State v. Arave

2009 UT App 278, 220 P.3d 182, 639 Utah Adv. Rep. 25, 2009 Utah App. LEXIS 284, 2009 WL 3030406

• Court: Court of Appeals of Utah
• Decided: September 24, 2009
• Docket: 20070308-CA
• Status: Published

Opinions

OPINION

DAVIS, Judge:

1 Defendant Lonnie C. Arave challenges his conviction of attempted sodomy on a child, a first degree felony, see Utah Code Ann. §§ 76-4-101, 76-5-408.1 (2008). We affirm.

BACKGROUND

T2 On May 10, 2006, Defendant noticed D.B., an eleven-year-old boy, riding his skateboard in the neighborhood where the two resided. After spotting D.B., Defendant got on his bicycle and rode in D.B.'s direction. Defendant caught up with D.B. and stopped about two feet in front of him, blocking his path on the street. Defendant told D.B. he would pay him twenty dollars if D.B. would let Defendant perform oral sex on him. Defendant also told D.B. that he wanted to "lick him from head to toe." After D.B. failed to respond to Defendant's requests, Defendant asked D.B. to not tell anyone what had happened. At some point, Defendant noticed that D.B. was visibly shaken and apologized for "grossing him out." D.B. then rode home on his skateboard, erying, where he told his mother what had happened. D.B.'s mother called the police, and Defendant was apprehended later that same day.

1 3 Detective Dewain Sorensen interviewed Defendant about the incident. During the interview, Defendant admitted that he had watched D.B. skateboard up and down his street for approximately one month and that "this one particular kid[, D.B.,] I fixated on a little bit." Defendant also admitted that he had a "habit" of excessive masturbation, that his fantasies had become "a little twist[ed]," and that he "acted out a sick fantasy" in approaching D.B. and making the sexual request.

T 4 Defendant was charged with attempted sodomy ¹ on a child, a first degree felony. See id. A preliminary hearing was held in May 2006, at which point the Defendant and the State stipulated to the facts but did not make argument as to the bindover of Defendant; instead, the trial court requested that the parties brief the issues. Accordingly, in June 2006, the parties presented argument regarding whether Defendant should be boundover on the charge of attempted sodomy on a child. Defendant admitted there was probable cause for the charge of solicitation to commit sodomy on a child, but that there was not probable cause for the charge of attempted sodomy on a child. Unpersuaded, the trial court issued written findings of fact, conclusions of law, and an order binding Defendant over for trial on the charge of attempted sodomy on a child.

T5 The case was tried before a jury on November 28 and 29, 2006. At the close of the State's case, Defendant moved to dismiss the charge of attempted sodomy on a child, claiming that there was insufficient evidence to warrant submitting the charge to the jury. Defendant also moved to limit any conviction to solicitation to commit sodomy on a child under the Shondel doctrine, stating that the State had failed to prove any elements beyond that offense. The trial court denied the motions but instructed the jury on both solicitation to commit sodomy on a child and attempted sodomy on a child. The jury ultimately convicted Defendant of the more serious offense of attempted sodomy on a child.

T 6 Defendant subsequently filed a motion to arrest judgment,² which the trial court denied. In March 2007, Defendant was sentenced to an indeterminate term of three years to life in the Utah State Prison, where he is currently incarcerated. Defendant now appeals.

ISSUES AND STANDARDS OF REVIEW

17 Defendant raises two issues on appeal. First, he contends that solicitation of sodomy on a child, see Utah Code Ann. §§ 76-4-208, 76-5-403.1 (2008), proscribes exactly the same conduct as attempt to commit sodomy on a child, see id. §§ 76-4-101, 76-5-4083.1, thus entitling him to the entry of the lesser charge under the Shondel doe-trine, see State v. Shondel, 22 Utah 2d 343, 453 P.2d 146, 148 (1969). Review under the Shondel doctrine "focuses on the trial court's legal conclusions, which we review under a correction-of-error standard, according no particular deference to the trial court's ruling." State v. Kent, 945 P.2d 145, 146 (Utah Ct.App.1997) (internal quotation marks omitted).

T8 Second, Defendant argues that there was insufficient evidence to send the case to the jury on the more serious charge of attempted sodomy on a child. When a party moves for dismissal based upon a claim of insufficiency of the evidence,

we apply the same standard used when reviewing a jury verdict.... Stated more fully, if upon reviewing the evidence and all inferences that can be reasonably drawn from it, the court concludes that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt, we will uphold the denial of a motion to dismiss.

State v. Hamilton, 2003 UT 22, ¶ 41, 70 P.3d 111 (internal quotation marks and citation omitted).

ANALYSIS

I. Applicability of the Shondel Doctrine

19 Defendant claims that the Shondel doctrine should apply because the statutes prohibiting attempted sodomy on a child, see Utah Code Ann. §§ 76-4-101, 76-5-408.1, and the statutes proscribing solicitation of sodomy on a child, see id. §§ 76-4-208, T6-5-403.1, contain precisely the same elements. In other words, Defendant contends that the two statutes are "wholly duplicative" because the State is not required to prove any additional element to obtain a conviction for the greater charge of attempted sodomy on a child. We disagree.

110 The Shondel doctrine requires that "criminal laws must be written so that ... the exact same conduct is not subject to different penalties depending upon which of two statutory sections a prosecutor chooses to charge." State v. Williams, 2007 UT 98, ¶ 10, 175 P.3d 1029 (omission in original) (internal quotation marks omitted). Thus, the Shondel doctrine "applies only when two statutes are wholly duplicative as to the elements of the crime." Id. (14 {(emphasis added) (internal quotation marks omitted). Further, when analyzing a Shondel claim, the conduct of the defendant and the facts of the particular case are irrelevant; instead, "only the content of the statutes matters." Id. "Accordingly, to determine if the trial court erred ... we must compare the plain language of [the two statutes in question] to resolve whether ... the elements of each crime are "wholly duplicative." State v. Fedorowicz, 2002 UT 67, ¶ 49, 52 P.3d 1194.

11 In this case, the plain language of the two statutes at issue is not wholly duplica-tive, and therefore, the Shondel doctrine does not apply. The offense of attempted sodomy on a child requires that an actor, with the intent to commit sodomy on a child, engage in conduct constituting a substantial step in furtherance of the offense. See Utah Code Ann. §§ 76-4-101, 76-5-408.1. In contrast, the offense of criminal solicitation requires that an actor, with the intent that a felony be committed, solicit another person to commit the offense. See id. § 76-4-208. In other words, the plain language of the criminal solicitation statute contemplates that criminal solicitation is confined to those situations where a defendant solicits a third party to commit a felony-here, sodomy on a child-while attempted sodomy on a child is limited to situations where the defendant directly attempts to commit sodomy on the child victim. Accordingly, we conclude that the statutes are not wholly duplicative and that the Shondel doctrine does not apply.

II. Motion to Dismiss

112 Defendant next argues that the trial court erred when it denied his motion to dismiss and sent the case to the jury to decide if Defendant was guilty of solicitation of sodomy on a child or attempted sodomy on a child. Specifically, Defendant contends that "there was no evidence presented at trial that [Defendant] took any other substantial step for [his] action to constitute attempt" other than merely "stopping and talking with" D.B.³

When evaluating whether the State produced sufficient "believable evidence" to withstand a challenge [to a motion to dismiss] at the close of the State's case ... we apply the same standard used when reviewing a jury verdict.... "[If upon reviewing the evidence and all inferences that can be reasonably drawn from it, [an appellate] court concludes that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt," [the court] will uphold the denial of a motion to dismiss.

Hamilton, 2003 UT 22, ¶ 41, 70 P.3d 111 (citation omitted).

¶13 The State met its burden to produce "believable evidence" of all of the elements of attempted sodomy on a child, which elements are drawn from two statutes, the criminal attempt statute, see Utah Code Ann. § 76-4-101 (2008), and the sodomy on a child statute, see id. § 76-5-408.1. Under that statutory scheme, an actor is guilty of attempted sodomy on a child if, with the specific intent ⁴ to commit sodomy on a child under fourteen years old, the actor engages in conduct constituting a substantial step in furtherance of that crime. See id. §§ 76-4-101, 76-5-408.1. This approach reflects the definition of erimi-nal attempt "employed in the Model Penal Code, § 5.01, purposed on drawing the line further away from the final act and enlarging the common law concept." State v. Pearson, 680 P.2d 406, 408 (Utah 1984). Moreover, this approach focuses on what the actor has already done, as opposed to what actions remain to be done to complete the crime. See id.

14 With this framework in mind, we do not agree, as the dissent contends, that Defendant was merely "testing the waters" with D.B. to see whether an attempt would be successful, see infra 125. Rather, the facts of this case demonstrate that Defendant took a substantial step in furtherance of his specific intent to sodomize D.B., and had D.B. "consented," the sodomy would have occurred. The undisputed facts presented at trial are as follows: (1) Defendant spotted eleven-year-old ⁵ D.B. riding his skateboard in the neighborhood where the two resided; (2) Defendant then got on his bicycle and specifically rode in D.B.'s direction, where he caught up with D.B. and stopped two feet in front of him, essentially trapping him in a physical space on the street; (8) Defendant told D.B. he would pay him twenty dollars if D.B. would let Defendant perform oral sex on him; (4) Defendant then told D.B. that he wanted to "lick him from head to toe"; (5) D.B. declined Defendant's offers, after which Defendant, perhaps worried about the potential repercussions of his actions, apologized for "grossing him out"; and (6) after the incident, D.B., who was visibly shaken, rode home on his skateboard erying. These facts, viewed in a light most favorable to the verdict of the jury, see State v. Hamilton, 2003 UT 22, ¶ 2, 70 P.3d 111, provide sufficient believable evidence on each of the elements of attempted sodomy on a child. Thus, we conclude it was not error for the trial court to send the charge to the jury.

1 15 Moreover, at the close of all evidence in the case, the trial court specifically instructed the jury on the elements of both solicitation to commit sodomy on a child and attempt to commit sodomy on a child. After receiving both instructions, the jury nonetheless concluded that Defendant was guilty of the more serious charge of attempted sodomy. The jury's verdict, especially where the jury was given the option to convict Defendant of the lesser charge of solicitation to commit sodomy, lends further weight to the trial court's denial of Defendant's motion to dismiss. Cf. State v. Widdison, 2000 UT App 185, ¶ 59, 4 P.3d 100 ("[ Wle conclude the trial court properly denied defendant's motion to dismiss. Because we conclude that sufficient evidence supported the jury's verdict, we necessarily conclude that the evidence was sufficient to support the trial court's denial of defendant's motion to dismiss." (internal quotation marks omitted)).

116 In light of the foregoing, and after reviewing the evidence presented as well as the reasonable inferences that can be drawn from it, we "conclude[ ] that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt." Hamilton, 2003 UT 22, 141, 70 P.3d 111 (internal quotation marks omitted). We will not improperly substitute our judgment for that of the jury and, accordingly, we affirm the trial court's denial of Defendant's motion to dismiss.

CONCLUSION

[ 17 We determine that the plain language of the statutes at issue is not wholly duplica-tive and, therefore, the Shondel doctrine is inapplicable. We also determine that there was sufficient evidence that Defendant took a substantial step toward the commission of sodomy on a child to send the attempt charge to the jury, and that it is inappropriate for this court to substitute its judgment for that of the jury. Accordingly, we affirm the trial court's decision in all respects.

118 I CONCUR: CAROLYN B. McHUGH, Judge.

1 . Sodomy on a child is defined as "any sexual act upon or with a child who is under the age of 14, involving the genitals or anus of the actor or the child and the mouth or anus of either person, regardless of the sex of either participant." Utah Code Ann. § 76-5-403.1 (2008).

2 . In his motion to arrest judgment, Defendant reargued his claim that the evidence was insufficient to convict him of attempted sodomy and that under the Shondel doctrine, he was entitled to the entry of the lesser charge of solicitation.

3 . Defendant cursorily argues that convicting him for attempted sodomy on these facts violates the First Amendment. We decline to address this argument because it is inadequately briefed, see Bernat v. Allphin, 2005 UT 1, ¶ 38, 106 P.3d 707.

4 . Defendant does not argue that he lacked the requisite intent under the attempted sodomy statute; indeed, his intent to sodomize D.B. is clear. Instead, Defendant challenges only the sufficiency of the evidence regarding the substantial step element. Accordingly, we only address that element.

5 . Although we decline to focus on the seriousness of the offense because of D.B.'s age, his age is important evidence of whether Defendant took a substantial step toward commission of sodomy. An eleven-year-old child is much less likely than an adult to have the maturity, power, and presence of mind necessary to refuse an adult's inappropriate sexual advances and break contact with the perpetrator before any abuse occurs.