In re J.E.G.

2020 UT App 94

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.E.G.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.

STATE OF UTAH,
Appellee,
v.
J.E.G.,
Appellant.

Opinion
No. 20190116
Filed June 11, 2020

Third District Juvenile Court, West Jordan Department
The Honorable Renee Jimenez
No. 1144745

Daniel R. Black, Attorney for Appellant
Sean D. Reyes and Nathan H. Jack,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY
concurred.

ORME, Judge:

¶1 Appellant J.E.G. (JEG) challenges his adjudication as a
delinquent on two counts of sexual abuse of a child under 14. He
argues that the juvenile court erred in allowing the State to
amend its petition after all the evidence was presented, thereby
thwarting his alibi defense and violating the Double Jeopardy
Clause, and in finding that the State met its burden to prove
beyond a reasonable doubt that he committed the offenses. We
disagree and affirm.
 In re J.E.G.

BACKGROUND 1

¶2 Sometime in mid-August 2015, the victim (Victim), her
two sisters, and her mother moved in with JEG’s family. During
some of the time Victim lived there, her mother and JEG’s
mother both worked during the day, which resulted in JEG
accompanying Victim and her younger sister home from school,
where they would remain without any adult supervision until
their mothers returned from work. One day after arriving home,
Victim was alone in the bedroom she shared with her mother
and sisters watching television, when JEG entered and stuck his
hand under Victim’s underwear and touched her genitals for “a
couple minutes.” This type of abuse was not an isolated incident
but occurred “more than once” when JEG and Victim were both
quite young—JEG was 11 or 12 years old, and Victim was 8
years old.

¶3 Around seven months after the last incident of abuse, and
after Victim and her family had moved out of JEG’s home,
Victim told her mother what had happened, but her mother did
not immediately report it to law enforcement. It was not until
nearly two years after the abuse occurred—and more than one
year after Victim disclosed it to her mother—that the abuse was
reported and a detective (Detective) at the Children’s Justice
Center interviewed Victim (the CJC interview). During the CJC
interview, Victim could not identify exactly when the abuse
happened, but she believed that the first incident occurred a few
days after school started in August and the last incident took
place sometime in December.

1. “When reviewing a bench trial, we recite the facts from the
record most favorable to the findings of the trial court.” State v.
Layman, 953 P.2d 782, 784 n.1 (Utah Ct. App. 1998) (quotation
simplified), aff'd, 1999 UT 79, 985 P.2d 911.

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¶4 In 2018, the State charged JEG by petition with two
allegations of sexual abuse of a child under 14 years old. 2 Based
on the CJC interview, the petition stated that the first event
occurred “[b]etween August 1, 2015 and August 31, 2015” and
the second “[b]etween December 1, 2015 and December 31,
2015.”

¶5 At trial, Victim detailed the last time JEG touched her
genitals in the bedroom, but she could not remember the first
time it happened, only that JEG had touched her “[m]ore than
one time” and that it had all taken place when she was in second
or third grade. Detective then testified that based on the CJC
interview, it was “clear to [him] that these alleged incidents
happened only when there were no adults in the apartment” and
that the first incident occurred in “middle to late August.” He
later testified that he understood all the abuse happened
“between August and December of 2015.” A recording of the
CJC interview was then admitted into evidence. In the interview,
Victim told Detective that JEG committed the first instance of
abuse on the “third or fourth day of school” in August 2015.
Victim also told Detective that the last instance of abuse occurred
near the time she and her family moved out of JEG’s home to
live with her grandmother.

¶6 JEG attempted to discredit Victim’s account in three ways.
First, he presented evidence that the abuse could not have taken
place in August or December. Specifically, he contended that
Victim’s mother did not start working until October, suggesting
that her mother would have been home during the alleged
timeframe of the first instance of abuse in August, contradicting

2. Given JEG’s age at the time of the incidents in question, we
recognize that the appropriate exercise of prosecutorial
discretion might instead have led to a referral for counseling or a
diversionary agreement.

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Victim’s consistent statements that no adults were present in the
house when the abuse transpired. And concerning the last
incident of abuse alleged to have occurred in December, JEG
elicited testimony, including from Victim’s mother, that Victim
and her family moved out of JEG’s family home in November,
meaning no instance of abuse could have occurred in December.
Second, JEG testified that he would not have abused Victim
because he is homosexual. Third, JEG’s mother testified that she
kicked Victim’s family out of the house after she caught her
brother and Victim’s mother having sex in the living room. JEG
argued in closing that Victim’s mother might have encouraged
Victim to “fabricat[e] an allegation” against JEG to retaliate
against JEG’s mother and suggested this provided reasonable
doubt that JEG committed the offenses.

¶7 After closing argument, the State moved to conform the
petition to the evidence at trial to change the timeframe charged
in the petition from “[b]etween August 1, 2015 and August 31,
2015” for the first allegation, and “[b]etween December 1, 2015
and December 31, 2015” for the second allegation, to “[o]n or
about August 1, 2015 through December 31, 2015” for both
allegations. JEG responded that the State could not amend the
petition “after [it] has rested, especially not after the defense has
rested.” The juvenile court declined to rule on the motion at the
time and gave the parties one week to brief the issue.

¶8 In his brief, JEG argued that under rule 4 of the Utah
Rules of Criminal Procedure, his “due process rights would be
prejudiced if the State were allowed to amend the Petition after
the close of evidence, and after defense counsel’s closing
argument, when the crux of [his] defense at trial was based on
the dates alleged in the Petition” and “because of the nature of
the allegations in this case and the importance of the dates to
both [Victim’s] allegations and the credibility of defense
witnesses.” JEG also asserted that if the “Court were to allow the
State to amend the Petition, [it] would also have to grant [him] a

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new trial on the amended Petition, such that he could prepare a
defense in accordance with the new allegations, in order to
preserve his rights to due process.”

¶9 The juvenile court granted the State’s motion but ruled
that “[a]lthough Rule 4 does not apply in Juvenile Court cases, it
is clear that the defense prepared their case in relation to the
specific dates listed in [the petition]” and “[i]f the State is
permitted to amend its petition to conform to the evidence
presented at trial . . . [JEG’s] substantial rights of due process are
prejudiced.” The court therefore granted JEG a continuance to
present additional trial testimony and exhibits, if he desired, to
defend against the amended petition and ameliorate the
prejudice it found.

¶10 At a subsequent scheduling conference, the court set
future trial dates, but JEG conceded that he had no additional
evidence to present. He subsequently filed an interlocutory
appeal challenging the court’s ruling, which we denied.
Following our denial, JEG rejected the future trial dates and
submitted the case to the juvenile court, with JEG’s counsel
explaining, “[A]fter reviewing all possible scenarios, we do not
believe that it is possible to remedy or to mitigate the prejudice
that my client has had in this case.” The court subsequently
found JEG delinquent on two counts of sexual abuse of a child
under 14 years of age. 3

¶11 JEG appeals.

3. The juvenile court’s disposition of the case was rather gentle:
probation, therapy, and some community service. JEG does not
challenge the disposition on appeal.

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ISSUES AND STANDARDS OF REVIEW

¶12 JEG raises three issues on appeal. First, he argues that the
juvenile court erred by allowing the State to amend the petition
after the close of evidence and after closing arguments, thereby
prejudicing him and violating his due process rights under the
United States and Utah constitutions. 4 “[W]e review the court’s
decision to permit the prosecution to amend the [petition] only
for an abuse of discretion.” State v. Hamblin, 2010 UT App 239,
¶ 26, 239 P.3d 300.

¶13 Second, JEG contends that the juvenile court violated his
right to be free from double jeopardy by allowing the State to
amend the petition. “We review the trial court’s legal
conclusions for correctness.” State v. Larsen, 2000 UT App 106,
¶ 10, 999 P.2d 1252.

¶14 Third, JEG asserts that the juvenile court erred by finding
the State met its burden to prove the allegations in the amended
petition beyond a reasonable doubt. “When reviewing a juvenile
court’s decision for sufficiency of the evidence, we must consider
all the facts, and all reasonable inferences which may be drawn
therefrom, in a light most favorable to the juvenile court’s
determination, reversing only when it is against the clear weight
of the evidence, or if the appellate court otherwise reaches a
definite and firm conviction that a mistake has been made.” In re
V.T., 2000 UT App 189, ¶ 8, 5 P.3d 1234 (quotation simplified).

4. Although JEG asserts that the juvenile court’s decision
violated his rights under the Utah Constitution, he has not
undertaken a separate analysis to establish that he would receive
greater protections under the Utah Constitution. Accordingly,
we do not consider whether JEG’s claim would have a different
outcome under the Utah Constitution.

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ANALYSIS

I. Amended Petition

¶15 JEG argues that the juvenile court misapplied rule 4 of the
Utah Rules of Criminal Procedure by allowing the State to
amend the petition after the close of evidence and closing
arguments, “thereby substantially prejudicing [his] rights,
including the right to due process.” Before beginning our
analysis, we note that the mission of the juvenile court in
addressing delinquency is to remediate behavioral problems and
address the particular needs of juvenile offenders, especially, as
here, with very young wrongdoers. See Utah Code Ann.
§ 78A-6-102(5)(b), (g) (LexisNexis 2018) 5 (stating that “[t]he
purpose” of the juvenile court is, among other things, to “order
appropriate measures to promote guidance and control . . . as an
aid in the prevention of future unlawful conduct and the
development of responsible citizenship” and to “act in the best
interests of the minor in all cases”). Although there is an overlay
of due process rights under In re Gault, 387 U.S. 1 (1967), and its
progeny, delinquency proceedings in juvenile court ultimately
are civil proceedings and the rules of criminal procedure do not
apply across the board. See In re L. G. W., 641 P.2d 127, 130 (Utah
1982) (“The informal and flexible procedures of the juvenile
court need not conform with all of the requirements of a criminal
trial.”) (quotation simplified). But “[i]t is well settled that
juvenile court procedures must [still] conform to the
fundamental requirements of due process and fair treatment.”
Id. at 129.

5. Because the statutory provisions in effect at the relevant time
do not differ in any way material to our analysis from those now
in effect, we cite the current version of the Utah Code for
convenience.

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¶16 Here, even if rule 4 applied to the proceeding, the juvenile
court ameliorated any potential prejudice by providing JEG
ample opportunity to present additional evidence or to submit
additional documents. Rule 4 provides that “[t]he court may
permit an information to be amended after the trial has
commenced but before verdict if no additional or different
offense is charged and the substantial rights of the defendant are
not prejudiced.” 6 Utah R. Crim. P. 4(d). Recognizing the
potential prejudice to JEG, the court ruled that this prejudice
could be cured through a continuance so that JEG could “present
additional trial testimony and exhibits in order to defend the
amended petition.” Thus, JEG cannot demonstrate on appeal
that the court erred because he was granted, but rejected, the
very thing to which he was entitled under rule 4. See State v.
Wilson, 771 P.2d 1077, 1085 (Utah Ct. App. 1989) (“Whenever the
prosecution changes its position, a defendant may seek a
continuance but the failure of a defendant to seek [or accept] a
continuance negates any claim of surprise and amounts to a
waiver of any claim of variance.”) (quotation simplified). The
same result obtains as a matter of due process. See State v. Fulton,
742 P.2d 1208, 1215 (Utah 1987) (“[W]henever the prosecution
changes its position, a defendant may seek a continuance. If the
trial court finds the variance to be prejudicial, it must grant a
continuance as a matter of right.”) (emphasis added); State v.
Myers, 302 P.2d 276, 280 (Utah 1956) (“It would be a mockery of
the constitutional rights of [the] defendant to allow the state to
falsely state the particulars of the offense charged and then
without amendment and without giving defendant additional time
to meet new evidence beyond those particulars obtain a
conviction founded on said evidence.”) (emphasis added).

6. It is undisputed that “no additional or different offense” was
charged in the amended petition. Utah R. Crim. P. 4(d).

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¶17 Furthermore, JEG received nearly the exact remedy he
requested from the juvenile court when he asserted that if the
“Court were to allow the State to amend the Petition, [it] would
also have to grant [him] a new trial on the amended Petition,
such that he could prepare a defense in accordance with the new
allegations in order to preserve his rights to due process.”
Although the court did not grant him a new trial, it offered JEG
additional trial dates and a sufficient opportunity to “prepare a
defense in accordance with the new allegations,” just as he
asked, and just as due process required and rule 4 would
require, if applicable. Moreover, JEG has not demonstrated that
the court’s course of action was insufficient to cure the prejudice
it recognized.

¶18 We therefore agree with the State that “[p]rejudicial error
happens only when the defendant is foreclosed from preparing a
defense, not when the amendment undermines previously
prepared defenses.” See State v. Taylor, 2005 UT 40, ¶ 9, 116 P.3d
360 (“As long as a defendant is sufficiently apprised of the
State’s evidence upon which the charge is based so that the
defendant can prepare to meet that case, the constitutional
requirement is fulfilled.”) (quotation simplified). Cf. State v.
Wilcox, 808 P.2d 1028, 1032 (Utah 1991) (“The right to adequate
notice in the Utah Constitution requires the prosecution to state
the charge with sufficient specificity to protect the defendant
from multiple prosecutions for the same crime and to give notice
sufficient for the one charged to prepare a defense.”) (emphasis
added). Thus, JEG’s “failure to [accept the] continuance is fatal
to his claim, and accordingly, we affirm the trial court’s
decision.” See Wilson, 771 P.2d at 1085.

II. Double Jeopardy

¶19 JEG argues that the juvenile court violated his right to be
free from double jeopardy by allowing the State to amend the
petition and “then reopening the trial stage for the defense to

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present further evidence addressing the amended petition.” The
Double Jeopardy Clause provides that no person “shall . . . be
subject for the same offense to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V. “The constitutional guarantee
against double jeopardy affords a criminal defendant three
separate protections by prohibiting: (1) a second prosecution for
the same offense after acquittal; (2) a second prosecution for the
same offense after conviction; and (3) multiple punishments for
the same offense.” State v. Miller, 747 P.2d 440, 444 (Utah Ct.
App. 1987). Assuming this jurisprudence is fully applicable to
the juvenile delinquency context, it is undisputed that JEG was
not subject to multiple punishments for the same offense, and
thus the only way JEG could have been subjected to double
jeopardy is if he was required to defend against a second
prosecution for offenses of which he had already been acquitted
or convicted.

¶20 JEG did not suffer double jeopardy here because he was
not subjected to another prosecution for abuse of a child under
age 14 after an acquittal or a conviction following the State’s
amendment of the petition. His case was still open and the court
had not yet made its decision. JEG argues that although the
juvenile court had not made its final decision before ruling on
the State’s motion to amend the petition, he was subjected to
double jeopardy because, “[h]ad the State not moved to amend
the Petition after hearing [his] final argument and theory of the
case, it is almost certain that the Juvenile Court would have
ruled that same day immediately after closing arguments.” But
in making this argument, JEG does not acquaint us with any
authority in support of the proposition that an individual’s
constitutional protections against double jeopardy can be
violated before a verdict in a case is reached based on whatever

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step the court would otherwise have taken next. 7 To the
contrary, case law is clear that a defendant’s right to be free from
double jeopardy can be violated only after a final verdict has
been reached. See, e.g., Arizona v. Washington, 434 U.S. 497, 505,
509 (1978) (holding that district courts “may discharge a
genuinely deadlocked jury and require the defendant to submit
to a second trial” because no verdict has been reached, and
“[u]nlike the situation in which the trial has ended in an
acquittal or conviction, retrial is not automatically barred when a
criminal proceeding is terminated without finally resolving the
merits of the charges against the accused”); State v. Trafny, 799
P.2d 704, 709 (Utah 1990) (holding that the double jeopardy
clause protects only defendants who are subject to a “second
prosecution for the same offense after acquittal . . . [or] after
conviction”) (emphasis added) (quotation otherwise simplified);
State v. Strand, 674 P.2d 109, 114 (Utah 1983) (holding that the
defendant had “not been twice put in jeopardy for the same
offense” as a result of an amended information).

¶21 Thus, because the juvenile court had not reached a final
decision in this case with respect to JEG’s delinquency, the

7. JEG relies on the single criminal episode statutory scheme in
sections 76-1-402 and 76-1-403 of the Utah Code to support his
double jeopardy argument. But “the analysis for a double
jeopardy challenge is distinct from the analysis under the single
criminal episode statute,” Salt Lake City v. Josephson, 2019 UT 6,
¶ 13, 435 P.3d 255, which “adopts a species of res judicata or
claim preclusion for criminal cases—barring prosecutions for
different offenses committed as part of a single criminal episode,”
State v. Ririe, 2015 UT 37, ¶ 6, 345 P.3d 1261 (emphasis in
original). There is no suggestion in the case before us that the
amended petition charged different offenses arising out of a
single criminal episode, so that statute is inapplicable.

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proceeding was still in process, and JEG was not subjected to
double jeopardy when the court allowed the State to amend the
petition.

III. Sufficiency of the Evidence

¶22 Lastly, JEG argues that “the juvenile court erred by
finding the State met its burden to prove the allegations in the
petition beyond a reasonable doubt, even after the State
amended the petition.” In juvenile delinquency proceedings, the
State’s petition must contain “the date and place of the offense,” 8
Utah R. Juv. P. 17(a)(1), and “the state has the burden to prove
the allegations of the petition beyond a reasonable doubt,”
id. R. 24(b)(6). “When reviewing a juvenile court’s decision for
sufficiency of the evidence, we must consider all the facts, and
all reasonable inferences which may be drawn therefrom, in a
light most favorable to the juvenile court’s determination.” In re
P.G., 2015 UT App 14, ¶ 20, 343 P.3d 297 (quotation simplified).
And “we will reverse that determination only when it is against
the clear weight of the evidence, or if we otherwise reach a
definite and firm conviction that a mistake has been made.” Id.
(quotation simplified).

¶23 Here, the amended petition alleged that the two instances
of sexual abuse occurred sometime “[o]n or about August 1, 2015
through December 31, 2015.” The crux of JEG’s attack on appeal
is that “the State . . . failed to meet the burden of proof given that
all the evidence alleged that the incident(s) occurred in August
and/or December, which was impossible.” But the amended
petition, unlike the original petition, was consistent with the
incidents taking place at some point between October, when

8. Time is not an “express element of the statute under which
[JEG] was charged.” See State v. Robbins, 709 P.2d 771, 772 (Utah
1985). See also Utah Code Ann. § 76-5-404.1 (LexisNexis 2017).

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Victim’s mother was working and out of the house, and
November, when Victim’s family moved out of the house. And
although Victim stated during the CJC interview that the
incidents occurred in August and December, she also testified
that they happened after JEG walked her home from school
when no other parent was home. It was reasonable for the
juvenile court to infer, as it did, that the abuse happened
between October and November, i.e., that Victim was wrong
about the specific months but right about the timeframe
suggested by her recollection that no adults were home right
after school. This inference was appropriate because Victim and
JEG were in school during this time as well, and JEG would have
walked her home during these months and would have been at
home with Victim without any adults present. Such an inference
is appropriate because children often have difficulty
remembering the specific dates of abuse, especially when it
occurs more than once, as was the case here. See State v. Wilcox,
808 P.2d 1028, 1033 (Utah 1991) (“The problem of young children
who are unable to specify a date on which abuse occurred or a
location where it occurred is exacerbated by situations in which
the abuse occurred on many occasions over a long period of
time, a not-uncommon occurrence.”); State v. Robbins, 709 P.2d
771, 773 (Utah 1985) (“We recognize that children are often not
able to identify with a high degree of reliability, and sometimes
not at all, when an event in the past took place.”). Thus, Victim’s
inability to remember the specific date is not fatal to the State’s
case. See State v. Fulton, 742 P.2d 1208, 1213 (Utah 1987).

¶24 Although the State had difficulty “establish[ing] the time
and date of the offense” and had to amend the petition to
conform to the evidence presented at trial, which “will almost
always reduce the credibility of the prosecution’s case,” it does
not compel the conclusion that the State failed to prove the
allegations beyond a reasonable doubt. See id. at 1213 n.6. In
essence, this is a he-said-she-said case, and in such cases, given

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the factfinder’s advantaged position in observing the witnesses
firsthand, it is the factfinder’s responsibility, “not the appellate
court’s[,] to weigh that evidence and make a determination of
fact.” State v. Skinner, 2020 UT App 3, ¶ 35, 457 P.3d 421
(quotation simplified). And here, the court, having seen
firsthand Victim’s struggle to recall the exact dates, nonetheless
found that “[t]he testimony provided by [Victim] was credible
and consistent with [the CJC] interview.” JEG’s attack on
Victim’s credibility on appeal, based on her inability to recall
more precisely the dates of the abuse that occurred years ago,
does not overcome the juvenile court’s credibility determination.
Thus, given Victim’s consistent testimony of abuse and the
court’s explicit finding with respect to Victim’s credibility, which
finding JEG has not shown to be clearly erroneous, we cannot
say there was insufficient evidence to support the court’s ruling
on delinquency. See In re P.G., 2015 UT App 14, ¶ 20.

CONCLUSION

¶25 The juvenile court did not err in allowing the State to
amend its petition after closing argument because any prejudice
JEG suffered from that amendment was ameliorated by the
court’s offer to continue the case and allow JEG ample time to
prepare a defense to the amended petition. The amendment to
the petition likewise did not violate JEG’s constitutional
protections against double jeopardy because the court had not
issued a verdict prior to the petition being amended. Finally,
there was sufficient evidence for the court to adjudge JEG
delinquent, beyond a reasonable doubt.

¶26 Affirmed.

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