State v. Arave

• Decision Date: 30 December 2011
• Docket Number: No. 20090880.,20090880.
• Parties: STATE of Utah, Plaintiff and Respondent, v. Lonnie C. ARAVE, Defendant and Petitioner.
• Court: Utah Supreme Court

2011 UT 84

268 P.3d 163

699 Utah Adv. Rep. 9

STATE of Utah, Plaintiff and Respondent,

v.Lonnie C. ARAVE, Defendant and Petitioner.

No. 20090880.

Supreme Court of Utah.

Dec. 30, 2011.

Mark L. Shurtleff, Att'y Gen., Kenneth A. Bronston, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Randall W. Richards, Brittany R. Brown, Ogden, for defendant.

On Certiorari to the Utah Court of Appeals

Justice LEE, opinion of the Court:

¶ 1 Lonnie Arave approached an eleven-year-old boy in their Ogden neighborhood and offered to pay him $20 if he would agree to let Arave perform oral sex on him. At trial, Arave moved to dismiss a charge of attempted sodomy on a child, asserting that his conduct amounted only to the offense of solicitation and could not sustain a conviction of attempt. The district court denied the motion, and Arave was convicted on the attempt charge. A divided court of appeals affirmed that decision.

¶ 2 Arave now challenges his conviction on the ground that at most he was guilty of solicitation, a lesser offense than attempt. He argues that (1) solicitation cannot equate to attempt without running afoul of the doctrine set forth in State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (1969); and (2) he is not guilty of attempt because solicitation is not a “substantial step” toward commission of the crime.

¶ 3 We granted Arave's petition for certiorari, and we now affirm in part and reverse in part. We uphold the court of appeals' decision rejecting Arave's Shondel argument, albeit on different grounds. Although we agree that statutes criminalizing attempt and solicitation do not run afoul of the Shondel doctrine, we disagree with the court of appeals' conclusion that the solicitation statute encompasses only the solicitation of another person to commit an offense. We conclude instead that solicitation of a potential victim also falls within the ambit of the solicitation statute. Further, we hold that the act of solicitation alone is not enough to constitute a substantial step—and thereby an attempt—to commit a crime. Accordingly, we reverse the court of appeals insofar as it upheld Arave's conviction for attempt.

I

¶ 4 On May 10, 2006, Lonnie Arave was at home in his Ogden neighborhood when he noticed D.B., an eleven-year-old boy, riding up and down the street on his skateboard. When he saw D.B., Arave went outside, hopped on his bicycle, and rode up to the boy. Once he caught up with D.B., Arave stopped the bicycle about two feet in front of him, blocking his way. Arave then offered D.B. $20 to allow him to perform oral sex on the boy, adding that he wanted to “lick [D.B.] from head to toe.” When D.B. did not respond, Arave apologized for “grossing him out” and asked D.B. not to tell anyone about their encounter, but reminded him to “think about it, $20.”

¶ 5 Immediately following this exchange with Arave, D.B. rode home on his skateboard in tears. D.B.'s mother discovered what happened and called the police, who apprehended Arave later that same day. Officials later discovered that Arave had fixated on and fantasized about performing oral sex on D.B. for approximately one month before the encounter.

¶ 6 Later in May, Ogden prosecutors charged Arave with attempted sodomy on a child,¹ a first degree felony.² That same month, Arave appeared at a preliminary hearing where he and the prosecution stipulated to the underlying facts. The parties reappeared before the magistrate in June 2006 to argue the question whether there was probable cause to bind Arave over for trial on the charge of attempted sodomy on a child. Arave's counsel challenged the attempt charge on the ground that, at most, the facts sustained a charge on a count of solicitation of sodomy on a child, then a second degree felony. Following argument, the magistrate ordered Arave bound over for trial on the more serious charge of attempted sodomy on a child.

¶ 7 Arave was tried before a jury on November 28 and 29, 2006. At the close of the State's case-in-chief, Arave moved the court to (1) dismiss the attempt charge for lack of evidence and (2) enter a conviction of a lesser offense—solicitation to commit sodomy on a child.³ Arave argued that the State had failed to prove any elements of attempted sodomy on a child beyond his initial solicitation of D.B. Pursuant to the Shondel doctrine, Arave also asserted that the statutes criminalizing attempted sodomy on a child and solicitation to commit sodomy on a child were wholly duplicative of each other and therefore he was eligible for conviction only on the lesser offense of solicitation.

¶ 8 The trial court denied the motion but instructed the jury on both attempted sodomy on a child and solicitation to commit sodomy on a child as a lesser included offense. Following deliberation, the jury returned a guilty verdict for the more serious offense of attempted sodomy on a child. Arave subsequently filed a posttrial motion to arrest judgment rearguing his two claims made at the close of trial, which the court denied.

¶ 9 On appeal to the Utah Court of Appeals, Arave again raised the same issues. A divided court of appeals affirmed the decisions of the trial court, concluding that the attempt and solicitation statutes did not implicate the Shondel doctrine and that the trial court did not err in denying Arave's motion to dismiss for insufficient evidence. State v. Arave, 2009 UT App 278, ¶ 17, 220 P.3d 182.

¶ 10 The court of appeals majority rejected Arave's Shondel argument, reasoning that solicitation is limited to situations where a defendant solicits a third party to perpetrate a crime and thus does not encompass the conduct at issue here. Id. ¶ 11. As to the sufficiency of the evidence, the majority held that that by soliciting D.B., Arave took a substantial step in furtherance of his intent to sodomize the victim and thus could be found guilty of attempted sodomy on a child. Id. ¶ 14.

¶ 11 Writing in dissent, Judge Orme concluded that Arave's actions “[fell] short of an attempt to commit sodomy,” characterizing them as “more like a pre-attempt, a testing of the waters to see if attempting an act of sodomy would likely be worthwhile.” Id. ¶ 19 (Orme, J., dissenting). Judge Orme ultimately believed that Arave's encounter with D.B. was “simply not a substantial step towards commission of the crime,” and therefore the case should have been “remanded for the trial court to enter a conviction of solicitation to commit sodomy on a child.” Id. ¶ 27.

II

¶ 12 Our decision in State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (1969), preserves the equal protection of the laws by requiring criminal statutes to be “written so that ... the exact same conduct is not subject to different penalties depending upon which of two statutory sections a prosecutor chooses to charge.” State v. Williams, 2007 UT 98, ¶ 10, 175 P.3d 1029 (alteration in original) (internal quotation marks omitted). Where statutes “define two crimes having precisely the same elements with different penalties,” ⁴ Shondel permits a defendant to be sentenced only on the lesser offense. This requirement is triggered only where two offenses are “wholly duplicative” of each other.⁵

¶ 13 To resolve the Shondel issue here, we must examine the text of the attempt and solicitation statutes to determine whether they are “wholly duplicative” of each other.⁶ If each statute “requires proof of some fact or element not required to establish the other,” there is no Shondel problem and thus no basis for foreclosing Arave's conviction on the attempt charge.⁷

¶ 14 The court of appeals saw no Shondel problem in the interaction between the crimes of solicitation and attempt. It based this decision on the notion that solicitation simply does not apply to the facts of this case, since in its view “solicitation is confined to those situations where a defendant solicits a third party to commit a felony ... while attempt[ ] ... is limited to situations where the defendant directly attempts to commit [a felony].” Arave, 2009 UT App 278, ¶ 11, 220 P.3d 182.

¶ 15 We reject the court of appeals' rationale but affirm its ultimate conclusion. It is undoubtedly true that most solicitation crimes do not involve solicitation of victims, but of third-party perpetrators. As we read the Utah solicitation statute, however, it seems clear that this offense also encompasses solicitation of a victim who lacks capacity to consent.

¶ 16 An actor commits solicitation “if with intent that a felony be committed he solicits, requests, commands, offers to hire, or importunes another person to engage in specific conduct that ... would be a felony or would cause the other person to be a party to the commission of a felony.” Utah Code § 76–4–203(1). This language leaves ample room for the crime of solicitation of a victim who lacks capacity to consent, as the conduct the victim is requested to engage in “would be a felony” or, alternatively, the victim would “be a party to the commission of a felony.”

¶ 17 We find it significant that the crime of child sodomy requires two parties—an adult perpetrator and a child victim. In this regard, both parties' conduct can be said to be a component of the felony in question and both can be said to be a “party” to the felony. It is no answer to say that the victim's component of or participation in the felony would not make him criminally liable, as the statute goes on to clarify that “[i]t is not a defense [to the crime of solicitation] that the person solicited by the actor ... does not agree to act upon the solicitation ... [or] is not criminally responsible for the felony solicited.” Id. § 76–4–203(3)(a), (d) (emphasis added).

¶ 18 We acknowledge that our statute is less than crystal clear on this question. Our construction, however, finds additional support in precedent from other jurisdictions that have adopted a Model Penal Code-based definition of solicitation. The Pennsylvania courts, for example, have consistently upheld solicitation...