State v. Gibson , 2016 Utah App. LEXIS 11 ( 2016 )

2016 UT App 15THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DAVID ALLEN GIBSON,
Appellant.
Opinion
No. 20140283-CA
Filed January 22, 2016
First District Court, Brigham City Department
The Honorable Ben H. Hadfield
No. 131100018
Michael P. Studebaker, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred.
ROTH, Judge:
¶1 David Allen Gibson appeals from a single conviction for
aggravated sexual abuse of a child, a first degree felony.1 We
affirm.
¶2 Gibson was charged with two counts of aggravated
sexual abuse of a child based on events that transpired on the
night of January 26, 2013. On that night, the victim (Child) and
her stepsister visited Gibson’s daughter at his home. Both girls
ultimately asked to stay overnight, and Gibson gave them
1. Gibson pled guilty to one count of possession of a dangerous
weapon by a restricted person, a third degree felony. He does
not challenge that conviction on appeal.
State v. Gibson
permission to do so. Child alleged that during the night, Gibson
inappropriately touched her twice, once when he sat on her back
and put his hand ‚down the back of *her+ pants,‛ touching her
buttocks, and later, when he brought her a blanket, covered her
with it, and proceeded to put his hand inside of her pants and
rub her vagina for three to four minutes. That same night, Child
returned to her parents and informed them of what had
occurred. The police were called, and Gibson was subsequently
arrested and charged.
¶3 Gibson proceeded to trial on two counts of aggravated
sexual abuse of a child. At the conclusion of the two-day trial,
the jury returned a verdict of guilty on one count and acquitted
him on the other.
¶4 On appeal, Gibson makes several arguments related to
motions and objections made by his counsel during the
proceedings. Gibson first argues that there was insufficient
evidence to support a conclusion that the sexual abuse was
aggravated and, consequently, that the trial court erred in
denying his motion for a partial directed verdict reducing the
charges from first degree to second degree felonies. He next
argues that the trial court committed reversible error when it
allowed a witness who he alleges had attended the preliminary
hearing to testify at trial. He also contends that, in convicting
him of one count and not the other, the jury returned
inconsistent verdicts that required the trial court to grant him a
new trial. He finally argues that the trial court erred by not
giving a jury instruction on sexual battery as a lesser included
offense.
ANALYSIS
I. Partial Directed Verdict
¶5 Gibson was charged with first degree felony aggravated
sexual abuse of a child based on the State’s contention that he
held a position of special trust with respect to Child at the time
20140283-CA 2 2016 UT App 15State v. Gibson
of the offenses. He argues that the trial court committed
reversible error by ‚holding [that] [he] was a person for
aggravating factors within the definitions of the Aggravated
Sexual Abuse statutory language‛ and that the trial court should
have granted his motion for a partial directed verdict, reducing
the charges to second degree felonies, because the evidence was
insufficient to prove aggravating factors. In particular, Gibson
contends that because ‚‘a parent of the alleged victim’s friend’ is
not specifically listed by [the applicable] statute, . . . he does not
fit into the definition of a position of special trust.‛ When
reviewing the denial of a directed verdict motion, ‚*w+e will
uphold the trial court’s decision if, upon reviewing the evidence
and all inferences that can be reasonably drawn from it, we
conclude that some evidence exists from which a reasonable jury
could find that the elements of the crime had been proven
beyond a reasonable doubt.‛ State v. Montoya, 2004 UT 5, ¶ 29, 84
P.3d 1183 (alteration in original) (citation and internal quotation
marks omitted). The State contends that Gibson failed to marshal
most of the evidence that supported the trial court’s ruling and,
consequently, he has failed to carry his burden to show that the
trial court committed reversible error. We agree.
¶6 Under Utah law, ‚*a+ person commits sexual abuse of a
child if . . . the actor touches the anus, buttocks, or genitalia of
any child, . . . or otherwise takes indecent liberties with a
child, . . . with the intent to arouse or gratify the sexual desire of
any person.‛ Utah Code Ann. § 76-5-404.1(2) (LexisNexis 2012).2
Sexual abuse of a child is a second degree felony. Id. § 76-5-
404.1(3). The crime becomes a first degree felony if the
circumstances include at least one aggravating factor. Id. § 76-5-
2. Subsequent to the events underlying this case, the legislature
substantively amended the portion of this statute related to a
position of special trust. Utah Code Ann. § 76-5-404.1(1)(c), (4)(h)
(LexisNexis Supp. 2014). We cite the version of the statute in
effect at the time of the conduct giving rise to Gibson’s criminal
charges.
20140283-CA 3 2016 UT App 15State v. Gibson
404.1(4), (5). The aggravating factor alleged by the State in this
case is that Gibson ‚occupied a position of special trust in
relation to the victim.‛ Id. § 76-5-404.1(4)(h).
¶7 The statute in effect at the time Gibson committed the
charged acts defined position of special trust as the ‚position
occupied by a person in a position of authority, who, by reason
of that position is able to exercise undue influence over the
victim.‛ Id. The statute also included a non-exhaustive list of
people presumed to ‚occupy ‘position*s+ of authority’‛ vis-à-vis
a child, such as ‚baby-sitter‛ or ‚stepparent.‛ Id.; see also State v.
Watkins, 2013 UT 28, ¶ 37, 309 P.3d 209 (stating that the
‚enumerated positions refer to those who occupy ‘position*s+ of
authority’‛ (quoting Utah Code Ann. § 76-5-404.1(4)(h))). Our
supreme court has interpreted the applicable version of the
statute to mean that even if the defendant held a ‚position of
authority‛ specifically listed in the statute, the State still must
show ‚that the position gave the defendant the ability to exercise
undue influence over the victim.‛ Watkins, 2013 UT 28, ¶ 39
(internal quotation marks omitted).3 But Gibson has not
3. As the State points out in its briefing, prior to State v. Watkins,
2013 UT 28, 309 P.3d 209, our courts had interpreted this statute
to mean that if a person occupied one of the specifically
enumerated positions of authority, that person occupied ‚a
position of special trust‛ as a matter of law. See, e.g., State v.
Tanner, 2009 UT App 326, ¶ 16, 221 P.3d 901 (stating that Utah
Code section 76-5-404.1(4)(h) ‚provides two ways by which a
person may occupy a position of special trust: either by
occupying a position specifically listed by statute or by fitting
the definition of a position of special trust‛). Watkins, however,
held that occupying one of the enumerated positions alone was
not sufficient; rather, the State must also show that the defendant
actually used that position of authority to exercise undue
influence over the victim. See Watkins, 2013 UT 28, ¶ 39. In
apparent response, the legislature amended the definition of
position of special trust in 2014 to provide that occupying one of
(continued…)
20140283-CA 4 2016 UT App 15State v. Gibson
identified any case that has held that the enumerated positions
of authority were exclusive, as he seems to argue; rather, the
statutory list only describes particular relationships that
‚suffice*+ to establish . . . that the defendant occupied a position
of authority.‛ Id. (internal quotation marks omitted). The fact
that Gibson did not occupy a position on the list did not
foreclose the State’s ability to prove the aggravating factor; it
merely meant that the prosecution was required to show that he
was in an actual position of authority under the particular
circumstances rather than that he occupied a specified status. See
Utah Code Ann. § 76-5-404.1(4)(h).
¶8 With respect to Gibson’s insufficient evidence claim, we
have stated that determining whether a person occupies a
position of special trust is ‚generally . . . a fact-sensitive inquiry
for the trier of fact‛ because ‚*a+pplication of the statute must
focus on how a particular position is used to exercise undue
influence—a very fact-sensitive analysis.‛ State v. Tanner, 2009
UT App 326, ¶¶ 16, 18, 221 P.3d 901. As a consequence, the jury’s
determination on this point is entitled to considerable deference
and will not be overturned unless it is clearly erroneous. See
Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35,
¶ 40, 308 P.3d 382 (explaining that ‚[f]indings of fact are entitled
to the most deference‛ and that ‚*s+uch findings are accordingly
(…continued)
the enumerated authority positions suffices as a matter of law to
establish the required ‚position of special trust.‛ Compare Utah
Code Ann. § 76-5-404.1(4)(h) (LexisNexis 2012), with id. § 76-5-
404.1(1)(c), (4)(h) (Supp. 2014); see also State v. Peterson, 2015 UT
App 129, ¶ 6 & n.2, 351 P.3d 812 (acknowledging that the
legislature had amended the statute to make clear that the
‚position of special trust‛ aggravating factor is met by showing
either that the person falls within one of the specific categories
enumerated in the statute or is within the broader definition of a
person in authority who exercises undue influence over the
child).
20140283-CA 5 2016 UT App 15State v. Gibson
overturned only when clearly erroneous‛ (citation and internal
quotation marks omitted)).
¶9 Gibson asserts that the circumstances here are
significantly less compelling than in other cases where we have
determined that defendants occupy positions of special trust. 4
But he does not attempt to analyze the facts in this case in light
of the deferential standard of review. Rather, Gibson simply
states that he was not in a position of special trust, because
unlike the defendant in State v. Rowley, 2008 UT App 233, 189
P.3d 109, Gibson ‚did not babysit or supervise‛ and was not
‚expected to supervise‛ Child, ‚there *were+ no instances where
[he] exercised authority‛ over Child, and ‚there *were] no
indications of past sleep-overs.‛ He also asserts that unlike in
Tanner, 2009 UT App 326, ‚the children were never instructed
that they were under *his+ authority‛ and he was ‚likely not able
to discipline *Child+.‛ According to Gibson, he was simply ‚in
his own home, working and tending to chores‛ when he ‚was
visited by [Child] without any agreement on his own part.‛
4. See, e.g., Tanner, 2009 UT App 326, ¶ 21 (determining that ‚the
jury was not unreasonable in concluding that [a bus driver]
occupied a position of special trust‛ in relation to one of the
female special needs students he drove to and from school,
because there was sufficient evidence to prove that the bus
driver occupied a position of authority over the victim and,
because of that position, was ‚able to exercise undue influence
over her‛); State v. Rowley, 2008 UT App 233, ¶¶ 13, 15, 189 P.3d
109 (determining that the father of the victim’s best friend held a
position of special trust in relation to the victim in that case
because, notwithstanding conflicting evidence, ‚it *was+
reasonable to conclude that [the father] was an authority figure
to an eleven-year-old girl who frequently spent the night at his
home and over whom he exercised some amount of
supervision‛).
20140283-CA 6 2016 UT App 15State v. Gibson
¶10 Whatever merits Gibson’s assertions may have, however,
are obscured by his failure to adequately identify and engage
with the evidence supporting the trial court’s decision. See State
v. Nielsen, 2014 UT 10, ¶¶ 41–42, 326 P.3d 645 (repudiating the
‚default notion of marshaling‛ but reiterating that ‚a party
challenging . . . sufficiency of the evidence to support a verdict
will almost certainly fail to carry its burden of persuasion on
appeal if it fails to marshal‛); State v. Mitchell, 2013 UT App 289,
¶ 31, 318 P.3d 238 (‚*A+n argument that does not fully
acknowledge the evidence supporting a finding of fact has little
chance, as a matter of logic, of demonstrating that the finding
lacked adequate factual support.‛ (citation and internal
quotation marks omitted)); see also Utah R. App. P. 24(a)(9) (‚A
party challenging a fact finding must first marshal all record
evidence that supports the challenged finding.‛). In this regard,
Gibson fails to identify or even acknowledge the evidence
presented that supported the State’s case that he occupied a
position of special trust. For example, the State presented
evidence that Gibson himself, not his wife, gave permission to
Child and her stepsister to stay the night at his house, that
Gibson asserted himself by covering Child and her stepsister
with blankets even when Child told him that she was not cold,
and that Gibson gave the children directions, such as instructing
them to be quiet later in the night, much as a baby-sitter or
parent would. The State also presented evidence suggesting
Child’s trust in Gibson; when Gibson first touched her—on the
buttocks under her clothing—she perceived it as unintentional,
simply a mistake. Further, both his authority and influence were
arguably apparent in the evidence that Child made no overt
objection when Gibson later rubbed her genitals, even though
her stepsister and friend were both in the room at the time, and
then verbally agreed to Gibson’s demand that she not tell
anyone that he had touched her; Child even gave Gibson a
bedtime hug at his request after both incidents had occurred.
¶11 Gibson does not address any of this evidence, even
though all of it was before the trial court at the time of his
motion for a partial directed verdict. By neglecting to do so,
20140283-CA 7 2016 UT App 15State v. Gibson
Gibson has failed to carry his burden of convincing us that there
was not ‚some evidence‛ to support the court’s decision to deny
Gibson’s motion for a partial directed verdict and to send the
case to the jury to resolve the aggravating factor. See Nielsen,
2014 UT 10, ¶ 40 (‚*A+ party who fails to identify and deal with
supportive evidence will never persuade an appellate court to
reverse under the deferential standard of review that applies to
*sufficiency challenges+.‛); see also State v. Montoya, 2004 UT 5,
¶ 33, 84 P.3d 1183 (‚[I]f there is any evidence, however slight or
circumstantial, which tends to show guilt of the crime charged or
any of its degrees, it is the trial court’s duty to submit the case to
the jury.‛ (alteration in original) (citation and internal quotation
marks omitted)). Thus, without deciding whether the evidence is
actually sufficient to sustain the jury’s verdict or to establish that
Gibson occupied a position of special trust as a matter of law, we
are not persuaded that the trial court committed reversible error
by denying Gibson’s motion for a partial directed verdict.
II. Witness Exclusion
¶12 Gibson next argues that the trial court committed
reversible error by allowing a witness to testify at trial who had
attended, but not been excluded from, the preliminary hearing.
We review a trial court’s determinations regarding violations of
the witness exclusion rule for abuse of discretion. See State v.
Billsie, 2006 UT 13, ¶ 6, 131 P.3d 239.
¶13 Rule 615 of the Utah Rules of Evidence provides that ‚*a+t
a party’s request, the court must order witnesses excluded so
that they cannot hear other witnesses’ testimony.‛ Utah R. Evid.
615. Our supreme court has stated that this rule is ‚directed
toward preventing witnesses from changing their testimony
based on other evidence adduced at trial.‛ Billsie, 2006 UT 13,
¶ 10 (citation and internal quotation marks omitted).
Nevertheless, a trial court retains considerable ‚discretion to
decide whether a defendant will be prejudiced by permitting a
witness to testify in the face of a violation of the [witness
exclusion+ rule.‛ State v. Carlson, 635 P.2d 72, 74 (Utah 1981); see
20140283-CA 8 2016 UT App 15State v. Gibson
also Billsie, 2006 UT 13, ¶ 8 (stating that a trial judge ‚has broad
latitude to control and manage the proceedings and preserve the
integrity of the trial process‛ (citation and internal quotation
marks omitted)); id. (explaining that ‚[t]he trial court is afforded
considerable latitude‛ when determining whether a person fits
within an exemption of rule 615 and, ‚once the trial court makes
that determination, that witness must be allowed to remain in
the courtroom‛); State v. Toki, 2011 UT App 293, ¶ 40, 263 P.3d
481 (‚A trial court has broad discretion to respond to courtroom
events and to control the proceedings before it.‛). Thus, in order
to show that a trial court abused its discretion in allowing a
witness to testify despite a violation of the exclusionary rule, the
defendant carries ‚the onus of showing‛ prejudice, Carlson, 635
P.2d at 74, and, in particular, must demonstrate that the witness
‚changed *her+ testimony‛ in some material way because of
what she heard, State v. McGrath, 749 P.2d 631, 634 (Utah 1988).
See also Billsie, 2006 UT 13, ¶ 6 (stating that a trial court’s decision
to exempt a witness will be affirmed if ‚the challenged practice
is not inherently prejudicial, or the defendant fails to show
actual prejudice‛ (citation and internal quotation marks
omitted)). Gibson has not met this burden.
¶14 As the State notes, Gibson has not persuasively argued
that a violation of the witness exclusion rule even occurred in
this case. At the preliminary hearing seven months before trial,
defense counsel moved to exclude all persons who were
expected to testify as witnesses at trial. The State responded that
it had not yet identified its witnesses for trial, and the court
declined to make a ruling on the issue at that time. As a result,
the witness was permitted to attend the preliminary hearing.
When defense counsel later moved to bar the witness from
testifying at trial based on her presence during the preliminary
hearing, the trial court expressed doubt that a violation of rule
615 had actually occurred, a doubt that seems at least plausible
based on the available information. Gibson fails to address that
question at all, simply concluding without analysis that allowing
the witness to testify at trial violated the exclusionary rule.
20140283-CA 9 2016 UT App 15State v. Gibson
¶15 But even assuming for purposes of appeal that there was
a violation of the rule, Gibson has not shown that the witness
changed her testimony as a result of what she heard at the
preliminary hearing, much less that he was prejudiced by it. In
fact, Gibson fails to even identify the witness or describe the
subject matter of her testimony. Rather, he conclusively states
that because this unnamed witness was permitted to hear
preliminary hearing testimony, ‚that alone is a clear indication
of a bolstering of the *witness’s+ testimony‛ and that Gibson was
thereby ‚unduly prejudiced.‛ Gibson cannot meet his burden of
persuasion by ‚merely alleg[ing] prejudice without pointing to
inconsistencies in the record or other evidence which would
show wherein he has been prejudiced.‛ Carlson, 635 P.2d at 74.
Thus, because Gibson has ‚fail*ed+ to show actual prejudice,‛
Billsie, 2006 UT 13, ¶ 6 (citation and internal quotation marks
omitted), he cannot persuade us that the trial court abused its
discretion by allowing the witness to testify.
III. Inconsistent Verdicts
¶16 Gibson next argues that the trial court erred by not
granting a new trial based on what he claims to be inconsistent
verdicts. We review a trial court’s denial of a motion for a new
trial for abuse of discretion, see State v. Martin, 2002 UT 34, ¶ 45,
44 P.3d 805, and we ‚will not overturn a jury’s verdict of
criminal conviction unless reasonable minds could not rationally
have arrived at a verdict of guilty beyond a reasonable doubt
based on the law and on the evidence presented,‛ State v.
Hancock, 874 P.2d 132, 134 (Utah Ct. App. 1994) (citation and
internal quotation marks omitted). See also State v. Stewart, 729
P.2d 610, 611 (Utah 1986) (per curiam) (stating that the question
on review, even as to inconsistent verdicts, ‚is simply whether
there is sufficient evidence to support the guilty verdicts‛). The
State argues that Gibson has failed to show that the trial court
erred because Gibson does not cite governing law or show that
the evidence was insufficient to support Gibson’s conviction. We
agree.
20140283-CA 10 2016 UT App 15State v. Gibson
¶17 Gibson asserts that the verdicts were ‚glaringly‛
inconsistent because even though the ‚events happened two
times during the visit*+,‛ the circumstances were limited to an
‚overnight timeframe.‛ He then concludes without analysis or
citation to relevant law that the mere fact that the jury returned
verdicts of guilty on one count and not guilty on the other
demonstrated that ‚it was clear that the jury was confused and
did not understand the essential elements of the state’s case.‛
Thus, as the State puts it, Gibson ‚appears to merely argue that
because the counts were related in time and the jury did not
convict him on the first count . . . it must not have believed
[Child’s+ testimony concerning the second count.‛ But Gibson’s
conclusion is not self-evident; for example, the jury might have
concluded, as did Child initially, that the touching of her
buttocks was accidental. Gibson has not developed his
inconsistency assertion much beyond simply stating it.
¶18 And, even if the verdicts were inconsistent with each
other, Gibson must demonstrate an ‚additional error beyond a
showing of inconsistency,‛ State v. LoPrinzi, 2014 UT App 256,
¶ 30, 338 P.3d 253 (citation and internal quotation marks
omitted), cert. granted, 347 P.3d 405 (Utah 2015), because ‚the
inconsistency of verdicts is not, by itself, sufficient ground to set
the verdicts aside,‛ Hancock, 874 P.2d at 134 (citation and internal
quotation marks omitted). See also LoPrinzi, 2014 UT App 256,
¶ 31 (stating that even ‚if the evidence as to both counts was
precisely the same,‛ ‚‘it would make no difference to our review
. . . because [c]learly, the jury determined, for its own
presumably valid reasons, that the evidence only supported one
conviction’‛ (alteration in original) (quoting State v. Sjoberg, 2005
UT App 81U, para. 4)). Rather, to prevail on appeal, Gibson is
required to demonstrate that the guilty verdict the jury returned
was unsupported by the evidence presented at trial. See Stewart,
729 P.2d at 611. And Gibson does not allege that the evidence
was insufficient to support his conviction, nor does he identify
any other error related to the verdicts that would warrant
granting a new trial.
20140283-CA 11 2016 UT App 15State v. Gibson
¶19 Because Gibson cannot carry his burden of persuasion by
simply pointing out potential inconsistency in the verdicts, we
cannot say that it was unreasonable for the jury—whether
through the jury’s assessment of the evidence and the credibility
of the witnesses or ‚through mistake, compromise, or lenity‛—
to return the verdicts that it did. See LoPrinzi, 2014 UT App 256,
¶¶ 30–31. We are therefore not persuaded that the trial court
abused its discretion by denying Gibson’s motion for a new trial
on the basis of inconsistent verdicts.
IV. Sexual Battery Jury Instruction
¶20 Finally, Gibson argues that the trial court erred by not
giving a lesser included jury instruction for sexual battery,
contending that he was ‚entitled to instruct the jury on *this+
theory of the case‛ simply because ‚*t]here was testimony of
touching the buttocks and genitalia of the alleged victim.‛ ‚A
trial court’s refusal to grant a lesser included offense instruction
is a question of law, which we review for correctness.‛ State v.
Reece, 2015 UT 45, ¶ 16, 349 P.3d 712 (citation and internal
quotation marks omitted). The State argues that Gibson has not
met his burden of persuasion, because he has not shown that the
sexual battery instruction was required under the applicable
lesser included instruction test.5 We agree with the State.
5. The State alternatively argues that Gibson has not preserved
this argument for appeal. The State may have a point—defense
counsel merely asked the trial court if his sexual battery
instruction had been included, but failed to respond to the
State’s contention that the instruction was not appropriate and
did not raise the issue again. The trial court also did not rule one
way or another regarding whether that instruction was
appropriate. However, because we resolve this issue on the basis
of inadequate briefing without reaching the merits of Gibson’s
contention, we need not reach the preservation question.
20140283-CA 12 2016 UT App 15State v. Gibson
¶21 A defendant is entitled to have a lesser included offense
instruction given to the jury only if he is able to show ‚(1) that
the charged offense and the lesser included offense have
overlapping statutory elements and (2) that the evidence
provides a rational basis for a verdict acquitting the defendant of
the offense charged and convicting him of the included offense.‛
State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788 (citation and internal
quotation marks omitted); see also State v. Baker, 671 P.2d 152, 159
(Utah 1983). But Gibson has not even attempted to demonstrate
that the elements of the charged offenses—aggravated sexual
abuse of a child—overlap with the elements of sexual battery.
Instead, he merely states that ‚*t+here was testimony of touching
the buttocks and genitalia of the alleged victim‛ and asserts,
without any comparison of the elements of aggravated sexual
abuse of a child and sexual battery, that ‚*t+his testimony meets
the requirements for sexual battery‛ and that the jury should
therefore have been instructed on the lesser included offense.
Gibson also has not attempted to show that the jury would have
had a rational basis, based on the evidence, to both acquit him of
the sexual abuse of a child charges and convict him of the lesser
offense of sexual battery. Rather, Gibson merely reiterates in
conclusory fashion that the testimony at trial supported the
request for the sexual battery instruction and that it should be
‚the jury’s prov*i+nce to decide if *Gibson+ is instead guilty of
sexual battery rather than the charges that were brought.‛
¶22 In the absence of sufficient analysis of either the law or
the evidence, we cannot say that Gibson was entitled to the
requested instruction.6 See Utah R. App. P. 24(a)(9) (‚The
6. And as the State suggests, we question whether Gibson could
persuasively show based on the evidence that a reasonable jury,
on the one count of aggravated sexual abuse of a child of which
Gibson was convicted, would have acquitted him of the greater
crime and instead convicted him of sexual battery. In particular,
it seems questionable whether the evidence would have allowed
a rational jury to doubt that Gibson acted with the requisite
(continued…)
20140283-CA 13 2016 UT App 15State v. Gibson
argument shall contain the contentions and reasons of the
appellant with respect to the issues presented . . . with citations
to the authorities, statutes, and parts of the record relied on.‛);
see also State v. Perea, 2013 UT 68, ¶ 120, 322 P.3d 624 (stating that
an issue is inadequately briefed ‚when it merely contains bald
citation[s] to authority [without] development of that authority
and reasoned analysis based on that authority‛ (alterations in
original) (citation and internal quotation marks omitted)); cf.
Baker, 671 P.2d at 158 (‚The analysis of whether an offense is
included for purposes of deciding whether to grant a
defendant’s request for a jury instruction must . . . begin with the
proof of facts at trial.‛). Gibson has therefore failed to persuade
us that the trial court erred by not giving his requested lesser
included sexual battery instruction to the jury.
CONCLUSION
¶23 We discern no error in the trial court’s decisions that
Gibson has challenged on appeal and accordingly affirm.
(…continued)
mental state for sexual abuse of a child—that is, ‚with the intent
to arouse or gratify‛ his sexual desire, Utah Code Ann. § 76-5-
404.1(2) (LexisNexis 2012)—and decide instead that he acted
with the mens rea for sexual battery—that is, ‚under
circumstances the actor knows or should know will likely cause
affront or alarm to the person touched,‛ id. § 76-9-702.1(1).
20140283-CA 14 2016 UT App 15