State v. Peterson

2015 UT App 129THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
MATTHEW WALLACE PETERSON,
Defendant and Appellant.
Memorandum Decision
No. 20130874-CA
Filed May 21, 2015
Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 121908790
Joanna E. Landau and Lisa J. Remal, Attorneys
for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES J. FREDERIC VOROS JR. and JOHN A. PEARCE
concurred.
DAVIS, Judge:
¶1 Matthew Wallace Peterson appeals his convictions of two
counts of aggravated sexual abuse of a child, first degree
felonies, see Utah Code Ann. § 76-5-404.1(4)–(5) (LexisNexis
2012); one count of rape of a child, a first degree felony, see id.
§ 76-5-402.1 (Supp. 2014); one count of object rape of a child, a
first degree felony, see id. § 76-5-402.3; and one count of
tampering with a witness, a third degree felony, see id. § 76-8-
508(1) (2012). We affirm.
¶2 Peterson argues that the evidence presented at trial was
insufficient to support his conviction on any of the five charges.
State v. Peterson
When reviewing a conviction for sufficiency of the evidence, ‚we
review the evidence and all inferences which may reasonably be
drawn from it in the light most favorable to the verdict of the
jury‛ and ‚will reverse the jury’s conviction only if the evidence,
so viewed, is sufficiently inconclusive or inherently improbable
that reasonable minds must have entertained a reasonable doubt
that the defendant committed the crime of which he was
convicted.‛1 State v. Hales, 2007 UT 14, ¶ 36, 152 P.3d 321(citations and internal quotation marks omitted).
I. Aggravated Sexual Abuse Charges
¶3 Peterson first asserts that the State failed to present
sufficient evidence for the jury to find either that he held a
position of special trust with respect to the child victim (Child)
or that he penetrated her vagina when he touched her with his
finger. In order to convict Peterson of aggravated sexual abuse of
a child, the jury needed to find at least one of these aggravating
factors beyond a reasonable doubt. See Utah Code Ann. § 76-5-
404.1(4). We agree with the State that the evidence was sufficient
for the jury to have found both factors.
A. Penetration
¶4 The penetration factor required the jury to find that
Peterson ‚caused the penetration, however slight, of the genital
1. The parties dispute whether Peterson adequately preserved
his arguments for appeal. However, as it does not alter the
outcome of our decision, we assume for purposes of this opinion
that they were preserved. See generally Patterson v. Patterson, 2011
UT 68, ¶ 13, 266 P.3d 828 (‚Our preservation requirement is self-
imposed and is therefore one of prudence rather than
jurisdiction. Consequently, we exercise wide discretion when
deciding whether to entertain or reject matters that are first
raised on appeal.‛).
20130874-CA 2 2015 UT App 129State v. Peterson
. . . opening of the child by any part or parts of the human body
other than the genitals or mouth.‛ Id. § 76-5-404.1(4)(j). At trial,
Child testified that on two separate occasions, Peterson touched
her ‚private‛ with his finger underneath her underwear. She
explained that by ‚private,‛ she meant her ‚front‛ private used
for ‚*g+oing to the bathroom‛ and distinguished it from her
‚bottom.‛ She also specifically testified that when Peterson
touched her private with his finger, it went ‚in‛ her private.
Peterson argues that Child’s general reference to her private, as
opposed to her vagina, was insufficient to establish penetration.
He also points to the testimony of the witness who performed a
physical examination on Child that children generally do not
know how to express the difference between touching and
penetration of their genitals. He asserts that this makes Child’s
testimony that Peterson put his finger ‚in‛ her private
insufficient to establish the penetration aggravator. We disagree.
¶5 If believed, Child’s testimony establishes, at a minimum,
that Peterson put his finger between the outer folds of Child’s
labia, which ‚is sufficient to constitute ‘penetration.’‛ See State v.
Simmons, 759 P.2d 1152, 1154 (Utah 1988). In sexual abuse cases,
child witnesses frequently refer to genitalia as ‚privates‛; a
child’s failure to use an anatomical reference does not make her
testimony insufficient, so long as the child’s meaning is clear. Cf.,
e.g., State v. Taylor, 2005 UT 40, ¶ 3, 116 P.3d 360 (indicating that
the child witness had testified that the defendant told her ‚to
‘suck on his private’‛ and described it ‚as tasting like urine‛);
State v. Pritchett, 2003 UT 24, ¶ 16, 69 P.3d 1278 (indicating that
the child witness had testified that the defendant put his index
and middle fingers into her ‚private area‛ and that he ‚sticked
[sic] his privates inside her private‛ (internal quotation marks
omitted)). Here, Child’s clarification that she was referring to her
‚front‛ private, which she uses for ‚*g+oing to the bathroom‛
sufficiently indicated that she was referring to her vaginal
opening. And unlike in other cases where evidence of
penetration has been held to be insufficient, Child specifically
testified that Peterson’s finger went ‚in‛ her ‚private.‛ Cf.
20130874-CA 3 2015 UT App 129State v. Peterson
Simmons, 759 P.2d at 1154 (holding that the evidence of
penetration was insufficient where the victim ‚testified that [the]
defendant put the tip of his penis ‘on’ her labia‛); State v.
Pullman, 2013 UT App 168, ¶ 13, 306 P.3d 827 (holding that the
evidence of penetration was insufficient where the victim
testified that the defendant ‚tried‛ to put his penis in her ‚butt‛
but that she ‚pushed him away before it‛ went inside). Whether
Child had a complete understanding of what it meant for
something to be ‚in‛ her private was a credibility question for
the jury. But her testimony that Peterson put his finger in her
private, if believed, was sufficient for the jury to find
penetration.
B. Position of Special Trust
¶6 The evidence was also sufficient for the jury to find that
Peterson held a position of special trust with respect to Child. A
position of special trust is one that puts the defendant in a
‚position of authority‛ and gives the defendant ‚the ability to
‘exercise undue influence’ over‛ a child. State v. Watkins, 2013
UT 28, ¶ 39, 309 P.3d 209 (quoting Utah Code Ann. § 76-5-
404.1(4)(h)). Examples of positions of authority are enumerated
in the aggravated sexual abuse of a child statute and include
babysitters and adult cohabitants of the child’s parent.2 See Utah
2. In State v. Watkins, 2013 UT 28, 309 P.3d 209, the Utah Supreme
Court interpreted the enumerated list of individuals in the
statute as identifying individuals who hold positions of
authority, not necessarily positions of special trust. Id. ¶¶ 22–38.
Thus, even if the State proves that a defendant occupied a
specifically enumerated position, it must still prove that the
defendant ‚is able to exercise undue influence over the victim‛
by reason of that position. Id. ¶ 20 (citation and internal
quotation marks omitted). The legislature recently modified the
definition of ‚position of special trust‛ by separating those
holding a ‚position of authority‛ that enables them ‚to exercise
(continued…)
20130874-CA 4 2015 UT App 129State v. Peterson
Code Ann. § 76-5-404.1(4) (LexisNexis 2012). Child testified that
Peterson lived with her family and sometimes looked after her
when her mother was at work or visiting Child’s great-
grandmother in the hospital. She testified that Peterson was
responsible for feeding and taking care of her when her mother
was away and that she was required to ‚pay attention . . . and
listen to what he said.‛ Child’s mother testified that Peterson
lived with her and that he regularly picked Child up from
school, fed her, and helped her with her homework. Child’s
mother also testified that Peterson frequently tended Child while
the mother worked, visited the great-grandmother, and attended
social events. Peterson told the investigating detective that ‚he
was always taking care of‛ Child. This evidence supports a
finding that Peterson was both a babysitter and an adult
cohabitant of Child’s mother and therefore held a position of
authority. It also supports a finding that he was able to exert
undue influence over Child because she was frequently left
alone with him and he was given charge over her such that she
believed she was expected to ‚listen to what he said.‛
Accordingly, the evidence was sufficient to support a
determination that Peterson occupied a position of special trust
with respect to Child.
II. Rape of a Child and Object Rape of a Child Charges
¶7 Peterson next asserts that the State failed to present
sufficient evidence to support the rape of a child and object rape
of a child charges. First, he challenges the rape of a child charge
(…continued)
undue influence over the child‛ from other enumerated
individuals, who are expressly defined as occupying a position
of special trust. See Utah Code Ann. § 76-5-404.1(1)(c)
(LexisNexis Supp. 2014). However, because Peterson was
convicted under the previous version of the statute, Watkins is
controlling here.
20130874-CA 5 2015 UT App 129State v. Peterson
on the basis that Child’s testimony was insufficient to support an
inference that he touched Child’s vagina with his penis.
Although Child’s head was covered with a pillow at the time of
the events relating to the rape charge so that she did not actually
see Peterson’s penis, Child’s testimony was sufficient for the jury
to have drawn a reasonable inference that he used his penis to
penetrate her vagina. Child testified that she heard a zipper
being unzipped and she felt something that felt ‚like skin‛ touch
her ‚private.‛ She testified that it went ‚in‛ her ‚private‛ and
that it was uncomfortable for her. She testified that although she
did not see it, she believed it was Peterson’s ‚private‛ because
she heard the zipper and ‚[i]t didn’t feel like his finger and it
didn’t feel like the device‛ that he had previously used on her,
see infra ¶ 8. Reviewing ‚all inferences which may reasonably be
drawn from [the evidence] in the light most favorable to the
verdict of the jury,‛ we cannot conclude that this evidence was
so ‚inconclusive or inherently improbable‛ that the jury could
not have convicted Peterson of rape of a child. See State v. Hales,
2007 UT 14, ¶ 36, 152 P.3d 321 (citations and internal quotation
marks omitted).
¶8 Peterson also argues that the evidence was insufficient to
support a conviction for object rape of a child because DNA
evidence found on the vibrating device ‚does not lend itself to
the inference that Peterson used the device as *Child+ described.‛
On the contrary, the fact that DNA matching Child was found
on the tip of the vibrator corroborated her testimony that
Peterson put the ‚small end‛ of the vibrator into her ‚private.‛
Analysis excluded Peterson—but not Child or her mother—as
the source of DNA on the vibrator control. This result could be
viewed either as exculpatory or as consistent with Child’s
testimony that Peterson washed off the vibrator after he used it
on her. In any event, it was the jury’s prerogative to weigh
Child’s testimony in light of the DNA evidence, and Child’s
testimony, if believed, was sufficient to support a conviction for
object rape of a child. See State v. Fedorowicz, 2002 UT 67, ¶ 40, 52
P.3d 1194 (‚When we examine a challenge to the sufficiency of
20130874-CA 6 2015 UT App 129State v. Peterson
the evidence supporting a jury verdict, . . . [we] assume that the
jury believed the evidence that supports the verdict.‛ (citation
omitted)); State v. Workman, 852 P.2d 981, 984 (Utah 1993)
(‚When the evidence presented is conflicting or disputed, the
jury serves as the exclusive judge of both the credibility of
witnesses and the weight to be given particular evidence.‛).
III. Tampering with a Witness Charge
¶9 Finally, Peterson argues that the jury could not convict
him of tampering with a witness in the absence of evidence that
he ‚believ*ed+ that an official proceeding or investigation *was+
pending or about to be instituted‛ at the time he allegedly
threatened Child. See Utah Code Ann. § 76-8-508(1) (LexisNexis
2012).
¶10 Peterson relies on State v. Bradley, 752 P.2d 874 (Utah
1985) (per curiam), for the proposition that the State had to
prove that Peterson believed an official investigation was
pending or underway at the time he threatened Child. See id. at
876–77. However, Bradley relied on an earlier version of the
statute, see id. at 875–77, which permitted a person to be found
guilty of tampering with a witness only if the person acted
‚[b]elieving that an official proceeding or investigation is
pending or about to be instituted,‛ Utah Code Ann. § 76-8-508(1)
(1978). In 2004, the legislature added ‚or with the intent to
prevent an official proceeding or investigation‛ to the statute.
Act of May 3, 2004, ch. 140, § 3, 2004 Utah Laws 592, 594–95.
Thus, under the current version of the statute, it was
unnecessary for the State to prove that Peterson believed an
official investigation was pending or about to be instituted if it
could prove that Peterson acted with the intent to prevent an
investigation in the future.
¶11 Peterson also relies on our more recent decision in State v.
Jones, 2014 UT App 142, 330 P.3d 97, cert. granted, 341 P.3d 253(Utah Nov. 25, 2014). While the Jones court cited Bradley in
20130874-CA 7 2015 UT App 129State v. Peterson
support of its conclusion that the State had failed to present
sufficient evidence of witness tampering, it ultimately
determined not only that there was no evidence that the
defendant ‚believed that an official investigation . . . was
underway,‛ but that there was no evidence that he believed such
an investigation ‚would be initiated in the future.‛ Id. ¶ 31(emphasis added). Thus, in Jones, the State failed to present
evidence that the defendant acted ‚with the intent to prevent an
official proceeding or investigation.‛ Utah Code Ann. § 76-8-
508(1) (LexisNexis 2012).
¶12 Conversely, in this case, Child’s testimony was sufficient
to support a determination that Peterson acted with the intent to
prevent an official proceeding or investigation. Child testified
that on one occasion, Peterson chased her into her room and
pulled her hair. She told him that she was going to tell her
mother that he had touched her inappropriately. He replied, ‚*I+f
you tell your mom I’m going to kill her.‛ Given that Peterson’s
threat was in direct response to Child’s threat to disclose his
illegal actions, the evidence was sufficient for the jury to infer
that Peterson threatened Child with the intent to prevent an
official proceeding or investigation and was therefore sufficient
to support Peterson’s conviction for witness tampering.
IV. Conclusion
¶13 For these reasons, we conclude that the evidence was
sufficient to support Peterson’s convictions on all five charges.
Accordingly, we affirm.
20130874-CA 8 2015 UT App 129