State v. Toombs , 820 Utah Adv. Rep. 64 ( 2016 )

2016 UT App 188THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JAY WILLIAM TOOMBS,
Appellant.
Opinion
No. 20140386-CA
Filed September 1, 2016
First District Court, Logan Department
The Honorable Brian G. Cannell
No. 121100763
David M. Perry, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGE J.
FREDERIC VOROS JR. and SENIOR JUDGE RUSSELL W. BENCH
concurred.1
TOOMEY, Judge:
¶1 In this appeal, Jay William Toombs challenges his
convictions for attempted sexual abuse of a child. The primary
issue on appeal is whether a communication alleging abuse to
law enforcement amounted to a ‚report of the offense,‛
triggering a four-year statute of limitations period. We conclude
it did not and therefore affirm.
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Toombs
BACKGROUND
¶2 In July 2012, Toombs was charged with five counts of
sodomy on a child and five counts of aggravated sexual abuse of
a child, each a first degree felony. The amended information
alleged that Toombs sexually abused V.W., a child, between 1998
and 2001.
¶3 Toombs moved to dismiss the charges, claiming the
offenses had been reported to law enforcement in late 2000,
triggering the four-year statute of limitations. Specifically, he
argued that one of his former neighbors (Neighbor) told law
enforcement about an incident when Toombs bathed V.W.
¶4 A detective with the Logan City Police Department
(Detective) contacted Neighbor after Toombs was arrested in
January 2000 on charges of aggravated sexual abuse of a child
for offenses against another child. Detective recorded his
conversation with Neighbor and after talking to her asked her
‚to please write . . . the most detailed statement that *she+ could
possibly write about anything and everything that *she knew+‛
about Toombs’s misconduct. Neighbor informed Detective that
Toombs admitted to her that he had sexually abused Neighbor’s
son and that Toombs’s wife told her Toombs had been seen in
the neighborhood ‚loving and kissing‛ a teenage boy. Finally,
based on what she knew about Toombs and had heard from
V.W.’s grandmother, Neighbor told Detective she was concerned
Toombs may have molested V.W. Specifically, Neighbor told
Detective she had heard that V.W. had gone to Toombs’s farm
with Toombs and his sons, and when they returned V.W. ‚had
been bathed and [was] ready for bed.‛ She said that, after
hearing that Toombs had ‚thrown *his sons and V.W.+ in and
gotten them all washed,‛ she was concerned V.W. had been
molested. In her two-page written statement, Neighbor provided
details about Toombs’s abuse of her own son and Toombs’s
inappropriate behavior with another neighborhood boy.
20140386-CA 2 2016 UT App 188State v. Toombs
Neighbor also wrote that V.W.’s grandmother (who lived with
V.W.) told her V.W. had been oddly tired lately but loved to go
to Toombs’s farm. She recounted that V.W.’s grandmother had
been ‚pleasantly surprised‛ when V.W. returned from the farm
after ‚he had been put through the tub and was all clean‛ after
he had played in the mud. Neighbor stated that hearing about
this ‚incident set off . . . blaring red lights‛ and made her ‚sick to
*her+ stomach.‛
¶5 The district court held an evidentiary hearing regarding
Toombs’s motion to dismiss. It heard testimony from Detective
and received into evidence a transcript of Neighbor’s interview
and a copy of her written statement. Toombs’s counsel argued
that Neighbor’s communications with Detective constituted a
report of his offenses and were ‚sufficient to meet the standard
reflected in [State v. Green, 2005 UT 9, 108 P.3d 710+.‛2 Toombs’s
trial counsel explained that Detective created a police report
based on Neighbor’s statements, and argued that ‚the fact that
*law enforcement+ didn’t *interview V.W.+ does not mean that
the Green test was not met.‛
¶6 Detective testified that in 2000 he had investigated
allegations that Toombs had been ‚fondling‛ many young boys,
some of whom were friends of Toombs’s children. He recounted
that in his investigations of several allegations involving many
2. State v. Green, 2005 UT 9, 108 P.3d 710, outlines a three-part
test to determine what constitutes a ‚report.‛ Specifically, a
report is ‚(1) a discrete and identifiable oral or written
communication[] (2) that is intended to notify a law enforcement
agency that a crime has been committed and (3) that actually
communicates information bearing on the elements of a crime as
would place the law enforcement agency on actual notice that a
crime has been committed.‛ 2005 UT 9, ¶ 46. This test is
discussed infra ¶¶ 19–24.
20140386-CA 3 2016 UT App 188State v. Toombs
victims, Neighbor informed him she was concerned Toombs
may have molested V.W. Detective explained that he had
prepared one police report for all of the allegations against
Toombs and that V.W.’s case was ‚one page of probably a 60-
page police report.‛ Detective also explained that the report
dealt with ‚anybody and everybody that *he+ ever spoke to
whether [they were] victim, *or+ not victim.‛ Further, Detective
‚documented everything *he] did and who [he] spoke to . . . ,
good or bad.‛
¶7 Regarding Neighbor’s statements, Detective explained
that although Neighbor was concerned, V.W.’s family members,
including his mother and grandmother, were not concerned
about Toombs bathing V.W. He recounted that, even after he
‚explained everything to her and what *his] concerns were,‛
V.W.’s mother ‚was very adamant that [Toombs] was not
molesting V.W.‛ V.W.’s mother ‚refused to allow *Detective] to
speak to her son‛ and because V.W. was ‚only four or five years
old,‛ Detective did not try to contact V.W. directly. Detective
also explained there was insufficient evidence to investigate this
further, stating that Neighbor’s suspicions stemmed from ‚small
talk of *V.W.+ going to play on the Toombs’ farm.‛ He also
conceded that Neighbor’s statement concerned him ‚enough for
[him] to look into [her allegations] and try to go find out . . . if
there was something there‛ but that ‚not everybody *he+ came in
contact with was molested by *Toombs+‛ and ‚*Toombs+ didn’t
molest everyone, just some.‛ Thus, although he was concerned
Toombs may have sexually abused V.W., he did not think he
had enough evidence to reach any conclusions or enough
information to investigate further.
¶8 The district court ultimately denied Toombs’s motion to
dismiss. It explained that, based on the parties’ arguments and
Detective’s testimony, ‚something further could have been done
with the investigation or there could have been some additional
discovery had more been done, but that is not sufficient to create
20140386-CA 4 2016 UT App 188State v. Toombs
a situation where that initial report in fact is a report of an
offense that qualifies under the statute of limitations.‛ The court
found that Detective ‚did learn from *Neighbor+ that V.W. had
been to the farm‛ and ‚had been bathed and returned ready for
bed.‛ But it concluded that ‚the evidence presented fails to
satisfy the third factor of the Green test‛ because, although
Neighbor’s ‚communication was sufficient to raise suspicion
against the defendant, it did not contain a sufficient level of
specificity bearing on the elements of a crime as would place the
law enforcement agency on actual notice that a crime has been
committed.‛
¶9 In preparation for trial, several witnesses testified at a
second evidentiary hearing, including Detective, V.W., V.W.’s
mother, and another law enforcement agent. In particular, V.W.
testified that Toombs abused him more than twenty times at the
farm and at ‚least a hundred‛ times at Toombs’s house. V.W.
also testified that he first reported the abuse to a therapist in
December 2010 and that V.W. ‚didn’t remember [the abuse]
until *he+ watched a video about someone else being abused‛ in
a group therapy session. V.W.’s mother generally testified that
she did not want Detective to interview V.W. in 2000 ‚*b+ecause
[she] had questioned [V.W.] several times and he had
vehemently denied that anything had happened and [she], like
an awful lot of people, were in a position of defense of
*Toombs+.‛
¶10 Before trial, Toombs entered a Sery plea,3 pleading guilty
to three counts of attempted sexual abuse of a child. Specifically,
‚On 1/1/98 – 12/31/99 Jay Toombs on 3 occasions had the victim
touch his penis [with] the intent to gratify his own sexual
3. A Sery plea is ‚a conditional guilty plea *that reserves+ the
right to appeal a court’s decision on a motion.‛ In re T.S., 2015
UT App 307, ¶ 4 n.2, 365 P.3d 1221.
20140386-CA 5 2016 UT App 188State v. Toombs
desires.‛ As part of the plea bargain, Toombs reserved the right
to appeal the issue of whether the statute of limitations barred
his prosecution, and asked that the sentences for these crimes
run concurrent with each other and with the ‚charges he is in
prison for.‛ The court sentenced Toombs to three concurrent
zero-to-five year prison terms; it ordered Toombs to serve these
sentences concurrent with his other sentences. Toombs appeals.
ANALYSIS
¶11 Toombs raises two issues on appeal; both issues
challenge the court’s denial of his motion to dismiss. First, he
contends the court inappropriately concluded that Neighbor’s
communications were not a report of the offense and erred by
not considering her statements in context with Detective’s
ongoing investigations. Second, he contends that his trial counsel
performed ineffectively for not raising a statute-of-limitations
defense.
¶12 Before considering whether prosecution of Toombs’s
crimes was barred by the statute of limitations and whether his
counsel performed deficiently by purportedly not raising it as a
defense, we must first determine which statute of limitations
applied when Toombs committed the crimes. See State v. Lusk,
2001 UT 102, ¶ 18, 37 P.3d 1103. Next, we must determine if the
limitations period expired before the State charged Toombs in
this case. See id.¶13 To determine the proper statute of limitations, ‚we apply
the law as it existed at the time of the violation charged.‛
Featherstone v. Schaerrer, 2001 UT 86, ¶ 21 n.2, 34 P.3d 194. Here,
the amended information alleged that between 1998 and 2001
Toombs committed five counts of sodomy, Utah Code Ann. § 76-
5-403.1 (Michie 1995), and five counts of aggravated sexual
abuse of a child, id. § 76-5-404.1.
20140386-CA 6 2016 UT App 188State v. Toombs
¶14 In 1983, the Utah Legislature enacted sections 76-5-403.1
and 76-5-404.1, which defined the crimes of ‚sodomy on a child‛
and ‚sexual abuse of a child.‛ According to those sections,
[a] person commits sodomy upon a child if the
actor engages in 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, regardless of the
sex of either participant.
Id. § 76-5-403.1(1).
A person commits sexual abuse of a child if, under
circumstances not amounting to rape of a child,
object rape of a child, sodomy upon a child, or an
attempt to commit any of these offenses, the actor
touches the anus, buttocks, or genitalia of any child
. . . or otherwise takes indecent liberties with a
child, or causes a child to take indecent liberties
with the actor or another with intent to cause
substantial emotional or bodily pain to any person
or with the intent to arouse or gratify the sexual
desire of any person regardless of the sex of any
participant.
Id. § 76-5-404.1(1). Further, sexual abuse of a child could be
enhanced to ‚aggravated sexual abuse of a child‛ if the offense
was committed in conjunction with any one of the several
circumstances listed in the statute, including if ‚[t]he accused,
prior to sentencing for this offense, was previously convicted of
any felony . . . involving a sexual offense,‛ if ‚[t]he accused
committed . . . more than five separate acts,‛ or if the accused
used ‚force, duress, violence, intimidation, coercion, menace, or
threat of harm‛ in committing the offense. Id. § 76-5-404.1(3).
Sodomy on a child and aggravated sexual abuse of a child are
20140386-CA 7 2016 UT App 188State v. Toombs
both first degree felonies. See id. § 76-5-403.1(2); id. § 76-5-
404.1(4).
¶15 Generally, between 1998 and 2001 ‚a prosecution for . . . a
felony . . . [had to] be commenced within four years after it [was]
committed.‛ Id. § 76-1-302(1)(a). But ‚*i+f the period prescribed
in Subsection 76-1-302(1) has expired, a prosecution may
nevertheless be commenced for . . . rape of a child, object rape of
a child, sodomy upon a child, or sexual abuse of a child within
four years after the report of the offense to a law enforcement
agency.‛ Id. § 76-1-303.4 In 2008, however, the legislature
repealed the section of the statute imposing a four-year statute of
limitations and expanded the limitations period for aggravated
sexual abuse of a child and sodomy on a child. Act of Feb. 11,
2008, ch. 129, §§ 1, 3, 2008 Utah Laws 1143, 1143–44. Specifically,
the revised statute of limitations, found in Utah Code section 76-
1-301(2), allows the State to commence prosecution ‚at any time.‛
Utah Code Ann. § 76-1-301(2)(m), (o) (LexisNexis Supp. 2012)
(emphasis added).
¶16 ‚‘[A] statutory amendment enlarging a statute of
limitations will extend the limitations period applicable to a
crime already committed only if the amendment becomes
effective before the previously applicable statute of limitations
has run, thereby barring prosecution of the crime.’‛ State v.
Green, 2005 UT 9, ¶ 20, 108 P.3d 710 (emphasis added) (quoting
State v. Lusk, 2001 UT 102, ¶ 26, 37 P.3d 1103). ‚In other words,
4. In 1999, the legislature amended the code and enacted section
76-1-303.5, which specifically provided a statute of limitations
for sexual abuse of a child. This section only reiterated that ‚a
prosecution may nevertheless be commenced for . . . sodomy
upon a child . . . or aggravated sexual abuse of a child within
four years after the report of the offense to a law enforcement
agency.‛ Utah Code Ann. § 76-1-303.5 (Lexis 1999).
20140386-CA 8 2016 UT App 188State v. Toombs
no subsequent amendment of a statute that enlarges a limitations
period can resurrect the State’s ability to prosecute a crime
already barred because of the running of the statute of
limitations.‛ Lusk, 2001 UT 102, ¶ 26. Accordingly, if Neighbor’s
communications are a ‚report of the offense,‛ triggering the
four-year statute of limitations in effect at the time Toombs
committed the offenses, then the limitations period expired in
2004—before the 2008 amendment extended the limitations
period indefinitely—and barred prosecution of these charges in
2012. By contrast, if Neighbor’s communications did not trigger
the statute of limitations, the four-year statute of limitations
period had not yet run and the State’s charges were therefore
timely brought in 2012.
I. Report of the Offense
¶17 ‚When an issue concerning the statute of limitations is
raised, the judge shall determine by a preponderance of the
evidence whether the prosecution is barred by the limitations in
this part.‛ Utah Code Ann. § 76-1-306 (Lexis 1999). Here, the
court found that by ‚a preponderance of evidence, *it could not+
conclude that *Neighbor’s statement+ was sufficient enough to
trigger the statute of limitations.‛ It also concluded that the
Neighbor’s statement ‚fails the third factor in the Green test.‛
¶18 ‚We will defer to the trial court’s findings concerning the
existence and content of the alleged communications unless we
find them to be clearly erroneous.‛ Green, 2005 UT 9, ¶ 25. But
the court ‚was also required to compare its findings concerning
the communications to the statutory mandate that a prosecution
commence ‘within four years after the report of the offense to a
law enforcement agency.’‛ Id. ¶ 26 (quoting Utah Code Ann.
§ 76-1-303(3)). This ‚undertaking first obliged the trial court to
interpret the phrase*+ ‘report of the offense’ . . . , a legal exercise,
which we review for correctness.‛ Id.20140386-CA 9 2016 UT App 188State v. Toombs
¶19 In State v. Green, the Utah Supreme Court defined ‚report
of the offense‛ in Utah Code section 76-1-303(c). 2005 UT 9,
¶¶ 42–47. The court adopted ‚a three-part test for evaluating
whether something qualifies as a ‘report of the offense.’‛ Id. ¶ 46.
Specifically, this test requires
(1) a discrete and identifiable oral or written
communication[] (2) that is intended to notify a law
enforcement agency that a crime has been
committed and (3) that actually communicates
information bearing on the elements of a crime as
would place the law enforcement agency on actual
notice that a crime has been committed.
Id. The court explained that a report of the offense ‚is a
communication made for the purpose of alerting law
enforcement to the existence of criminal conduct.‛ Id. ¶ 42.
Further, a report must be something more than ‚mere clues that
criminal conduct has occurred‛; rather it requires ‚a heightened
level of specificity,‛ id. ¶¶ 43–44, and should contain ‚a degree
of articulation of criminal conduct sufficient to permit a law
enforcement agency to conclude what was done and who did it
without additional investigation or analysis,‛ id. ¶ 43.
¶20 Because the parties do not dispute that Neighbor’s
communications meet the first two prongs of this test, we focus
on whether Neighbor’s statement meets the third prong. Toombs
argues the Utah Supreme Court ‚did not require the report to
identify the elements of offenses, or to identify the crime(s)
committed, something that lay people are not equipped to [do].‛
‚Rather,‛ he contends, ‚the court merely required that the report
‘communicate information bearing on’ the elements of a crime such
that the police would be on notice that a crime had been
committed.‛ (Emphasis added.) Essentially, he argues that a
known ‚sexual predator giving a bath to a five year old boy, late
at night and then clothing him in pajamas and returning him
20140386-CA 10 2016 UT App 188State v. Toombs
home definitely puts the State on notice that a crime has been
committed and should constitute a report under Green.‛ We
cannot agree.
¶21 Although Neighbor’s communications may have been
intended to inform Detective of criminal conduct, her statements
only articulated her suspicions and merely offered clues that a
crime may have occurred. In particular, Neighbor informed law
enforcement, verbally and in her written statement, that she had
heard that V.W. went to Toombs’s farm and was returned later
than expected after V.W. ‚had been bathed and [was] ready for
bed.‛ She said Toombs had ‚thrown *V.W. and Toombs’s sons]
in *the bath+ and gotten them all washed.‛ She also said that
although V.W.’s family was not concerned V.W. had been
molested, she was. In her written statement, she recounted that
V.W. ‚had been put through the tub and was all clean,‛ which
‚set off some blaring red lights‛ and made her concerned that
Toombs had molested V.W.
¶22 So, although Neighbor communicated aspects of
Toombs’s inappropriate behavior with other children, she did
not provide any details about the purported sexual abuse of
V.W. Specifically, Neighbor told Detective about the time
Toombs put his hand down her own son’s pants and that
Toombs had been seen kissing a teenage boy on a street in the
neighborhood. But beyond telling Detective that V.W. was
bathed before being returned home around bedtime in the fall of
1999, Neighbor did not allege conduct between Toombs and
V.W. with any level of specificity.
¶23 Toombs’s argument essentially asks us to assume that
because he was known to have molested other boys of a similar
age, Neighbor’s second-hand report that V.W. had a bath at
Toombs’s farm should have put law enforcement on notice that
Toombs molested V.W. Toombs asserts that Neighbor’s
‚statements certainly bore on the elements of the crimes at issue‛
20140386-CA 11 2016 UT App 188State v. Toombs
because they identified the perpetrator, the victim, ‚that Toombs
had sexually molested V.W.,‛ and other details about V.W. such
as where he lived. But without a higher ‚level of specificity,‛
Neighbor’s statements do not articulate ‚criminal conduct
sufficient to permit a law enforcement agency to conclude what
was done and who did it without additional investigation or
analysis.‛ See State v. Green, 2005 UT 9, ¶¶ 43–44, 108 P.3d 710.
From Neighbor’s communications one cannot ascertain where
the touching occurred, what happened, or how it happened
‚without additional investigation or analysis.‛ See id. ¶ 43.
Indeed, Detective’s additional investigations, which included
questioning V.W.’s mother, provided no answer to these
questions. Accordingly, we cannot assume that V.W. having a
bath put law enforcement on notice that Toombs sexually
abused V.W. We therefore conclude the district court did not err
when it determined, ‚While the facts in the case may say that the
communication was sufficient to raise suspicion, it does not rise
to the level of specificity of ‘bearing on the elements of a crime as
would place the law enforcement agency on actual notice that a
crime had been committed.’‛ (Quoting id. ¶ 46.)
¶24 Because Neighbor’s communications did not equate to a
‚report of the offense‛ to law enforcement, the four-year statute
of limitations was not triggered and had not expired before the
State charged Toombs with these crimes in 2012.
II. Ineffective Assistance of Counsel
¶25 Second, Toombs argues his trial counsel rendered
constitutionally ineffective assistance of counsel because she
‚failed to recognize that, at the time the alleged offenses were
first reported, . . . the statute of limitations . . . had been repealed,
was void, and that no amendment or newly enacted statutory
provision became effective before, and thus did not extend the
previously applicable statute of limitations.‛ In order to
demonstrate ineffective assistance of counsel ‚a defendant must
20140386-CA 12 2016 UT App 188State v. Toombs
show (1) that counsel’s performance was so deficient as to fall
below an objective standard of reasonableness and (2) that but
for counsel’s deficient performance there is a reasonable
probability that the outcome of the trial would have been
different.‛ State v. Nelson-Waggoner, 2004 UT 29, ¶ 27, 94 P.3d 186(citation and internal quotation marks omitted); see also Strickland
v. Washington, 466 U.S. 668, 687 (1984) (stating that a defendant
claiming ineffective assistance of counsel ‚must show that
counsel’s performance was deficient‛ and ‚that the deficient
performance prejudiced the defense‛).
¶26 We cannot conclude that Toombs’s trial counsel rendered
ineffective assistance of counsel and are baffled by Toombs’s
arguments that counsel’s performance was ‚deficient and fell
below an objective standard of professional reasonableness in
failing to realize and [ensure] that prosecution was not barred by
the expiration of the applicable statute of limitations.‛ Trial
counsel filed a motion to dismiss the charges against Toombs,
arguing that the statute of limitations had expired. Indeed, she
insisted that the four-year statute of limitations had been
triggered in 2000 and expired in 2004. Furthermore, trial counsel
assisted Toombs in reserving the right to appeal the district
court’s denial of his motion to dismiss even after he pleaded
guilty and waived his right to appeal his convictions. We
therefore conclude that Toombs has failed to demonstrate that
his counsel provided deficient performance.
¶27 To the extent that Toombs argues that neither the four-
year statute of limitations nor the newly enacted 2008 statute of
limitations apply to his charges because there ‚was no overlap
between the previous statute of limitations 76-1-303.5, which was
repealed and ineffectual as of midnight May 4, 2008, and the
new statute of limitations 76-1-301, which was made effective
May 5, 2008,‛ we conclude the argument is inadequately briefed.
See Utah R. App. P. 24(a)(9). Toombs briefly suggests the prior
statute of limitations had run because it was repealed before the
20140386-CA 13 2016 UT App 188State v. Toombs
2008 statute of limitations went into effect. But he has failed to
develop this argument and has offered no support for his factual
assertions or his legal conclusions. ‚While failure to cite to
pertinent authority may not always render an issue inadequately
briefed, it does so 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).
In any event, this court has recently dismissed a similar
argument, in Lucero v. State, as ‚questionable‛ and contrary to
settled law. See 2016 UT App 50, ¶ 13, 369 P.3d 469.
CONCLUSION
¶28 In sum, although the four-year statute of limitations was
in effect at the time Toombs committed the charged offenses, the
four-year limitations period was not triggered in 2000 and did
not expire before the limitations period was indefinitely
extended in 2008. Neighbor’s statements communicated her
suspicions that a crime may have occurred, but they did not
articulate sufficient detail ‚to permit a law enforcement agency
to conclude what was done and who did it without additional
investigation or analysis.‛ See State v. Green, 2005 UT 9, ¶ 43, 108
P.3d 710. Finally, because he failed to demonstrate that his
counsel performed deficiently, Toombs cannot demonstrate that
his trial counsel provided constitutionally ineffective assistance
of counsel. We therefore affirm the district court’s order denying
Toombs’s motion to dismiss.
20140386-CA 14 2016 UT App 188