State v. Peters, 890714-CA

• Decision Date: 02 August 1990
• Docket Number: No. 890714-CA,890714-CA
• Citation: 796 P.2d 708
• Parties: STATE of Utah, Plaintiff and Appellee, v. John Donald PETERS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 708

796 P.2d 708

STATE of Utah, Plaintiff and Appellee, v. John Donald PETERS, Defendant and Appellant.

No. 890714-CA.

Court of Appeals of Utah.

Aug. 2, 1990.

Robert Van Sciver, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Atty. Gen. and Barbara Bearnson, Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

Before BENCH and GARFF, JJ., and CONDER ¹, Senior District Judge.

OPINION

DEAN E. CONDER, Senior District Judge:

Defendant John Donald Peters appeals his conviction of forcible sexual abuse, a second-degree felony. We affirm.

FACTS

On a January afternoon in 1989, P.P., the 17-year-old victim, left school and walked a few blocks to a bus stop. The weather was cold. After she had waited for a bus about seven minutes, Peters drove up in a pick-up truck and asked her if she wanted a ride. She voluntarily got into his truck and said that she would like a ride to downtown Salt Lake City where she could catch another bus that would take her to her suburban home. At first she had little apprehension, carried on a conversation with Peters, and remarked that she was interested in art. Later on the way, Peters said he had been collecting aluminum cans and wanted to stop at a house where he thought he could find some. He then stopped in a derelict area, left the truck, and was gone a few minutes. P.P. did not then leave the truck.

When Peters returned, he again started driving toward the downtown area, but then made a "U" turn and headed back toward the abandoned house. He told P.P. that there were some paintings inside the house and suggested that she go inside and see them. She said, "I thought, well, what's to lose," and got out of the truck and went toward the house thinking that she would just look through the window, but she followed Peters inside.

Once inside, she realized that the house was totally empty and turned to leave. Peters then "grabbed [her] behind the jacket and pushed [her] in front of him, and forced [her] to go down the hall." He then pushed her into a room at the back of the house and blocked the doorway. Peters was 6 feet 3 inches tall and weighed 330 pounds, and P.P. was 5 feet 9 inches tall and weighed 128 pounds. Peters told P.P. repeatedly and in coarse terms that he wanted to have sexual relations with her, and P.P. resisted, later testifying "I begged him not to rape me, over and over. And I asked him repeatedly not to hurt me and he answered and said, 'I won't hurt you as long as you do what I tell you to do.' " The conversation along these lines continued for about twenty minutes. At one point, Peters asked P.P. how much money she had. She said she would give him all that she had if he would let her go and not harm her. Toward the end of their conversation, Peters placed his hand on her left breast on the outside of her clothing and said, "Let me just see one thing." Peters then apparently changed his mind and told the victim he would take her downtown.

They left the vacant house and returned to the truck. Peters asked P.P., "Are you okay? I am really sorry..... Promise me you'll never take a ride from a stranger ever again because you know, some bastard will take you in some alley and slit your throat." He drove her downtown and let her out the of the truck.

P.P. went into a shopping mall and, crying and upset, phoned a girlfriend to come to her aid. The friend had to travel downtown by bus, and about one and one-half hours passed before they met. The friend persuaded P.P. to go to a police station located in the mall. The detective there said that P.P. was still visibly traumatized when he talked to her, about an hour and a half after the incident.

STANDARD OF REVIEW

Peters was convicted upon a verdict finding him guilty of forcible sexual abuse. This court reviews the evidence in the light most favorable to upholding the verdict, and reverses it only upon a showing that the evidence so clearly preponderates in favor of the appellant that reasonable minds would necessarily have harbored a reasonable doubt on the outcome of the case. See State v. Gardner, 789 P.2d 273, 284-85 (Utah 1989); State v. Dibello, 780 P.2d 1221 (Utah 1989).

FORCIBLE SEXUAL ABUSE

The information charged Peters with forcible sexual abuse, a second-degree felony, in violation of Utah Code Ann. § 76-5-404(1) (1990). That statute reads as follows:

(1) A person commits forcible sexual abuse if the victim is 14 years of age or older and, under circumstances not amounting to rape, object rape, sodomy, or attempted rape or sodomy, the actor touches the anus, buttocks, or any part of the genitals of another, or touches the breasts of a female, or otherwise takes indecent liberties with another, or causes another to take indecent liberties with the actor or another, 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, without the consent of the other, regardless of the sex of any participant.

Peters points out that he did not have a skin-to-skin contact with the victim and argues that his conduct thus did not amount to a violation of section 76-5-404. Peters cites two cases in support of his position, State ex rel. L.G.W., 641 P.2d 127 (Utah 1982) and State ex rel. J.L.S., 610 P.2d 1294 (Utah 1980). In both of those cases, the court held that momentary touching over the victim's clothing with an invitation to sexual activity did not amount to "taking indecent liberties" under section 76-5-404 as it then read. Section 76-5-404 was amended in 1983 to specifically prohibit touching the breast of a female.

The juxtaposition by Peters of section 76-5-404 and the L.G.W. and J.L.S. cases raises two distinct questions of statutory construction in this case: (1) whether the touching of the female breast prohibited in section 76-5-404(1) is a skin-to-skin touching, and (2) whether Peters' conduct constitutes "taking indecent liberties." These questions are, in a basic sense, manifestations of a recurring problem in construing statutes, particularly those prohibiting sex crimes: On the one hand, there is the need to give effect to the legislative intent and penalize sexual abuse, a concept which, in all its possible forms, is extremely difficult to define. On the other hand, there is a need to define the prohibited conduct with precision in order to avoid unconstitutional vagueness and chilling of protected conduct, ² and to avoid attaching the weight of criminal culpability to innocent or innocuous (but possibly indecorous) behavior. ³

Utah courts have addressed this problem by interpreting the broad, catch-all phrases of sex crime statutes (phrases such as "taking indecent liberties") in light of all of the facts and circumstances of the case. Thus, in State v. Bishop, 753 P.2d 439, 481-82 (Utah 1988), ⁴ the court held that the question whether Bishop had taken indecent liberties was not simply a matter of whether he had touched an enumerated body part of the victim. Rather, in determining whether Bishop had taken indecent liberties, the court examined the "totality of the facts," focusing on factors such as:

(1) The nature of the victim's participation (whether the defendant required the victim's participation);

(2) The duration of the defendant's act;

(3) The defendant's willingness to terminate his conduct at the victim's request;

(4) The relationship between the victim and the defendant;

(5) The age of the victim.

Though not enumerated in the list of factors in Bishop, the court also considered how intrusive the act was against the victim's person. Moreover, under the particular facts of a case, any fact would be material which relates to the significance of the defendant's act in terms of its probable consequences and the need to respond with criminal sanctions. With all relevant facts in mind, the court in Bishop compared the facts to the misdeeds specified in the statute, concluded that Bishop's acts were of equal gravity, ⁵ and held that Bishop had taken indecent liberties in violation of the statute.

This inquiry into all of the facts surrounding the event in question contrasts with the simpler inquiry suggested by a proscription against touching a specified body part. Where the defendant has touched a body part specified in the statute, the court inquires into the surrounding factual background only as it may be relevant to other elements of and defenses to the crime. See J.L.S., 610 P.2d at 1296. The result is a statute that clearly specifies and prohibits certain enumerated acts, and then adds a catch-all extending the scope of the statute to cover other sexual misconduct of equal gravity. Id., see also Bishop, 753 P.2d at 482.

Turning to Peters' argument in this case, section 76-5-404 does not specify whether the prohibited touching of an enumerated body part is of a clothed, as well as of a naked part, nor have we been able to glean any information on legislative intent from the legislative history. Absent any express direction from the legislature, we regard the presence of clothing on the touched body part as an important fact in determining whether a defendant has taken indecent liberties.

In light of this and the other relevant facts, Peters's acts constitute "taking indecent liberties" for purposes of the statute prohibiting forcible sexual abuse. Peters enticed the youthful P.P. into the abandoned house by pretense and there detained her against her will for about 20 minutes to serve his sexual purposes. It is in that setting that he placed his hand on the breast of his frightened, pleading victim. To his credit, Peters was not without compunctions or regret, and he did eventually desist; however, on balance, we find his misconduct sufficiently grave to constitute forcible sexual abuse in violation of section 76-5-404(1).

PROSECUTOR'S REMARKS

Evidence was available in this case that, about two weeks after the incident for which Peters was charged, Peters...