State v. Houston

2000 UT App 242, 9 P.3d 188, 401 Utah Adv. Rep. 16, 2000 Utah App. LEXIS 77

• Court: Court of Appeals of Utah
• Decided: August 10, 2000
• Docket: 990393-CA
• Status: Published

Opinions

OPINION

BILLINGS, Judge:

T1 Defendant/appellant Ned M. Houston appeals the trial court's order that he pay restitution to cover expenses incurred by Heather Lowder (Lowder) following defendant's conviction of fornication, sodomy, and trespass. We reverse.

FACTS

12 Defendant and Lowder met while working as missionaries at a Mexican orphanage in the spring of 1998. Consistent with their religious beliefs, the couple agreed not to have sexual intercourse or even kiss until they were married. Defendant returned to Utah in May 1998; Lowder returned in June 1998.

13 On July 4, 1998, following a Fourth of July celebration, defendant and Lowder accepted the invitation of Lowder's seven-and eleven-year-old cousins to sleep outside with them on the cousins' trampoline. Late that night, after everyone was asleep, defendant and Lowder engaged in vaginal and anal intercourse. According to defendant, he believed Lowder had consented to the sexual activity because she "nudged" him and did not resist or say anything when he kissed and fondled her. According to Lowder, however, she did not resist, move or say anything because she was "paralyzed" due to her memories of being sexually abused as a child.

'I 4 The next morning, defendant and Low-der drove around and talked about the events of the previous night. Lowder expressed her anger and asked defendant why he had engaged in sex without her verbal consent. Defendant explained that he believed Lowder was willing and that he would not have continued to engage in sexual relations if Lowder had expressed her unwilling ness. Defendant asked Lowder to drive him to the police station and press charges against him. She refused, telling defendant to turn himself in or "live with his guilt." When Lowder stopped at a traffic intersection, defendant jumped from the car and ran away. Lowder drove alone to her parents' home, where she called the police.

1 5 After jumping out of the car, defendant broke into a pet store, telephoned 911, and pleaded for police to arrest him. When the police arrived, defendant lay face down on the ground and asked to be taken away. Ultimately, based upon Lowder's request, the state charged defendant with rape, foreible sodomy, and burglary.

T6 At trial, defendant claimed he lacked the requisite intent for all the crimes. In particular, concerning the sex offenses, defendant argued he had "a reasonable and good faith belief that [Lowder] voluntarily consented to engage in sexual intercourse." The jury acquitted defendant of the rape, forcible sodomy, and burglary charges, but convicted him of the lesser-included offenses of fornication, sodomy, and trespass.

17 As part of defendant's sentence, the trial judge ordered that he pay restitution of $78.00 to the pet store for the glass door he broke and $165.88 to Lowder for out-of-pocket therapy and medical expenses. Defendant agreed to pay for the broken door, but appeals the order of restitution to Lowder.

ISSUE AND STANDARD OF REVIEW

T 8 Defendant argues that because fornication and sodomy criminalize consensual sexual conduct, Lowder was a "coparticipant," not a victim of crime for the purposes of restitution.

T9 "Our review of this question presents an issue of statutory interpretation, which we review for correctness, granting no deference to the trial court's ruling." W.C.P. v. State, 1999 UT App 035, ¶5, 974 P.2d 302; see also State v. Galli, 967 P.2d 930, 937 (Utah 1998). Moreover, in interpreting a statutory provision, courts must view each section "in the context of the entire [legislative] framework to give effect to the entire statutory scheme." State v. Swapp, 808 P.2d 115, 121 (Utah Ct.App.1991).

ANALYSIS

T 10 The trial judge ordered restitution as provided by Utah Code Ann. § 76-3-201(4)(a)(i) (1999) "When a person is con-viected of criminal activity that has resulted in pecuniary damages, ... the court shall order that the defendant make restitution to victims of erime...." "Pecuniary damages" are defined as "all special damages, but not general damages, which a person could recover against the defendant in a civil action arising out of the facts or events constituting the defendant's criminal activities and includes ... medical expenses." Id. § 76-3-201(1)(c) (emphasis added). "Victim" is defined as "any person whom the court determines has pecuniary damages as a result of the defendant's criminal activities," id. § 76-83-201(1)(e)(i), but "does not include any co-participant in the defendant's criminal activities" Id. § 76-3-201(1)(e)(@ii) (emphasis added).

[ 11 The trial judge did not order restitution for fornication because fornication involves consensual sexual conduct.¹ However, the statute defining simple sodomy does not mention voluntary or consensual conduct. See id. $ 76-5-403(1). The trial court therefore declined to rule that Lowder could not be a "victim" of sodomy for restitution purposes and, accordingly, ordered restitution.

{ 12 Our supreme court has explained:

it is clear from the legislative scheme that restitution is not a 'punishment' but a civil penalty whose purpose is entirely remedial, ie., to compensate victims for the harm caused by a defendant and whose likely intent is to spare victims the time, expense, and emotional difficulties of separate litigation to recover their damages from the defendant.

Monson v. Carver, 928 P.2d 1017, 1027 (Utah 1996). An award of pecuniary damages as restitution for crime is justified because proof of a defendant's guilt beyond a reasonable doubt necessarily meets the preponderance of evidence standard establishing civil liability.

113 In the present case, had defendant been convicted of forcible sodomy, Lowder's lack of consent would have been established beyond a reasonable doubt. A fortiori, the "facts and events constituting the eriminal activity" would have supported an award of civil damages; restitution would therefore have been proper. Utah Code Ann. § 76-3-201(1)(c) (1999). However, the jury did not convict defendant of forcible sodomy. Nothing in the jury's verdict establishes lack of consent, whether beyond a reasonable doubt or by a preponderance of the evidence.² Under the facts in effect found by the jury, Lowder would not be able to "recover against the defendant in a civil action." Id. § 76-8-201(1)(e). Therefore, the facts and events constituting simple sodomy do not support the award of restitution to Lowder. Accordingly, we vacate the award of restitution under the sodomy conviction.³

114 I CONCUR: JAMES Z. DAVIS, Judge.

1 . Utah's fornication statute provides: "Any unmarried person who shall voluntarily engage in sexual intercourse with another is guilty of {orni-cation." Utah Code Ann. § 76-7-104(1) (1999) (emphasis added).

2 . The dissent suggests that although the jury did not find beyond a reasonable doubt that Lowder did not consent, Lowder was nevertheless a victim. The dissent states: "we know precisely why defendant was not convicted of rape and forcible sodomy. Although the victim undisputedly did not consent, the jury accepted defendant's position that he reasonably believed she did consent." We disagree. It is improper for us to speculate on why the jury found defendant not guilty of forcible sodomy. We may not look into the reasons behind the verdict of simple sodomy: in convicting defendant of the lesser-included offense, the jury could have believed that Lowder consented or that defendant was reasonably mistaken regarding her consent. Moreover, our appellate review of the cold record can not substitute for the evidence-weighing function of the jury. There was evidence and argument before the jury which would support a finding that Lowder did consent. For example, defendant testified that he felt Lowder nudge him. Lowder did not tell or indicate to defendant that he should stop. Lowder testified that she was able to consent to sexual relations. Defense counsel argued to the jury that Lowder may now claim she did not consent because she felt remorse for failing to keep her religious commitment of abstinence. In sum, defendant cannot be required to pay restitution based on our speculation as to what the jury concluded.

3 . We do not reverse and remand for a hearing to determine if Lowder consented to sodomy as defendant would have a constitutional right to a jury in a civil action to determine if defendant tortiously caused Lowder damage. See Utah R. Civ. P. 38, 39.