G.D.B. v. State, 20170257-CA
| Decision Date | 22 February 2019 |
| Docket Number | No. 20170257-CA,20170257-CA |
| Citation | 440 P.3d 706 |
| Parties | STATE of Utah, IN the INTEREST OF G.D.B., a Person Under Eighteen Years of Age. G.D.B., Appellant, v. State of Utah, Appellee. |
| Court | Utah Court of Appeals |
Monica Maio and Alicia M. Memmott, Attorneys for Appellant
Sean D. Reyes, Nathan D. Anderson, Salt Lake City, and Mikelle C. Daugherty, Attorneys for Appellee
Opinion
¶1 G.D.B., a minor, appeals the juvenile court’s adjudication finding him delinquent on one count of sexual abuse of a child for touching his four-year-old niece’s vagina and trying to put his penis "in [her] bum." G.D.B. argues that the State failed to prove the touching was done with the intent to arouse or gratify G.D.B.’s sexual desires, as required by Utah Code section 76-5-404.1. We affirm.
¶2 G.D.B. was seven-and-a-half years older than the four-year-old victim, his niece (Victim).2 G.D.B. and Victim spent a lot of time together. Victim’s mother (Mother) babysat G.D.B. and took him on outings with Victim. On most weekends, Victim stayed with her grandmother (Grandmother), who is G.D.B.’s mother. Victim usually slept in Grandmother’s room, but she claimed she occasionally slept in the living room, where G.D.B. also slept. Although Grandmother was always nearby in the apartment, G.D.B. and Victim were sometimes alone in the same room together.
¶3 One evening in February or March 2016, Victim and Mother were watching a television show about people trying to survive naked in the wild. Victim asked Mother, "[W]hy are their private parts fuzzed out?" Mother answered, "[B]ecause private parts are ... for them to see and not for the world to see." Victim responded, "[W]ell, [G.D.B.] always wants to see my private parts." Victim then revealed to Mother that G.D.B. touched her vagina and assured Mother that she was telling the truth.
¶4 After hearing Victim’s account, Mother no longer allowed Victim to stay at Grandmother’s apartment. While she missed visiting Grandmother, Victim did not want to see G.D.B. Victim said that she felt "safe" around G.D.B. only when others were present because "she knew [G.D.B.] wouldn’t [touch her inappropriately] in front of somebody else." Mother reported the incident to Child Protective Services (CPS).
¶5 About a month later, while using the bathroom on a camping trip, Victim asked Mother how boys urinate. Mother explained that boys have different body parts. Victim responded, When Mother asked where on her body, Victim indicated her vagina. Mother also disclosed this information to CPS.
¶6 In June 2016, a special victim’s investigator (Investigator) interviewed Victim at the Children’s Justice Center (CJC) about the abuse she had revealed to Mother. According to Investigator, Victim was "developmentally able to communicate accurately about the situation." Victim said that G.D.B. touched "her private parts," defined by Victim as her vagina and buttocks, more than once. Victim revealed that G.D.B. touched her with his hands over her clothing. Victim also stated that she repeatedly tried to stop G.D.B. from touching her, but G.D.B. refused to stop.
¶7 Shortly after the CJC interview, Victim received a medical examination conducted by a nurse practitioner (Nurse) specializing in sexual abuse exams. Victim told Nurse that G.D.B. had touched "her front part" with his hands under her clothes and that the touching hurt.
¶8 Although Victim’s physical examination was normal and showed no signs of abuse, Nurse determined that Victim "had a significant history that was positive for sexual abuse" based on Victim’s answers to Nurse’s questions. Nurse clarified that a normal exam does not rule out sexual abuse, because "95 percent of children who make allegations of sexual abuse have normal exams."
¶9 Based on the CJC interview and the medical exam, the State filed a petition alleging that G.D.B. had sexually abused Victim in violation of Utah Code section 76-5-404.1. The relevant subsection of the statute provides:
An individual commits sexual abuse of a child if, under circumstances not amounting to rape of a child, object rape of a child, sodomy on a child, or an attempt to commit any of these offenses, the actor touches the anus, buttocks, pubic area, or genitalia of any child, the breast of a female child, or otherwise takes indecent liberties with a child, with intent to cause substantial emotional or bodily pain to any individual or with the intent to arouse or gratify the sexual desire of any individual regardless of the sex of any participant.
¶10 At trial, Victim testified that G.D.B. and "his penis in [her] bum .... all the time, every single time" she would stay at Grandmother’s apartment. This abuse occurred in the living room, where G.D.B. slept and where Victim claimed that she sometimes also slept.
¶11 G.D.B. admitted that he and Victim were sometimes left alone together. But he denied that he and Victim slept in the same room. He also said that he had never touched Victim "inappropriately," played "house" or "doctor" with her, accidentally touched her private parts, changed her clothes, helped her use the bathroom, given her a bath, or seen her naked.
¶12 Grandmother testified that Victim and G.D.B. never slept in the same room together, Victim was never alone with G.D.B., and Victim never told her that G.D.B. touched her.4
¶13 G.D.B. made two points in closing argument. First, he argued that Victim was not a credible witness, alleging that inconsistencies in Victim’s statements at the CJC interview, during the medical examination, and at trial discredited her testimony. Second, G.D.B. asserted that the State had failed to prove the sexual intent element:
[ Utah Code section 76-5-404.1(2) ] has an intent element. It’s not just touching. There has to be touching the breast, the anus, the butt of a child, with the intent to arouse or gratify, to cause substantial bodily, emotional or bodily pain. There’s been no evidence whatsoever that the State has put on that has met that intent element, zero evidence. There is absolutely no physical evidence.
Counsel concluded by arguing that the State had failed to meet its burden of proof generally. Counsel, however, never asserted that G.D.B.’s age or immaturity affected his ability to form a sexual intent and never specifically asked the juvenile court to consider his age in rendering its decision.
¶14 In its closing argument, the State countered that Victim’s testimony was credible even though some of the "details [got] mixed up." The State asserted that "inconsistencies in [Victim’s] statement about what happened ... can be attributed to how many times this happened to her, and how she in her mind, her five-year-old mind, she can’t distinguish, and she can’t articulate the different times this happened, because it happened so many times."
¶15 The State further argued that sexual intent could be inferred from the circumstances of the touching, and it emphasized that G.D.B. offered no innocent explanation for any touching. Specifically, the State argued that "this touching did not happen during bathing, did not happen during changing clothes, did not happen when [G.D.B.] helped [Victim] use the bathroom or to help wipe her." The State urged the court to "turn to what was happening when this touching happened." G.D.B. and Victim
¶16 Immediately after closing arguments, the court took a recess expressly to consider the issue of intent. Upon reconvening, the court acknowledged inconsistencies in Victim’s account. But, "given that she’s five years old," the court determined there was "some credibility" to her testimony to support the conclusion that G.D.B. touched Victim.
¶17 The court further stated that, in addition to reviewing applicable code provisions, it had looked at the decisions of In re D.M. , 2013 UT App 220, 310 P.3d 741, and In re J.S. , 2012 UT App 340, 292 P.3d 709. The court explained that "while intent is difficult to ascertain," these cases support the proposition that "it is appropriate to infer intent from conduct and life experience." G.D.B. did not take issue with the court’s summary of the law. The juvenile court then concluded that G.D.B. "took indecent liberties with [Victim], and ... the only [ ]possible intent that [G.D.B.] could have in doing this was to arouse or gratify his sexual desires." Based on this reasoning, the juvenile court concluded that the State had "proven the allegation beyond a reasonable doubt" and found G.D.B. delinquent. G.D.B. appeals.
¶18 G.D.B. contends that the juvenile court erred in deciding there was sufficient evidence of sexual intent. "When reviewing a bench trial for sufficiency of evidence, we must sustain the trial court’s judgment unless it is against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made." State v. Miller , 2017 UT App 171, ¶ 7, 405 P.3d 860 (cleaned up).
¶19 The pertinent elements of sexual abuse of a child are (1) "touch[ing] the anus, buttocks, pubic area, or genitalia of any child" (2) "with the intent to arouse or gratify the sexual desire of any individual." Utah Code Ann. § 76-5-404.1(2) (LexisNexis Supp. 2018). "The State bears the burden of proving each and every element of a criminal offense beyond a...
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