In re D.M. (D.M. v. State)

2013 UT App 220_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF D.M., A PERSON UNDER
EIGHTEEN YEARS OF AGE.
D.M.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Memorandum Decision
No. 20120085‐CA
Filed September 6, 2013
Third District Juvenile, Salt Lake Department
The Honorable Andrew A. Valdez
No. 1022844
Kristine M. Rogers, Monica Maio, and
David L. Johnson, Attorneys for Appellant
John E. Swallow and Kris C. Leonard, Attorneys
for Appellee
JUDGE WILLIAM A. THORNE JR. authored this Memorandum
Decision, in which JUDGES STEPHEN L. ROTH and
MICHELE M. CHRISTIANSEN concurred.
THORNE, Judge:
¶1 D.M. appeals from the juvenile court’s order adjudicating
him delinquent on one count of sexual abuse of a child (Allegation
III),1 a second degree felony when committed by an adult. See
1
D.M. was also adjudicated delinquent of one count of
sodomy on a child (Allegation IV) arising from events that
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In re D.M.
generally Utah Code Ann. § 76‐5‐404.1(3) (LexisNexis Supp. 2013).
We affirm.
¶2 Allegation III originally charged D.M. with sodomy on a
child, asserting that eleven‐year‐old D.M. had made nine‐year‐old
T.I. perform oral sex on him during a 2009 sleepover at D.M.’s
home. On the first day of D.M.’s trial on September 23, 2011, T.I.
testified that during the sleepover D.M. had dared him to crawl
under a futon. D.M. joined T.I. under the futon and asked him to
remove his pants. When T.I. refused, D.M. pulled T.I.’s pants down
and touched T.I.’s testicles for a short period of time. D.M. then
went into the bathroom for a few minutes, during which time T.I.
left D.M.’s house and returned home.
¶3 At the end of the first day of trial, after the State rested its
case, the State asked the juvenile court to amend the date of the
incident alleged in Allegation IV to comport with the evidence
adduced at trial. The juvenile court allowed the amendment but
granted D.M. a trial continuance to investigate and prepare any
defenses that might be created by the amendment.
¶4 D.M. then asked the juvenile court to dismiss Allegation III
because the State had failed to present testimony of oral–genital
contact as required by the State’s sodomy theory.2 See generally id.§ 76‐5‐403.1(1) (defining sodomy on a child). The State responded
by asking that Allegation III be amended to the lesser offense of
1
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occurred after the events of Allegation III. D.M. does not chal‐
lenge his adjudication on Allegation IV on appeal.
2
The transcript reveals that D.M. asked for a directed
verdict rather than for dismissal. However, both the juvenile
court and the parties thereafter and on appeal refer to D.M.’s
motion as a motion to dismiss, and we accept that characteriza‐
tion for purposes of this decision.
20120085‐CA 2 2013 UT App 220In re D.M.
sexual abuse of a child, which does not contain an element of
oral–genital contact. See id. § 76‐5‐404.1. After a discussion with the
parties, the juvenile court ruled from the bench on the competing
requests, stating, “I’m going to deny the motion to dismiss. I’m
going to allow you to amend to sex abuse of a child . . . .” At the
end of the trial, which resumed six weeks later, the juvenile court
adjudicated D.M. delinquent on Allegations III and IV.
¶5 On appeal, D.M. argues that the juvenile court erred in not
dismissing Allegation III because the State failed to present
evidence of oral–genital contact in its case in chief. To survive a
mid‐trial motion to dismiss, the State must have established a
prima facie case of guilt by producing “‘believable evidence of all
the elements of the crime charged.’” State v. Emmett, 839 P.2d 781,
784 (Utah 1992) (quoting State v. Smith, 675 P.2d 521, 524 (Utah
1983)). “The denial of a motion to dismiss for failure to establish a
prima facie case is a question of law we review for correctness.”
State v. Spainhower, 1999 UT App 280, ¶ 4, 988 P.2d 452.
¶6 It is undisputed that the State failed to present evidence of
oral–genital contact in support of Allegation III, and thus the
allegation could not survive D.M.’s motion to dismiss as originally
charged. However, the State responded to D.M.’s motion by asking
the juvenile court to amend the charge to sexual abuse of a child,
which has no element of oral–genital contact, and the juvenile court
granted the State’s request. D.M.’s appellate brief does not address
the effect of the juvenile court’s amendment of Allegation III on his
motion to dismiss, nor does it raise any argument that the
amendment was improper.3 Because the juvenile court amended
3
In his reply brief, D.M. argues for the first time that the
juvenile court’s September 23, 2011 amendment of Allegation III
was improper because it charged a new offense and—despite the
nearly six‐week delay between the first and second days of
trial—failed to give D.M. adequate time to prepare a defense.
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20120085‐CA 3 2013 UT App 220In re D.M.
Allegation III to charge sexual abuse of a child, we see no error in
the juvenile court’s denial of D.M.’s motion to dismiss that
allegation altogether.
¶7 We acknowledge D.M.’s assertion that there was confusion
in the days leading up to the resumption of trial on November 2,
2011, about whether the State’s prosecution of Allegation III would
proceed on a sodomy theory or as sexual abuse of a child.
However, at an October 31, 2011 telephone conference that D.M.
had requested to resolve confusion over the allegations, D.M. failed
to raise the issue of what crime was being charged in Allegation III.
Instead, the conference focused solely on the unrelated amendment
to Allegation IV. D.M. did not apprise the juvenile court of the
confusion over the status of Allegation III, even when the State
indicated that the only amendment to the petition was the
amendment to Allegation IV. Nor did he raise the issue upon the
resumption of trial.
¶8 Thus, D.M. had multiple opportunities to address and
resolve the alleged confusion over the amendment to Allegation III
prior to his adjudication for sexual abuse of a child as alleged in the
amended allegation. Under these circumstances, D.M.’s complaint
of unfair surprise that he was ultimately adjudicated for sexual
abuse of a child is unavailing.4 Cf. State v. Valdez, 2006 UT 39, ¶ 44,
3
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“However, we will not address arguments raised for the first
time in an appellant’s reply brief.” State v. Bryant, 2012 UT App
264, ¶ 24 n.5, 290 P.3d 33.
4
We acknowledge that the juvenile court did not rely on
its prior amendment of Allegation III and instead purported to
adjudicate sexual abuse of a child as a lesser included offense of
the original charge of sodomy. However, because we hold that
the juvenile court had already amended Allegation III to charge
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20120085‐CA 4 2013 UT App 220In re D.M.
140 P.3d 1219 (discussing “sandbagging” in the context of untimely
objections to jury makeup); State v. Jackson, 2011 UT App 318,
¶¶ 28–34, 263 P.3d 540 (applying a forfeiture analysis to a
defendant’s failure to raise a statute of limitations defense prior to
his conviction on the time‐barred offense).
¶9 D.M. further argues that the State presented insufficient
evidence to establish the crime of sexual abuse of a child because
the State did not establish D.M.’s “intent to arouse or gratify the
sexual desire of any person.” Utah Code Ann. § 76‐5‐404.1(2)
(LexisNexis Supp. 2013). Although he did not present this
argument to the juvenile court, D.M. argues that the juvenile
court’s adjudication that he had committed sexual abuse of a child
constitutes plain error because there was no direct evidence of
D.M.’s sexual intent and the facts are not so obviously or explicitly
sexual that an inference of sexual intent is justified. See generally
State v. Verde, 770 P.2d 116, 121–22 (Utah 1989) (discussing plain
error as an exception to the preservation rule). However, we must
sustain the juvenile court’s judgment unless “it is against the clear
weight of the evidence” or we otherwise reach “a definite and firm
conviction that a mistake has been made.” In re K.O., 2010 UT App
155, ¶ 5, 238 P.3d 59 (citation and internal quotation marks
omitted). Further, we will uphold a juvenile court’s inferences
“‘unless the logic upon which their extrapolation from the evidence
is based is so flawed as to render the inference clearly erroneous.’”
Id. (quoting State v. Briggs, 2008 UT 75, ¶ 11, 197 P.3d 628).
4
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sexual abuse of a child, we need not address D.M.’s argument
that the juvenile court committed plain error in concluding that
sexual abuse of a child is a lesser included offense of sodomy.
Because Allegation III had already been amended to charge
sexual abuse of a child rather than sodomy, any error by the
juvenile court in treating that allegation as a sodomy charge and
then reducing it has no effect on the validity of D.M.’s adjudica‐
tion on the actual charge stated in the amended allegation.
20120085‐CA 5 2013 UT App 220In re D.M.
¶10 Although D.M. is correct that there was no direct evidence
of his intent to gratify or arouse a sexual desire, intent “is a state of
mind, which is rarely susceptible of direct proof.” State v. Robertson,
2005 UT App 419, ¶ 15, 122 P.3d 895 (citation and internal
quotation marks omitted). In the absence of direct proof, intent
“can be inferred from conduct and attendant circumstances in the
light of human behavior and experience.” Id. (citation and internal
quotation marks omitted). Such inferences are routinely employed
in cases requiring proof of sexual intent. See, e.g., State v. Bhag
Singh, 2011 UT App 396, ¶¶ 9–10, 267 P.3d 281 (mem.) (inferring
intent where defendant kissed and fondled the victim); State v. Hall,
946 P.2d 712, 724 (Utah Ct. App. 1997) (inferring intent where the
defendant pulled down the victim’s shorts and stroked her genital
area).
¶11 In this case, the juvenile court heard testimony from T.I. that
D.M. had pulled down T.I.’s pants and touched his testicles while
the two of them were under a futon during a sleepover. T.I.
testified that the incident made him feel “scared,” and the juvenile
court expressly found that T.I. was a “very credible” witness. In
light of D.M.’s conduct in exposing and touching T.I.’s testicles and
the “attendant circumstances,” see Robertson, 2005 UT App 419, ¶ 15
(citation and internal quotation marks omitted), we cannot say that
the juvenile court’s inference that D.M. possessed a sexual intent
“is so flawed as to render the inference clearly erroneous,” see In re
K.O., 2010 UT App 155, ¶ 5 (citation and internal quotation marks
omitted).
¶12 D.M. further argues that the ordinary standards for inferring
sexual intent are insufficient to establish his intent because he was
only eleven years old at the time of the offense. See, e.g., In re Jerry
M., 69 Cal. Rptr. 2d 148, 154 (Ct. App. 1997) (“[T]he younger the
minor the less likely his acts are with the specific intent of sexual
arousal.”). However, we see no indication that the juvenile court
failed to consider D.M.’s young age in determining that he
possessed the requisite intent. Further, D.M. presents no Utah
authority for the proposition that an eleven‐year‐old cannot
20120085‐CA 6 2013 UT App 220In re D.M.
possess sexual intent as a matter of law, nor did he present
evidence below that eleven‐year‐olds in general—or himself in
particular—are incapable of forming sexual intent.5 Under these
circumstances, we cannot say that the juvenile court’s intent
finding constituted plain error. See In re B.R., 2007 UT 82, ¶ 12, 171
P.3d 435 (“When a foundation for the [juvenile] court’s decision
exists in the evidence, an appellate court may not engage in a
reweighing of the evidence.”).
¶13 For these reasons, we affirm the juvenile court’s order
adjudicating D.M. delinquent for sexual abuse of a child as charged
in the amended Allegation III.
5
We recognize that the burden of proving D.M.’s intent
was on the State.
20120085‐CA 7 2013 UT App 220