State v. Leota
| Decision Date | 29 November 2019 |
| Docket Number | No. 20171012-CA,20171012-CA |
| Citation | 455 P.3d 1087 |
| Parties | STATE of Utah, Appellee, v. Afimuao S. LEOTA, Appellant. |
| Court | Utah Court of Appeals |
Teresa L. Welch, Salt Lake City, and Christine Seaman, Attorneys for Appellant
Sean D. Reyes and Jeffrey S. Gray, Salt Lake City, Attorneys for Appellee
Opinion
¶1 Following a jury trial, Afimuao S. Leota was convicted of one count of forcible sexual abuse for touching his fifteen-year-old stepdaughter (Victim) on her breasts over her clothing. Leota challenges the sufficiency of the evidence supporting his conviction, arguing that the State failed to prove that his over-the-clothing touch of Victim constituted indecent liberties and that Victim's testimony was too inherently improbable to be credited. We reject his sufficiency challenge and affirm.
¶2 Victim was eleven years old when Leota married Victim's mother and moved into their home. Victim perceived her relationship with Leota to be "father/daughter," and she called him "daddy."
¶3 In 2016, the State charged Leota with seventeen offenses, ranging from rape and object rape to forcible sodomy and forcible sexual abuse, based on Victim's allegations. As relevant here,2 Leota was charged with one count of forcible sexual abuse based on allegations that he put his hands on Victim's clothed breasts for a period of time, only removing them when Victim indicated that the touch was not welcome.
¶4 A two-day trial for all the charges was held in 2017. Victim testified about the alleged incident of abuse. She testified that on one occasion when she was fifteen years old, she and Leota were in her mother and Leota's room, on their bed, watching football. Victim was lying against Leota, who was rubbing her back. She recounted that after Leota rubbed her back, he put his hands on her breasts, over her clothing, and asked, "Is it okay if Daddy does this?" Victim testified that she "shrugged and just said, ‘huh-uh,’ like, I don't know." Leota then apologized, telling her, "Sorry, Daddy shouldn't have done that" and removed his hands from her breasts.
¶5 A detective (Detective), who had spoken with Leota about the incident approximately two-to-three months after it occurred, also testified. Detective stated that, initially, Leota denied any touching had occurred, indicating that he "didn't know of anything that had happened" with Victim. Leota also explained that he and Victim had an affectionate relationship, often hugging or cuddling on the couch, and that it was common for Leota to "snuggle" with his other children as well. And Detective recounted that Leota theorized that Victim was angry with him and was "making up" the allegations because he had recently disciplined her by taking away her electronics.
¶6 Detective testified that as the interview progressed, however, Leota recanted his initial denial of the touching incident, eventually admitting that he had touched Victim's breasts over her clothing. Leota told Detective that he and Victim had been "up on his bed in his bedroom" cuddling, with Victim's back "pressed up against [Leota's] chest," and that at some point Leota's "hands were accidentally on [Victim's] boobs." Detective recounted that, when asked, Leota "couldn't explain what was accidental" about the touching.
¶7 Leota then stated that, with his hands still on her breasts, he asked Victim, "Are you okay with this?" When Detective asked why Leota asked Victim that question, Leota responded, "[B]ecause I was ... touching her boobs." Leota told Detective that he removed his hands when Victim "eventually said that she wasn't okay with the touch" and that he then apologized to Victim, telling her that "it wasn't going to happen again." Detective testified that, toward the end of the interview, Leota also told him that "he felt bad," expressing "some sort of remorse for what had happened" as well as concern about the ramifications on his marriage. Leota also indicated to Detective that "what he had done was wrong."
¶8 At trial, the State proceeded on the theory that Leota's over-the-clothing touching constituted the taking of indecent liberties under Utah Code section 76-5-404, the forcible sexual abuse statute. It asserted there was convincing evidence that Leota had a "sexual interest in his own stepdaughter and that he was willing to act on that interest by keeping his hands on her breasts." In this respect, the State emphasized the nature of Leota's relationship to Victim, urging that "it is indecent for a stepfather to do this to his stepdaughter" and that Leota and Victim's "relationship dynamic should not be lost as [the jury] consider[ed] whether or not what [it was] looking at here is an indecent [liberty]." The State also reminded the jury that, given Victim's age and Leota's relationship to Victim, Victim could not have consented to Leota's conduct as a matter of law.
¶9 At the close of the State's case, Leota moved for a directed verdict on all counts, arguing that Victim's statements and testimony were "entirely uncredible" to the point that no reasonable jury could convict him on any of the counts based on her testimony. The court denied the motion, determining that the jury could choose to accept Victim's testimony and that any issues with respect to Victim's credibility represented "classic" jury questions. At the close of all the evidence, Leota renewed the motion, which the court again denied.
¶10 The jury convicted Leota of one count of forcible sexual abuse based on his over-the-clothing touching of Victim's breasts. Before sentencing, Leota filed a motion to arrest judgment. He argued that there was insufficient evidence to support the conviction because the State presented evidence indicating only that Leota "touched [Victim's] breast over the clothing, stopping when asked" and that such touching was not of the "same magnitude of gravity" as the type of skin-to-skin touching of a victim's bare anus, buttocks, genitalia, or a female breast required under the touching variant of the statute. (Cleaned up.) The court denied the motion. Leota appeals.
¶11 Leota challenges the sufficiency of the evidence supporting his conviction. "On a sufficiency of the evidence claim we give substantial deference to the jury," reviewing "the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict." State v. Ashcraft , 2015 UT 5, ¶ 18, 349 P.3d 664 (cleaned up). "We will reverse a guilty verdict only when the evidence ... is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted." State v. MacNeill , 2017 UT App 48, ¶ 51, 397 P.3d 626 (cleaned up).
¶12 Leota challenges the sufficiency of the evidence supporting his forcible sexual abuse conviction on two grounds. First, he argues that the evidence did not support his conviction because the State failed to prove that his conduct constituted indecent liberties under Utah Code section 76-5-404(1), the forcible sexual abuse statute. Second, he argues that Victim's testimony was too inherently improbable to support the verdict. We address each argument below.
¶13 Leota argues that the verdict cannot be sustained because the State failed to present sufficient evidence to establish that his conduct constituted indecent liberties under Utah Code section 76-5-404(1). He cites evidence suggesting that his touch was merely accidental but argues that even if the jury found otherwise, the touch was "not of the same magnitude of gravity as a skin-to-skin touch," as required under the statute. We disagree.
¶14 In a jury trial, the jury acts as the factfinder, and in this role it is the jury's duty and prerogative to serve as "the exclusive judge of both the credibility of witnesses and the weight to be given to particular evidence." State v. Black , 2015 UT App 30, ¶ 19, 344 P.3d 644 (cleaned up); see also State v. Ashcraft , 2015 UT 5, ¶ 29, 349 P.3d 664 (); State v. Howell , 649 P.2d 91, 97 (Utah 1982) (). In this respect, a jury is also entitled to draw reasonable inferences from the evidence presented in reaching its findings. State v. Doyle , 2018 UT App 239, ¶ 24, 437 P.3d 1266. "A jury's inference is reasonable unless it falls to a level of inconsistency or incredibility that no reasonable jury could accept." Ashcraft , 2015 UT 5, ¶ 18, 349 P.3d 664 (cleaned up). Thus, our role on appeal is to determine "simply whether the jury's verdict is reasonable in light of all of the evidence taken cumulatively, under a standard of review that yields deference to all reasonable inferences supporting the jury's verdict." Id. ¶ 24. "As long as there is some evidence from which all the necessary elements of the charged offenses can be proved, there is sufficient evidence to find the defendant guilty beyond a reasonable doubt." State v. Johnson , 2015 UT App 312, ¶ 11, 365 P.3d 730.
¶15 Here, we conclude that the evidence was such that the jury was well within its prerogative to determine that Leota's conduct constituted forcible sexual abuse. Under the forcible sexual abuse statute it is unlawful for a person to touch one of the enumerated body parts or otherwise take "indecent liberties" with another person at least fourteen years of age:
A person commits forcible sexual abuse if the victim is 14 years of age or older and, under circumstances not amounting to rape, object rape, sodomy, or attempted rape or sodomy, the actor touches the anus, buttocks, or any part of the genitals of another, or touches the breast of a female, or...
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...conduct: touching of the enumerated body parts, and taking indecent liberties with another." Cf. State v. Leota , 2019 UT App 194, ¶ 16, 455 P.3d 1087 (addressing similar language in the forcible sexual abuse statute). At the time of Tippets's trial, the term "indecent liberties" was define......
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