Roommates of Non-Custodial Parents are in A Special Position of Trust

Utah v. Watkins, 2011 UT App 96 (Utah Court of Appeals, March 24, 2011).

Watkins convicted of aggravated sexual abuse of a child appeals contending that no reasonable jury could have concluded that he was in a position of special trust with the child. 

The definition of special position of trust includes cohabitants.  Because Watkins was a roommate of the victim’s father and the victim occasionally had overnight visits with her father, Defendant was a cohabitant of the victim and thus, in a special position of trust.

Watkins also argued no reasonable jury could have concluded that his acts were not intended to arouse or gratify his sexual desire.  However, the record indicated he kissed the victim “wetly” on her head for three minutes.  This kiss was combined with his pinching and rubbing of the victim’s buttocks for two minutes.  These facts along with the fact that Watkins offered the victim $100 immediately after the incident, demonstrated that the act was intended to gratify his own desires.

Lastly, Watkins appealed the denial of a new trial based on newly discovered evidence of a text message transmitted by victim’s mother indicating Watkins entered the child’s room to discipline the child (i.e. had not gone in to kiss or otherwise molest the child).  However, the denial was not in error because this same evidence undermines Defendant’s argument at trial, which was that he entered the room because he was in need of human contact because of the loss of his own children.

Affirmed on all issues.

Full Decision available at http://www.utcourts.gov/opinions/appopin/watkins032411.pdf

Prior Bad Act Evidence Requires Shickles Evaluation Prior Sexual Crimes Evidence Requires 404(c) analysis + Shickles Evaluation

Utah v. Ferguson, 2011 UT App 77 (Utah Court of Appeals, March 17, 2011).

Ferguson was convicted of child sex abuse.  Ferguson appealed arguing that his prior bad act evidence should not have been admitted.  The Court of Appeals found that when reviewing the admission of prior bad act evidence the trial court must consider the Shickles factors: (1) strength of the evidence, (2) similarities between crimes, (3) interval of time between crimes, (4) the need for the evidence, (5) the efficacy of alternate proof, and (5) the degree to which the evidence probably will rouse the jury to overmastering hostility.

After considering ALL five factors, the trial court must also consider whether the probative value outweighs the possibility of unfair prejudice.  Additionally, in cases like this, where the State intends to present evidence of similar child molestation crimes, the trial court must additionally find that (1) the crime would be a sexual offense if committed in Utah, (2) that the evidence tends to prove the accused’s propensity to commit the crime charged and (3) whether it passes the balancing test.  See Rule 404(c) of Utah Rules of Evidence

In this case, the trial court failed to conduct the 404(c) test along with the accompanying balancing test.  As such, the trial court erred in failing to conduct the test.  However, because of the overwhelming evidence against Defendant, it was harmless err.

Full Decision available at http://www.utcourts.gov/opinions/appopin/ferguson031711.pdf

Failure to Register as a Sex Offender = Automatic 90 Days in Jail

State v. Dana, 2010 UT App 374 (Utah Court of Appeals December 23, 2010).

Dana pleaded guilty to failure to register as a sex offender.  He was sentenced to one year in jail and 18 months of probation.  The jail time was suspended pending successful completion of probation.  The State appealed the sentence.  The State argued that a person convicted of failure to register is required to serve 90 days in jail as a mandatory sentence.  The Court of Appeals agreed with the state, vacated the sentence, and remanded the case with the instruction that the defendant serve at least his 90 day sentence for failure to register.

Full Decision available at http://www.utcourts.gov/opinions/appopin/dana122310.pdf

Modifications to Statute that Change the Effect of a Plea Bargain During Probation Are Not Ex Post Facto Laws

State of Utah v. Holt, 2010 UT App. 138, (Utah Court of Appeals May 27, 2010).

Holt pleaded guilty to two counts of sexual exploitation of a minor.  As part of the plea, the State agreed to recommend that a reduction in his offense at the satisfactory completion of his probation.  Such an amendment would allow Holt to avoid having to register as a sex offender. While Holt was on probation, the legislature changed statute limiting the court’s ability to amend Holt’s charges as he agreed in the plea agreement.  The Court refused to reduce the offense.  Holt appealed arguing that the change to the statute violated the ex post facto clause and the contract clause of the Constitution.  The Court of Appeals disagreed finding that the amendment to the law did not increase the magnitude of the punishment for the crime and that the underlying penalty was unchanged.  Additionally, while a plea is contract-like, it is not a contract for constitutional purposes.  Further, the plea states that it is not binding on the court.  As such, the Court of appeals affirmed the trial court’s denial of the reduction in charges. The Court did however rule that this change might open the door to a petition to withdraw plea based on the lack of a knowing waiver at the time of the plea.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/holt052710.pdf