State v. Lusk

• Decision Date: 07 December 2001
• Docket Number: No. 20000378.,20000378.
• Citation: 2001 UT 102,37 P.3d 1103
• Parties: STATE of Utah, Plaintiff and Appellee, v. Karl L. LUSK, Defendant and Appellant.
• Court: Utah Supreme Court

37 P.3d 1103

2001 UT 102

STATE of Utah, Plaintiff and Appellee, v. Karl L. LUSK, Defendant and Appellant.

No. 20000378.

Supreme Court of Utah.

December 7, 2001.

Mark L. Shurtleff, Att'y Gen., J. Frederic Voros, Jr., Asst. Att'y Gen., Salt Lake City, and Scott L. Wyatt, Logan, for plaintiff.

Brian R. Florence, Ogden, for defendant.

RUSSON, Associate Chief Justice:

¶ 1 The State charged defendant Karl L. Lusk ("Lusk") with six counts of aggravated sexual abuse of a child in violation of Utah Code Ann. § 76-5-404.1(3) (1999). Lusk moved the district court to dismiss all six counts on the ground that the counts were time-barred by the statute of limitations. The district court ruled that the statute of limitations had not expired and denied the motion to dismiss. We granted Lusk's petition for permission to appeal the district court's interlocutory order denying his motion to dismiss. We reverse and remand.

BACKGROUND

¶ 2 Between August 1983 and May 1984, two sisters, N.H. and H.H., respectively five and six years old at that time, attended daycare in the home of Lusk's mother. While the girls attended daycare in the home, Lusk allegedly sexually assaulted them and showed them pornography.

¶ 3 Several years later, while teenagers, the girls divulged the alleged sexual abuse to their mother. Neither the girls nor the girls' mother reported the abuse to law enforcement at that time.

¶ 4 Then, in October 1999, the girls' mother learned from a radio news report that Lusk was being sentenced for exposing himself. After discussing Lusk's sentencing with her daughters, the mother reported the earlier purported sexual abuse to the police.

¶ 5 On December 20, 1999, less than three months after the alleged sexual abuse was reported to law enforcement, the State charged Lusk with six counts of aggravated sexual abuse of a child, a first degree felony, in violation of Utah Code Ann. § 76-5-404.1(3) (1999). The State alleged that the offenses occurred in August 1983.

¶ 6 The State filed an amended information on January 5, 2000, claiming that the offenses actually occurred between August 1983 and April 1984. Lusk moved to dismiss, asserting that the statute of limitations had run. On April 20, 2000, the district court denied Lusk's motion to dismiss, ruling that the statute of limitations had not run.

¶ 7 On May 4, 2000, Lusk petitioned this court for permission to appeal the district court's interlocutory order denying the motion to dismiss, and we granted the petition. On May 8, 2000, subsequent to Lusk's petition but before we ruled on the petition, the State filed a second amended information with the district court, realleging the six original counts of aggravated sexual abuse of a child, but also, in the alternative of each count, alleging sexual abuse of a child, a second degree felony in violation of section 76-5-404.1(1) (1999).

¶ 8 On appeal, Lusk argues that as to the first degree aggravated sexual abuse of a child charges, the statute of limitations set forth in section 76-1-302(1)(a) (1978) barred prosecution of such charges since they were not filed within four years after the alleged crimes were committed, as required by the statute. Additionally, as to the charges of second degree sexual abuse of a child, Lusk argues that the statute of limitations set forth in section 76-1-303(c) (1983) barred prosecution.

¶ 9 The issues before this court are (1) which statute of limitations applied to aggravated sexual abuse of a child when Lusk allegedly committed the criminal acts; (2) whether a subsequent amendment extending that limitations period applies retroactively to permit the State to commence a prosecution of Lusk on December 20, 1999; and (3) whether the applicable statute of limitations has run.

STANDARD OF REVIEW

¶ 10 We review the district court's legal conclusions for correctness. State v. Galli, 967 P.2d 930, 933 (Utah 1998). When reviewing legal conclusions for correctness, we grant "no deference to the district [court's] legal determinations." Meadowbrook, LLC v. Flower, 959 P.2d 115, 116 (Utah 1998).

¶ 11 In this case, the determination of which limitations period applies to aggravated sexual abuse of a child is a matter of statutory interpretation, and a court's interpretation of a statute is a legal conclusion to be reviewed for correctness. State v. McGee, 2001 UT 69, ¶ 6, 31 P.3d 531; State v. Burns, 2000 UT 56, ¶ 15, 4 P.3d 795; see also Quick Safe-T Hitch, Inc. v. RSB Sys. L.C., 2000 UT 84, ¶ 10, 12 P.3d 577

. Also, the determination of whether an amendment to a statutory limitations period operates retroactively "is a question of statutory construction, a question of law reviewed by this court under a `correction of error' standard." Brown & Root Indus. Serv. v. Indus. Comm'n, 947 P.2d 671, 675 (Utah 1997); see also Evans & Sutherland Computer Corp. v. State Tax Comm'n, 953 P.2d 435, 437 (Utah 1997) ("Whether a statute operates retroactively is a question of law, which [an appellate court reviews] for correctness. . . ."). Furthermore, whether the statute of limitations has run is a legal conclusion to be reviewed for correctness. See Estes v. Tibbs, 1999 UT 52, ¶ 4, 979 P.2d 823 ("The trial court's application of a statute of limitations presents a question of law [that] we review for correctness." (citing Julian v. State, 966 P.2d 249, 252 (Utah 1998))).

ANALYSIS

I. STATUTES OF LIMITATION

A. Statutory History

¶ 12 A review of the history of the relevant statutes is necessary in order to place the issues on appeal in proper perspective.

¶ 13 Before 1983, the Utah Criminal Code did not specifically proscribe any sexual acts against children. Sexual crimes against children had to be charged under the general statutory crimes of rape, sodomy, or sexual abuse. These crimes were covered by the four-year catchall statute of limitations of section 76-1-302(1)(a) (1978) applicable to all felonies that were not otherwise covered by a crime-specific limitations period. See State v. Lavoto, 776 P.2d 912, 913 (Utah 1989)

(noting that until 1983 catchall statute of limitations of section 76-1-302(1)(a) was applicable to all sexual crimes against children). The 1978 version of that statute provides:

(1) Except as otherwise provided in this part, prosecutions for other offenses are subject to the following periods of limitation:

(a) A prosecution for a felony must be commenced within four years after it is committed. . . .

Utah Code Ann. § 76-1-302(1)(a) (1978)¹ (hereinafter "four-year catchall statute of limitations").

¶ 14 In 1983, the Utah Legislature enacted section 76-5-404.1, which defined the crime of "sexual abuse of a child." According to that section, a person committed sexual abuse of a child if "the actor touche[d] the anus, buttocks, or genitalia of a child, . . . or touche[d] the breast of a female child . . . with intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person." Utah Code Ann. § 76-5-404.1(1) (1983). In addition sexual abuse of a child was subject to minimum mandatory imprisonment terms if the crime was committed under certain enumerated circumstances, e.g., using a weapon, using force, causing bodily injury or severe psychological injury, or involving pornography. Id. § 76-5-404.1(3) (1983). In conjunction with the enactment of that section, the legislature created a new statute of limitations to apply to the crime of sexual abuse of a child. This statute of limitations allowed prosecution of the crime within one year after the report of the offense to law enforcement, so long as the prosecution was commenced within eight years after the alleged commission of the offense. Utah Code Ann. § 76-1-303(c) (1983). Section 76-1-303(c), as enacted in 1983, read in pertinent part:

If the period prescribed in subsection 76-1-302(1) has expired, a prosecution may nevertheless be commenced for:

. . . .

(c) Rape of a child, object rape of a child, sodomy upon a child, or sexual abuse of a child within one year after the report of the offense to law enforcement officials, so long as no more than eight years has elapsed since the alleged commission of the offense.

Id. (emphasis added) (hereinafter "eight-year statute of limitations").

¶ 15 Subsequently, in early 1984, the legislature amended section 76-5-404.1 (1983) to define the crime of "aggravated sexual abuse of a child." Id. § 76-5-404.1(3) (1984). Aggravated sexual abuse of a child was defined as all sexual abuse of a child formerly subject to the minimum mandatory imprisonment terms. All other sexual abuse perpetrated against children remained under the rubric "sexual abuse of a child." See id. § 76-5-404.1(1) (1984). However, the legislature did not alter or amend section 76-1-303(c) to explicitly make the eight-year statute of limitations applicable to aggravated sexual abuse of a child. See id. § 76-1-303(c) (1983) (amended 1991). Indeed, the legislature did not specify any other limitations period to apply to aggravated sexual abuse of a child.

¶ 16 In 1991, the legislature amended section 76-1-303(c),² replacing the eight-year statute of limitations with a limitations period permitting prosecution of sexual abuse of a child anytime "within four years after the report of the offense to a law enforcement agency." Id. § 76-1-303(3) (1991) (hereinafter "four years after report statute of limitations"). Finally, in 1996, the Utah Legislature amended section 76-1-303.5 to specifically enumerate aggravated sexual abuse of a child in the list of crimes to which the four years after report statute of limitations was applicable. Id. § 76-1-303.5 (1996).

B. Aggravated Sexual Abuse of a Child

¶ 17 At issue in this interlocutory appeal is whether the district court correctly denied Lusk's motion to dismiss by ruling that the statute of limitations did not bar prosecution of Lusk for aggravated sexual abuse of a child.

1. Applicable Sta...