State v. Gibson, 20140283–CA.

• Decision Date: 22 January 2016
• Docket Number: No. 20140283–CA.,20140283–CA.
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Appellee, v. David Allen GIBSON, Appellant.

366 P.3d 876

STATE of Utah, Appellee,

v.David Allen GIBSON, Appellant.

No. 20140283–CA.

Court of Appeals of Utah.

Jan. 22, 2016.

Michael P. Studebaker, Ogden, for Appellant.

Sean D. Reyes and Karen A. Klucznik, Salt Lake City, for Appellee.

Judge STEPHEN L. ROTH authored this Opinion, in which Judges MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred.

Opinion

ROTH, Judge:

¶ 1 David Allen Gibson appeals from a single conviction for aggravated sexual abuse of a child, a first degree felony.¹ We affirm.

¶ 2 Gibson was charged with two counts of aggravated sexual abuse of a child based on events that transpired on the night of January 26, 2013. On that night, the victim (Child) and her stepsister visited Gibson's daughter at his home. Both girls ultimately asked to stay overnight, and Gibson gave them permission to do so. Child alleged that during the night, Gibson inappropriately touched her twice, once when he sat on her back and put his hand "down the back of [her] pants," touching her buttocks, and later, when he brought her a blanket, covered her with it, and proceeded to put his hand inside of her pants and rub her vagina for three to four minutes. That same night, Child returned to her parents and informed them of what had occurred. The police were called, and Gibson was subsequently arrested and charged.

¶ 3 Gibson proceeded to trial on two counts of aggravated sexual abuse of a child. At the conclusion of the two-day trial, the jury returned a verdict of guilty on one count and acquitted him on the other.

¶ 4 On appeal, Gibson makes several arguments related to motions and objections made by his counsel during the proceedings. Gibson first argues that there was insufficient evidence to support a conclusion that the sexual abuse was aggravated and, consequently, that the trial court erred in denying his motion for a partial directed verdict reducing the charges from first degree to second degree felonies. He next argues that the trial court committed reversible error when it allowed a witness who he alleges had attended the preliminary hearing to testify at trial. He also contends that, in convicting him of one count and not the other, the jury returned inconsistent verdicts that required the trial court to grant him a new trial. He finally argues that the trial court erred by not giving a jury instruction on sexual battery as a lesser included offense.

ANALYSIS

I. Partial Directed Verdict

¶ 5 Gibson was charged with first degree felony aggravated sexual abuse of a child based on the State's contention that he held a position of special trust with respect to Child at the time of the offenses. He argues that the trial court committed reversible error by "holding [that] [he] was a person for aggravating factors within the definitions of the Aggravated Sexual Abuse statutory language" and that the trial court should have granted his motion for a partial directed verdict, reducing the charges to second degree felonies, because the evidence was insufficient to prove aggravating factors. In particular, Gibson contends that because " ‘a parent of the alleged victim's friend’ is not specifically listed by [the applicable] statute, ... he does not fit into the definition of a position of special trust." When reviewing the denial of a directed verdict motion, "[w]e will uphold the trial court's decision if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyonda reasonable doubt." State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (alteration in original) (citation and internal quotation marks omitted). The State contends that Gibson failed to marshal most of the evidence that supported the trial court's ruling and, consequently, he has failed to carry his burden to show that the trial court committed reversible error. We agree.

¶ 6 Under Utah law, "[a] person commits sexual abuse of a child if ... the actor touches the anus, buttocks, or genitalia of any child, ... or otherwise takes indecent liberties with a child, ... with the intent to arouse or gratify the sexual desire of any person." Utah Code Ann. § 76–5–404.1(2) (LexisNexis 2012).² Sexual abuse of a child is a second degree felony. Id. § 76–5404.1(3). The crime becomes a first degree felony if the circumstances include at least one aggravating factor. Id. § 76–5–404.1(4), (5). The aggravating factor alleged by the State in this case is that Gibson "occupied a position of special trust in relation to the victim." Id. § 76–5–404.1(4)(h).

¶ 7 The statute in effect at the time Gibson committed the charged acts defined position of special trust as the "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. The statute also included a non-exhaustive list of people presumed to "occupy ‘position[s] of authority’ " vis-à-vis a child, such as "baby-sitter" or "stepparent." Id.; see also State v. Watkins, 2013 UT 28, ¶ 37, 309 P.3d 209 (stating that the "enumerated positions refer to those who occupy ‘position[s] of authority’ " (quoting Utah Code Ann. § 76–5–404.1(4)(h) )). Our supreme court has interpreted the applicable version of the statute to mean that even if the defendant held a "position of authority" specifically listed in the statute, the State still must show "that the position gave the defendant the ability to exercise undue influence over the victim." Watkins, 2013 UT 28, ¶ 39, 309 P.3d 209 (internal quotation marks omitted).³ But Gibson has not identified any case that has held that the enumerated positions of authority were exclusive, as he seems to argue; rather, the statutory list only describes particular relationships that "suffice[ ] to establish ... that the defendant occupied a position of authority." Id. (internal quotation marks omitted). The fact that Gibson did not occupy a position on the list did not foreclose the State's ability to prove the aggravating factor; it merely meant that the prosecution was required to show that he was in an actual position of authority under the particular circumstances rather than that he occupied a specified status. See Utah Code Ann. § 76–5–404.1(4)(h).

¶ 8 With respect to Gibson's insufficient evidence claim, we have stated that determining whether a person occupies a position of special trust is "generally ... a fact-sensitive inquiry for the trier of fact" because "[a]pplication of the statute must focus on how a particular position is used to exercise undue influence—a very fact-sensitive analysis." State v. Tanner, 2009 UT App 326, ¶¶ 16, 18, 221 P.3d 901. As a consequence, the jury's determination on this point is entitled to considerable deference and will not be overturned unless it is clearly erroneous. See Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35, ¶ 40, 308 P.3d 382 (explaining that "[f]indings of fact are entitled to the most deference" and that "[s]uch findings are accordingly overturned only when clearly erroneous" (citation and internal quotation marks omitted)).

¶ 9 Gibson asserts that the circumstances here are significantly less compelling than in other cases where we have determined that defendants occupy positions of special trust.⁴ But he does not attempt to analyze the facts in this case in light of the deferential standard of review. Rather, Gibson simply states that he was not in a position of special trust, because unlike the defendant in State v. Rowley, 2008 UT App 233, 189 P.3d 109, Gibson "did not babysit or supervise" and was not "expected to supervise" Child, "there [were] no instances where [he] exercised authority" over Child, and "there [were] no indications of past sleep-overs." He also asserts that unlike in Tanner, 2009 UT App 326, 221 P.3d 901, "the children were never instructed that they were under [his] authority" and he was "likely not able to discipline [Child]." According to Gibson, he was simply "in his own home, working and tending to chores" when he "was visited by [Child] without any agreement on his own part."

¶ 10 Whatever merits Gibson's assertions may have, however, are obscured by his failure to adequately identify and engage with the evidence supporting the trial court's decision. See State v. Nielsen, 2014 UT 10, ¶¶ 41–42, 326 P.3d 645 (repudiating the "default notion of marshaling" but reiterating that "a party challenging ... sufficiency of the evidence to support a verdict will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal"); State v. Mitchell, 2013 UT App 289, ¶ 31, 318 P.3d 238 ("[An] argument that does not fully acknowledge the evidence supporting a finding of fact has little chance, as a matter of logic, of demonstrating that the finding lacked adequate factual support." (citation and internal quotation marks omitted)); see also Utah R. App. P. 24(a)(9) ("A party challenging a fact finding must first marshal all record evidence that supports the challenged finding."). In this regard, Gibson fails to identify or even acknowledge the evidence presented that supported the State's case that he occupied a position of special trust. For example, the State presented evidence that Gibson himself, not his wife, gave permission to Child and her stepsister to stay the night at his house, that Gibson asserted himself by covering Child and her stepsister with blankets even when Child told him that she was not cold, and that Gibson gave the children directions, such as instructing them to be quiet later in the night, much as a baby-sitter or parent would. The State also presented evidence suggesting Child's trust in Gibson; when Gibson first touched her—on the buttocks under her clothing—she perceived it as unintentional, simply a mistake. Further, both his authority and influence were arguably apparent in the evidence that Child made no overt objection when...