State v. Hattrich

2013 UT App 177_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
PAUL JOHN HATTRICH,
Defendant and Appellant.
Opinion
No. 20111091‐CA
Filed July 18, 2013
Sixth District, Richfield Department
The Honorable Marvin Bagley
No. 091600098
Grant W.P. Morrison and Laura J. Fuller, Attorneys
for Appellant
John E. Swallow and Jeffrey S. Gray, Attorneys for
Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES CAROLYN B. MCHUGH and STEPHEN L. ROTH
concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Paul John Hattrich appeals his convictions for
three counts of first degree felony sodomy on a child. We affirm.
BACKGROUND
¶2 Between 1994 and 1999, Defendant sexually victimized five
juveniles. In May 2009, the State filed an information charging
State v. Hattrich
Defendant with thirty sexual offenses against children. Over the
next two years, the State amended the information four times.
¶3 Prior to the preliminary hearing, Defendant filed three
motions: (1) a motion for a change of venue, (2) a motion to dismiss
nine counts of the Second Amended Information, and (3) a motion
to sever the counts for trial. The trial court denied outright the
venue and dismissal motions. Also, the trial court granted the
motion to sever as to counts 26 and 27—dealing in material
harmful to a minor—but denied the motion as to the remaining
counts.
¶4 Following the trial court’s ruling on these motions, but
before the scheduled preliminary hearing, the State filed a Third
Amended Information on March 2, 2011, charging Defendant with
twenty‐seven counts of various sexual offenses involving the five
victims. The counts in the information included two counts of rape
of a child, both first degree felonies, see Utah Code Ann. § 76‐5‐
402.1(1), (2) (Michie Supp. 1996); thirteen counts of sodomy on a
child, all first degree felonies, see id. § 76‐5‐403.1(1), (2); nine counts
of aggravated sexual abuse of a child, all first degree felonies, see id.
§ 76‐5‐404.1(1), (3)(b)(d), (4); one count of sexual abuse of a child,
a second degree felony, see id. § 76‐5‐404.1(1), (2); and two counts
of dealing in material harmful to a minor, both third degree
felonies, see id. § 76‐10‐1206(1)(a), (3) (Michie 1995).
¶5 The preliminary hearing was held on June 21, 2011, more
than three months after the State filed the Third Amended
Information. At the close of that hearing, the magistrate bound
Defendant over for trial on all counts except count 21, third degree
felony sexual abuse of a child, which the magistrate dismissed.
Defendant subsequently filed three additional motions: (1) a
motion to dismiss the Third Amended Information based upon
multiplicity concerns or, in the alternative, to reduce the counts; (2)
a motion to quash bindover; and (3) a motion to dismiss the Third
Amended Information for constitutional and rule violations. The
trial court denied all three motions. The State ultimately filed a
20111091‐CA 2 2013 UT App 177State v. Hattrich
Fourth Amended Information, omitting the sexual abuse count
dismissed at the preliminary hearing and the two counts of dealing
in material harmful to a minor that the trial court had previously
severed. Trial was scheduled to begin August 22, 2011.
¶6 Prior to trial, Defendant entered into a plea agreement with
the State. He pleaded guilty to three counts of sodomy on a child
in exchange for dismissal of the remaining counts. Defendant’s
guilty pleas were entered “conditional on Defendant’s right to
appeal any issues which ha[d] arisen or been litigated in this case.”
Thereafter, the trial court sentenced Defendant to a prison term of
fifteen years to life for each count and ordered the sentences to run
concurrently. Defendant appeals, challenging his convictions on
various grounds.
ISSUES AND STANDARDS OF REVIEW
¶7 Defendant first argues that the trial court erred in denying
his motion for a change of venue. The decision to grant or deny a
motion for a change of venue “lies within the sound discretion of
the trial court . . . and [an appellate court] will not disturb that
decision unless an abuse of discretion is shown.” State v. James, 767
P.2d 549, 551 (Utah 1989).
¶8 Defendant next contends that the trial court improperly
denied his motion to sever the counts for trial. “[T]he grant or
denial of severance is a matter within the discretion of the trial
judge, so we reverse [a denial] only if the trial judge’s refusal to
sever charges is a clear abuse of discretion in that it sacrifices the
defendant’s right to a fundamentally fair trial.” State v. Burke, 2011
UT App 168, ¶ 15, 256 P.3d 1102 (alterations in original) (citation
and internal quotation marks omitted).
¶9 Third, Defendant challenges the trial court’s denial of his
motion to quash bindover. “When the review of a [trial] court’s
denial of a motion to quash a bindover implicates questions of law,
20111091‐CA 3 2013 UT App 177State v. Hattrich
we review for correctness, giving no deference to the [trial] court’s
legal conclusions.” State v. Timmerman, 2009 UT 58, ¶ 7, 218 P.3d
590.
¶10 Defendant also argues that the trial court erred in denying
his two motions to dismiss the Third Amended Information for
violation of the rules against multiplicity and constitutional and
rule violations. “[T]he propriety of a trial court’s decision to grant
or deny a motion to dismiss is a question of law that we review for
correctness.” State v. Salazar, 2005 UT App 241, ¶ 4, 114 P.3d 1170(alteration in original) (citation and internal quotation marks
omitted).
¶11 Finally, Defendant argues that there were no exigent
circumstances to justify his warrantless arrest in the privacy of his
home. Even though this issue was not preserved before the trial
court, Defendant asserts that appellate review is appropriate
because exceptional circumstances exist. See generally State v. Low,
2008 UT 58, ¶ 19, 192 P.3d 867 (“When a party fails to preserve an
issue for appeal, [appellate courts] will address the issue only if (1)
the appellant establishes that the district court committed plain
error, (2) exceptional circumstances exist, or (3) in some situations,
if the appellant raises a claim of ineffective assistance of counsel in
failing to preserve the issue.” (citations and internal quotation
marks omitted)).
ANALYSIS
I. The Trial Court Acted Within Its Discretion by Denying
Defendant’s Motion To Change Venue.
¶12 Defendant first argues that the trial court abused its
discretion by denying his motion to change venue. “The right to
trial by an impartial jury is guaranteed by both the United States
Constitution and the Utah Constitution.” State v. Stubbs, 2005 UT
65, ¶ 9, 123 P.3d 407; see also U.S. Const. amend. VI; Utah Const.
20111091‐CA 4 2013 UT App 177State v. Hattrich
art. 1, § 12. Furthermore, rule 29 of the Utah Rules of Criminal
Procedure provides, “If the prosecution or a defendant in a
criminal action believes that a fair and impartial trial cannot be had
in the jurisdiction where the action is pending, either may, by
motion, . . . ask to have the trial of the case transferred to another
jurisdiction.” Utah R. Crim. P. 29(d)(1). Defendant asserts that he
could not receive a fair and impartial trial in Sevier County—the
location where Defendant committed the criminal acts charged in
this case.
¶13 Criminal defendants may properly challenge a trial court’s
denial of a change of venue motion following conviction by a jury.
When such is the case, we consider “whether [the] defendant was
ultimately tried by a fair and impartial jury.” State v. Widdison, 2001
UT 60, ¶ 38, 28 P.3d 1278. However, when a defendant challenges
a denial of a change of venue motion on interlocutory appeal, we
employ a totality of the circumstances test. See State v. James, 767
P.2d 549, 552 (Utah 1989). The Utah Supreme Court has identified
four factors courts should examine in making this determination.
See id. “Factors to be considered include (1) the standing of the
victim and the accused in the community; (2) the size of the
community; (3) the nature and gravity of the offense; and (4) the
nature and extent of publicity.” Id. Under this framework, the
burden is on the defendant to raise a “reasonable likelihood” that
a fair and impartial trial could not have been afforded to him or
her. See id. Because Defendant’s appeal follows the entry of his
guilty plea, as opposed to a conviction by a jury, it is impossible
“for us to assess the composition of the jury as it was actually
impaneled to determine whether [Defendant] was ultimately tried
by a fair and impartial jury.” See Stubbs, 2005 UT 65, ¶ 16.
Therefore, we will review the trial court’s denial of Defendant’s
motion to change venue for an abuse of discretion by applying the
James factors in light of the totality of the circumstances of this case.
¶14 A review of the James factors demonstrates that the trial
court did not abuse its discretion by denying Defendant’s motion
to change venue. First, with regard to the standing of Defendant
20111091‐CA 5 2013 UT App 177State v. Hattrich
and the victims in the community, Defendant argues that his
employment as a Federal Express delivery person routinely placed
him in contact with residents of Sevier County. Defendant
therefore contends that his “employment accentuate[d] the
difficulty of seating a jury, which has not been touched in some
way, either directly or through family or friends, with this crime.”
Defendant does not identify how his possible contact with the
members of his Sevier County community may have negatively
affected the impartiality of a potential jury pool. Indeed, one could
infer the opposite—i.e., that Defendant’s personal relationships
with potential jurors actually lean in his favor. Furthermore,
because neither Defendant nor any of the victims were public
figures or officials, there was little chance that their standing in the
community would have unduly influenced the outcome of a trial.
¶15 Second, Defendant argues that the “small, tight‐knit nature
of the community in Sevier County [would have] impaired the
fairness and impartiality of [his] trial.” Defendant again fails to
specify how exactly this factor would have prejudiced his trial.
¶16 The third factor—consideration of the nature and gravity
of the offense—is more compelling. Defendant was charged
with multiple counts of rape of a child, sodomy on a child,
and aggravated sexual abuse of a child. Obviously, the heinous
nature of these crimes is likely to have some effect on the
local unincorporated community of Sevier, which is where
the offenses actually occurred and where the population is
about 100. The population of Sevier County is about 20,000.
See State & County QuickFacts, Sevier County, Utah, U.S. Census
Bureau http://quickfacts.census.gov/qfd/states/49/49041.html (last
visited July 10, 2013). However, the State makes a persuasive point
that the crimes were alleged to have occurred between 1994 and
1999, more than ten years before Defendant was first charged in
2009. Also, by the time the charges were filed and trial was to be
scheduled, the victims had since grown into adulthood, moved
outside Sevier County, and were working professionals with
careers in such areas as the military and medicine. Although time
20111091‐CA 6 2013 UT App 177State v. Hattrich
likely has not minimized the impact of these crimes on the victims
themselves, we agree with the State that “the passion [in the
community] that may arise from the seriousness of the charges is
likely tempered by the passing of time and the fact that the victims
have largely moved on with their lives.”
¶17 The final James factor requires review of the nature and
extent of the publicity surrounding the charges. Defendant claims
that “[t]here had been publicity . . . in the local newspapers . . . and
by virtue of the small community a shocking awareness that
Defendant had surfaced as an apparent child molester.” However,
Defendant fails to identify any record evidence to demonstrate
which specific newspapers carried the story or any example of
“shocking awareness” in the community. Indeed, the trial court
found that “[t]here ha[d] been no publicity to keep from getting [to]
a jury” and that “[t]his case has been kept quiet in [Sevier] county.”
¶18 Considering the totality of the circumstances, Defendant has
not raised a “reasonable likelihood” that a fair and impartial trial
could not have been afforded to him. Accordingly, we conclude
that the trial court did not abuse its discretion by denying
Defendant’s motion to change venue.
II. The Trial Court Acted Within Its Discretion by Denying
Defendant’s Motion To Sever the Remaining Counts.
¶19 Prior to the preliminary hearing, Defendant filed a motion
to sever the twenty‐seven counts contained in the Second
Amended Information. The trial court granted Defendant’s motion
as to counts 26 and 27—dealing in material harmful to a
minor—but denied the motion as to the remaining counts.1 On
1. Defendant argues that the trial court “should have granted the
motion in respect to all of the counts,” which he requested to be
joined and severed from the remaining counts as follows: counts
(continued...)
20111091‐CA 7 2013 UT App 177State v. Hattrich
appeal, Defendant argues that the counts should have been severed
in order to prevent prejudice. See Utah Code Ann. § 77‐8a‐1(4)(a)
(LexisNexis 2012) (“If the court finds a defendant or the
prosecution is prejudiced by a joinder of offenses or defendants in
an indictment or information or by a joinder for trial together, the
court shall order an election of separate trials of separate counts,
grant a severance of defendants, or provide other relief as justice
requires.”). According to Defendant, the “risk of prejudice . . . was
significant, if only by the sheer number of charges and which
charges are, short of being a capital offense, . . . the most serious
offenses in the State of Utah.”
¶20 Defendant fails to persuade us, however, that he faced any
actual prejudice. Rather, his argument consists of conclusory
statements regarding the respective counts in the information
without any discussion of how joinder of those counts prejudiced
him under the law. For example, Defendant notes that the elements
of rape of a child are different from the elements of the other
offenses with which he is charged but then simply concludes,
“These counts should have been severed from the others.”
Defendant fails to explain how or why the difference in the
statutory elements is relevant or prejudicial in this circumstance.
Furthermore, from the minutes entered at the motion hearing, it
appears that the court based its denial of Defendant’s motion on
1. (...continued)
1 and 2, rape of a child; counts 3, 4, 5, 6, 7, 8, 9, and 10, sodomy on
a child; counts 11, 12, 13, 14, 15, 16, 17, and 18, aggravated sexual
abuse of a child; counts 19 and 20, sodomy on a child; counts 21
and 22, sexual abuse of a child and aggravated sexual abuse of a
child, respectively; counts 23, 24, and 25, sodomy on a child; and
counts 26 and 27, dealing in material harmful to a minor. In his
motion, Defendant argued that “[e]ach of the joined together
counts should be tried in a separate trial from the other joined
together [c]ounts.” Severing the counts according to Defendant’s
request would have required seven separate trials.
20111091‐CA 8 2013 UT App 177State v. Hattrich
“affidavits filed and Utah law.” The minutes also indicate that the
court found a “lack of prejudice in trying the charges together” and
that it made the “same analysis that the Court of Appeals made in
the Milton Bradley case.” At no point does Defendant’s brief refer
to any supporting affidavits, the trial court’s written ruling, or
analysis of the “Milton Bradley” case. In short, Defendant’s
argument is under developed and leaves us unconvinced that he
was prejudiced by the joinder. See Utah. R. App. P. 24(a)(9).
¶21 Moreover, Utah Code section 77‐8a‐1 allows for joinder of
multiple felony counts in the same information so long as “each
offense is a separate count and if the offenses charged are . . . based
on the same conduct or are otherwise connected [together2] in their
commission; or . . . alleged to have been part of a common scheme
or plan.” See Utah Code Ann. § 77‐8a‐1(1). Based on the motion
hearing minutes, the trial court determined that after examining
the “affidavits filed and Utah law,” “there was a common scheme
over a few years time.” There was only one affidavit
submitted—that of the detective involved in the case. A review of
this affidavit confirms that the crimes alleged in the information
were connected in their commission and part of a common scheme
or plan.3 Because the charges were properly joined and because
2. As observed in State v. Lamb, 2013 UT App 5, 294 P.3d 639,
The previous publication of the Utah Code contains
the word ‘together’ as indicated in the quoted
language. See Utah Code Ann. § 77‐8a‐1 (LexisNexis
2008). Although this word is not included in the most
recent publication of the Utah Code, see id. (2012),
this omission appears to be inadvertent because the
statute has not been amended since the previous
publication, see id. history.
Lamb, 2013 UT App. 5, ¶ 7 n.3.
3. In his affidavit, the detective stated, among other things, that
(continued...)
20111091‐CA 9 2013 UT App 177State v. Hattrich
Defendant has failed to demonstrate any prejudice, the trial court
did not abuse its discretion by denying Defendant’s motion to
sever.
III. The Trial Court Did Not Err in Denying Defendant’s Motion
To Quash Bindover.
¶22 Defendant filed a motion to quash bindover following the
preliminary hearing, which motion the trial court denied. On
appeal, Defendant’s challenge to the trial court’s denial of his
motion to quash is three fold. He contends that the magistrate
(1) applied the wrong bindover standard at the preliminary
hearing, (2) should have granted Defendant’s motion to continue
the preliminary hearing, and (3) should not have allowed the State
to introduce the written statement of a witness at the preliminary
hearing in lieu of oral testimony.
A. The Magistrate Applied the Correct Bindover Standard.
3. (...continued)
(1) “[a]buse was occurring simultaneously to all three victims
during the years of 1994, 1995, and 1996”; (2) “[a]ll of the abuse
began under similar circumstances of grooming” and Defendant’s
“grooming pattern was the same for each [victim],” including
enticing the victims to his home, introducing them to pornographic
photos and movies, discussing adolescent sexual issues,
befriending each victim’s family, and eventually progressing to
casual touching and then sexual contact; (3) “[a]ll of the abuse that
has been charged occurred at the Defendant’s residence in Sevier,
Utah, except one incident at the river near his home”; (4) [e]ach of
the victims’ descriptions of Defendant’s residence were “so
similar” that it was “evident that [they] spent a great deal of time
there”; and (5) “Defendant perpetrated upon each [victim] tens if
not hundreds of times” the same types of sexual abuse.
20111091‐CA 10 2013 UT App 177State v. Hattrich
¶23 At the close of the preliminary hearing, the magistrate
stated, “At a preliminary hearing stage, the standard of proof is
probable cause, probable cause that something occurred. I like the
definition of probable cause as a reason to believe, and at the stage of
preliminary hearing, the Court is to take all inferences in favor of
the State.” (Emphasis added.) The Utah Supreme Court has
explained that “a defendant may be bound over for trial only if the
prosecution produces evidence sufficient to demonstrate probable
cause that the charged crimes were committed,” and that a
“showing of probable cause entails only the presentation of
evidence sufficient to support a reasonable belief that the defendant
committed the charged crime.” State v. Ramirez, 2012 UT 59, ¶¶ 8–9,
289 P.3d 444 (emphasis added) (citation and internal quotation
marks omitted).
¶24 Defendant argues that the magistrate’s reference to “a
reason to believe” is distinct from the applicable standard of a
“reasonable belief.” As an initial matter, Defendant has not
preserved this issue for appeal because he failed to raise it before
the trial court. Additionally, Defendant’s plea agreement limits the
issues he may raise on appeal to those “which have arisen or been
litigated in this case.” Defendant’s failure to raise or litigate this
issue below precludes him from now arguing it on appeal.
¶25 Nevertheless, Defendant’s argument lacks merit. Even
though we acknowledge that a “reason to believe” is not the same
as “a reasonable belief,” the magistrate applied the probable cause
standard which is the correct standard for bindover at a
preliminary hearing. Defendant would have us dissect a singular,
passive, oral statement made by the magistrate in describing the
probable cause standard as grounds for reversing his bindover.
Such an inquiry focuses on a possible semantic misstatement rather
than the law actually applied. The magistrate explicitly stated that
after evaluating the facts as they were presented to him, he found
“that there [was] probable cause to believe that Defendant Hattrich
committed all of the counts that are alleged with the exception of
Count No. 21.” (Emphasis added.) Defendant does not challenge
20111091‐CA 11 2013 UT App 177State v. Hattrich
the probable cause determination on any other ground, such as the
sufficiency of the evidence. Accordingly, we conclude that the
magistrate applied the correct bindover standard.
B. Defendant Waived His Challenge to the Magistrate’s Denial
of His Motion to Continue.
¶26 On the morning of the preliminary hearing, the State
informed Defendant’s counsel that one of the State’s three
witnesses scheduled to testify would be submitting a written
statement in lieu of live testimony. Defendant argues that “[h]aving
the witness’s affidavit given to him[] immediately before the
preliminary hearing, where he had virtually no opportunity to
review the affidavit, denied Defendant his due process rights.”
Defendant claims that had he known the witness would not be
present to testify at the hearing, he would have subpoenaed the
witness.
¶27 Upon commencement of the hearing, defense counsel
immediately moved the court for a continuance or bifurcation of
the preliminary hearing with the expectation of subpoenaing the
witness to testify later. The magistrate provisionally denied the
motion but informed defense counsel that “[i]f at the end of the
evidence [defense counsel] wants to make a motion for a
continuance for the purpose of subpoenaing the witness, [the court
would] hear the motion, and . . . address it at that point.” However,
defense counsel never renewed the motion for a continuance at the
close of the preliminary hearing. Consequently, the State contends
that Defendant has waived any claim that he was entitled to a
continuance. We agree.
¶28 Rule 16 of the Utah Rules of Criminal Procedure provides
several remedies to mitigate any prejudice to a criminal defendant
caused by unanticipated testimony. See Utah R. Crim. P. 16(g). One
such remedy is a continuance of the proceedings. Id. Yet “[w]hen
the prosecution introduces unexpected testimony, a defendant
essentially waive[s] his right to later claim error if the defendant
20111091‐CA 12 2013 UT App 177State v. Hattrich
fails to request a continuance or seek other appropriate relief under
Rule 16(g).” State v. Rugebregt, 965 P.2d 518, 522 (Utah Ct. App.
1998) (second alteration in original) (citation and internal quotation
marks omitted). Here, Defendant effectively waived his right to
raise this claim on appeal because, despite having requested a
continuance at the commencement of the preliminary hearing, he
failed to renew the motion as instructed by the magistrate. See State
v. Hansen, 2002 UT 114, ¶ 16, 61 P.3d 1062 (“[W]hen a court
properly defers ruling on an issue that has been raised and plainly
instructs the objecting party to re‐raise the issue at a specific later
time if its objection remains, . . . [and] if no such later objection is
made, the party has not presented [the issue] to the trial court in a
manner sufficient to obtain a ruling thereon, thereby preserving the
issue for review.” (third alteration in original) (citations and
internal quotation marks omitted)).
C. The Magistrate’s Decision To Admit the Written Statement
In Lieu of Oral Testimony Did Not Violate Defendant’s
Constitutional Confrontation Rights.
¶29 Defendant also argues that his rights under the
Confrontation Clause of the Sixth Amendment to the United States
Constitution and under the Utah Constitution were violated when
the magistrate admitted the witness’s written statement at the
preliminary hearing, thereby denying Defendant an opportunity to
cross‐examine that witness. Defendant argues that a preliminary
hearing, as opposed to a probable cause determination at an
arraignment, is a critical stage of a prosecution and thus entitles
criminal defendants the right to confront and cross‐examine all
adverse witnesses.
¶30 The Utah Supreme Court has already addressed this precise
issue in State v. Timmerman, 2009 UT 58, 218 P.3d 590. In that case,
the state introduced at the preliminary hearing the written
statement of a witness who was unavailable to testify because she
invoked the spousal privilege. Id. ¶ 4. Over the defendant’s
objection, the magistrate admitted the witness’s statement and
20111091‐CA 13 2013 UT App 177State v. Hattrich
ultimately bound the defendant over for trial. Id. The defendant
subsequently moved to quash the bindover on the same
constitutional grounds as does Defendant in this case. See id. ¶ 5.
The trial court denied the motion to quash, ruling that the
confrontation rights afforded by both the United States and Utah
constitutions do not apply to preliminary hearings. Id.
¶31 The Utah Supreme Court affirmed. Id. ¶¶ 13, 16 (holding
“that the federal Confrontation Clause does not apply to
preliminary hearings” and “that the plain language of the 1995
amendment to article I, section 12 of the Utah Constitution
removed the constraints of Utah’s Confrontation Clause from
preliminary hearings”). Notably, the supreme court rejected the
same arguments Defendant now advances in an attempt to
distinguish between the probable cause determinations at
arraignments and those at preliminary hearings and the
corresponding level of confrontation rights. See id. ¶ 12. Because the
Timmerman holding squarely addresses the factual and legal issues
present in the case before this court, we determine that the
magistrate properly admitted the witness statement in lieu of the
witness’s actual testimony.
¶32 Because all three grounds for Defendant’s appeal on this
point fail, we affirm the trial court’s denial of his motion to quash
bindover.
IV. The Trial Court Properly Denied Defendant’s Motion To
Dismiss for Violation of the Rule Against Multiplicity.
¶33 Defendant argues that the trial court erred by denying his
motion to dismiss the Third Amended Information because the
counts charged violate the rule against multiplicity. The rule
against multiplicity stems “from the 5th Amendment [Double
Jeopardy Clause], which prohibits the Government from charging
a single offense in several counts and is intended to prevent
multiple punishments for the same act.” State v. Morrison, 2001 UT
73, ¶ 24, 31 P.3d 547 (citation and internal quotation marks
20111091‐CA 14 2013 UT App 177State v. Hattrich
omitted). “‘The test is whether the individual acts are prohibited,
or the course of action which they constitute. If the former, then
each act is punishable separately . . . . If the latter, there can be but
one penalty.’” Blockburger v. United States, 284 U.S. 299, 302 (1932)
(omission in original) (quoting Wharton’s Criminal Law § 34 n.3
(11th ed.)). Thus, evaluation of a multiplicity claim requires
analysis of the statutes under which a criminal defendant is
charged. State v. Rasabout, 2013 UT App 71, ¶¶ 16–17, 299 P.3d 625.
¶34 The Utah Legislature has instructed courts to construe the
“laws of this state . . . according to the fair import of their terms to
promote justice.” Utah Code Ann. § 76‐1‐106 (LexisNexis 2012). In
State v. Morrison, 2001 UT 73, 31 P.3d 547, the supreme court
employed this approach as it evaluated a multiplicity challenge to
the sexual exploitation of a minor statute. See id. ¶ 25. The court
construed the statute to mean that “each individual ‘visual
representation’ of child pornography that is knowingly possessed
by a defendant constitutes the basis for a separate offense.” Id. ¶ 26
(citing Utah Code Ann. § 76‐5a‐3 (1999) (current version at Utah
Code Ann. § 76‐5b‐201 (LexisNexis 2012))). The court held that,
“[t]herefore, the rule against multiplicity was not violated” when
a defendant was charged with fifty separate counts. Id. ¶¶ 2, 26.
¶35 Here, Defendant was charged with multiple counts of rape
of a child, sodomy on a child, and sexual abuse of a child.
Examination of these statutes reveals that the legislature intended
to criminalize each individual act and not “the course of action
which they constitute.” See Blockburger, 284 U.S. at 302 (citation and
internal quotation marks omitted). When Defendant committed
these offenses, Utah Code section 76‐5‐402.1 provided, “A person
commits rape of a child when the person has sexual intercourse with
a child who is under the age of 14.” Utah Code Ann. § 76‐5‐402.1(1)
(Michie Supp. 1996) (emphasis added). Section 76‐5‐403.1 provided,
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
20111091‐CA 15 2013 UT App 177State v. Hattrich
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) (emphasis added). And section 76‐5‐404.1
provided,
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,
the breast of a female child younger than 14 years of
age, 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) (emphases added). Just as each visual
representation of child pornography possessed by the defendant in
Morrison constituted a separate offense, it is clear from the “fair
import” of the above‐cited statutes that the legislature intended to
prohibit each individual act of rape, sodomy, or sexual abuse of a
child. Accordingly, the State was free to charge multiple counts of
the same crime so long as each count represented a separate act of
rape, sodomy, or sexual abuse committed by Defendant. By doing
so, the State did not violate the rule against multiplicity.
V. The Trial Court Properly Denied Defendant’s Motion to
Dismiss Claiming Constitutional and Rule Deficiencies.
¶36 Defendant also argues that the trial court erred in not
dismissing the Third Amended Information on the grounds that
the charging document violated his due process rights embodied
in the Utah Constitution and rule 4 of the Utah Rules of Criminal
Procedure. Specifically, Defendant contends that the original and
20111091‐CA 16 2013 UT App 177State v. Hattrich
the four amended informations failed to provide adequate notice
of the dates and locations of his then‐alleged crimes, thereby
“wreak[ing] havoc on Defendant’s ability to defend himself.”
¶37 The Utah Constitution provides that “[n]o person shall be
deprived of life, liberty or property, without due process of law,”
Utah Const. art. 1, § 7, and that criminal defendants have the right
“to demand the nature and cause of the accusation against [them],”
and to be provided with a “copy thereof,” id. § 12. Also, at the time
the Third Amended Information was filed, rule 4 of the Utah Rules
of Criminal Procedure provided in relevant part, “The court may
permit an indictment or information to be amended at any time
before verdict if no additional or different offense is charged and
the substantial rights of the defendant are not prejudiced.” Utah R.
Crim. P. 4(d) (2011).4
¶38 Under rule 4(d), “the trial court may allow an information
to be amended if two conditions are met: (1) no additional or
different offense is charged, and (2) the substantial rights of the
defendant[] are not prejudiced.” State v. Bush, 2001 UT App 10,
¶ 11, 47 P.3d 69 (alternation in original) (citation and internal
quotation marks omitted). Defendant argues that the State has the
burden of showing that both prongs of rule 4(d) are met before a
court may allow for an amendment. However, in Tillman v. Cook,
4. Rule 4 has since been amended, effective April 1, 2012. It now
reads,
The court may permit an information to be amended
at any time before trial has commenced so long as the
substantial rights of the defendant are not
prejudiced. If an additional or different offense is
charged, the defendant has the right to a preliminary
hearing on that offense as provided under these rules
and any continuance as necessary to meet the
amendment.
Utah R. Crim. P. 4(d) (2013).
20111091‐CA 17 2013 UT App 177State v. Hattrich
855 P.2d 211 (Utah 1993), the Utah Supreme Court held that even
where new and additional offenses were charged with the
amendment of a first degree murder charge to include aggravating
circumstances, rule 4(d) was not violated because the defendant–‐
not the State—“ha[d] shown no prejudice because of the
amendment.” Id. at 214–15. Also, in State v. Holt, 2004 UT App
213U (mem.), this court determined that even though the trial court
erred when it allowed the state to amend an information at the end
of a defendant’s trial because the amendment created a new and
additional offense, “it [was] clear that [the d]efendant did not
suffer any harm or prejudice as a result.” Id. at para. 9.
Consequently, we declined to reverse the defendant’s conviction in
that case. See id.¶39 Thus, rule 4(d) case law suggests that even if an amended
information does create a new and additional offense, reversal is
only appropriate if the defendant can demonstrate that his or her
substantial rights are prejudiced as a result of the amendment.
Here, whether or not the Third Amended Information charged
Defendant with new and additional offenses is inconsequential to
our resolution of this issue because Defendant has not established
that his substantial rights were prejudiced by any new charges.
¶40 At the heart of Defendant’s prejudice argument is his claim
that the repeated amendments to the information hampered his
defense and violated his due process rights by presenting him with
“constantly moving targets in terms of dates, times, and events.”
Defendant’s argument lacks merit. The supreme court has
explained that due process does not “expressly mandate
identification of the exact date when an alleged offense occurred.”
State v. Taylor, 2005 UT 40, ¶ 9, 116 P.3d 360. This is especially true
of sexual abuse prosecutions where “identifying the specific date,
time, or place of the offense is often difficult owing to the inability
of young victims to provide this information.” Id. ¶ 12. Rather,
“due process requires that an accused be given sufficiently precise
notification of the date of the alleged crime so that he can prepare
his defense.” State v. Nelson‐Waggoner, 2004 UT 29, ¶ 20, 94 P.3d 18620111091‐CA 18 2013 UT App 177State v. Hattrich
(emphasis added) (citation and internal quotation marks omitted).
The analysis requires “weighing of the completeness of the notice
and its adequacy for the defendant’s purposes against the
background of the information legitimately available to the
prosecuting authority.” Taylor, 2005 UT 40, ¶ 9 (emphasis added)
(citation and internal quotation marks omitted). The constitutional
requirement is fulfilled “[a]s long as a defendant is sufficiently
apprised of the State’s evidence upon which the charge is based so
that the defendant can prepare to meet that case.” Id. (alteration in
original) (citation and internal quotation marks omitted).
¶41 We determine that the State provided Defendant with
adequate notice.
[T]he notice to which a defendant is constitutionally
entitled may come through one or all of three
sources: the charging information, a response to a bill
of particulars under rule 4(e) of the Utah Rules of
Criminal Procedure, or a response, under section
77‐14‐1 of the [Utah] Code, to a demand for the place,
date, and time of the offense charged.
State v. Wilcox, 808 P.2d 1028, 1031 (Utah 1991). The State provided
Defendant with all three forms of notice in this instance. Defendant
asserts that the bill of particulars and the section 77‐14‐1 demand
response are insufficient because they do not correspond to the
Fourth Amended Information, which became the final charging
document. Though the State addressed a different charging
document, the State’s response to Defendant’s section 77‐14‐1
demand provided Defendant with enough detail because the
Fourth Amended Information neither added to nor substantively
changed the counts set forth in the Third Amended Information.
The Fourth Amended Information removed only the counts that
had been previously severed or dismissed. In addition, although it
appears that the bill of particulars corresponded only to the Second
Amended Information, Defendant has not included a copy of the
bill of particulars in the record on appeal. Accordingly, because we
20111091‐CA 19 2013 UT App 177State v. Hattrich
cannot evaluate whether the bill of particulars was sufficient to
address Defendant’s specificity concerns, we must assume that the
bill of particulars filed by the State was adequate. See State v.
Litherland, 2000 UT 76, ¶ 11, 12 P.3d 92 (“If an appellant fails to
provide an adequate record on appeal, [an appellate court] must
assume the regularity of the proceedings below.” (citation and
internal quotation marks omitted)).
¶42 A review of both the Third Amended Information and the
section 77‐14‐1 demand response confirms that the State gave
Defendant “sufficiently precise notification,” see Nelson‐Waggoner,
2004 UT 29, ¶ 20 (citation and internal quotation marks omitted),
in light of the “information legitimately available to the
prosecuting authority,” Taylor, 2005 UT 40, ¶ 9 (citation and
internal quotation marks omitted). Examined together, these
documents provide the years, names, and frequency with which
Defendant was then alleged to have committed the crimes charged.
The State obtained this information entirely from the victims’
memories of events that had transpired more than a decade prior.
It was the best information available to the prosecution.
¶43 Furthermore, Defendant was provided with the Third
Amended Information on March 2, 2011. The preliminary hearing
was held on June 21, 2011, and trial was not scheduled to begin
until August 22, 2011. Thus, Defendant had more than three
months from the time he was provided with the Third Amended
Information to prepare for the preliminary hearing and an
additional two months to prepare for trial. In other words,
Defendant had ample time to prepare a defense both for the
preliminary hearing and trial. Cf. Tillman v. Cook, 855 P.2d 211,
215–16 (Utah 1993) (explaining that no prejudice resulted where the
defendant was bound over after the information was amended at
the close of the preliminary hearing and where the defendant had
more than three months after the amendment to prepare a defense
for trial). Therefore, Defendant’s rights were not substantially
prejudiced.
20111091‐CA 20 2013 UT App 177State v. Hattrich
¶44 In sum, we conclude that Defendant’s due process rights
under the Utah Constitution and rule 4(d) were not violated,
because the State provided Defendant with adequate notice and he
had ample time to prepare a defense. Thus, we affirm the trial
court’s ruling denying Defendant’s motion to dismiss for
constitutional and rule deficiencies.5
VI. Defendant’s Claim That No Exigent Circumstances Justified
His Warrantless Arrest Inside His Home Is Unpreserved.
¶45 Finally, Defendant contends that there were no exigent
circumstances justifying his warrantless arrest inside his home. See
generally Payton v. New York, 445 U.S. 573, 583 (1980) (holding that
the Fourth Amendment prohibits police from making a warrantless
and nonconsensual entry into a private residence in order to arrest
a suspect unless exigent circumstances exist). Defendant concedes
that he did not preserve this issue for appeal because it was not
presented to the trial court. See State v. Holgate, 2000 UT 74, ¶ 11, 10
P.3d 346 (“As a general rule, claims not raised before the trial court
may not be raised on appeal.”). Nevertheless, Defendant argues
that we should address his warrantless arrest claim under the
5. Defendant also claims that the lack of specific dates and times for
the offenses charged in the Third Amended Information prevented
him from preparing an adequate alibi defense. However, the
language of the statutes does not impose on the State an obligation
to prove precise dates, even when Defendant has concerns about
establishing an alibi defense. In other words, dates are not elements
of the crimes charged against Defendant. See State v. Fulton, 742
P.2d 1208, 1213 (Utah 1987) (“[A]n alibi defense challenges the
State’s ability to prove the statutory elements. Therefore, the mere
assertion of an alibi defense does not impose on the prosecution the
additional burden of proving the precise date of the act. The
burden on the prosecution remains the same, i.e., to establish all
elements of the crime beyond a reasonable doubt.” (footnote
omitted)).
20111091‐CA 21 2013 UT App 177State v. Hattrich
exceptional circumstances exception to the preservation rule. “The
exceptional circumstances doctrine is used sparingly, properly
reserved for truly exceptional situations, for cases . . . involving
rare procedural anomalies, and [may be employed] where a change
in law or the settled interpretation of law color[s] the failure to
have raised an issue at trial.” Provo City v. Ivie, 2008 UT App 287,
¶ 6, 191 P.3d 841 (alterations and omission in original) (citations
and internal quotation marks omitted).
¶46 Defendant has not identified how this case constitutes a
“rare procedural anomal[y].” See id. Nor has he demonstrated how
an intervening “change in law or the settled interpretation of law”
justifies his failure to raise the warrantless arrest claim below. See
id. (citation and internal quotation marks omitted). Thus, the
exceptional circumstances exception does not apply, and we
decline to address Defendant’s unpreserved claim on appeal.
Additionally, Defendant’s plea agreement limits the issues he may
raise on appeal to those “which have arisen or been litigated in this
case.” Defendant’s failure to raise or litigate this issue below also
precludes him from arguing it on appeal.
CONCLUSION
¶47 Defendant has not shown error in the trial court’s denial of
his motions and Defendant failed to preserve his warrantless arrest
claim. Accordingly, we affirm.
20111091‐CA 22 2013 UT App 177