(dissenting):
T 15 I do not agree with the majority that the jury's guilty verdict of fornication and sodomy (instead of rape and forcible sodomy) precludes, as a matter of law, any order of restitution. I therefore dissent.
116 At the outset, I feel it necessary to highlight some facts, and do so because they offer strong support for the trial court's conclusion that Lowder was a victim. First, after Lowder refused to drive defendant to the police station to allow defendant to turn himself in, defendant jumped from the car while it was stopped at an intersection. He then broke into a pet shop, called 911, and told the operator he had hurt someone and wanted to be locked up. Second, the morning after defendant committed the sexual acts, Lowder was bleeding from her anus. The nurse that examined her discovered that Lowder had an abrasion and lacerations both on the anus and between the vagina and anus, that the hymen was swollen and lacerated, and that some of the lacerations were still bleeding. The nurse stated that Lowder exhibited "acute mounting injuries," which were consistent with non-consensual intercourse.
17 The majority argues that because defendant was not convicted of the more serious crimes, a lack of consent could not be established. However, because of how this case was presented to the jury, we know precisely why defendant was not convicted of rape and forcible sodomy. Although the vie-tim undisputedly did not consent, the jury accepted defendant's position that he reasonably believed she did consent. The defense consistently took this position at trial.1 For example, defense counsel stated to the jury as follows:
An element or part of the crimes of rape and [forcible] sodomy is that the actor knew his partner did not consensually participate in these acts. In the case before you, this means that the State has the burden of proving beyond a reasonable doubt, that Ned Houston knew Heather Lowder did not consent to the sex they engaged in.
After hearing the evidence, if you have any reason to believe that Ned Houston thought Heather Lowder consented, then you must find Ned Houston not guilty of rape and [forcible] sodomy.
[ 18 The trial court instructed the jury, in instruction number 41, as follows:
In the crime[s] of rape and forcible sodomy, criminal intent must exist at the time of the commission of the [crimes]. There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in sexual intercourse. Therefore if after a consideration of all of the evidence you have a reasonable doubt that the defendant had the necessary intent at the time of the sexual intercoursel[,] you must find him not guilty of rape or forcible sodomy.
In closing argument, recognizing that Low-der did not consent, defense counsel again explained defendant's position as follows:
What [jury instruction number 41] says is that Heather may not have consented. I think it is abundantly clear from her position. We now know she did not feel that she consented. There is no dispute in that. What this says is that even though she says now she did not consent, that at *192the time the act was occurring, you have to look into the mind of Ned Houston and determine whether, after consideration of all of the evidence, you have a reasonable doubt that he had the necessary intent at the time of the sexual intercourse. If he didn't have the intent, it doesn't matter if she didn't consent-she said she didn't consent-if he had a reasonable and good faith belief that she voluntarily consented. Mistakes happen and we are talking about a big mistake here. But it is not rape and it is not forcible sodomy.
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Ned's state of mind is at issue. Was his belief reasonably held that he was engaging in a consensual behavior? ...
The question is not whether she really consented. It is whether he believed she consented. Is it reasonable?
{19 It is clear that the jury did not determine that Lowder consented, but only that defendant reasonably mistook Lowder's response, or lack thereof, for consent. Defendant's convictions of the lesser offenses could therefore have only been based on defendant's mistaken belief, and not on Lowder's actual consent.
120 Given how this case was presented to the jury, the conviction of the lesser offenses does not render Lowder a coparticipant in defendant's crimes. See Utah Code Ann. § 7T6-3-201(1)(e)(ii) (1999) (stating " '[vlictim' does not include any coparticipant in the defendant's criminal activities"). Although defendant may have lacked the mens rea to commit the greater offenses, the preponderance of the evidence clearly demonstrates that Lowder was a victim. As such, she is entitled to restitution for any pecuniary damages she suffered. See Utah Code Ann. § 76-3-201(4)(a)(G) (1999).
121 I would therefore affirm the decision of the trial court ordering defendant to pay Lowder $165.88 in restitution.
. In footnote 2 of the opinion, the majority suggests that defendant urged at trial that Lowder actually consented. That is simply not borne out by the record and, in making the argument, the majority takes the testimony out of context. Defendant has consistently maintained throughout these proceedings only that it was reasonable for him to believe that Lowder consented, not that she actually did consent.