In re C.N. , 2023 UT App 41 ( 2023 )

2023 UT App 41THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF C.N.,
A PERSON OVER EIGHTEEN YEARS OF AGE.
C.N.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20200460-CA
Filed April 20, 2023
Fourth District Juvenile Court, Spanish Fork Department
The Honorable F. Richards Smith
No. 1148011
Margaret P. Lindsay, Douglas J. Thompson, and Alex
Stephen Clark, Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE DAVID N. MORTENSEN and JUSTICE JILL M.
POHLMAN concurred.1
CHRISTIANSEN FORSTER, Judge:
¶1 C.N. appeals the juvenile court’s adjudication of rape of a
child on the ground that there was not sufficient evidence
1. Justice Jill M. Pohlman began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
In re C.N.
presented at trial to establish sexual intercourse as defined in the
Utah Code. We agree and reverse.
BACKGROUND2
¶2 C.N. lived out-of-state but regularly traveled to Utah to
spend time with her sister (Sister) and Sister’s two children. In
December 2016, on one of these visits, C.N. met Seth3 and Sally,
the children of Sister’s close friend (Friend). At the time, Seth was
nine years old and C.N. was seventeen years old.
¶3 Friend “need[ed] a babysitter,” so she sent Seth and Sally
to Sister’s house. Once at Sister’s house, Sally, Seth, C.N.’s niece
Abby, and C.N. played together outside at a park where they
“were joking around saying how [they] wanted to be nasty.” The
group then returned to Sister’s house, where C.N. “threw some
sheets over the bunk bed so nobody could see if they were to walk
in.” The sheet covered “the big part” of the bed “where you would
go to lay down” but left the two short sides of the bed exposed.
¶4 C.N. and Seth were on the bottom bunk, partially hidden
by the hanging sheet. Sally and Abby remained in the room where
they were able to see “[a] little bit” of what was going on behind
the sheet. Sally observed Seth “on top” of C.N. “in a way that
caused [her] some concern.”
¶5 A few months after the visit, Sally disclosed to her mother
that something happened between C.N. and Seth. She explained
that she was “forced to watch” as C.N. “raped” Seth on the bunk
bed. After this disclosure, Friend “immediately called [Sister], and
2. “On appeal from a bench trial, we view the evidence in the light
most favorable to the juvenile court’s findings.” In re J.A.M., 2020
UT App 103, n.1, 470 P.3d 454 (quotation simplified).
3. We use pseudonyms to protect the privacy of the victims and
witnesses in this case.
20200460-CA 2 2023 UT App 41In re C.N.
. . . told her what [Sally] had” said. Sister was “in denial” but
agreed to ask Abby what had happened. Shortly after, Sister
called back “in tears” and informed Friend that Abby had
confirmed Sally’s story. Friend then talked to Seth, who told her
“bits and pieces” of what happened, although he was mostly
“shut down.” The next day, Friend called the police and reported
the sexual assault.
¶6 A caseworker with the Division of Child and Family
Services interviewed Seth at the Children’s Justice Center (CJC).
During the interview, Seth explained that one day he was playing
“house” at a school playground with Sally, C.N., and Abby when
Sally “brought up . . . getting the F word,” but Seth did not “know
what that mean[t].” After leaving the playground, the group
walked to Sister’s house; during the walk, C.N. “brought it up
again.”
¶7 Once at Sister’s house, the group went into the bedroom
and started playing house again. C.N. told Seth “that she actually
wanted to do it with [him], but [he] said no.” Seth then asked Sally
to walk him to the bathroom “because [he] had to talk to her.” He
told Sally to “start crying” if C.N. “brought [up] anything about
it” again so they “didn’t have to pay attention to” it. After the two
returned to the bedroom, however, Sally and Abby “got addicted
to their tablets, . . . playing on Facebook and stuff,” and stopped
playing house.
¶8 C.N. then “brought up . . . this s-e-x thing” and told Seth
“to do it with her or else she would hurt [him].” Seth told C.N. he
did not know “what [s-e-x] spells” or “what [it] means,” after
which she told him “it means [him] sticking [his] middle part up
her butt.” Seth also did not know the name for his “middle part”
but explained it is used “[f]or peeing.”
¶9 Following this exchange, C.N. directed Sally and Abby
to use blankets to build a “tent” over the bottom bunk of the
bunk bed. C.N. again threatened Seth that “if [he] didn’t do it she
would hurt [him]” and that “if [he] told anybody she would hurt
20200460-CA 3 2023 UT App 41In re C.N.
[him].” Seth “said fine, as long as you don’t hurt me,” and then
“[t]he s-e-x thing happened.”
¶10 Seth recounted that at C.N.’s direction, he first pulled his
pants and underwear down to his knees. C.N. then pulled her
pants and underwear down to her feet and “told [Seth] to put [his]
middle part in her butt.” She told Seth he “would have to do this
s-e-x thingy for five minutes.”
¶11 C.N. was positioned with “her hands and her knees on the
bed” and Seth was “on [his] knees” “behind her.” Seth could see
C.N.’s “butt hole” and “her butt.” His “middle part” was “sticking
up and pointing” at C.N.’s back. C.N. was looking forward and
could see Sally, Abby, and the bedroom door through a gap
between the sheet and the bunk bed. Seth opined that C.N. was
watching the room because she did not “want[] anybody to
know” what was happening behind the blankets. Nevertheless,
Seth said that Sally was able to view what was going on and Abby
might have seen.
¶12 When Seth put his “thingy in [C.N.’s] butt,” he “felt her
butt hole,” which was “soft.” Seth explained they “looked like an
animal connected together” with “a stick in the middle”; the
“stick” was his “middle part.” Seth further explained that his
body “didn’t feel comfortable,” “it didn’t feel right,” and he “felt
like [he] was going to get hurt.” Seth also said that while his
“thingy was still in [C.N.’s] butt,” she “moaned once,” “for like
one minute and like five seconds.” After five minutes had elapsed,
Seth “ran outside.” C.N. followed him and reminded him that if
he told anybody what had happened, she would physically hurt
him “in a serious way.”
¶13 Following Seth’s CJC interview, a police officer (Officer)
from the local police department attempted to contact C.N. for an
interview. However, C.N. had already returned home, and
Officer was unable to interview her in person. But Officer did
eventually receive a copy of an interview with C.N. at the CJC in
her home state. After reviewing the video, Officer concluded that
20200460-CA 4 2023 UT App 41In re C.N.
“C.N. corroborated most of the facts that were . . . laid out by”
Seth, including “the location, being on the bed, [and] putting the
sheets up to kind of hide things,” but that “[s]he denied any
sexual activity happened.” Officer also observed that during the
interview C.N. “contradicted herself several times.” Notably,
C.N. said Seth “initially got on top of her, then she changed her
story and said that he kept trying to get on top of her” but “she
pushed him away with her foot”; “[t]hen she said she was frozen
and couldn’t act.”
¶14 As part of his investigation, Officer also “briefly”
interviewed two other children that were at Sister’s house when
the incident happened. Officer identified one child as Sally, but he
could not remember the other child’s name. Both children had
been “preoccupied by their electronics” at the time of the incident
and “couldn’t provide anything that was . . . of any use to the
case.”
¶15 The State filed a petition alleging C.N. had committed rape
of a child under fourteen. Before trial, a competency evaluation
was performed on C.N., and the juvenile court found her
incompetent to proceed. After working a competency attainment
plan, C.N. was reevaluated and found competent to stand trial.
¶16 In April 2020, the matter was tried to the bench. At trial,
Seth’s CJC interview, which the State classified as “the bulk of [its]
case,” was played for the court. On cross-examination, Seth, who
was then twelve years old, was unable to remember all the details
from the incident. However, he did testify that during the “sex
thingy,” he took his pants “down to [his] knees” and C.N. “was
like on all fours on the bed with her head on the pillow.” C.N. then
told Seth to “put [his middle thingy] in her butt,” which he did.
Seth also testified that the “sex thingy” happened on the
bottom bunk of the bunk bed and he thought there were
“coverings around the bed.” He then clarified that he “believe[d]”
Sally saw what had happened because Sally and Abby were in
the room, close to the bed, and he observed Sally turn her
head and look at the bed. However, he also confirmed that at
20200460-CA 5 2023 UT App 41In re C.N.
the time of the incident, both Sally and Abby were playing on
Abby’s tablet.
¶17 Officer testified next for the State. In addition to testifying
about the information listed above, Officer testified about his
impressions after watching a recording of Seth’s CJC interview.
Over C.N.’s objection, Officer opined that, based on his experience
as a sex offender investigator and a sex crimes investigator,
during which time he had “done numerous interviews with
children,” it is common for children to “refer to their genitalia as
their bottom.” Consequently, it is the job of the interviewer to “ask
follow up questions to . . . clarify what a child’s talking about,”
i.e., whether “bottom” means penis, vagina, or anus. Based on his
experience, Seth’s description “that it felt like it was soft when he
put his penis in there,” and the follow-up questions4 asked during
the CJC interview, Officer was able to “narrow” down Seth’s
statements to determine that, in his opinion, Seth “had inserted
his penis into [C.N.’s] vagina.”
¶18 Abby testified for the defense. Abby’s testimony was
largely consistent with Seth’s and Sally’s. Abby explained that at
the time of the incident, the bottom bunk was covered with
blankets. C.N. and Seth were on the bed, and Abby and Sally were
sitting on the floor. Abby then climbed to the top bunk while Sally
remained on the floor playing with Abby’s tablet. From the top
bunk, Abby was able to see into the bottom bunk. She observed
C.N. on the bed “laying on her stomach on her phone.” Seth was
also on the bed, “laying there on top of [C.N.]” with his arms
“wrapped . . . around her stomach.”
¶19 At the close of the evidence, the juvenile court adjudicated
C.N. for rape of a child. The court explained that the “only
question” was “whether there was sexual intercourse.” After
reviewing Seth’s testimony, particularly his CJC interview, the
court found that Seth’s testimony had “multiple indicia of
4. Officer did not specify any particular follow-up questions or
answers that helped him draw his conclusions.
20200460-CA 6 2023 UT App 41In re C.N.
veracity,” including that he had been “consistent.” Accordingly,
the court concluded he was “a credible witness” and, “based upon
that,” found the allegation was true.
¶20 Following a disposition hearing, C.N. was placed on
probation. On August 27, 2020, the juvenile court terminated
C.N.’s probation and its jurisdiction.
ISSUE AND STANDARD OF REVIEW
¶21 C.N. now appeals, raising one issue for our review. C.N.
argues there was insufficient evidence presented at trial to
support the juvenile court’s adjudication for rape of a child.5 We
review challenges to the sufficiency of the evidence for clear error,
reversing “only when it is apparent that there is not sufficient
competent evidence as to each element of the crime charged.”
State v. Bagnes, 2014 UT 4, ¶ 10, 322 P.3d 719 (quotation
simplified). “However, before we can uphold [an adjudication,] it
must be supported by a quantum of evidence concerning each
element of the crime as charged from which the factfinder may
base its conclusion of guilt beyond a reasonable doubt.” In re
W.E.M., 2016 UT App 250, ¶ 8, 391 P.3d 352 (quotation simplified).
And where examining a sufficiency of the evidence argument
“also present[s] a threshold question of law—of the elements of
the underlying offense”—our review of that threshold question is
“non-deferential.” Bagnes, 2014 UT 4, ¶ 10.
5. “[A]n adjudicative hearing is analogous to a criminal trial in
adult court . . . .” In re A.H.F., 2011 UT App 437, ¶ 6 n.2, 269 P.3d
165; see also Utah R. Juv. P. 5(b) (“‘Adjudication’ means a finding
by the court, incorporated in a judgment or decree, that the facts
alleged in the petition have been proved.”). Put differently, “[t]he
adjudication hearing is typically when guilt or innocence to a
criminal charge is determined.” In re J.W., 2004 UT App 482, ¶ 5,
105 P.3d 962 (per curiam).
20200460-CA 7 2023 UT App 41In re C.N.
ANALYSIS
¶22 C.N. argues the juvenile court erred in adjudicating her for
rape of a child because the evidence presented at trial was
insufficient to prove beyond a reasonable doubt that she
committed each element of the offense. Specifically, she contends
that the touching described in Seth’s testimony, “includ[ing] all
reasonable inferences that could be drawn therefrom,” did not
establish the element of “sexual intercourse” as defined under the
Utah Code.
¶23 Because C.N.’s sufficiency argument hinges on the juvenile
court’s determination that the evidence presented was sufficient
to establish the element of “sexual intercourse” required for an
adjudication of rape of a child, “the threshold question for us
concerns the definition of this term.” See State v. Bagnes, 2014 UT
4, ¶ 12, 322 P.3d 719. “We then consider the sufficiency of the
evidence to sustain [an adjudication] under this definition.” See id.A. “Sexual intercourse” as used in Utah Code section 76-5-
402.1 is limited to vaginal sex.
¶24 C.N. was charged with rape of a child under Utah Code
section 76-5-402.1. That section provides, “An actor commits rape
of a child if the actor has sexual intercourse with an individual
who is younger than 14 years old.” Utah Code § 76-5-402.1(2)(a).6
“Any touching, however slight, is sufficient to constitute the
relevant element of [the offense].” Id. § 76-5-402.1(2)(b). Thus, to
adjudicate C.N. of this offense, the State had to prove that C.N.
had “sexual intercourse” with a child “younger than 14 years
6. The rape of a child statute has been amended since the events
giving rise to this case. The amendments did not, however,
change the elements of the underlying offense. We therefore cite
the most current version of the Utah Code for the convenience of
the reader.
20200460-CA 8 2023 UT App 41In re C.N.
old.”7 See id. § 76-5-402.1(2)(a). The statute does not, however,
define “sexual intercourse.”
¶25 C.N. contends the statutory definition of “sexual
intercourse” in Utah’s rape of a child statute should be construed
narrowly and that it “does not encompass anal or oral sex but is
limited to vaginal sex.” Conversely, the State maintains the term
must be construed broadly and argues that “‘sexual intercourse’
includes both vaginal and anal intercourse.”
¶26 When interpreting a statute, “our primary goal is to
ascertain the true intent and purpose of the legislature.” O’Hearon
v. Hansen, 2017 UT App 214, ¶ 23, 409 P.3d 85 (quotation
simplified). Because the “best evidence of the legislature’s intent
is the plain language of the statute itself,” Reynolds v. Bickel, 2013
UT 32, ¶ 10, 307 P.3d 570 (quotation simplified), we begin our
interpretive task by “looking first to the statute’s plain language,”
see State v. Hatfield, 2020 UT 1, ¶ 16, 462 P.3d 330 (quotation
simplified). Where a statutory term is not defined, we assess the
“ordinary meaning” of the term “using the dictionary as our
starting point.” See id. ¶ 17 (quotation simplified).
¶27 Both C.N. and the State point us to multiple contemporary
dictionary definitions of “sexual intercourse,” which they contend
support their respective positions. But those dictionaries
simultaneously support both parties. For example, Merriam-
Webster defines “sexual intercourse” as “heterosexual intercourse
involving penetration of the vagina by the penis” or “intercourse
(such as anal or oral intercourse) that does not involve penetration
of the vagina by the penis.” Sexual intercourse, Merriam-Webster,
https://www.merriam-webster.com/dictionary/sexual%20interco
urse [https://perma.cc/2HEU-N7LP]. Similarly, The American
Heritage Dictionary defines “sexual intercourse” as a “[s]exual
union between a male and a female involving insertion of the
7. C.N. acknowledges the age element is not at issue and therefore
challenges only the court’s conclusion that the State had
established the first element, sexual intercourse.
20200460-CA 9 2023 UT App 41In re C.N.
penis into the vagina” or “[s]exual activity that includes insertion
of the penis into the anus or mouth.” Sexual intercourse, The
American Heritage Dictionary of the English Language,
https://ahdictionary.com/word/search.html?q=sexual+intercours
e [https://perma.cc/5BZB-SWRL].
¶28 Because the competing dictionary definitions may support
both parties’ proposed interpretations, the dictionary definitions
alone are “inadequate.” See State v. Bagnes, 2014 UT 4, ¶ 14, 322
P.3d 719. However, “we do not interpret the ‘plain meaning’ of a
statutory term in isolation.” Olsen v. Eagle Mountain City, 2011 UT
10, ¶ 12, 248 P.3d 465. Rather, we assess the “plain language of the
statute as a whole and interpret its provisions in harmony with
other statutes in the same chapter and related chapters.” Bryner v.
Cardon Outreach, LLC, 2018 UT 52, ¶ 10, 428 P.3d 1096 (quotation
simplified). Importantly, “we seek to render all parts [of the
statute] relevant and meaningful, and we accordingly avoid
interpretations that will render portions of a statute superfluous
or inoperative.” Hall v. Utah State Dep’t of Corr., 2001 UT 34, ¶ 15,
24 P.3d 958 (quotation simplified). “Consequently, when two
statutory provisions conflict in their operation, the provision
more specific in application governs over the more general
provision.” Id. Applying these rules of statutory construction to
the rape of a child statute, we agree with C.N. that the term
“sexual intercourse” as used in section 76-5-402.1 is limited to
vaginal sex.
¶29 An examination of the current legislative scheme
criminalizing sexual offenses against children reveals that other
sections of the Utah Code specifically prohibit sexual acts that
encompass oral sex and anal sex. For example, Utah’s sodomy on
a child statute provides that “[a]n actor commits sodomy on a
child if . . . the actor engages in any sexual act upon or with another
individual” who is “younger than 14 years old” when “the sexual
act involves the genitals or anus of the actor or the individual and
the mouth or anus of either the actor or individual.” Utah Code
§ 76-5-403.1(2)(a) (emphases added). Thus, the sodomy on a child
statute specifically criminalizes conduct amounting to oral sex or
20200460-CA 10 2023 UT App 41In re C.N.
anal sex, i.e., sexual contact between the mouth and genitals or the
anus, or sexual contact between the anus and genitals.
Accordingly, if we were to interpret “sexual intercourse” in the
rape of a child statute to encompass acts of oral sex and anal sex—
conduct already specifically criminalized under the sodomy on a
child statute—parts of the sodomy on a child statute would be
rendered superfluous.8 That is, reading the definition of “sexual
intercourse” expansively to include oral sex and anal sex would
result in the sodomy on a child statute becoming largely
duplicative of the child rape statute.
¶30 Relatedly, because both the sodomy on a child statute and
the rape of a child statute purport to cover the same subject, our
rules of statutory construction provide that “the provision more
specific in application governs over the more general provision.”
See Hall, 2001 UT 34, ¶ 15. In this case, application of this rule
dictates that acts of oral sex or anal sex are not encompassed
within the definition of “sexual intercourse” in the rape of a child
statute. The sodomy on a child statute is more specific than the
rape of a child statute because the sodomy statute applies to only
conduct “explicitly enumerated in the statute,” see Taghipour v.
Jerez, 2002 UT 74, ¶ 14, 52 P.3d 1252, i.e., sexual contact between
the mouth and genitals or the anus, or sexual contact between the
8. The sodomy on a child statute prohibits some touching not
covered in the rape of a child statute. Compare Utah Code § 76-5-
403.1(2)(b) (providing that “[a]ny touching, even if accomplished
through clothing, is sufficient to constitute the relevant element” of
the offense of sodomy on a child (emphasis added)), with id. § 76-
5-402.1(2)(b) (providing that “[a]ny touching, however slight, is
sufficient to constitute the relevant element” of the offense of rape
of a child). Therefore, even if the rape of a child statute were
construed broadly to encompass oral sex and anal sex, the
sodomy of a child statute would still have a limited independent
purpose in that it criminalizes over-the-clothes touching that the
rape statute does not.
20200460-CA 11 2023 UT App 41In re C.N.
anus and genitals. Conversely, the rape of a child statute contains
only a general prohibition against “sexual intercourse.”
¶31 Lastly, the historical evolution of Utah’s laws governing
sexual offenses supports our conclusion that “sexual intercourse”
does not include oral sex or anal sex. See generally Mabon v. Wilson,
133 P.3d 899, 901 (Or. 2006) (using “the history of the evolution of
the statutory wording over time” as a tool to determine the plain
meaning of a statute).
¶32 Prior to 1983, the Utah Code did not contain any child-
specific sexual offenses. Instead, the elements of sexual offenses,
and as relevant here, rape and sodomy, applied equally to all
victims and the age of the victim was implicated only in the level
of the offense. See, e.g., Utah Code §§ 76-5-402, -403 (1982). In 1983,
the Utah legislature significantly amended the criminal code and
enacted child-specific sexual offenses for rape of a child and
sodomy on a child. Id. §§ 76-5-402.1, -403.1 (1983). However, the
amendments did not alter the conduct elements for either offense:
both the 1982 rape statute and the 1983 rape of a child statute
required the actor to engage in “sexual intercourse” with the
victim. Compare id. § 76-5-402 (1982), with id. § 76-5-402.1 (1983).
Likewise, both the 1982 sodomy statute and the 1983 sodomy on
a child statute required the actor to engage in “any sexual act”
involving the “genitals” of one person and the “mouth or anus”
of the other person. Compare id. § 76-5-403 (1982), with id. § 76-5-
403.1 (1983). Because the conduct elements of “sexual intercourse”
and “sexual act” in the child-specific statutes were adopted
wholly from those contained in the original adult statutes, the
meaning of those terms as understood in the original adult
statutes is informative. See In re Childers-Gray, 2021 UT 13, ¶ 50,
487 P.3d 96 (“When a word or phrase is transplanted from another
legal source, whether the common law or other legislation, it
brings the old soil with it.” (quotation simplified)).
¶33 The crime of rape has always existed in Utah law. In the
Compiled Law of Utah 1876, rape was defined as “an act of sexual
intercourse accomplished with a female, not the wife of the
20200460-CA 12 2023 UT App 41In re C.N.
perpetrator, under” circumstances demonstrating a lack of
consent. Compiled Laws of Utah, tit. IX, ch. I, § 134 (1876). In other
words, the crime of rape was possible only between a female and
a male.
¶34 In 1943, the criminal code was amended to set the penalty
for the crime of rape against young victims. The amendment
maintained the gender-specific language of the earlier law—
thereby requiring that the crime be committed by a male upon a
female—and added additional penalties “[w]hen the female upon
whom the act is committed is under the age of thirteen years.” Act
of March 17, 1943, ch. 25, § 1, 1943 Utah Laws 26, 26. The gendered
limitation continued in 1973, when the crime of rape was defined
as follows: “A male person commits rape when he has sexual
intercourse with a female, not his wife, without her consent.” Act
of July 1, 1973, ch. 196, 1973 Utah Laws 584, 610.
¶35 Conversely, the crime of sodomy did not exist in Utah law
prior to 1923. In 1923, the legislature enacted a new section of the
Utah Code setting criminal penalties for sodomy: “Every person
who is guilty of sodomy or any other detestable and abominable
crime against nature, committed with [humans] or with any
animal, with either the sexual organs or the mouth is punishable
by imprisonment . . . .” Act of May 8, 1923, ch. 13, § 1, 1923 Utah
Laws 21, 21. That definition remained unchanged until 1973,
when the legislature redefined the crime as when a person
“engages in any sexual act involving the genitals of one person
and the mouth or anus of another person, regardless of the sex of
either participant.” Act of July 1, 1973, ch. 196, 1973 Utah Laws
584, 610. Notably, this significant overhaul in the statutory
definition of sodomy occurred at the same time that the
legislature amended the rape statute, reaffirming that the crime of
rape specifically required a “male person” to have “sexual
intercourse with a female.” See id. The amended sodomy statute,
which appeared immediately following the rape statute, was
more precise in its definition, providing that the crime of sodomy
occurred when a person “engages in any sexual act involving the
genitals of one person and the mouth or anus of another person,
20200460-CA 13 2023 UT App 41In re C.N.
regardless of the sex of either participant.” See id. (emphasis
added).
¶36 In short, when creating the child sexual offenses of rape
and sodomy, the legislature did not alter the conduct elements of
what had previously been rape and sodomy. Instead, the new
statutes merely transplanted the meaning of the offenses as
originally contemplated to the new child-specific statutes. See
generally In re Childers-Gray, 2021 UT 13, ¶ 50. Thus, the rape of a
child statute brought with it the vaginal sex meaning of the
existing adult rape statute, and the sodomy on a child statute
brought with it the oral sex and anal sex meaning from the
existing adult sodomy statute.
¶37 Based on the foregoing, we hold that the term “sexual
intercourse” as used in the rape of a child statute is limited to
vaginal sex. Acts involving oral sex or anal sex do not qualify as
“sexual intercourse” and therefore are not sufficient to satisfy the
sexual intercourse element of rape of a child.9
9. To the extent that other provisions of the criminal code arguably
could be used to discern the legislature’s intent as to whether
“sexual intercourse” means only vaginal sex as opposed to
sodomy, see, e.g., Utah Code § 76-5-401 (unlawful sexual activity
with a minor); id. § 76-5-401.1 (sexual abuse of a minor); id. § 76-5-
401.2 (unlawful sexual conduct with a 16- or 17-year-old), those
provisions are less informative because they were enacted after
the child rape and sodomy statutes. Cf. State v. Wilkerson, 2020 UT
App 160, ¶ 16, 478 P.3d 1048 (“It is unreasonable to conclude that
our legislature, in enacting the Pay-to-Stay Statute in 2003,
intended to incorporate a specialized definition of ‘incarceration’
that it would not codify, even in a different context, for another
seven years. Had our legislature intended the 2010 definition of
‘incarceration’ used in the factual innocence statute to apply to the
previously enacted Pay-to-Stay Statute, we are confident it would
have said so more clearly.”).
20200460-CA 14 2023 UT App 41In re C.N.
B. The evidence presented at trial was not sufficient to prove
that C.N. engaged in sexual intercourse with Seth.
¶38 Having concluded the term “sexual intercourse” is limited
to only vaginal sex, we next determine whether the State
presented sufficient evidence from which the juvenile court could
find beyond a reasonable doubt that C.N. engaged in sexual
intercourse with Seth. “When reviewing a juvenile court’s
decision for sufficiency of the evidence, we must consider all the
facts, and all reasonable inferences which may be drawn
therefrom, in a light most favorable to the juvenile court’s
determination.” In re J.E.G., 2020 UT App 94, ¶ 22, 468 P.3d 1048(quotation simplified). In so doing, we do not “reweigh the
evidence presented,” State v. Wall, 2020 UT App 36, ¶ 53, 460 P.3d
1058, cert. denied, 470 P.3d 444 (Utah 2020), or “examine whether
we believe that the evidence at trial established guilt beyond a
reasonable doubt,” Salt Lake City v. Carrera, 2015 UT 73, ¶ 10, 358
P.3d 1067 (quotation simplified). Rather, we determine only if
“the evidence is sufficiently inconclusive or inherently
improbable such that reasonable minds must have entertained a
reasonable doubt” that the juvenile is delinquent. See id.(quotation simplified).
¶39 The juvenile court’s decision “relie[d] in large measure
upon [Seth’s] testimony, particularly the testimony which was
elicited during his CJC interview.”10 During his CJC interview,
Seth consistently described the interaction with C.N. as involving
her “butt” and his “middle part.” Seth explained that when he put
his “thingy in [C.N.’s] butt,” he “felt her butt hole,” which was
“soft.” Seth also said that while his “thingy was still in [C.N.’s]
butt,” she “moaned once,” “for like one minute and like five
10. The State contends the juvenile court could also have relied on
the testimonies of other witnesses—specifically Officer, Sally, and
Abby—to support the conclusion that C.N. engaged in sexual
intercourse with Seth. But none of the information provided by
the other witnesses includes additional evidence that would
support the court’s conclusion.
20200460-CA 15 2023 UT App 41In re C.N.
seconds.” And Seth also consistently described the positioning
between himself and C.N. during the touching. He maintained
that C.N. was positioned with “her hands and her knees on the
bed” and Seth was “on [his] knees” “behind her.” Seth could see
C.N.’s “butt hole” and “her butt.” Seth explained that his “middle
part” was “sticking up” and “pointing” “[b]ehind [C.N.’s] butt,”
and that when his “thingy was . . . in her butt,” they “looked like
an animal connected together” with “a stick in the middle”; the
“stick” was his “middle part.” After reviewing this testimony, the
court found that Seth was “a credible witness” and therefore
concluded “the allegation is true.”
¶40 C.N. argues Seth’s testimony was insufficient to support
her adjudication for rape of a child because the touching
described by Seth does not satisfy the element of sexual
intercourse. C.N. does not challenge Seth’s credibility but instead
contends the court’s conclusion that sexual intercourse had
occurred was based on impermissible speculation rather than
permissible inference. Specifically, C.N. contends the court’s
conclusion was based on speculation because Seth was
“consistent and exclusive in his use of the word ‘butt’” and “the
ordinary meaning of the word[] used does not support that he and
C.N. engaged in sexual intercourse.”
¶41 “Sex crimes are defined with great specificity and require
concomitant specificity of proof.” State v. Pullman, 2013 UT App
168, ¶ 14, 306 P.3d 827. Where the evidence does not explicitly
establish an element of the crime, guilt may still be found if the
factfinder concludes the evidence supports a reasonable inference
that the defendant committed the challenged element. See State v.
Patterson, 2017 UT App 194, ¶¶ 13–14, 407 P.3d 1002, cert. denied,
417 P.3d 580 (Utah 2018). “[T]he difference between an inference
and speculation depends on whether the underlying facts support
the conclusion.” Carrera, 2015 UT 73, ¶ 12. “An inference is a
conclusion reached by considering other facts and deducing a
logical consequence from them whereas speculation is the act or
practice of theorizing about matters over which there is no certain
20200460-CA 16 2023 UT App 41In re C.N.
knowledge.” Patterson, 2017 UT App 194, ¶ 14 (quotation
simplified).
¶42 Seth’s testimony clearly indicates that C.N. unlawfully
touched him.11 But his testimony does not adequately describe the
challenged element of the offense of rape of a child—“sexual
intercourse”—which occurs only when the conduct includes
vaginal sex. See Pullman, 2013 UT App 168, ¶¶ 12–16 (reversing
the defendant’s conviction for sodomy on a child because
although the child victim’s testimony “described a sexual act
involving [the defendant’s] penis and her buttocks,” it did not
establish the defendant had in fact “touch[ed]” her anus, as
required to satisfy a statutory element of the crime (emphasis
omitted)). Because Seth’s testimony does not explicitly establish
that C.N. and Seth engaged in sexual intercourse, the question
becomes whether the juvenile court’s conclusion can be
reasonably inferred from the evidence.
¶43 Here, Seth’s testimony was clear and consistent, and the
court found him to be a “credible witness.” Throughout his
testimony, Seth consistently described C.N.’s sexual assault as
involving her “butt” and his “middle part.” Indeed, he testified
he saw C.N.’s “butthole.” However, no one asked him to clarify
what he meant or whether he, now twelve years old, could
11. Although the State chose not to do so, based on the evidence
presented at trial—including C.N.’s concession that “there was
some touching going on” between C.N. and Seth—it could have
charged C.N. with sodomy on a child, which requires a “sexual
act” rather than “sexual intercourse.” Compare Utah Code § 76-5-
403.1(2)(a) (“An actor commits sodomy on a child if: (i) the actor
engages in any sexual act upon or with another individual; (ii) the
individual is younger than 14 years old; and (iii) the sexual act
involves the genitals or anus of the actor or the individual and the
mouth or anus of either the actor or individual.”), with id. § 76-5-
402.1(2)(a) (“An actor commits rape of a child if the actor has
sexual intercourse with an individual who is younger than 14
years old.”).
20200460-CA 17 2023 UT App 41In re C.N.
differentiate between a vagina and an anus. Accepting his
testimony as true, which the court did, there is little evidence that
the touching between Seth and C.N. involved Seth’s penis and
C.N.’s vagina. In concluding otherwise, the court took an
impermissible “speculative leap.” See State v. Shumway, 2002 UT
124, ¶ 15, 63 P.3d 94 (quotation simplified).
¶44 The State resists this conclusion, arguing that a “child-rape
victim’s age-appropriate descriptions of sexual touching and use
of technically incorrect words or generic terms to identify
genitalia . . . is sufficient to prove sexual intercourse ‘so long as
the child’s meaning is clear.’” (Quoting State v. Peterson, 2015 UT
App 129, ¶ 3, 351 P.3d 812, cert. denied, 362 P.3d 1255 (Utah 2015).)
Although the State’s assertion is correct, that is not what
happened here.
¶45 In Peterson, the defendant challenged his convictions for
aggravated sexual abuse of a child, rape of a child, and object rape
of a child on sufficiency grounds. 2015 UT App 129, ¶¶ 1, 3. There,
the child victim testified the defendant “touched her ‘private’
with his finger underneath her underwear” and that his finger
“went in her private.” Id. ¶ 4 (quotation simplified). The
defendant argued the child victim’s “general reference to her
private, as opposed to her vagina, was insufficient to establish
penetration” of the child’s genital, a required element of the
offense. Id. This court disagreed, concluding that “in sexual abuse
cases, child witnesses frequently refer to genitalia as ‘privates’; a
child’s failure to use an anatomical reference does not make [the
child’s] testimony insufficient, so long as the child’s meaning is
clear.” Id. ¶ 5. The court found it significant that at trial, the child
victim “explained that by ‘private,’ she meant her ‘front’ private
used for ‘[g]oing to the bathroom’ and distinguished it from her
‘bottom.’” Id. ¶ 4. This clarification “sufficiently indicated that
[the child] was referring to her vaginal opening.” Id. ¶ 5.
¶46 Conversely, in this case, Seth did not use a “general
reference” to C.N.’s genitalia. See id. ¶ 4. Instead, Seth consistently
used an anatomical reference, repeatedly testifying that he
20200460-CA 18 2023 UT App 41In re C.N.
inserted his “middle part” into C.N.’s “butt.” And while the law
does not require a child victim to use anatomically correct
references when describing abuse, the testimony is sufficient only
“so long as the child’s meaning is clear.” See id. ¶ 5. Here, nothing
specifically indicates that Seth’s numerous references to C.N.’s
“butt” and “butt hole” were actually references to C.N.’s vagina.
Because Seth’s testimony was both specific and consistent in its
language, we cannot assign it a different meaning altogether.
¶47 In sum, the touching described by Seth during his CJC
interview and at trial was not sufficient to prove that C.N.
engaged in sexual intercourse with Seth. Because sexual
intercourse is an essential element of the crime of rape of a child,
C.N.’s adjudication was not supported by sufficient evidence.12
CONCLUSION
¶48 The term “sexual intercourse” as used in the rape of a child
statute is limited to only vaginal sex. Because the State did not
present sufficient evidence to the juvenile court to prove beyond
a reasonable doubt that C.N. engaged in vaginal sex with Seth, we
reverse her adjudication for rape of a child.
12. In the alternative, the State argues that if we conclude the
evidence was insufficient to support C.N.’s adjudication for rape
of a child, we should “set aside C.N.’s adjudication of rape of a
child and enter judgment for the lesser included offense of
attempted rape of a child.” We decline to do so, however, given
the lack of evidence that C.N. intended to engage in sexual
intercourse with Seth. See State v. Casey, 2003 UT 55, ¶ 13, 82 P.3d
1106 (“Attempt crimes are derivatives of completed crimes, and
the express language of both the completed crime statute and the
attempt statute determines the elements of the attempt crime.”);
id. ¶ 38 (“[I]ntent is required to convict someone of an attempt
crime.”).
20200460-CA 19 2023 UT App 41