison’s own minority status and his younger age relative to those with
whom he shared his beer, Morrison was clearly acting as the supplier—and therefore
the perpetrator—when he provided alcohol to other minors by sharing his beer with
them. Thus, his prosecution for supplying alcohol to a minor does not work an absurd
result under In re Z.C., and the district court erred in dismissing the supplying alcohol
to a minor charge on that basis. We reverse the district court’s dismissal order and
remand this matter for further proceedings.
____________________________________
William A. Thorne Jr., Judge
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¶15 WE CONCUR:
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
____________________________________
Gregory K. Orme, Judge
20110018‐CA 7