State v. D.A.M.G. (State ex rel. D.A.M.G.)
| Docket Number | 20210625-CA |
| Decision Date | 31 August 2023 |
| Parties | STATE OF UTAH, IN THE INTEREST OF D.A.M.G., A PERSON UNDER EIGHTEEN YEARS OF AGE v. D.A.M.G., Appellant. State of Utah, Appellee, |
| Court | Utah Court of Appeals |
1
2023 UT App 101
STATE OF UTAH, IN THE INTEREST OF D.A.M.G., A PERSON UNDER EIGHTEEN YEARS OF AGE
State of Utah, Appellee,
v.
D.A.M.G., Appellant.
No. 20210625-CA
Court of Appeals of Utah
August 31, 2023
Third District Juvenile Court, Salt Lake Department The Honorable Steven K. Beck No. 1189685
Monica Maio, William R. Russell, Hannah Welch, and Hilary S. Forbush, Attorneys for Appellant
Sean D. Reyes and Emily Sopp, Attorneys for Appellee
Judge David N. Mortensen authored this Opinion, in which Judges Ryan M. Harris and Amy J. Oliver concurred.
MORTENSEN, JUDGE
¶1 D.A.M.G. (D.M.)-a minor-and a friend, J.T., decided to skip their morning high school classes and go to J.T.'s house. Courtney,[1] a classmate, joined them. While in J.T.'s room, D.M. and J.T. sexually assaulted Courtney, with D.M. unzipping Courtney's jacket and touching her breasts over and under her
bra.[2] After Courtney begged D.M. to let her go, he stopped touching her. But then J.T. told D.M. to hold Courtney down, and D.M. did so while J.T. continued sexually assaulting Courtney. D.M. also touched Courtney's breasts again after he began holding Courtney down at J.T.'s direction.
¶2 After a trial, the juvenile court found that D.M. had committed aggravated sexual assault and aggravated kidnapping and accordingly adjudicated D.M. delinquent. D.M. then moved to amend the judgment and findings. D.M. argued that the aggravated kidnapping charge merged with the aggravated sexual assault charge because the charged conduct did not involve separate acts. The court found that D.M. committed separate acts amounting to both aggravated sexual assault and aggravated kidnapping. Accordingly, the court denied D.M.'s motion. D.M. now appeals. We agree with the juvenile court that D.M.'s actions constitute separate acts that satisfy the elements of each charge. Therefore, we affirm.
BACKGROUND[3]
¶3 One day, Courtney met up with two supposed friends, D.M. and J.T., and decided to join them in skipping their morning classes and going to J.T.'s house. As the group walked from the school to J.T.'s house, J.T. told Courtney that "they were going to run a train on" her. [4] She didn't understand and asked what that
meant, and "they said that [she] would find out at the house." When they reached the house, they went upstairs to J.T.'s bedroom, where J.T. slapped Courtney on the buttocks. Courtney told J.T. not to do that again. The group then went outside, where they smoked marijuana. After some time, they went back up to J.T.'s room.
¶4 When back in J.T.'s room, J.T. began playing video games while Courtney sat on the edge of the bed and D.M. sat on a couch. J.T. complimented Courtney's pants, and Courtney "awkwardly said thank you." The next thing Courtney knew, she was on the other side of the bed with D.M. on the "upper half of [her] body" and J.T. "on the other half of [her] body." "D.M. was trying to unzip [her] jacket so he could touch [her] breasts," and J.T. "was trying to unzip [her] pants so he could touch" her vagina. Despite Courtney's efforts to fight back, D.M. touched her breasts both over and under her clothes. At trial, she gave the following testimony in response to questioning by the prosecutor:
Q: And at any point did he hold you down, or anything like that
A: When [J.T.] would tell him to.
Q: And did you ever ask the boys to let you leave?
A: D.M.
Q: And did he let you leave?
A: He would for a second.
Q: When you say that he would, what would he do?
A: He would just stop and look at me.
Q: And you said that you'd ask him to stop and he would, just for a minute. . . . [W]hen would he continue?
A: When [J.T.] would ask him to.
Q: And what would he do when he kept going?
A: Continue what he was doing.
Q: And was that touching your breasts and holding you down?
A: Yes.
In later testimony, Courtney stated that D.M. had "started helping" her off the bed after she "beg[ged] him to stop" but then he held her down after J.T. told him to.
¶5 Courtney also testified that J.T. put a condom on and, as he did so, said, "This is what run a train means." D.M. then said he too was going to put a condom on. But Courtney then saw an opportunity to try to escape and attempted to run from the room. In doing so, however, she tripped over J.T.'s weights, and J.T. grabbed her. She went to the corner where D.M. was then sitting on the couch, and J.T. grabbed his belt and started hitting her with it, while D.M. looked on without attempting to intervene.
¶6 At that point, J.T. realized that his mother would be home soon, and he and D.M. grabbed their belongings and started walking back to school. Courtney zipped up her jacket and pants, put on her shoes, and also started walking back to school, leaving some distance between the boys and herself, though she could see them acting "[a]s if it was a joke." Once back at school, Courtney told a friend what had happened and then went into the bathroom and cried.
¶7 Within the next couple of days, Courtney had a conversation with D.M. over Snapchat, and she took pictures of the messages. These photos were admitted at trial, and Courtney read portions aloud. Their conversation, in relevant part, read as follows:
D.M.: [Were] u sad we did dat shit
Courtney: [I]t got me depressed ya.
D.M.: Why though[?] We ain't gonna do dat shit no more
Courtney: [I]magine shit happened to you in your past . . . and then one day you trust 2 boys and your like in your head they playing they playing and I get hit with a belt[,] I get punched, I get held down [and] touched while I'm fighting y'all saying stop and begging you to stop
D.M.: Damn fuck we fucked up forgive us for dat shit u my homegirl[.] And I didn't punch u or hit u[.] I mean we still friends we just ain't gonna say dat shit no more
Courtney: [N]ot you but [J.T.] hit me
D.M.: Damn ok but u forgive us we didn't know dat shit happened too u
Courtney: [I]t's kinda hard[.] I know at the moment y'all weren't thinking, but [I don't know]. I told you guys and y'all didn't stop
D.M.: Well we stopped but we was playing wit u but we didn't know dat happened and I was tryna be
easy on u[.] But you should still kick it wit us[.] And be friends only
Courtney: [T]hat isn't playing when your begging them to stop and they don't and keep holding you down and y'all laughing while doing it and not giving a shit bout how I feel[.] [H]ow would you feel if that happened to you
After investigation, the State charged D.M. with aggravated sexual assault and aggravated kidnapping, and the case proceeded to trial.
¶8 At trial, in addition to having Courtney testify, the State called the detective who was assigned to the case. The court also admitted into evidence a photo showing bruising on Courtney's hand where the belt had struck her.
¶9 After the State rested, D.M.'s defense moved to dismiss the aggravated kidnapping charge, arguing that the State presented no evidence that D.M. restrained Courtney beyond the level of restraint necessary to commit a sexual assault. The court denied the motion, "find[ing] that there is not one act under which two different charges are being sought, but that there are separate acts, which justify each charge."
¶10 D.M. was the sole witness for the defense. He testified that after the group went outside to smoke marijuana, they listened to some music in J.T.'s room. Then D.M. went to the bathroom for a while. He testified that when he came back, Courtney "was just in a way acting weird." He also said that as it got close to lunchtime and the group needed to head back to school, J.T. was changing his clothes and Courtney kept doing something that made J.T. angry, so he hit her with the belt. He claimed that Courtney was flirting with J.T., including repeatedly touching him and sitting on his knee. D.M. asserted that he never kept Courtney in J.T.'s room without her consent, sexually assaulted her, or held her down. When asked why he apologized to her through the
messages, he said he felt bad about J.T. hitting her with the belt and about a comment he had made after she had told them while smoking marijuana that she had been raped before. He said, "I was being messed up to her about it, and I feel like she holds a grudge against me, and so that's why I said, 'My bad.'"
¶11 After hearing closing arguments, the juvenile court found Courtney's testimony to be "believable" and said that her testimony was "supported by the other evidence in the case." The court found that D.M.'s testimony was not believable and was not supported by the exchanged messages or the photo of Courtney's injuries. The court found beyond a reasonable doubt that D.M. had committed both aggravated sexual assault and aggravated kidnapping and adjudicated him delinquent on those grounds.
¶12 After trial, D.M. moved to amend the judgment and findings. D.M. argued that the aggravated kidnapping charge merged with the aggravated sexual assault charge because both charges were based on the same acts. In its order denying the motion, the juvenile court found that D.M. forcibly sexually abused Courtney while J.T. aided and abetted him (the aggravated sexual assault) and that D.M., in a separate act, held Courtney down at the behest of J.T. to aid J.T. in his sexual assault (the aggravated kidnapping) after D.M. had "a crisis of conscience and realized what he was doing was wrong." Specifically, the court found that after J.T. instructed D.M. to hold Courtney down to facilitate J.T.'s assault, D.M.'s "intent at that point had shifted from gratifying his own sexual desire to assisting his co-defendant in the co-defendant's commission or attempted commission of a felony." D.M. now appeals.
ISSUES AND STANDARDS OF REVIEW
¶13 D.M. asserts that "the juvenile court exceeded its...
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