State v. Hirschi

• Decision Date: 27 July 2007
• Docket Number: No. 20060199-CA.,20060199-CA.
• Citation: 2007 UT App 255,167 P.3d 503
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jeff Delease HIRSCHI, Defendant and Appellant.
• Court: Utah Court of Appeals

167 P.3d 503

2007 UT App 255

STATE of Utah, Plaintiff and Appellee, v. Jeff Delease HIRSCHI, Defendant and Appellant.

No. 20060199-CA.

Court of Appeals of Utah.

July 27, 2007.

Phillip W. Dyer and Carey A. Seager, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Karen A. Klucznik, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before Judges BILLINGS, McHUGH, and ORME.

OPINION

ORME, Judge:

¶ 1 Accepting his conviction of simple assault, see Utah Code Ann. § 76-5-102 (2003), Defendant Jeff Delease Hirschi appeals his conviction of forcible sexual abuse, see id. § 76-5-404, arguing that there was insufficient evidence to support his conviction. We conclude that the State's evidence was sufficiently inconclusive for a jury to find, beyond a reasonable doubt, that Hirschi touched the victim's buttocks. Accordingly, we remand for the trial court to set aside Hirschi's conviction of forcible sexual abuse and to enter instead a conviction of sexual battery.

BACKGROUND

¶ 2 At the outset, we note that this case presents an unusual circumstance. The jury, in all candor, appears to have gotten its verdicts backward. As the events described below show, the evidence did not support a conviction of forcible sexual abuse but surely seems to have supported a conviction of aggravated assault rather than simple assault. The jury found, however, that the sexual offense—the repeated flicking of the victim's underwear and grabbing her buttocks twice, which the State concedes is on the low end of sexual abuse—rose to the level of forcible sexual abuse, a second degree felony, rather than sexual battery, a class A misdemeanor.¹ At the same time, the jury found that the assault—grabbing the victim by her neck, pushing her to the ground, and strangling her for ten seconds to the point that she could no longer fight and almost blacked out—only amounted to simple assault, a class B misdemeanor, rather than aggravated assault, a third degree felony.²

¶ 3 The relevant incidents took place on the night of March 4, 2005, at the Rock Bottom Bar, an establishment owned by Hirschi. Prior to arriving at the Rock Bottom that night, Hirschi began drinking vodka mixed with cranberry juice around 4:00 p.m. at home, each drink containing approximately two ounces of vodka. He poured himself a new drink about every fifteen to thirty minutes until his roommate dropped him off at the Rock Bottom at around 7:30 or 8:00 p.m., where he continued drinking. Shortly after arriving at the Rock Bottom, Hirschi approached Christina Underwood, an off-duty bartender, and A.K., the victim in this case, who were sitting at the bar. Hirschi introduced himself to A.K. and hugged her in greeting. They conversed for a few minutes, and Hirschi repeatedly invited A.K. to go hot-tubbing at his house. A.K. declined each of these invitations. During this initial conversation, Hirschi, according to A.K., "grabbed at" her partially exposed underwear³ several times.

[H]e just grabbed at it, and I told him to stop. I kept pulling my shirt down, you know, trying to cover myself up. He said, "Oh, leave it. It's cute." I said, "No, it's not cute." He just kept doing it and I kept telling him to stop. He then proceeded to stick his hand down my pants.

According to A.K., after Hirschi "st[u]ck his hand down [her] pants" he groped her buttocks. A.K. agreed that it was a quick grab, with Hirschi's hand entering and exiting her pants in a matter of four to five seconds. Hirschi admitted that "he gave [A.K.'s underwear] a little snuggie" but denied sticking his hand down her pants and groping her buttocks.

¶ 4 A.K. eventually got up and walked away from Hirschi "so he would stop[,]" and Hirschi subsequently left that area of the bar. A minute or two later, A.K. passed Hirschi on her way to the bathroom and "tapped him on the back and said hello."⁴ Hirschi thought this hello tap meant that "she was interested[and] wondered why [he] had left." A.K. testified that she "d[idn't] know why [she] did it," as she was irritated with him regarding his previous behavior. A.K. acknowledged, however, that she was being friendly with the tap and greeting. After about forty minutes, Hirschi returned to stand next to A.K. while she sat at the bar. Hirschi again pulled at her underwear. According to A.K., Hirschi then stuck his hand down her pants and grabbed her buttocks for the second time. A.K. then turned back, leading with her elbow, and "told him to keep his hands off [her]," pushing him with her whole arm to get him off her. Hirschi claimed A.K. "smacked [him] in the eye." At that point, Hirschi and A.K. got into a heated argument and Hirschi "put his hand on [her] neck and said, `How F-ing serious do you want to get?'" A.K. retorted in kind, whereupon Hirschi "grabbed [A.K.] by [her] neck [with both hands] and pushed [her] to the floor" where he choked her for about ten seconds until "[she] couldn't fight him anymore" and almost blacked out.

¶ 5 Hirschi acknowledged that because of his heavy alcohol consumption, his memory of the evening was not perfect. (We think "selective" may be a more accurate characterization.) He testified that he approached A.K. again "to resume flirting with her" and "[t] he next thing that [he] remember[ed was] getting smacked in the eye." He thought, "Wow, where did that come from?" He "remember[ed] pushing her over and saying, `How serious do you want to get?'" He does not, however, remember choking A.K. or putting his hand down her pants. All he remembers doing is giving her underwear a "little snuggie."

¶ 6 Underwood, the off-duty bartender, recalled seeing Hirschi flick A.K.'s underwear once, which she described as a quick pull on the elastic band, making it pop against the skin, but does not remember at what point during the night she saw this. Underwood also testified that, as she was speaking with another friend, she "heard a loud bang" from the chair falling and then looked over and saw both Hirschi and A.K. on the floor. Because she could not see what was happening on the floor, she thought the chair had simply tipped over, and that Hirschi was helping A.K. up, so she turned away to resume her conversation. After A.K. stood up, Underwood testified,

she looked completely distraught. She just—her face was white as a ghost, . . . I mean her eyes were kind of watering like she was in a panic. You could completely tell she was in a panic. I said, "Are you okay?" She said, "No, I'm not. . . . He choked me."

¶ 7 Armondo Reyes, another bar patron, also testified that he "heard the commotion, and she was screaming as she was falling back. . . . [Hirschi] went over the top of her when they were on the ground." Reyes further testified that "she looked like she was frightened [when she got up]. . . . [S]omething wasn't right." A.K. told Reyes that Hirschi "choked her."

¶ 8 Following the choking incident, A.K. and Underwood retreated to the bar's well-lit bathroom and discussed what had happened. Underwood observed red marks on A.K.'s neck. A.K. subsequently called the police. The responding police officer, Sergeant Greg Olsen, testified that A.K. reported Hirschi "had come up and put his hands down the back of her pants and ended up groping her buttocks and also the underwear." Her written statement taken at the scene, however, did not mention that Hirschi stuck his hand down her pants, only that he grabbed at her underwear. Sergeant Olsen also remembered A.K. telling him that as Hirschi choked her, "she came very close to passing out" before he let her go. Although Sergeant Olsen thought A.K. was "emotional," he also found her to be "very coherent. She knew exactly what she was talking about." Finally, Sergeant Olsen testified that A.K. appeared to have been assaulted because her neck had "reddened inflammation where it looked like fingerprints had come around her neck."

¶ 9 Acting on A.K.'s statements, Sergeant Olsen intercepted Hirschi as he was walking away from the bar and arrested him. For her part, A.K. returned to the bar with her friends and remained, socializing and drinking, until closing time.

¶ 10 Sergeant Olsen, Underwood, Hirschi, and A.K. all testified that Hirschi was intoxicated that night. A.K. had been drinking too, but she does not remember exactly how much she drank before the choking incident occurred. More importantly for this appeal, A.K. also testified that she could not remember what type or style of underwear she was wearing. None of the other witnesses testified regarding the style of underwear she was wearing either, nor was any other evidence presented on that subject.

¶ 11 Hirschi was charged with forcible sexual abuse, a second degree felony, see Utah Code Ann. § 76-5-404(1), (2) (2003), and aggravated assault, a third degree felony, see id. § 76-5-103(1)(b), (3). After the State rested at trial, Hirschi's counsel orally moved for "a directed verdict, in the form of either dismissal of the charges or a reduction to the appropriate lesser included misdemeanor offenses[,]" sexual battery, a class A misdemeanor, see id. § 76-9-702(3), (4), and simple assault, a class B misdemeanor, see id. § 76-5-102(1)(c), (2). Rather than ruling on the motion at that time, the trial court stated that it would "preserve [Hirschi's] position as if [the] motion were made at [that] time" and ordered Hirschi to proceed with his evidence. After Hirschi testified, the defense rested and renewed the motion for a directed verdict. The trial court heard both Hirschi's and the State's arguments and stated, "[T]here are questions of fact that the jury must resolve as they relate to each of the two charges, therefore I'm going to deny the motion for a directed verdict."⁵

¶ 12 With regard to the forcible sexual abuse statute, the trial court instructed the jury that if it found Hirschi touched A.K.'s buttocks with the requisite intent and without her consent, it should convict Hirschi of forcible sexual abuse. It further...