State v. Close

499 P.2d 287, 28 Utah 2d 144, 1972 Utah LEXIS 818

• Court: Utah Supreme Court
• Decided: July 10, 1972
• Docket: 12554
• Status: Published

Opinions

CROCKETT, Justice:

Defendant appeals from a conviction by jury of the crime of indecent assault upon a child under 14 in violation of Section 76-7-9, U.C.A.1953. The error complained of which we have found to be of controlling importance is the failure to instruct the jury on the lesser offense of simple assault.

On the afternoon of August 16, 1970, the defendant was in swimming at Rainbow Gardens public swimming pool in Ogden, Utah. He was playing with a number of children in the pool and performing various “gymnastics” by tossing them about or flipping them over in the water. He did this with a number of (up to as many as 15) children. Among them was Catherine H...., a girl nine years of age, the alleged victim of the offense charged. She had come to the pool with her sisters M- age 11, and E- age seven. After engaging in these playful antics for some time Catherine told the defendant she had a stomach ache and left the pool. She and her sisters were picked up by her father and taken home. She told her mother that in the process of the play the defendant had “rubbed the front of her legs” and touched the private area (genitalia). There followed notification of the police, arrest, charge and conviction.

In submitting the case the court instructed the jury in Instruction No. 18:

Your verdict in this case must be: Guilty of Indecent Assault upon a Child Under Fourteen as charged in the information or not guilty.

In making his objection 'to this 'instruction submitting the case in that manner the defendant’s counsel stated:

and respectfully excepts to instruction No. 18 in that said instruction amounts to a failure to instruct as to the included offense of simple assault and fails to instruct as to the definition, statutory definition of the crime of assault. [Emphasis added.]

The well established general rule, that the jury should be instructed on lesser included offenses when such a conviction would be warranted by any reasonable view of the evidence, is in accord with and supported by our statutory law. Section 77-33-6, U.C.A.19S3, provides that:

The jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an attempt to commit the offense.¹

We have heretofore held that the offense of simple assault is included in the offense of indecent assault. In State v. Waid this court said:

Indecent assault is an aggravated assault, and simple assault is necessarily included therein.²

This court in a number of decisions has affirmed the rule above stated requiring the submission of lesser included offenses when the evidence and circumstances so justify,³ and has gone further in indicating that even in the absence of an appropriate objection, if it is clear that the interests of justice so require, the court should instruct on included offenses.⁴

Though it is not our prerogative to pass upon the weight or credibility of the evidence, we are concerned with whether there is a basis therein which would justify a verdict of guilty of the lesser offense. The alleged victim Catherine testified that she was alone with the defendant at the time of the occurrence. On that point her testimony is not corroborated. Her sister just older, M- age 11, said that she was responsible for watching over her younger sisters, but that she did not at any time see the defendant and Catherine by themselves. This is in harmony with the testimony given by the defendant. There are other circumstances to be taken into account, including the fact that the incident occurred in the middle of the afternoon and that there were other people in the pool.

As should be apparent from what has been said above, particularly by the defendant’s exception to instruction No. 18, this is not a case where it should be deemed that the defendant made a deliberate choice of risking all or nothing by electing to go to the jury only on the major offense.⁵ Under the circumstances shown we believe that the interests of justice require that the jury should be informed of the lesser and included offense and be given the opportunity to consider it as one of the possible verdicts.⁶

The conviction is reversed and the cause remanded for a new trial, or other appropriate proceedings not inconsistent with this opinion.⁷ No costs awarded.

TUCKETT, J., concurs.

1 . Referring to this statute this court stated in State v. Woolman, 84 Utah 23, 33 P. 2d 640, “The statute allows conviction for any lesser offense necessarily included in the offense charged . . . ” See also State v. Brennan, 13 Utah 2d 195, 371 P. 2d 27 (1962); State v. Rohletter, 108 Utah 452, 160 P.2d 963 (1945); State v. Solomon, 93 Utah 70, 71 P.2d 104 (1937).

2 . 92 Utah 297, 67 P.2d 647 (1937); see also State v. Smith, 90 Utah 482, 62 P.2d 1110 (1936); and State v. Smith, 16 Utah 2d 374, 401 P.2d 445.

3 . See State v. Johnson, 112 Utah 130, 185 P.2d 738; State v. Castillo, 23 Utah 2d 70, 457 P.2d 618; State v. Gillian, 23 Utah 2d 372, 463 P.2d 811.

4 . State v. Cobo, 90 Utah 89, 60 P.2d 952; State v. Poe, 21 Utah 2d 113, 411 P.2d 512 (1968); see also Rule 51, U.R.C.P.

5 . See State v. Mitchell, 3 Utah 2d 70, 278 P.2d 618.

6 . See cases footnotes 2 and 3 above.

7 . That upon determination of prejudicial error defendant is not entitled to go free, but to a new trial see State v. Lawrence, 120 Utah 323, 234 P.2d 600, and authorities therein cited; also see State v. Hyams, 64 Utah 285, 230 F. 349.