State v. Cox

• Decision Date: 27 September 2007
• Docket Number: No. 20060795-CA.,20060795-CA.
• Citation: 169 P.3d 806,2007 UT App 317
• Parties: STATE of Utah, Plaintiff and Appellee, v. Robert Ellis COX, Defendant and Appellant.
• Court: Utah Court of Appeals

169 P.3d 806

2007 UT App 317

STATE of Utah, Plaintiff and Appellee, v. Robert Ellis COX, Defendant and Appellant.

No. 20060795-CA.

Court of Appeals of Utah.

September 27, 2007.

Linda M. Jones, Salt Lake City, for Appellant.

Mark L. Shurtleff, atty. gen., and Jeanne B. Inouye, asst. atty. gen., Salt Lake City, for Appellee.

Before Greenwood, Associate P.J., Billings and Thorne, JJ.

OPINION

BILLINGS, Judge:

¶ 1 Defendant Robert Ellis Cox appeals from his convictions of four counts of aggravated sexual abuse of a child, see Utah Code Ann. § 76-5-404.1(4) (2003); four counts of sodomy on a child, see id. § 76-5-403.1(2) (2003); and one count of rape of a child, see id. § 76-5-402.1(2) (2003), all first degree felonies. We affirm.

BACKGROUND¹

¶ 2 L.D. (Mother) has four children, including S.W., a daughter born on November 15, 1987. Sometime in 1994, shortly after divorcing S.W.'s biological father, Mother entered into a relationship with Defendant, and they soon began living together.² After over two years of living together, Mother and Defendant married on September 12, 1996. They separated in March 1997, and subsequently divorced.

¶ 3 Prior to their separation, Mother and Defendant lived with Mother's children in four different residences, all in Sandy, Utah. S.W. was approximately six or seven years old when Defendant moved in and approximately nine years old when Defendant and Mother separated. Mother, a police dispatcher, often worked nights and weekends, while Defendant remained at home to babysit the children.

¶ 4 During the time he lived with Mother and her children, Defendant repeatedly molested S.W. At trial, S.W. testified that Defendant touched her "a couple of times a week." These sexual touchings "happened so many times [that S.W. could not] remember" the number. The touchings occurred in all of the Sandy homes, usually in Defendant and Mother's bedroom. Although S.W. did not testify as to the date the touchings began, Officer Lane Cole testified that based on his interviews with S.W. and Mother, he determined that, at a minimum, the abuse began in May 1996.

¶ 5 As part of the abuse, Defendant touched S.W.'s breasts and vagina with his hands. He also placed his mouth on her nipples. This was "one of the commoner [sic] things that would happen." Sometimes he would press his erect penis against her legs and vagina. On two or three occasions he put his little finger inside her vagina. Defendant also touched his mouth to S.W.'s vagina and on one occasion, he had her "[p]ut [her] mouth over his penis." On yet another occasion, Defendant placed his penis in her "bum."

¶ 6 S.W. described other specific incidents of abuse, including one that occurred while they shared a tent on a camping trip to Jordanelle Reservoir, Wasatch County, Utah. On that occasion, Defendant touched her nipples and vagina with his fingers. On another occasion, following the camping trip, Mother took S.W.'s sister to the hospital to remove a tick that the sister had gotten while camping. On that occasion, Defendant took S.W. to his bedroom in their Sandy home and touched her breasts and vagina with his hands, and then rubbed his penis "around [her] legs and vagina." Mother testified that both of these incidents occurred during the summer of 1996.

¶ 7 While most of these occurrences took place in Defendant and Mother's bedroom, on one occasion the abuse happened in S.W.'s bedroom. On that occasion, Defendant "touch[ed] his mouth on [S.W.'s] vagina and put his pinky finger there." The sexual touchings ended when Mother and Defendant separated in March 1997.

¶ 8 After a jury trial, Defendant was convicted of four counts of aggravated sexual abuse of a child, four counts of sodomy on a child, and one count of rape of a child. Defendant now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 9 Defendant first asserts that the State pursued convictions on four counts of aggravated sexual abuse of a child under an ex-post-facto law and argues that his convictions for aggravated sexual abuse should therefore be reversed or reduced. Next, Defendant contends that it was error for the State to present evidence at trial relating to two counts of aggravated sexual abuse of a child that occurred in Wasatch County. Specifically, Defendant argues that (1) Salt Lake County was an improper venue to try alleged incidents of abuse that occurred in Wasatch County and (2) evidence of sexual molestation in Wasatch County violated rule 404(b). See Utah R. Evid. 404(b).

¶ 10 Because none of these issues were raised before the trial court, Defendant argues them on appeal under the doctrines of plain error and ineffective assistance of counsel. Under the plain error doctrine, we will reverse the trial court's ruling only if "`(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for [the defendant].'" State v. Hassan, 2004 UT 99, ¶ 10, 108 P.3d 695 (quoting State v. Parker, 2000 UT 51, ¶ 7, 4 P.3d 778). "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law," which we review for correctness. State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

ANALYSIS

I. Defendant's Ex-post-facto Claim

¶ 11 Defendant argues that he was charged and convicted for four counts of aggravated sexual abuse under a law that was adopted after he committed the alleged offenses. Specifically, Defendant asserts that the State relied on an ex-post-facto aggravating factor — that Defendant occupied a position of special trust-to increase the offenses from sexual abuse of a child to aggravated sexual abuse of a child. Defendant's ex-post-facto claim, reduced to its essence, is a challenge to the jury instruction on the four counts of aggravated sexual abuse of a child. The challenged jury instruction required the jury to find that "[D]efendant was a person who occupied a position of special trust to [S.W.]," and included stepparents and adult cohabitants in the definition of a position of special trust.

A. Plain Error

¶ 12 First, Defendant argues that it was plain error for the trial court to give a jury instruction defining a position of special trust as including a stepparent and adult cohabitant. According to Utah case law,

[a]n ex-post-facto law is one that "punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission; or which deprives one charged with crime of any defense available according to law at the time when the act was committed."

State v. Norton, 675 P.2d 577, 585 (Utah 1983) (quoting Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)), overruled on other grounds by State v. Hansen, 734 P.2d 421, 427 (Utah 1986). The Utah Supreme Court has further noted that the historical roots of the ex-post-facto provision prohibit "[e]very law that aggravates a crime, or makes it greater than it was" when the act was committed. State v. Daniels, 2002 UT 2, ¶ 44, 40 P.3d 611 (quotations and citation omitted).

¶ 13 In 2003, the State tried and convicted Defendant for incidents of sexual abuse that occurred sometime between January 1994 and March 1997. The sexual abuse statute in effect from January 1994 to March 1997 stated, in relevant part:

(1) A person commits sexual abuse of a child if ... 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.

(2) Sexual abuse of a child is punishable as a second degree felony.

(3) A person commits aggravated sexual abuse of a child when in conjunction with the offense described in [s]ubsection (1) any of the following circumstances have been charged and admitted or found true in the action for the offense:

....

(h) The offense was committed by a person who occupied a position of special trust in relation to the victim; "position of special trust" means that position occupied by a person in a position of authority, who, by reason of that position is able to exercise undue influence over the victim, and includes, but is not limited to, the position occupied by a youth leader or recreational leader who is an adult, adult athletic manager, adult coach, teacher, counselor, religious leader, doctor, employer, foster parent, baby-sitter, or adult scout leader, though a natural parent, stepparent, adoptive parent, or other legal guardian, not including a foster parent, who has been living in the household, is not a person occupying a position of special trust under this subsection.

Utah Code Ann. § 76-5-404.1 (Supp.1997) (emphases added).

¶ 14 In 1998, the Utah Legislature made a substantive change to subsection (3)(h). The legislature amended the provision to state that a person in a "position of special trust" includes "a youth leader or recreational leader who is an adult, adult athletic manager, adult coach, teacher, counselor, religious leader, doctor, employer, foster parent, babysitter, adult scout leader, natural parent, stepparent, adoptive parent, legal guardian, grandparent, aunt, uncle, or adult cohabitant of a parent." Id. § 76-5-404.1(3)(h) (2003) (emphasis added).³ Essentially, both versions of the statute provide a general definition of a "position of special trust" as a "position occupied by a person in a position of authority, who, by reason of that position is able to exercise undue influence over the victim." Id. But, the 1998 amendment changed the list of the enumerated positions and eliminated the exclusions.

¶ 15 Version I of the statute...