State v. Whitaker

• Decision Date: 19 May 2016
• Docket Number: No. 20141110–CA.,20141110–CA.
• Citation: 374 P.3d 56,2016 UT App 104
• Parties: STATE of Utah, Appellee, v. Jared Thomas WHITAKER, Appellant.
• Court: Utah Court of Appeals

374 P.3d 56

2016 UT App 104

STATE of Utah, Appellee

v.Jared Thomas WHITAKER, Appellant.

No. 20141110–CA.

Court of Appeals of Utah.

May 19, 2016.

Margaret P. Lindsay and Douglas J. Thompson, for Appellant.

Sean D. Reyes, Brett J. DelPorto, Salt Lake City, and William M. Hains, for Appellee.

Judge MICHELE M. CHRISTIANSEN authored this Memorandum Decision, in which Judges GREGORY K. ORME and KATE A. TOOMEY concurred.

Memorandum Decision

CHRISTIANSEN

, Judge:

¶ 1 Defendant Jared Thomas Whitaker appeals his conviction of aggravated sexual abuse of a child, a first-degree felony. See Utah Code Ann. § 76–5–404.1 (LexisNexis 2012)

. Defendant contends that the evidence presented at trial was insufficient to support his conviction because it did not prove beyond a reasonable doubt that he had acted “with the intent to arouse or gratify the sexual desire of any person.” See id. § 76–5–404.1(2)

. We conclude that the evidence was insufficient to support an inference of intent beyond a reasonable doubt and therefore reverse Defendant's conviction.

BACKGROUND

¶ 2 On appeal from a bench trial, we view the evidence in the light most favorable to the trial court's findings. Layton City v. Carr, 2014 UT App 227, ¶ 7, 336 P.3d 587

.

¶ 3 Defendant was the stepfather of Jane,¹ who was twelve years old at the time of the events leading to this case. Defendant also had three children with Jane's mother, ranging in age from six to nine years old. After Defendant and Jane's mother separated, Jane and her half-siblings regularly visited Defendant on weekends and holidays. By all accounts, Jane considered Defendant her father, as she was raised alongside Defendant's biological children. At the time of this incident, around Thanksgiving 2013, Defendant was living at his brother's home, and Jane and her half-siblings came to visit him.

¶ 4 On the night in question, Jane was asleep in Defendant's bed, located in a basement laundry room, when he arrived home after working late. Defendant's children occasionally slept in his bed, and it was not uncommon for Defendant to come home from work and find Jane or another child sleeping in his bed. Jane testified at trial that, on this night, she saw Defendant take his shirt off and get into the bed. Defendant and Jane were facing away from each other, back to back. After an undetermined amount of time elapsed, Defendant took Jane's hand and slowly put it between his legs, “like on his private part.” Jane's “palm was up” and the position “wasn't very comfortable.” Jane described what she felt as “warm” and “soft.”² Jane testified that, after Defendant moved her hand, he took his hand away from Jane's and did not continue to hold Jane's hand in place. Jane also stated that her hand was between Defendant's legs for “I think a minute, maybe.”³ Jane then got up from the bed, causing Defendant to stop snoring, went to a bathroom upstairs, and “flushed the toilet so he would think that I went to the bathroom.” When Jane returned to the room, “[H]e asked me if I had a bad dream.... [A]nd then he was playing a game on his phone, and then I just went back to sleep.”

¶ 5 In December of 2013, Jane's mother told her that she and her siblings were going back to visit Defendant. Jane told her mother what had happened and said she did not want go, because she “didn't want it to happen again.” Jane's mother contacted the police, who arrested Defendant.

¶ 6 At the resulting bench trial, Defendant testified that he worked long hours around the relevant time period, including two shifts on the day in question. He also testified that he had slept for only three or four hours on the night before the incident occurred. Defendant claimed that he had been extremely tired and that he had no recollection of the events alleged by Jane. According to him, the only thing he remembered after lying down was eating “cereal in the morning” with his daughters. On cross-examination, the prosecutor sought to impeach Defendant's credibility. The prosecutor elicited admissions from Defendant that he had not always been truthful to Jane about his prior drug use.⁴

Further, he acknowledged that he had told Jane that he used “medicine” instead of telling her about his use of illegal drugs.⁵

¶ 7 The trial court, acting as the factfinder, convicted Defendant as charged. In its written findings, the court found that Jane was a credible witness because she testified in “substantial detail” about the evening in question. When the trial court addressed the possibility that Defendant had been asleep during the incident, the court wrote that “there was no substantial indication he was snoring while the event occurred or even [if] he was, snoring is easy to fake and snoring would not impeach her characterization of the event.” Furthermore, the court relied on the lack of evidence of Jane's motive to lie, stating that “no one could come up with any motive for her to fabricate her testimony, which [is] unusual in a case like this where you do have divorced parents involved, and typically there's plenty of motive to go around. But in this case, there was no motive.”

¶ 8 The trial court further found Defendant's testimony not credible. The court commented that the prosecutor had impeached Defendant's testimony by eliciting the fact that Defendant had lied about his prior drug use and had even told Jane that he was taking “medicine” rather than drugs. The court noted, “As this was a case involving only two witnesses, the victim and the defendant, with little direct evidence to corroborate for the testimony of either, the result must necessarily turn on credibility.” The court did not discuss intent, a requisite element of the crime, in its findings. Defendant timely appeals.

ISSUE AND STANDARD OF REVIEW

¶ 9 The single issue that requires resolution on appeal is whether the evidence presented at trial was sufficient to support Defendant's conviction. “When reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court's judgment unless it is against the clear weight of the evidence, or the appellate court otherwise reaches a definite and firm conviction that a mistake has been made.” State v. Singh, 2011 UT App 396, ¶ 5, 267 P.3d 281

(brackets, ellipsis, citation, and internal quotation marks omitted).

ANALYSIS

¶ 10 “We recognize proof of a defendant's intent is rarely susceptible of direct proof and therefore the prosecution usually must rely on a combination of direct and circumstantial evidence to establish this element.” State v. Murphy, 617 P.2d 399, 402 (Utah 1980)

. However, “ ‘before we can uphold a conviction it must be supported by a quantum of evidence concerning each element of the crime as charged from which the [factfinder] may base its conclusion of guilt beyond a reasonable doubt.’ ” Spanish Fork City v. Bryan, 1999 UT App 61, ¶ 5, 975 P.2d 501 (alteration in original) (quoting Murphy, 617 P.2d at 402 ). “ ‘[A] guilty verdict is not legally valid if it is based solely on inferences that give rise to only remote or speculative possibilities of guilt.’ ” Id. (quoting State v. Workman, 852 P.2d 981, 985 (Utah 1993) ).

¶ 11 The State bears the burden of proving each and every element of a criminal offense beyond a reasonable doubt. See State v. Crowley, 2014 UT App 33, ¶ 7, 320 P.3d 677

; see also

State v. Herrera, 895 P.2d 359, 368 (Utah 1995). The elements of aggravated sexual abuse of a child relevant to this case are that (1) the defendant was in a position of special trust in relation to the victim, (2) the victim was a child under the age of fourteen at the time of the offense, (3) the defendant caused the victim to take indecent liberties with the defendant, and (4) the defendant acted “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.” See Utah Code Ann. § 76–5–404.1(1)(b), (2), (4)(h) (LexisNexis 2012).

¶ 12 Defendant argues that the State failed to produce evidence sufficient to prove beyond a reasonable doubt that Defendant acted with the requisite intent. The State responds that intent was properly inferred from circumstantial evidence. The question before us is whether the trial court's implicit inference—that, beyond a reasonable doubt, Defendant acted with the intent to arouse or gratify the sexual desire of any person—is against the clear weight of the evidence.

¶ 13 “It is well established that intent can be proven by circumstantial evidence.” State v. Holgate, 2000 UT 74, ¶ 21, 10 P.3d 346

(citation and internal quotation marks omitted). “[Intent] may be inferred from the actions of the defendant or from surrounding circumstances.” State v. Murphy, 674 P.2d 1220, 1223 (Utah 1983). “The factfinder ... is entitled to draw all reasonable inferences from the facts and from the actions of the defendant.” State v. Cooley, 603 P.2d 800, 802 (Utah 1979). “When intent is proven by circumstantial evidence, we must determine (1) whether the State presented any evidence that [the defendant] possessed the requisite intent, and (2) whether the inferences that can be drawn from that evidence have a basis in logic and reasonable human experience sufficient to prove that [the defendant] possessed the requisite intent.” Holgate, 2000 UT 74, ¶ 21, 10 P.3d 346 (citation and internal quotation marks omitted).

¶ 14 Circumstantial evidence has routinely been used to prove specific intent. See, e.g., In re D.M., 2013 UT App 220, 310 P.3d 741

(affirming delinquency adjudication for sexual abuse of a child); State v. Bair, 2012 UT App 106, 275 P.3d 1050 (entering conviction for sexual abuse of a child); State v. Singh, 2011 UT App 396, 267 P.3d 281 (affirming conviction for sexual abuse of a child); State v. Watkins, 2011 UT App 96, 250 P.3d 1019 (affirming conviction for aggravated sexual abuse of a child), rev'd on other grounds, 2013 UT 28, 309 P.3d 209 ; State v. Maness, 2010 UT App 370U, 2010 WL 5452078 (affirming conviction for forcible...