Opinion
Case No. 20000488-CA.
Filed September 7, 2001. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Leslie A. Lewis.
Heather Johnson, Catherine E. Lilly, and John D. O'Connell, Jr., Salt Lake City, for Appellant.
Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee.
Before Judges Greenwood, Jackson, and Bench.
MEMORANDUM DECISION
In challenging the trial court's denial of his motion for directed verdict, Defendant has only partially met his marshaling burden. See State v. Strain, 885 P.2d 810, 819 (Utah Ct.App. 1994). Although Defendant has listed all the evidence and inferences supporting the jury's verdict, he has failed to "demonstrate how this evidence, even viewed in the most favorable light, is insufficient to support the verdict." Id.
Defendant argues that there was insufficient evidence to show that he touched the victim "with the intent to arouse or gratify the sexual desire of any person." Utah Code Ann. § 76-5-404.1(1) (1999). In the absence of any testimony to support his view, Defendant would have us conclude that the touching could have taken place incidentally during the karate instruction. However, we must view the evidence and all reasonable inferences from it in a light that supports the jury's verdict. See State v. Widdison, 2000 UT App 185,¶ 16, 4 P.3d 100. Testimony from the victim revealed that drug use, viewing of pornographic movies, solicitation, and sodomy occurred at Defendant's home while the victim was present. In view of these surrounding circumstances, and the fact that a significant amount of sexual activity and very little karate instruction occurred between the Defendant and the victim, we conclude that the jury reasonably inferred that Defendant touched the victim with the requisite intent under the statute. See State v. Hall, 946 P.2d 712, 724 (Utah Ct.App. 1997) ("[S]o long as there is some evidence, including reasonable inferences, from which findings of all the requisite elements of the crime can reasonably be made, our inquiry stops." (Internal quotations and citations omitted.)).
We also reject Defendant's argument that the first touching incident did not constitute aggravated sexual abuse, but was merely preparation for an act of sodomy. Utah Code Ann. § 76-4-101(1) (1999) requires that to be guilty of an attempt to commit an offense, a person must "engage in conduct constituting a substantial step toward commission of the offense." Id. Defendant did not commit sodomy on that occasion, was not charged with sodomy based on that incident, and there is no evidence that Defendant tried to engage in a sexual act "involving the genitals or anus of the [defendant] or the child and the mouth or anus of either person" at that time. Utah Code Ann. § 76-5-403.1(1) (1999). Rather than constituting an attempt to commit sodomy, the facts of this incident fit squarely within the elements of the offense of aggravated sexual abuse of a child. See Utah Code Ann. § 76-5-404.1.
Defendant also points to Utah Code Ann. § 76-1-402(3)(b) (1999) in support of his argument that the first touching incident was preparation for sodomy rather than a separate offense. Section 402(3) provides, in part:
A defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense. An offense is so included when: . . .
(b) It constitutes an attempt, solicitation, conspiracy, or form of preparation to commit the offense charged or an offense otherwise included therein[.]
Id. Since Defendant was not charged with sodomy based on this incident, the touching he claims was in preparation to commit sodomy cannot be an included offense.
Finally, Defendant argues that there were no aggravating factors warranting his conviction of two counts of aggravated sexual abuse of a child. We disagree. One of the aggravating factors identified in the statute is that the abuser occupied a position of "special trust in relation to the victim." Utah Code Ann. § 76-5-404.1(3)(h). The statute further defines this position as including "adult athletic manager, adult coach, [and] teacher." Id. Defendant argues that because of the informal nature of the karate lessons, his position as a family friend of the victim, and the fact that minimal karate instruction took place during the lessons, he was not in a position of special trust. However, Defendant fails to acknowledge that the list of people in subsection (h) who occupy positions of special trust is not exhaustive.See id. The statute defines a person occupying a position of special trust as one who is "in a position of authority, who, by reason of that position is able to exercise undue influence over the victim." Id.
The trier of fact concluded, and we agree, that Defendant's relationship with the victim was one where, through his position, Defendant was able to exert influence over the victim such that the abuse could occur and be concealed. The informal setting of the karate instruction is not determinative. It is very clear from the record that both the victim and his mother understood that the visits to Defendant's house were for one purpose only — karate instruction. The fact that the Defendant was also a family friend only contributed to his ability to influence the victim. Finally, the fact that more sexual abuse than karate instruction took place at the Defendant's house bolsters the conclusion that Defendant had undue influence on the victim since the abuse started on the date of the first "karate lesson."
We agree with the State that there were other aggravating factors present in this case. However, to warrant a conviction for aggravated sexual abuse of a child, the State need only prove one aggravating factor. Since we have concluded that the State presented sufficient evidence for the jury to conclude that Defendant occupied a position of special trust with the victim, we need not address the other aggravating factors.
Accordingly, Defendant's convictions are affirmed.
Russell W. Bench, Judge
WE CONCUR: Pamela T. Greenwood, Presiding Judge; Norman H. Jackson, Associate Presiding Judge.