State v. Green

• Decision Date: 01 February 2005
• Docket Number: No. 20020725.,20020725.
• Citation: 108 P.3d 710,2005 UT 9
• Parties: STATE of Utah, Plaintiff and Appellee, v. Thomas Arthur GREEN, Defendant and Appellant.
• Court: Utah Supreme Court

108 P.3d 710

2005 UT 9

STATE of Utah, Plaintiff and Appellee, v. Thomas Arthur GREEN, Defendant and Appellant.

No. 20020725.

Supreme Court of Utah.

February 1, 2005.

Mark L. Shurtleff, Att'y Gen., Laura B. Dupaix, Asst. Att'y Gen., Salt Lake City, for plaintiff.

John R. Bucher, Salt Lake City, for defendant.

NEHRING, Justice:

¶ 1 Defendant Thomas Arthur Green appeals his conviction for rape of a child. Mr. Green presents eleven arguments on appeal which, when distilled, mount two central attacks on his one conviction: (1) that the trial court erred when it did not dismiss the child rape charge against him because the applicable statute of limitations had run; and (2) that the trial court did not have jurisdiction to hear the case. We agree with the trial court's rulings on both issues and affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Twelve-year-old Linda Kunz "betrothed" herself to her stepfather, Thomas Arthur Green, in February 1985. When Linda was thirteen years old, she "spiritually married" Mr. Green during a vacation in Mexico. Two months after the marriage, Linda conceived a child, Melvin Morris Green, who was born four months after her fourteenth birthday. Two months later, in order to avoid charges of child molestation, Mr. Green legally married Linda pursuant to Utah law.

¶ 3 In April or May 1999, the Juab County Attorney David O. Leavitt, began to investigate allegations that Mr. Green was guilty of bigamy, in violation of Utah law. The impetus for the investigation was a telephone call Mr. Leavitt received from a news reporter asking that he comment on Mr. Green's polygamous lifestyle. As foundation for his investigation, Mr. Leavitt gathered videotape depicting Mr. Green and his wives as they appeared on various television broadcasts wherein they described and defended their polygamous lifestyle. On one broadcast, Linda and Mr. Green admitted they had married when Linda was fourteen years old. Following up on that admission, Mr. Leavitt reviewed school, welfare, and vital statistics information and, from them, deduced that Linda had been thirteen years of age when she conceived Melvin Green. This evidence led Mr. Leavitt to conclude that the sexual intercourse that resulted in Melvin's conception constituted rape of a child.

¶ 4 In April 2000, the State filed an information charging Mr. Green with one count of rape of a child, four counts of bigamy, and one count of criminal nonsupport. The trial court later granted Mr. Green's motion to sever the rape of a child charge,¹ which is the issue before us on this appeal.

¶ 5 The trial court held a preliminary hearing, and at its conclusion, Mr. Green moved to dismiss the charge. The grounds for his motion to dismiss are the same as those Mr. Green brings to us on appeal: (1) that the statute of limitations had run, and (2) that the court lacked both jurisdiction and venue over the offense. The magistrate denied the motion and bound over Mr. Green for trial on the charge of rape of a child.

¶ 6 Mr. Green then sought to quash the bindover based on a reprise of his earlier arguments. He contended that law enforcement officials had received numerous reports of the alleged rape at a time that would have triggered the running of the statute of limitations and caused it to expire before he was charged. Mr. Green also claimed the court lacked jurisdiction because the sexual relations that formed the basis of the child rape charge occurred in Mexico.

¶ 7 The trial court held six evidentiary hearings on the challenge to the bindover and entered factual findings on each issue raised by Mr. Green. It determined that the State had established that the statute of limitations did not bar the prosecution of Mr. Green. The trial court also turned away Mr. Green's jurisdictional claim, reasoning that the State had adequately demonstrated that Mr. Green had committed criminal solicitation and conspiracy within Utah to commit rape of a child in Mexico.

¶ 8 After Mr. Green waived his right to a jury trial, the trial court convicted him of rape of a child, sentencing him to a prison term of five years to life to be served concurrently with his sentences for bigamy and criminal nonsupport. See supra note 1. This appeal followed.

¶ 9 Before turning to the substantive issues on appeal, we address, again, the vexing and recurring problem posed by parties who bring appeals to us that are handicapped by inadequate compliance with the Utah Rules of Appellate Procedure. Rules of appellate procedure benefit all parties by providing specific, step-by-step procedures for filing, briefing, and arguing an appeal. They thereby prevent an "undue burden [upon] the judiciary's time and energy." MacKay v. Hardy, 973 P.2d 941, 949 (Utah 1998). In this case, our concern centers on the appellant's failure to follow appellate requirements for adequate briefing and marshaling of evidence. See Utah R.App. P. 24(a)(9), (j).

¶ 10 The rules of appellate procedure require adequate briefing. See id. at 24 (detailing the proper format of appellate briefs). The need for a codified mandate that an issue be adequately briefed appears odd. One would reasonably expect a party who goes to the effort to seek appellate review of an issue to expend the energy necessary to persuade us of the merit of his or her cause. Yet, with surprising frequency, this does not occur.

¶ 11 In State v. Gamblin, 2000 UT 44, 1 P.3d 1108, we noted that an appellant's brief was inadequate because it provided no "meaningful legal analysis"; instead, the appellant provided only "one or two sentences stating his argument generally... and then broadly conclud[ed] that [he] was entitled to relief." Id. at ¶ 7. A brief which does not fully identify, analyze, and cite its legal arguments may be "disregarded or stricken" by the court, and we may fine the responsible attorney. Utah R.App. P. 24(j). In fact, this court has declined to address issues on appeal due to inadequate briefing. See, e.g., State v. Gomez, 2002 UT 120, ¶ 29, 63 P.3d 72

(declining to address inadequately briefed issues where there was no analysis except conclusory statements that the appellant was entitled to relief). Our hectoring of parties on this issue should not be misinterpreted as an invitation for longer briefs. It is rather a plea for concise, but thorough, briefing and a warning of the consequences where briefing falls short of the mark.

¶ 12 Additionally, in this case, Mr. Green challenges several of the factual underpinnings of the trial court's rulings. These issues are subject to the marshaling requirements set forth in Utah Rule of Appellate Procedure 24(a)(9). Mr. Green's brief offers us, all too frequently, a disjointed array of facts selected because they aid his cause. Too often, his legal analysis is little more than a conclusory statement unsupported by analysis or authority. Mr. Green also fails to properly cite to the record as required by Utah Rule of Appellate Procedure 24(e), a failing which requires us to research and review the voluminous record ourselves in order to uncover the factual underpinnings of Mr. Green's assertions.

¶ 13 We have repeatedly warned of the risks assumed by an appellant who fails to marshal evidence because "[w]hen an appellant fails to meet the heavy burden of marshaling the evidence, appellate courts are bound to assume the record supports the trial court's factual findings." Justice Michael J. Wilkins et al., Utah Appellate Practice, 2000 Utah L.Rev. 111, 128 (2000) (citing Wade v. Stangl, 869 P.2d 9, 12 (Utah Ct.App.1994)). Despite being justified in turning away, for want of marshaling, all of Mr. Green's fact-dependent issues, we have elected to review several of them on their merits.

ANALYSIS

I. STATUTE OF LIMITATIONS

¶ 14 Mr. Green insists that the trial court applied the wrong statute of limitations to the rape of a child charge and that, had the trial court applied the correct one, it would have been compelled to conclude that the State filed its charges against Mr. Green well after the statute's expiration.

¶ 15 Whether the trial court applied the proper statute of limitations is a matter of law that we review for correctness. State v. Lusk, 2001 UT 102, ¶ 11, 37 P.3d 1103. We review the trial court's findings concerning events relevant to the application of the statute of limitations as questions of fact, which we will not disturb unless clearly erroneous. State v. Daniels, 2002 UT 2, ¶ 18, 40 P.3d 611.

A. Developments in Utah's Statute of Limitations for Rape of a Child

¶ 16 To provide context for Mr. Green's challenge to the trial court's selection of the statute of limitations, we outline the developments of Utah's statute of limitations for the crime of rape of a child between 1986, the year in which Melvin Green was conceived and born, and the present. In 1986, Utah law required that the prosecution of a felony be "commenced within four years after it [was] committed" unless a different time period was "otherwise provided" in the Utah Code. Utah Code Ann. § 76-1-302(1) (1978). Since 1983, Utah law has "otherwise provided" for rape of a child. Id. § 76-1-303(c) (1983). Section 303(c) authorizes prosecution for rape of a child beyond the four-year general felony period where the prosecution is initiated "within one year after the report of the offense to law enforcement officials so long as no more than eight years [had] elapsed since the alleged commission of the offense." Id. For convenience we will refer to the statutory provisions relating to the statute of limitations for rape of a child, which were in effect in 1986, as the "1983 limitations."

¶ 17 Taking January 1986, the month Melvin Green was conceived, as the date of the commission of the offense, the four-year general felony limitation period would have expired in January 1990, and the eight-year maximum span under the 1983 limitations would have elapsed in January 1994. Since the State did not commence its prosec...