State v. Whitaker

2016 UT App 104

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JARED THOMAS WHITAKER,
Appellant.

Memorandum Decision
No. 20141110-CA
Filed May 19, 2016

Fourth District Court, Provo Department
The Honorable Samuel D. McVey
No. 141401107

Margaret P. Lindsay and Douglas J. Thompson,
Attorneys for Appellant
Sean D. Reyes, Brett J. DelPorto, and William M.
Hains, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and KATE A.
TOOMEY concurred.

CHRISTIANSEN, Judge:

¶1 Defendant Jared Thomas Whitaker appeals his conviction
of aggravated sexual abuse of a child, a first-degree felony. See
Utah Code Ann. § 76-5-404.1 (LexisNexis 2012). Defendant
contends that the evidence presented at trial was insufficient to
support his conviction because it did not prove beyond a
reasonable doubt that he had acted “with the intent to arouse or
gratify the sexual desire of any person.” See id. § 76-5-404.1(2).
We conclude that the evidence was insufficient to support an
inference of intent beyond a reasonable doubt and therefore
reverse Defendant’s conviction.
 State v. Whitaker

BACKGROUND

¶2 On appeal from a bench trial, we view the evidence in the
light most favorable to the trial court’s findings. Layton City v.
Carr, 2014 UT App 227, ¶ 7, 336 P.3d 587.

¶3 Defendant was the stepfather of Jane, 1 who was twelve
years old at the time of the events leading to this case. Defendant
also had three children with Jane’s mother, ranging in age from
six to nine years old. After Defendant and Jane’s mother
separated, Jane and her half-siblings regularly visited Defendant
on weekends and holidays. By all accounts, Jane considered
Defendant her father, as she was raised alongside Defendant’s
biological children. At the time of this incident, around
Thanksgiving 2013, Defendant was living at his brother’s home,
and Jane and her half-siblings came to visit him.

¶4 On the night in question, Jane was asleep in Defendant’s
bed, located in a basement laundry room, when he arrived home
after working late. Defendant’s children occasionally slept in his
bed, and it was not uncommon for Defendant to come home
from work and find Jane or another child sleeping in his bed.
Jane testified at trial that, on this night, she saw Defendant take
his shirt off and get into the bed. Defendant and Jane were facing
away from each other, back to back. After an undetermined
amount of time elapsed, Defendant took Jane’s hand and slowly
put it between his legs, “like on his private part.” Jane’s “palm
was up” and the position “wasn’t very comfortable.” Jane
described what she felt as “warm” and “soft.” 2 Jane testified

1. We employ the pseudonym Jane to protect her privacy.

2. The prosecutor asserted in the opening statement that the
contact had been “skin to skin” and that Defendant “moved his
hand up to where he was touching [Jane’s] breasts.” However,
no testimony was elicited supporting either of these claims and
(continued…)

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that, after Defendant moved her hand, he took his hand away
from Jane’s and did not continue to hold Jane’s hand in place.
Jane also stated that her hand was between Defendant’s legs for
“I think a minute, maybe.” 3 Jane then got up from the bed,
causing Defendant to stop snoring, went to a bathroom upstairs,
and “flushed the toilet so he would think that I went to the
bathroom.” When Jane returned to the room, “[H]e asked me if I
had a bad dream . . . . [A]nd then he was playing a game on his
phone, and then I just went back to sleep.”

¶5 In December of 2013, Jane’s mother told her that she and
her siblings were going back to visit Defendant. Jane told her
mother what had happened and said she did not want go,
because she “didn’t want it to happen again.” Jane’s mother
contacted the police, who arrested Defendant.

¶6 At the resulting bench trial, Defendant testified that he
worked long hours around the relevant time period, including
two shifts on the day in question. He also testified that he had
slept for only three or four hours on the night before the incident
occurred. Defendant claimed that he had been extremely tired
and that he had no recollection of the events alleged by Jane.
According to him, the only thing he remembered after lying

(…continued)
no findings were entered regarding them. Nevertheless,
Defendant’s presentencing report repeated them as fact.

3. During direct examination of Jane, defense counsel asked the
trial court to repeat Jane’s response to a question because
counsel had not heard her answer. According to the trial
transcript, Jane had testified that Defendant had not held her
hand on his penis. The court characterized this testimony as “she
said that he—that he didn’t hold her hand, it just—she said he
just kept doing it, is what she said.” It is not clear what the trial
court believed Jane had testified Defendant “kept doing.”

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 State v. Whitaker

down was eating “cereal in the morning” with his daughters. On
cross-examination, the prosecutor sought to impeach
Defendant’s credibility. The prosecutor elicited admissions from
Defendant that he had not always been truthful to Jane about his
prior drug use. 4 Further, he acknowledged that he had told Jane
that he used “medicine” instead of telling her about his use of
illegal drugs. 5

¶7 The trial court, acting as the factfinder, convicted
Defendant as charged. In its written findings, the court found
that Jane was a credible witness because she testified in
“substantial detail” about the evening in question. When the trial
court addressed the possibility that Defendant had been asleep
during the incident, the court wrote that “there was no
substantial indication he was snoring while the event occurred
or even [if] he was, snoring is easy to fake and snoring would
not impeach her characterization of the event.” Furthermore, the
court relied on the lack of evidence of Jane’s motive to lie, stating
that “no one could come up with any motive for her to fabricate
her testimony, which [is] unusual in a case like this where you
do have divorced parents involved, and typically there’s plenty
of motive to go around. But in this case, there was no motive.”

¶8 The trial court further found Defendant’s testimony not
credible. The court commented that the prosecutor had
impeached Defendant’s testimony by eliciting the fact that

4. Neither Defendant nor the State alleged that Defendant was
under the influence of drugs at the time of the incident.

5. The prosecutor’s questions appear to have been calculated to
elicit responses suggesting a lack of candor in an unrelated
context for the sole purpose of impeaching Defendant’s
credibility. Yet a parent’s mischaracterization of his drug or
alcohol use in conversation with his children hardly seems a
reliable bellwether of general credibility.

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 State v. Whitaker

Defendant had lied about his prior drug use and had even told
Jane that he was taking “medicine” rather than drugs. The court
noted, “As this was a case involving only two witnesses, the
victim and the defendant, with little direct evidence to
corroborate for the testimony of either, the result must
necessarily turn on credibility.” The court did not discuss intent,
a requisite element of the crime, in its findings. Defendant timely
appeals.

ISSUE AND STANDARD OF REVIEW

¶9 The single issue that requires resolution on appeal is
whether the evidence presented at trial was sufficient to support
Defendant’s conviction. “When reviewing a bench trial for
sufficiency of the evidence, we must sustain the trial court’s
judgment unless it is against the clear weight of the evidence, or
the appellate court otherwise reaches a definite and firm
conviction that a mistake has been made.” State v. Singh, 2011 UT
App 396, ¶ 5, 267 P.3d 281 (brackets, ellipsis, citation, and
internal quotation marks omitted).

ANALYSIS

¶10 “We recognize proof of a defendant’s intent is rarely
susceptible of direct proof and therefore the prosecution usually
must rely on a combination of direct and circumstantial evidence
to establish this element.” State v. Murphy, 617 P.2d 399, 402
(Utah 1980). However, “‘before we can uphold a conviction it
must be supported by a quantum of evidence concerning each
element of the crime as charged from which the [factfinder] may
base its conclusion of guilt beyond a reasonable doubt.’” Spanish
Fork City v. Bryan, 1999 UT App 61, ¶ 5, 975 P.2d 501 (alteration
in original) (quoting Murphy, 617 P.2d at 402). “‘[A] guilty
verdict is not legally valid if it is based solely on inferences that

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 State v. Whitaker

give rise to only remote or speculative possibilities of guilt.’” Id.
(quoting State v. Workman, 852 P.2d 981, 985 (Utah 1993)).

¶11 The State bears the burden of proving each and every
element of a criminal offense beyond a reasonable doubt. See
State v. Crowley, 2014 UT App 33, ¶ 7, 320 P.3d 677; see also State
v. Herrera, 895 P.2d 359, 368 (Utah 1995). The elements of
aggravated sexual abuse of a child relevant to this case are that
(1) the defendant was in a position of special trust in relation to
the victim, (2) the victim was a child under the age of fourteen at
the time of the offense, (3) the defendant caused the victim to
take indecent liberties with the defendant, and (4) the defendant
acted “with intent to cause substantial emotional or bodily pain
to any person or with the intent to arouse or gratify the sexual
desire of any person.” See Utah Code Ann. § 76-5-404.1(1)(b), (2),
(4)(h) (LexisNexis 2012).

¶12 Defendant argues that the State failed to produce
evidence sufficient to prove beyond a reasonable doubt that
Defendant acted with the requisite intent. The State responds
that intent was properly inferred from circumstantial evidence.
The question before us is whether the trial court’s implicit
inference—that, beyond a reasonable doubt, Defendant acted
with the intent to arouse or gratify the sexual desire of any
person—is against the clear weight of the evidence.

¶13 “It is well established that intent can be proven by
circumstantial evidence.” State v. Holgate, 2000 UT 74, ¶ 21, 10
P.3d 346 (citation and internal quotation marks omitted).
“[Intent] may be inferred from the actions of the defendant or
from surrounding circumstances.” State v. Murphy, 674 P.2d
1220, 1223 (Utah 1983). “The factfinder . . . is entitled to draw all
reasonable inferences from the facts and from the actions of the
defendant.” State v. Cooley, 603 P.2d 800, 802 (Utah 1979). “When
intent is proven by circumstantial evidence, we must determine
(1) whether the State presented any evidence that [the

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defendant] possessed the requisite intent, and (2) whether the
inferences that can be drawn from that evidence have a basis in
logic and reasonable human experience sufficient to prove that
[the defendant] possessed the requisite intent.” Holgate, 2000 UT
74, ¶ 21 (citation and internal quotation marks omitted).

¶14 Circumstantial evidence has routinely been used to prove
specific intent. See, e.g., In re D.M., 2013 UT App 220, 310 P.3d
741 (affirming delinquency adjudication for sexual abuse of a
child); State v. Bair, 2012 UT App 106, 275 P.3d 1050 (entering
conviction for sexual abuse of a child); State v. Singh, 2011 UT
App 396, 267 P.3d 281 (affirming conviction for sexual abuse of a
child); State v. Watkins, 2011 UT App 96, 250 P.3d 1019 (affirming
conviction for aggravated sexual abuse of a child), rev’d on other
grounds, 2013 UT 28, 309 P.3d 209; State v. Maness, 2010 UT App
370U (affirming conviction for forcible sexual abuse); State v.
Tueller, 2001 UT App 317, 37 P.3d 1180 (affirming conviction for
sexual abuse of a child); State v. Hall, 946 P.2d 712 (Utah Ct. App.
1997) (affirming conviction for aggravated sexual abuse of a
child). In each of these cases, circumstantial evidence existed
from which intent to arouse or gratify sexual desire could
reasonably be inferred with a basis in logic and human
experience. For example, circumstantial evidence of intent has
included expressions of love and kissing the victim, Singh, 2011
UT App 396, ¶ 9; entering a massage room early, moving a
concealing drape, touching the victims’ genitalia and breasts
“during a massage procedure that should be performed without
touching the genitalia,” and lingering after administering a
massage, Maness, 2010 UT App 370U, para. 4; being caught lying
on top of the victim, holding her legs open and her panties
down, in a bathroom stall, Tueller, 2001 UT App 317, ¶ 19; daring
the victim to crawl under a futon before pulling down the
victim’s pants and touching the victim’s testicles, In re D.M.,
2013 UT App 220, ¶¶ 2, 11; and entering the sleeping victim’s
room without a legitimate reason, kissing the side of the victim’s
head for three minutes, rubbing the victim’s buttocks for two

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minutes, and paying the victim, which payment was
accompanied by instructions not to tell anyone about the money,
Watkins, 2011 UT App 96, ¶¶ 3, 18, rev’d on other grounds, 2013
UT 28. Additionally, in both Singh and Maness, the existence of
multiple victims (and consequently multiple similar acts)
supported an inference of intent. See Singh, 2011 UT App 396,
¶ 9; Maness, 2010 UT App 370U, para. 4.

¶15 In contrast, here, the State relied entirely on Jane’s
testimony that Defendant had placed her hand on his penis and
that Jane’s hand remained there for up to a minute. As noted
above, there was no testimony regarding skin-to-skin contact, see
supra ¶ 4 note 2, no evidence that Defendant had in any other
way acted suggestively or made suggestive comments to Victim,
and no indication that Defendant had attempted to ensure Jane’s
silence. 6 Nor was there evidence that Defendant held Jane’s hand
in place or otherwise manipulated it. In short, the State produced
no evidence beyond the physical act of moving Jane’s hand—
palm up—to Defendant’s penis to satisfy the State’s burden of
proving beyond a reasonable doubt Defendant’s intent to arouse
or gratify the sexual desire of himself or any other person.

¶16 Moreover, the limited facts that were adduced at trial did
not support every aspect of the State’s opening statement, see
supra ¶ 4 note 2, and the court did not identify what evidence it
relied on to infer Defendant’s intent. Instead, the trial court’s
findings of fact focused almost exclusively on the relative
credibility of Jane and Defendant. The court stated that because
there was little direct evidence to corroborate either Jane’s or
Defendant’s testimony, “the result must necessarily turn on
credibility.” And the State had apparently impeached

6. The State elicited testimony from Jane that Defendant had
given her a tablet computer for her birthday. Jane was unsure of
whether she received the gift before or after the incident.

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Defendant’s general credibility in the eyes of the factfinder. See
supra ¶ 6 & note 5. But even discounting Defendant’s testimony
that he had no memory of any events between going to bed that
night and eating cereal the next morning, and crediting Jane’s
testimony, 7 we are unable to see how the trial court could infer
beyond a reasonable doubt that Defendant, while awake, acted
with the intent to arouse or gratify his or another person’s sexual
desire rather than acting involuntarily while asleep. Our review
is unfortunately hindered by the brevity of the trial court’s
findings, which omitted any discussion of how the element of
intent had been proven. With respect to the elements of the
offense, including intent, the trial court’s findings stated only
that “Based on the foregoing findings, the elements of the
charged offense are proven beyond a reasonable doubt in that
defendant was acting in a position of trust, authority and care
over a 12 year old and guided her hand to touch his sexual
organ. The Court therefore finds him guilty . . . .” In short, it
seems probable that the trial court credited the State’s opening
argument (rather than Victim’s account) over Defendant’s
defense, even though elements of that opening statement were
not supported by any testimony adduced during trial.

7. The State emphasizes Jane’s testimony that Defendant was not
snoring and therefore she believed he was not asleep. But the
disjointed questions posed to Jane make it unclear whether this
testimony described Defendant at the time he moved her hand
to his penis, when Jane got up from the bed and left the room, or
after she returned from the bathroom. Jane also testified that she
had previously reported that Defendant was snoring when he
moved her hand and that “he was snoring . . . the whole time.
And then he stopped when I got up.” While we agree with the
trial court that snoring is not to be equated with sleeping, Jane’s
testimony simply does not demonstrate beyond a reasonable
doubt that Defendant was or was not sleeping when he moved
her hand to his penis.

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 State v. Whitaker

¶17 We defer to the trial court’s credibility determination and
thus accept Jane’s testimony as true. Indeed, even Defendant
testified that Jane had no reason to make up a story or lie.
Nevertheless, and even discounting Defendant’s testimony that
he did not remember anything happening that evening, there
was no additional evidence from which Defendant’s intent could
be inferred beyond a reasonable doubt. In essence, the State
asserts an evidentiary presumption that the physical act of
touching amounts to prima facie evidence of an intent to do so
for the purpose of arousing or gratifying sexual desire. Such a
holding would effectively and impermissibly shift the burden of
proof regarding intent onto the defendant so long as the physical
act element is proven. See Francis v. Franklin, 471 U.S. 307, 313
(1985) (“The Due Process Clause of the Fourteenth Amendment
protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged. This bedrock, axiomatic and
elementary constitutional principle prohibits the State from
using evidentiary presumptions . . . that have the effect of
relieving the State of its burden of persuasion beyond a
reasonable doubt of every essential element of a crime.”
(brackets, citation, and internal quotation marks omitted)); accord
State v. Crowley, 2014 UT App 33, ¶ 7, 320 P.3d 677 (same).

¶18 The central issue was whether Defendant acted with the
intent to arouse or gratify the sexual desire of any person. Jane
testified at trial that Defendant placed her hand, palm up, on his
penis. Although “the reviewing court will stretch the evidentiary
fabric as far as it will go,” “this does not mean that the court can
take a speculative leap across a remaining gap in order to sustain
a verdict.” State v. Pullman, 2013 UT App 168, ¶ 14, 306 P.3d 827
(citation and internal quotation marks omitted). Though intent
may generally be inferred from circumstantial evidence, that
ability is not limitless. “When intent is proven by circumstantial
evidence, we must determine (1) whether the State presented
any evidence that [the defendant] possessed the requisite intent,

20141110-CA 10 2016 UT App 104
 State v. Whitaker

and (2) whether the inferences that can be drawn from that
evidence have a basis in logic and reasonable human experience
sufficient to prove that [the defendant] possessed the requisite
intent.” State v. Holgate, 2000 UT 74, ¶ 21, 10 P.3d 346 (citation
and internal quotation marks omitted). Here, the State did not
present evidence other than the act itself, which act was not a
typical sexual activity, to provide a basis from which logic and
reasonable human experience would suggest, beyond a
reasonable doubt, that Defendant had acted with the requisite
intent. 8 Consequently, the trial court’s apparent adoption of such
an inference is against the clear weight of the evidence, and we
cannot sustain the resulting judgment. See State v. Singh, 2011 UT

8. We recognize that, in most cases, proof of a sexual act will
itself provide a basis from which a factfinder may permissibly
rely on logic and human experience to infer intent beyond a
reasonable doubt. See, e.g., State v. Maness, 2010 UT App 370U,
para. 4 (affirming a conviction for forcible sexual abuse where,
among other things, the defendant touched the victims’ genitalia
and breasts “during a massage procedure that should be
performed without touching the genitalia”). But this is not such
a case. On the contrary, the evidence presented at trial did not
suggest that this touching had the “logic and human experience”
hallmarks of hand-to-penis contact intended for the purposes of
sexual gratification. Specifically, it appears from the record that
the back of Jane’s hand touched Defendant’s penis through his
clothes. There was no evidence that Defendant removed his
pants or that there was skin-to-skin contact. Moreover, there was
no evidence that Defendant attempted to manipulate Jane’s hand
or have Jane manipulate it while it was in contact with
Defendant’s penis. In addition, the State did not elicit any
testimony from Jane that Defendant made sounds or movements
suggestive of sexual pleasure. And finally, according to Jane,
Defendant’s penis remained “soft” throughout the brief time
that the back of Jane’s hand was in contact with it.

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 State v. Whitaker

App 396, ¶ 5, 267 P.3d 281; see also Spanish Fork City v. Bryan,
1999 UT App 61, ¶ 5, 975 P.2d 501 (“‘[A] guilty verdict is not
legally valid if it is based solely on inferences that give rise to
only . . . speculative possibilities of guilt.’” (quoting State v.
Workman, 852 P.2d 981, 985 (Utah 1993))).

CONCLUSION

¶19 To convict Defendant, the State needed to prove that he
acted with the intent to arouse or gratify the sexual desire of any
person. Though such intent can generally be proved by
circumstantial evidence, the State presented no evidence other
than the act itself to the trial court. This physical act, without
more, was not sufficient evidence to prove beyond a reasonable
doubt that Defendant intended to arouse or gratify his or
another’s sexual desire. And while we will not second-guess the
trial court’s determination that Jane’s testimony was credible, we
conclude that the State failed to elicit testimony from which the
requisite intent could be inferred beyond a reasonable doubt.
The trial court’s judgment of conviction is therefore against the
clear weight of the evidence.

¶20 Conviction reversed.

20141110-CA 12 2016 UT App 104