State v. Jackson

• Decision Date: 15 September 2011
• Docket Number: No. 20090719–CA.,20090719–CA.
• Citation: 2011 UT App 318,691 Utah Adv. Rep. 6,263 P.3d 540
• Parties: STATE of Utah, Plaintiff and Appellee,v.Martin Ray JACKSON, Defendant and Appellant.
• Court: Utah Court of Appeals

263 P.3d 540

691 Utah Adv. Rep. 6

2011 UT App 318

STATE of Utah, Plaintiff and Appellee,

v.Martin Ray JACKSON, Defendant and Appellant.

No. 20090719–CA.

Court of Appeals of Utah.

Sept. 15, 2011.

Elizabeth A. Lorenzo and Heather Chesnut, Salt Lake City, for Appellant.Mark L. Shurtleff and Christine F. Soltis, Salt Lake City, for Appellee.Before Judges DAVIS, McHUGH, and CHRISTIANSEN.

OPINION

McHUGH, Associate Presiding Judge:

¶ 1 Martin Ray Jackson appeals his conviction for unlawful sexual conduct with a sixteen- or seventeen-year-old (Unlawful Sexual Conduct), see Utah Code Ann. § 76–5–401.2 (2008), arguing that the trial court erred when it denied his motion to arrest judgment because prosecution of the charge was barred by the expiration of the applicable statute of limitations. Jackson further contends that Unlawful Sexual Conduct is not a lesser included offense of rape and, therefore, the longer statute of limitations for rape could not be used to extend the limitations period. We affirm but on a different ground than that relied upon by the trial court.

BACKGROUND

¶ 2 In June 2003, Jackson lived at his parents' house and was forty-three years old. The daughter of Jackson's former wife (Stepdaughter) also lived at the residence and was seventeen at the time. According to Stepdaughter, beginning when she was fifteen years old, she and Jackson used drugs together. One night in June 2003, after using methamphetamine in Stepdaughter's bedroom, Jackson and Stepdaughter stayed awake together while Stepdaughter played video games. Stepdaughter testified that she eventually fell asleep and had “really realistic dreams” that Jackson was having sex with her. She then awakened to find Jackson having sexual intercourse with her, “freaked out,” and yelled at him to leave. Stepdaughter testified that Jackson apologized and left the room, claiming that he did not realize what was happening. Although Jackson did not testify at trial, he pleaded not guilty to the charges, and defense counsel challenged Stepdaughter's credibility at trial.

¶ 3 In February 2005, Stepdaughter's mother learned about the incident from another daughter and reported it to the police. When questioned by the police, however, Stepdaughter denied having sexual intercourse with Jackson and the authorities took no further action at that time. Then, in February 2008, almost five years after the June 2003 incident, Stepdaughter asked Jackson to watch her baby so that she could go out to dinner. Although the baby was sick, Stepdaughter told Jackson the illness was not serious and directed him not to take the baby to the emergency room. Notwithstanding Stepdaughter's instructions, Jackson became concerned and sought medical care for the baby later that night. When Stepdaughter learned what Jackson had done, she became upset and she and Jackson argued. Stepdaughter reported the June 2003 incident to the police a few days later.

¶ 4 Based on Stepdaughter's allegations, the State filed an information against Jackson on March 27, 2008, charging him with rape, a first degree felony in violation of Utah Code section 76–5–402. See Utah Code Ann. § 76–5–402 (2008). In December of that same year, the State amended the information to add the alternative charge of Unlawful Sexual Conduct, a third degree felony. Jackson waived his right to a preliminary hearing on the alternative charge and did not raise any challenge to the amended information.

¶ 5 The charges of rape and Unlawful Sexual Conduct were tried to a jury during three days in May 2009. At the conclusion of the State's case-in-chief, Jackson moved for a directed verdict on both charges, claiming that the State had failed to meet its burden of establishing that Jackson and Stepdaughter had engaged in sexual intercourse. The trial court denied the motion, and Jackson did not renew it at the close of all evidence. The defense maintained throughout trial that the allegations made by Stepdaughter were false. Therefore, Jackson did not argue for conviction on the lesser charge of Unlawful Sexual Conduct.

¶ 6 During its deliberations, the jury sent a note to the trial court, stating,

As we understand, [Stepdaughter] is not able to give consent due to Instruction [thirty-eight, instructing on lack of consent]. The difference we see between Count I Rape and [U]nlawful [S]exual [C]onduct with a [sixteen- or seventeen-] year-old is consent. However, as stated, [Stepdaughter] by law cannot give consent. Our questions are: 1. What are the differences between these charges? Do we understand them correctly? 2. Is the lesser charge applicable? 3. Is it possible to find [Jackson] guilty of the lesser offense?

With the parties' consent, the trial court answered the jury's questions by indicating, “The differences between the Rape charge and [Unlawful Sexual Conduct] are consent and [the] age of [Stepdaughter] and ... Jackson,” and then further instructed the jury that they should reach the Unlawful Sexual Conduct charge “only if you determine that the State of Utah failed to prove one or more elements of rape beyond a reasonable doubt as set forth in Instruction [thirty-five, instructing on the elements of rape].” At that time, defense counsel asked the trial court to instruct the jury on the crime of incest and to reopen the evidence if necessary to establish that the relationship between Stepdaughter and Jackson was sufficient to prove that crime. The trial court denied that request, noting that the jury had already been instructed on Unlawful Sexual Conduct, a lesser included offense of the same level. The statute of limitations for incest is the same as that for Unlawful Sexual Conduct and had expired before the State filed its information and before Jackson requested the instruction on incest.

¶ 7 The jury acquitted Jackson of rape but convicted him of Unlawful Sexual Conduct. Prior to sentencing, defense counsel moved to arrest judgment, arguing that the prosecution of the Unlawful Sexual Conduct charge was barred by the expiration of the four-year statute of limitations. In response, the State argued that because Unlawful Sexual Conduct is a lesser included offense, it could be prosecuted within the eight-year statute of limitations for rape. The trial court agreed and denied the motion to arrest judgment. Jackson now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 8 Jackson argues that the trial court erred when it denied his motion to arrest judgment because Unlawful Sexual Conduct is not a lesser included offense of rape and, therefore, the State could not rely on the longer statute of limitations for rape to prosecute Jackson. Because Jackson challenges the trial court's legal conclusion that Unlawful Sexual Conduct is a lesser included offense of rape and does not challenge the trial court's findings of fact, we review the trial court's decision to deny the motion to arrest judgment for correctness. See State v. Green, 2005 UT 9, ¶ 15, 108 P.3d 710 (“Whether the trial court applied the proper statute of limitations is a matter of law that we review for correctness.”); State v. Chukes, 2003 UT App 155, ¶ 9, 71 P.3d 624 (“Whether one crime is a lesser included offense of another is a question of law reviewed for correctness.” (internal quotation marks omitted)).

¶ 9 The State argues that Jackson forfeited his statute of limitations defense when he did not raise it before or during trial, did not object to the jury considering the Unlawful Sexual Conduct charge, and moved to have the trial court instruct the jury on incest, an offense that is subject to the same statute of limitations as Unlawful Sexual Conduct. Whether and under what circumstances a defendant can lose the benefit of a statute of limitations defense is a question of law, which we review for correctness. See James v. Galetka, 965 P.2d 567, 570 (Utah Ct.App.1998) (“The standard of review for a conclusion of law is one of correctness, giving no particular deference to the trial court's decision.”), cert. denied, James v. Warden, 982 P.2d 88 (Utah 1999).

ANALYSIS

I. Unlawful Sexual Conduct Is Not a Lesser Included Offense of Rape

¶ 10 “An offense is a lesser included offense when ‘[i]t is established by proof of the same or less than all the facts required to establish the commission of [another] offense.’ ” Chukes, 2003 UT App 155, ¶ 9, 71 P.3d 624 (quoting Utah Code Ann. § 76–1–402(3)(a) (2008)).¹ To determine whether one offense is a lesser included offense of another, Utah courts apply a two-part test. See State v. Hill, 674 P.2d 96, 97 (Utah 1983). “The principal test involves a comparison of the statutory elements of each crime.” Id. “If the two crimes are such that the greater cannot be committed without necessarily having committed the lesser, then the lesser offense merges into the greater crime and the State cannot convict and punish the defendant for both offenses.” State v. Ross, 951 P.2d 236, 241 (Utah Ct.App.1997) (internal quotation marks omitted). “Only if [the first analytical step] does not resolve the [issue] need we proceed to the second analytical step.” State v. Brooks, 908 P.2d 856, 862 (Utah 1995). “In most cases, comparison of the statutory elements will suffice to determine whether a greater-lesser relationship exists.” Ross, 951 P.2d at 241. “However, some criminal statutes describe the elements of a crime by a listing of variations in the elements. Under some of these variations, two crimes would be separate under one set of circumstances but lesser included offenses under another.” Brooks, 908 P.2d at 861. “Where such variations exist and there is a theoretical possibility of a lesser included relationship,” Utah courts “look at the evidence actually presented at trial to determine which of the statutory variations were proved and whether those variations created a lesser included relationship between the two charged crimes.” Id.

¶ 11 Therefore, we begin our analysis by comparing the elements of each crime....