State v. Moreno

• Decision Date: 05 May 2005
• Docket Number: Case No. 20030505-CA.
• Citation: 2005 UT App 200,113 P.3d 992
• Parties: State of Utah, Plaintiff and Appellee, v. Benjamin James Moreno, Defendant and Appellant.
• Court: Utah Court of Appeals

2005 UT App 200

113 P.3d 992

State of Utah, Plaintiff and Appellee, v. Benjamin James Moreno, Defendant and Appellant.

Case No. 20030505-CA.

Utah Court of Appeals.

Filed May 5, 2005.

This opinion is subject to revision before publication in the Pacific Reporter.

Margaret P. Lindsay and Patrick V. Lindsay, Provo, for Appellant.

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.

Before Judges Davis, Jackson, and Thorne.

OPINION

THORNE, Judge:

¶1 Benjamin James Moreno appeals the trial court's sentencing order, which issued after Moreno pleaded guilty to one count of sodomy upon a child. See Utah Codenn. § 76-5-403.1 (2003). We affirm.

BACKGROUND

¶2 In early September 2002, Santa Clara, Utah, police officers arrested Moreno as a suspect in a child sex crime that had been reported the previous day. Moreno was alleged to have used bicycle tricks to lure a small group of young boys into the secluded yard of an abandoned house. There, he further lulled the boys into trusting him with additional tricks, and he then approached the youngest boy—a five-year-old—and grabbed him. He removed the boy's pants and placed the child's penis in his mouth. After releasing the five-year-old, Moreno grabbed the boy's eight-year-old brother, fondled him, and attempted to remove his pants. At that point, the children's father entered the yard. The father confronted Moreno, whom he had never seen before, and called 911. Moreno fled on his bicycle.

¶3 While talking to the police, the father and the boys described what had happened and provided a description of the assailant. Moreno was arrested the next day. During his initial interview he admitted to having been at the scene, but claimed that his contact with the children stemmed from curiosity and was not sexually motivated. Moreno was charged with a number of crimes pursuant to this incident, including sodomy on a child and child kidnaping. Soon after his arrest, Moreno entered into a plea agreement with the State and he pleaded guilty to one count of sodomy on a child. See Utah Code Ann. § 76-5-403.1 (2003). The State dismissed all other charges.

¶4 The trial court directed the Department of Adult Probation and Parole (AP&P) to draft a presentence report (PSI) and to ensure that a psycho-social evaluation (PSE) was completed on Moreno prior to the sentencing hearing. As instructed, AP&P completed the PSI, wherein Moreno was described as cooperative with the PSI investigation. He was further described as being very matter-of-fact about the offense, but the investigator noted that he "seemed to minimize its seriousness," and explained that although Moreno admitted to his crimes, he demonstrated no remorse for having committed them. The PSI also discussed Moreno's self-reported history, and noted that he claimed to have been sexually and physically abused as a child, and to have been the victim of "poor parenting" and "abandonment." The PSI further explained that Moreno claimed to have been removed from his birth mother's custody at age ten and adopted by the Moreno family, and that Moreno had been arrested and adjudicated as a juvenile for a sex offense, resulting in his placement in a level VI treatment program for juvenile sex offenders. The PSI concluded with the AP&P investigator's observation that Moreno had demonstrated no circumstances that would mitigate his actions, and thus, it was recommended that Moreno serve a minimum of ten years in prison—the median term set forth in section 76-5-403.1's mandatory minimum prison sentence structure. See id.

¶5 For the PSE, Moreno was interviewed again, and he was given a battery of tests. During the interview, Moreno admitted that he did not remember being sexually abused as a child, but he did remember being sexually active with other children, and he also remembered specific instances of physical abuse. He referred the investigator to the film Radio Flyer when asked to further describe how he had been abused. However, his account was far from detailed, and beyond his movie reference, he made no effort to support his claims. Concerning the events that lead to his arrest, Moreno asserted that he sodomized the boy to determine whether a child's penis could become erect with sufficient stimulation.

¶6 The PSE also discussed the results of the battery of psychological tests given to Moreno. Apparently, Moreno functions at borderline intelligence level, with an estimated IQ of 78. However, the report concluded that he is fully capable of comprehending the inappropriate nature of his behavior. Moreno exhibited deviant tendencies when his sexual responsiveness was tested, with his highest level of sexual arousal occurring during his exposure to scenarios that depicted sexual activity with young boys, specifically with twelve-year-old prepubescent/pubescent boys and with three-year-old boys. Through the interpretation of this information, the interviewing psychologist concluded that Moreno "shows some significant difficulty obeying the standards and values of society" and that he is "prone toward following his own desires regardless of how they impact other people." The PSE also noted that Moreno had "significant problems in regards to his sexuality and the controlling of his impulses and attractions toward prepubescent males" and a tendency to blame others for his crimes. Finally, the PSE informed the trial court that Moreno was avoiding responsibility for his actions and that although he did express regret, he posed a "moderate risk to reoffend."

¶7 Both the PSI and the PSE were submitted to the trial court, and at the outset of the sentencing hearing, the judge stated that he had read, and was familiar with, both documents. The judge then permitted both Moreno and the State to offer evidence in mitigation or aggravation of Moreno's crime. After hearing from both parties, the court found that Moreno had shown only one circumstance in mitigation: the existence of certain disabilities that were apparent from the PSE. In contrast, the court found several factors in aggravation. The court found that although Moreno had previously completed a sexual offender treatment program, he had done nothing to minimize his behavior and that he had, in fact, attempted to use elements of his previous treatment to his advantage in the sentencing hearing. The court also found that the techniques that Moreno used to lure the boys into a secluded and abandoned yard were tantamount to "grooming," and therefore, they were also an aggravating factor. Finally, the court found that the gravity of Moreno's crime was aggravated not only by the unusually vulnerable status of the victims—the youngest victim was merely five years old and small in stature, while Moreno is an adult male over six feet tall and nearing 200 pounds—but also because the incident involved a number of young children who were either directly affected by Moreno's actions or who witnessed the behavior. The court then concluded that the aggravating circumstances "far outweighed" the mitigating circumstances and sentenced Moreno to the maximum, mandatory minimum prison term—a minimum of fifteen years in prison, but possibly life. Moreno now appeals.

ANALYSIS

¶8 Moreno argues that the trial court abused its discretion by ignoring "powerful relevant mitigating evidence that outweighed any aggravating factors." "This court 'traditionally afford[s] the trial court wide latitude and discretion in sentencing.'" State v. Helms, 2002 UT 12,¶8, 40 P.3d 626 (alteration in original) (citation omitted). We will reverse only if we determine that a sentencing court has exceeded its permitted range of discretion, or, stated differently, if we determine that the trial court has "failed to consider all legally relevant factors, or imposed a sentence that exceeds legally prescribed limits." State v. Nuttall, 861 P.2d 454, 456 (Utah Ct. App. 1993). Moreover, our decision is informed by the understanding that "the exercise of discretion in sentencing necessarily reflects the personal judgment of the [trial] court and [we] can properly find abuse only if it can be said that no reasonable [person] would take the view adopted by the trial court." Id. (first and third alterations in original) (quotations and citation omitted).

¶9 Moreno pleaded guilty to sodomy on a child, for which he faced a mandatory minimum prison sentence ranging from five years to fifteen years. See Utah Code Ann. § 76-5-403.1 (2003). By statute, however, the trial court was required to sentence Moreno to the term of middle severity—a minimum term of ten years in prison—unless the court found circumstances that warranted sentencing him to either the greater or the lesser term. See id. § 76-3-201(7) (2003); see also State v. Simmons, 2000 UT App 190,¶19, 5 P.3d 1228. "To impose the greater or lesser mandatory minimum sentence, the trial court must '"(1) identify the mitigating and aggravating circumstances and (2) state the reasons for whichever minimum mandatory sentence is imposed."'" Simmons, 2000 UT App 190 at ¶19 (citation omitted); see also State v. Diaz, 2002 UT App 288,¶27, 55 P.3d 1131 (discussing Utah's mandatory minimum sentencing scheme). However, the trial court's decision is not controlled by an arbitrary mathematical formula. Rather, the trial court is allowed a great deal of discretion in determining the relative weight of competing aggravating and mitigating circumstances in these cases because the trial court is in the best position to ensure that justice is done and to determine whether any "[o]ne factor in mitigation or aggravation [should] weigh more than several factors on the opposite scale." State v. Russell, 791 P.2d 188, 192 (Utah 1990).

¶10 This should not be read to mean that the trial court's sentencing decision is beyond review. The trial court is charged with identifying, on the record, the aggravating and mitigating circumstances that affect its sentencing decision, because "[s]...