State v. Carrell , 414 P.3d 1030 ( 2018 )

2018 UT App 21THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JOHN MARTIN CARRELL,
Appellant.
Opinion
No. 20150924-CA
Filed February 1, 2018
Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 141400776
Ronald J. Yengich, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
GREGORY K. ORME and KATE A. TOOMEY concurred.
HARRIS, Judge:
¶1 Defendant John Martin Carrell (Defendant) drove a
school bus for children with special needs. A jury convicted
Defendant of sexually abusing two of these children in 2014.
Defendant appeals his convictions, and asks us to consider two
arguments. First, he asserts that the jury was improperly
instructed as to the elements and required mental states for his
charged crimes. Second, he contends that there was insufficient
evidence to support his convictions. We find Defendant’s
arguments unpersuasive and therefore affirm his convictions.
State v. Carrell
BACKGROUND
¶2 In early 2014, Defendant had been a bus driver employed
by Canyons School District (the District) for nearly five years. At
that time, Defendant was assigned to drive “route 250,” a bus
route for elementary-school-aged children with special needs.
This route included two separate daily circuits, one in the
morning and another in the afternoon. C.B. (First Victim), a five-
year-old girl, was one of the students on Defendant’s morning
bus route. Z.B. (Second Victim), also a five-year-old girl, was one
of the students on Defendant’s afternoon bus route.
¶3 During the relevant time period, Defendant would
usually pick up First Victim near her home at around 8:30 a.m.
and drop her off at school at about 8:40 or 8:45 a.m. He would
then pick her up at school after class ended, and drop her back
off at home at approximately 11:00 a.m. On most mornings, only
four or five students rode on Defendant’s morning bus route.
Defendant would then pick up Second Victim near her home at
11:30 a.m., take her to school, pick her up at school after class,
and then drop her back off at home by 3:00 p.m. Defendant’s
afternoon bus route was also used by only a handful of students.
¶4 Per District policy, Defendant received training regarding
various security and safety features of his bus, as well as training
regarding permissible and impermissible physical interaction
with the children. Specifically, the District informed Defendant
that the children, while riding on the bus, were required to sit in
“star seats,” which had seatbelt harnesses with straps across
both shoulders and between their legs that buckled together near
each child’s lower midsection. The District further instructed
Defendant that it was permissible for him to help the children
get buckled into or unbuckled out of the star seats, but that it
was normally not necessary or permissible for Defendant to
touch them during this process. The District also instructed
Defendant that, in all other contexts, physical contact with
20150924-CA 2 2018 UT App 21State v. Carrell
children was to be kept to a minimum. For instance, it was
permissible for a bus driver to “high-five” or “fist-bump” with
the children, and even to accept a “side hug” if the child initiated
it, but Defendant was aware that bus drivers were not to accept
any other type of hug and were not allowed to initiate physical
contact of any kind. As part of this training, Defendant also
learned that his bus came equipped with surveillance cameras
which began recording when the ignition key was turned on and
would continue to record for fifteen minutes after the ignition
was turned off. These cameras recorded many of Defendant’s
interactions with both victims. 1
¶5 At the time, it was also District policy, at least for route
250, for the students to remain on the bus in Defendant’s care,
even after the bus had stopped at the school, until the students’
individual teachers came outside and physically escorted them
from the bus. Because the bus did not always arrive at exactly
the same time each day, and because the teachers did not always
emerge from the school at the same time each day, the period of
time in which the students remained on the bus under
Defendant’s care varied each day, from just one or two minutes
to as long as eight or ten minutes. First Victim’s teacher was
often one of the last teachers to emerge from the school, a fact
which often resulted in First Victim (along with one other girl)
being one of the last students on the bus in the morning.
¶6 While Defendant scrupulously followed the District
policy of keeping the students on the bus until their teachers
retrieved them, he did not always follow the other policies. For
1. Several portions of these recordings were presented as exhibits
at trial and included in the record of this case. The recordings
include audio, as well as visual images. We have reviewed those
recordings prior to issuing this opinion, and some of the facts
recited here are taken from those recordings.
20150924-CA 3 2018 UT App 21State v. Carrell
example, he frequently helped the students unbuckle their star
seat belts when the bus arrived at school. On several occasions
during this unbuckling, Defendant passed by First Victim to
help unbuckle other children, saving First Victim’s unbuckling
for last. Defendant succeeded in unbuckling the other children in
just a few seconds’ time, but routinely spent much longer—up to
ninety seconds—unbuckling First Victim. Although the video
footage does not always show the placement of Defendant’s
hands, in several instances he appears to continue touching First
Victim even after she is unbuckled—the video shows First
Victim’s legs and shoulders visible in positions that would not
be achievable were she still buckled in to the star seat, and
shows that Defendant’s arms were extended down towards her
body. In one instance, First Victim struggles to emerge from the
seat into the aisle while Defendant blocks her progress with his
body.
¶7 After the children were unbuckled each morning, they
were allowed to freely move about the interior of the bus until
their teachers came to meet them. While other students moved
about the bus playing, First Victim often gravitated toward
Defendant, who usually passed the time seated in the driver’s
seat at the front of the bus. As First Victim approached him,
Defendant often took her by the hand, shoulder, or side and
pulled her towards him, positioning her either to sit on his lap or
stand between his legs with her back to the other children and to
the bus door. While First Victim and Defendant were positioned
in this manner, Defendant’s hands often were not visible to the
camera. However, on several occasions, the video footage shows
Defendant’s left hand positioned somewhere on the lower
midsection of First Victim’s body, while his right hand was
either extended towards the lower part of her body or extended
straight out, holding her backpack at an angle that placed it
between her body and the door of the bus. In some instances,
Defendant’s right hand can be seen cupping, resting on, or
moving across First Victim’s buttocks, and in one instance
20150924-CA 4 2018 UT App 21State v. Carrell
Defendant’s hand appears to be under First Victim’s skirt. In
several instances, while Defendant’s left hand was somewhere
out of view on or near the lower front of First Victim’s body,
Defendant’s left shoulder can be seen moving up and down in
short, rhythmic motions. On some occasions, Defendant moved
his head close to First Victim’s head and can be seen touching
her face with his, apparently nuzzling or kissing her. Several
times, after placing his left hand somewhere out of sight but
apparently on or near the lower front of First Victim’s body,
Defendant brought that same hand to his face and can be seen
seemingly smelling or licking his fingers.
¶8 Whenever a teacher approached the bus to collect
children from it, Defendant pushed First Victim away from him
so that she was standing at some distance away from him while
the teacher was present. Often, once the teacher departed,
Defendant pulled First Victim back towards him and again
apparently placed his left hand somewhere on the lower front of
her body. In one of these instances First Victim can be heard
telling Defendant, “You’ve been pulling my pants up.”
¶9 The cameras also recorded many of Defendant’s
interactions with Second Victim. On several occasions the video
footage shows Defendant unbuckling Second Victim and then,
after she was unbuckled, placing his hands on her clothed
genitals for several seconds. In one instance, Defendant also
placed his left hand between Second Victim’s legs and lifted her
off the floor while holding her clothed genitals. At the time,
Second Victim was not yet verbal, but appeared to struggle
during some of these interactions.
¶10 On April 22, 2014, while First Victim’s father was getting
her ready for school, she remarked that she “can ride on the bus
seat today again.” First Victim’s father asked her if the driver
was letting her pretend to drive the bus, and she responded by
saying “no” but said Defendant let her sit on his lap and “[made]
20150924-CA 5 2018 UT App 21State v. Carrell
it soft for [her].” As she said this, First Victim rubbed her crotch.
The next day, First Victim’s father raised the subject again and
asked her to clarify what she did when she sat on the bus seat. In
response, First Victim once more rubbed her crotch and said,
“Does that feel good?” After this conversation, First Victim’s
father called the District and informed Defendant’s supervisor
that he was concerned that Defendant might be sexually abusing
his daughter.
¶11 The District then placed Defendant on administrative
leave, obtained the video footage from Defendant’s bus, and
referred the matter to the police. On May 1, 2014, after the police
had reviewed the video footage pertaining to First Victim, a
detective interviewed her. During this interview, First Victim
was largely unresponsive to the detective’s questions. She was
quiet, did not make eye contact, looked down at her hands, and
responded in the negative when asked if she knew why she was
being interviewed. When prompted that she was being
interviewed because her father said something might have
happened to her, First Victim responded by saying, “I’ve got a
sore throat.” Despite multiple attempts to rephrase the question,
First Victim continued to remain quiet, to refuse to make eye
contact, and to state that she did not know why she was being
interviewed. After the detective pressed the issue several times,
First Victim finally said that Defendant sometimes kissed her on
the bare skin of her upper chest. She provided no further
relevant information to the detective at this time. Following this
interview, and after reviewing the video footage, the State
charged Defendant with 23 counts of aggravated sexual abuse of
a child for his interactions with First Victim.
¶12 First Victim began meeting with a therapist. During
therapy, First Victim was more forthcoming about what she had
previously told her father. Upon learning this, the same
detective conducted a second interview with First Victim on
February 18, 2015. This time, First Victim was much more
20150924-CA 6 2018 UT App 21State v. Carrell
responsive, made significantly more eye contact, rarely looked
down at her hands, and was smiling and happy in the
detective’s company. During that second interview, First Victim
told the detective that Defendant touched her “peepee” at least
once per day. She clarified that these touches made her feel
uncomfortable, that Defendant would ask her whether the
touching hurt or made her feel good, and that the touches were
with Defendant’s hand and were sometimes under her clothes.
Towards the end of the interview, the detective asked First
Victim if anyone had “told her what to say.” First Victim
answered in the affirmative and said that her therapist had told
her what to say. Subsequent to this interview, the therapist
clarified for the detective that she had told First Victim that the
detective was a friend of the therapist’s and that it was okay for
First Victim to tell the detective the truth.
¶13 Following Defendant’s arrest, Second Victim’s father
contacted the State and asked that prosecutors review the video
footage during periods of time when Second Victim rode the
bus. Second Victim’s father informed the State that shortly after
Defendant became Second Victim’s bus driver, Second Victim
began having “behavioral issues” on the bus, including
becoming angry and “acting out.” Second Victim also began
“cry[ing] not to go on the bus.” Although Second Victim was
nonverbal and could not be effectively interviewed, after
reviewing the video footage the State amended its information to
charge Defendant with an additional ten counts of aggravated
sexual abuse of a child for his interactions with Second Victim.
¶14 At trial, the State relied heavily on the previously
described video footage, excerpts of which were played for the
jury. In addition, First Victim’s father testified about his
conversations with First Victim that led him to contact the
District. First Victim also testified at trial, and stated that
Defendant touched her “peepee” “like every day” she rode the
bus, usually about three times each day. Second Victim’s father
20150924-CA 7 2018 UT App 21State v. Carrell
also testified about her behavioral changes after Defendant
became her bus driver.
¶15 At the conclusion of the State’s case-in-chief, Defendant
moved for a directed verdict dismissing all charges against him.
He argued that the evidence presented was not sufficient to
establish that he had touched First and Second Victim “with the
intent to arouse or gratify [his] sexual desire,” and that there was
no evidence he intended to take indecent liberties with either
victim. The trial court denied Defendant’s motion and ruled that
“based upon the evidence presented during the State’s case in
chief . . . there [had] been sufficient evidence presented from
which a jury acting reasonably could convict [Defendant].”
¶16 Before the jury began deliberating, Defendant made two
objections to the State’s proposed jury instructions. First, he
objected to the manner in which the instructions presented the
mental state requirements for aggravated sexual abuse of a child.
The elements instructions informed the jurors that they could
not find Defendant guilty on any count unless they found both
(1) that Defendant “[k]nowingly or intentionally [] touched any
part of the genitals [] or buttocks of [First Victim] or otherwise
took indecent liberties with [First Victim],” and (2) that
Defendant did so “[w]ith the intent to arouse or gratify the
sexual desires of any person.” 2 Separate instructions defined the
terms “intentionally” and “knowingly.” 3 Defendant argued that
2. The elements instruction with respect to Second Victim was
identical, but omitted the reference to “buttocks” because the
State alleged that Defendant touched Second Victim on her
clothed genitals but not on her buttocks.
3. Jury Instruction No. 30 informed the jury that a person acts
“intentionally” or “with intent” “when his conscious objective is
to” either “engage in certain conduct” or “cause a certain result.”
Jury Instruction No. 31 informed the jury that a person acts
(continued…)
20150924-CA 8 2018 UT App 21State v. Carrell
these instructions were confusing because they did not
“properly instruct the jury which intent goes to which element.”
In response, the trial court noted that the instructions followed
the language of Utah’s model jury instructions, and expressed
the belief that “as the jury goes through the element[s]
instruction, when they get to a word that’s a defined term in the
instructions, they’ll look to that definition.” Accordingly, the
trial court overruled Defendant’s objection with respect to the
mental state instructions.
¶17 Second, Defendant objected to the inclusion, in the
elements instruction, of the phrase “or otherwise took indecent
liberties with [First or Second Victim],” and to the inclusion of
the language involving “buttocks” with respect to First Victim.
Defendant argued that because First Victim testified that he
touched her “peepee” but had not described him touching her
buttocks, the jury should not have been instructed that they
could consider whether he touched First Victim’s buttocks. In
addition, Defendant argued that the evidence the State presented
did not demonstrate that he “took indecent liberties” with either
First or Second Victim, and that it was therefore inappropriate to
instruct the jury on that element. In response, the trial court
found that “the video speaks for itself” and expressed its belief
that “the video that has been presented in court is reflective and
representative of what the instructions contain.” Accordingly,
the trial court overruled Defendant’s objection with respect to
the “buttocks” and “indecent liberties” instructions to the jury.
¶18 After deliberating, the jury convicted Defendant on 19 of
the 33 charged counts, including 13 of the 23 counts regarding
(…continued)
“‘knowingly’ when the person is aware of the nature of his
conduct, or is aware of the particular circumstances surrounding
his conduct.”
20150924-CA 9 2018 UT App 21State v. Carrell
First Victim and six of the ten counts regarding Second Victim.
Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶19 Defendant raises three issues on appeal. First, he contends
that the trial court erred by allowing the term “buttocks” (as to
First Victim) and the language describing the “indecent liberties”
theory of aggravated sexual abuse of a child (as to both victims)
to remain in the jury instructions. “Whether a trial court
properly instructed the jury is a question of law, which we
review for correctness.” Cheves v. Williams, 1999 UT 86, ¶ 37, 993
P.2d 191 (citation and internal quotation marks omitted). If an
error is found in jury instructions, reversal is warranted only if
there is a reasonable probability that the error affected the
outcome of the case. State v. Tinoco, 860 P.2d 988, 990 (Utah Ct.
App. 1993).
¶20 Second, Defendant contends that the trial court erred by
presenting the prosecution’s proposed mental state instructions
to the jury. Again, whether a trial court properly instructed a
jury is a question we review for correctness. Id. at 989–90.
¶21 Finally, Defendant contends that there was insufficient
evidence to convict him and that the trial court therefore erred in
denying his motion for a directed verdict. 4 When considering a
4. In making his arguments on appeal—both his arguments
regarding jury instructions and his argument regarding
insufficiency of the evidence—Defendant does not engage in a
count-by-count analysis of the evidence. Instead, he argues that
the evidence was insufficient to support inclusion of “indecent
liberties” language in the jury instructions for any of the counts
charged (and insufficient to support inclusion of “buttocks”
language for any of the counts charged involving First Victim),
(continued…)
20150924-CA 10 2018 UT App 21State v. Carrell
challenge to the sufficiency of the evidence, we review the
evidence and all reasonable inferences drawn therefrom in the
light most favorable to the verdict. State v. Germonto, 868 P.2d 50,
55 (Utah 1993). We will reverse a guilty verdict for insufficient
evidence only when the evidence is so inconclusive or inherently
improbable that reasonable minds must have entertained a
reasonable doubt that the defendant committed the crimes of
which he was convicted. State v. Nielsen, 2014 UT 10, ¶ 46, 326
P.3d 645.
ANALYSIS
I
¶22 Defendant first contends that the trial court’s jury
instructions regarding the elements of the crimes included
language that—while not incorrect as a legal matter—was
unsupported by the evidence the State presented at trial.
Defendant makes two arguments in this regard. First, Defendant
asserts that there was insufficient evidence to support inclusion
of language stating that taking “indecent liberties” could be a
basis for a finding of aggravated sexual abuse of either victim.
Second, Defendant asserts that there was insufficient evidence to
support inclusion of language stating that touching First
Victim’s “buttocks” could be a basis for a finding of aggravated
sexual abuse of First Victim. We find Defendant’s arguments
unpersuasive.
(…continued)
and was also generally insufficient to convict him on any of the
counts charged. Because Defendant makes no effort to engage in
a count-by-count analysis, neither do we.
20150924-CA 11 2018 UT App 21State v. Carrell
A
¶23 Under Utah law, a person commits “sexual abuse of a
child” if that person “touches the anus, buttocks, or genitalia of
any child, the breast of a female child, or otherwise takes
indecent liberties with a child,” and does so “with the intent to
arouse or gratify the sexual desire of any person.” Utah Code
Ann. § 76-5-404.1(2) (LexisNexis 2017). The offense is considered
“aggravated” if, among other things, the person committing it
“occupied a position of special trust in relation to the victim.” Id.
§ 76-5-404.1(4)(h). Under the statutory scheme, “any touching,
even if accomplished through clothing, is sufficient to
constitute” “touching” for the purposes of a prosecution for
sexual abuse of a child. Id. § 76-5-407(3)(b) (LexisNexis 2017). 5
¶24 The phrase “indecent liberties” is not defined by statute.
Our supreme court, however, has declared that the term is not
unconstitutionally vague, as long as it is “considered as referring
to conduct of the same magnitude of gravity as that specifically
described in the statute.” In re J.L.S., 610 P.2d 1294, 1296 (Utah
1980).
¶25 In this case, the jury was presented with “elements”
instructions on each of the 33 counts, and those instructions all
stated that Defendant could not be convicted of the offenses
unless the jury found each of six elements beyond a reasonable
doubt:
5. In cases asserting violations of certain other statutes, such as
for “forcible sexual abuse” of a person “14 years of age or older,”
Utah Code Ann. § 76-5-404(1) (LexisNexis 2017), “touching” is
required to be by skin-to-skin contact, see State v. Jacobs, 2006 UT
App 356, ¶ 7, 144 P.3d 226. In cases alleging sexual abuse of a
child, however, “touching” can be accomplished through
clothing. See Utah Code Ann. § 76-5-407(3)(b) (LexisNexis 2017).
20150924-CA 12 2018 UT App 21State v. Carrell
1. That on [the date of the offense];
2. The Defendant, John Carrell;
3. Knowingly or intentionally, touched any part of
the genitals [or buttocks] of C.B. [or Z.B.], or
otherwise took indecent liberties with C.B. [or
Z.B.];
4. With the intent to arouse or gratify the sexual
desires of any person; and
5. At the time of said conduct, C.B. [or Z.B.] was
under 14 years of age; and
6. The Defendant occupied a position of special
trust in relation to C.B. [or Z.B.].
¶26 Further, the jury was instructed as to the definition of
“indecent liberties,” as follows:
“Indecent liberties” is defined as conduct that is as
serious as touching the anus, buttocks, or genitals
of a person or the breast of a female.
In deciding whether conduct amounts to indecent
liberties, use your judgment and common sense.
You may consider factors such as: (1) the duration
of the conduct, (2) the intrusiveness of the conduct
against the alleged victim, (3) whether the alleged
victim requested that the conduct stop, (4) whether
the conduct stopped upon request, (5) the
relationship between the alleged victim and the
defendant, (6) the alleged victim’s age, (7) whether
the alleged victim was forced or coerced to
participate, and any other factors you consider
relevant.
20150924-CA 13 2018 UT App 21State v. Carrell
The fact that touching may have occurred over
clothing does not preclude a finding that the
conduct amounted to indecent liberties.
¶27 Defendant does not contend that these jury instructions
were legally inaccurate. Indeed, these instructions correctly state
the law, as derived from both statutes and case law. See In re
P.G., 2015 UT App 14, ¶ 19, 343 P.3d 297 (reciting the elements of
sexual abuse of a child); State v. Lewis, 2014 UT App 241, ¶ 12,
337 P.3d 1053 (discussing “indecent liberties” and referring to
the Model Utah Jury Instruction on the topic as “appropriate”);
see also Model Utah Jury Instructions 2d (MUJI) CR1601 (2016),
https://www.utcourts.gov/resources/muji/inc_list.asp?action=sho
wRule&id=44#1601 [https://perma.cc/D4UJ-STGW] (defining
“indecent liberties”); id. CR1612, https://www.utcourts.gov/
resources/muji/inc_list.asp?action=showRule&id=44#1612 [https://
perma.cc/6P8M-R5B5] (defining the elements of sexual abuse of
a child).
¶28 Instead, Defendant contends that, as a factual matter, the
record does not contain sufficient evidence to establish that he
took “indecent liberties” with either of the victims. Defendant
appears to concede that the jury was properly instructed that it
could convict him if it found that he had committed a
“touching” of either victim’s genitals. But Defendant argues that
there was no evidence involving any non-“touching” conduct
“that could have risen to the level of ‘indecent liberties’” with
respect to either victim, and therefore the language in the jury
instructions regarding “indecent liberties” should have been
deleted. We are unpersuaded.
¶29 In advancing this argument, Defendant first notes that
First Victim did not offer testimony that could support a finding
of “indecent liberties,” because her testimony was specific to
“touching.” Indeed, First Victim stated that Defendant touched
her “peepee,” conduct that (assuming that First Victim intended
20150924-CA 14 2018 UT App 21State v. Carrell
that term to refer to her genitals) would constitute a “touching”
under the statute. On this point, Defendant is correct. First
Victim’s testimony was certainly sufficient to support a
conclusion that Defendant “touched” her in ways that
constituted sexual abuse of a child, but there is nothing in her
testimony that can support a conclusion that Defendant engaged
in conduct, not sufficient to constitute a “touching,” that could
amount to “indecent liberties.”
¶30 The State defends the jury instructions by pointing to the
video evidence that was presented to the jury, and arguing that
the video footage contains evidence of certain conduct that,
although perhaps not sufficient to constitute a “touching” as that
term is defined in the statute, nevertheless could amount to
“indecent liberties.” Defendant disagrees, arguing that the jury
could not have reasonably inferred, simply from the video
evidence, that he was guilty of taking “indecent liberties” with
either victim. According to Defendant’s characterization, the
video evidence is too inconclusive, and does not often enough
show the exact location of Defendant’s hands, for the jury to be
able to use that evidence to support a finding of “indecent
liberties.”
¶31 Our characterization of the video footage differs from
Defendant’s. While Defendant is correct that, at times, one
cannot determine the precise location of Defendant’s hands, it is
clear for several minutes-long periods that his left hand was
somewhere on the front of First Victim’s body while his left
shoulder moved up and down in short, rhythmic motions. On
certain occasions following this, it is also clear that Defendant
brought his left hand to his face somewhere near his mouth or
nose, apparently to lick or smell his fingers. Further, Defendant
is incorrect when he states that it is never clear where his right
hand was and when he states that the video footage only
portrayed First Victim standing between his legs. In fact, the
footage clearly shows Defendant’s hand moving on or around
20150924-CA 15 2018 UT App 21State v. Carrell
First Victim’s clothed buttocks on several occasions, and on one
occasion his right hand was somewhere beneath her skirt.
Moreover, First Victim can be seen sitting on Defendant’s lap on
several occasions. In addition, we note that Defendant can be
observed nuzzling or kissing First Victim, running his fingers
through her hair, and often initiating the contact between them
and pulling her towards him when no other adults were present
and then pushing her away when the teachers approached the
bus. During several of his encounters with First Victim, the
footage also shows that Defendant held her backpack between
her body and the door of the bus, in an apparent effort to block
people outside the bus from seeing him and First Victim.
¶32 A factfinder may draw reasonable inferences from
evidence presented to it, regardless of whether that evidence is
testimonial evidence or video evidence. See State v. Lomu, 2014
UT App 42, ¶ 10, 321 P.3d 235 (noting that the “jury could have
reasonably inferred” from a combination of testimonial and
video evidence that the defendant “knew that [a] threat was
being made”). In the past, we have noted that inferences made
from evidence should be “based on logic and reasonable human
experience” and that such inferences are “reasonable and not
speculative” when they “support a conclusion that one
possibility is more probable than another.” State v. Cristobal, 2014
UT App 55, ¶ 7, 322 P.3d 1170 (citation and internal quotation
marks omitted).
¶33 Here, while we stress that the jury could reasonably have
inferred that Defendant’s conduct in each of the described
instances amounted to a “touching” of First Victim, the jury
could also have reasonably inferred that in at least some
instances Defendant was not directly touching First Victim’s
“anus, buttocks, or genitals” but instead was touching very near
them during moments when the general location of his hands
was clear but their exact configuration or position was not. The
jury could also have considered the fact that First Victim often
20150924-CA 16 2018 UT App 21State v. Carrell
sat on Defendant’s lap, and that Defendant on occasion
appeared to be nuzzling or kissing her face. As part of its
“indecent liberties” analysis, the jury was also instructed that it
could consider other factors, such as the relationship between
First Victim and Defendant, First Victim’s age, and the duration
of the conduct. In light of all of this, we conclude that the jury,
based on logic and reasonable human experience, could have
reasonably inferred from the video evidence that Defendant was,
on at least some of the occasions depicted, engaging in conduct
toward First Victim that was of the same magnitude of gravity as
if he was touching her breasts, vagina, anus, or buttocks.
¶34 Defendant also contends that the video evidence
regarding Second Victim was insufficient to support inclusion of
“indecent liberties” language in the jury instructions. Defendant
maintains that, when one views the video evidence, “it is
impossible to determine, beyond a reasonable doubt, if
[Defendant’s] hand was even touching [Second Victim’s]
genitals.” Again, we view the video footage differently. The
footage depicts Defendant’s hand moving rapidly toward
Second Victim’s clothed genitalia after she is unbuckled and
remaining on or near her genitals outside her clothing for several
seconds as she struggles and squirms away. One video
additionally shows Defendant picking up Second Victim by her
crotch (with his hand cupping or under her crotch) and holding
her in the air for several seconds. Because the video footage
shows Defendant grabbing Second Victim’s crotch on several
occasions but does not display the exact position of his fingers,
we conclude that the jury could plausibly have determined
either that Defendant touched Second Victim’s genitals—a
touching—or that Defendant touched very near Second Victim’s
genitals in a manner amounting to the same magnitude of
gravity as if he was touching her genitals.
¶35 Accordingly, we reject Defendant’s argument that the
evidence was insufficient to support the inclusion of “indecent
20150924-CA 17 2018 UT App 21State v. Carrell
liberties” language in the jury instructions with regard to both
victims.
B
¶36 Defendant’s next argument is premised on the
assumption that there was insufficient evidence in the trial
record of any touching of First Victim’s buttocks, and therefore
no such instruction should have been given. Defendant argues
that, because First Victim testified only that he touched her
“peepee,” and did not verbally describe him touching her
buttocks, the jury should not have been instructed that it could
consider whether Defendant touched First Victim’s buttocks.
Defendant goes so far as to argue that “[n]o evidence was
admitted involving the touching of [First Victim’s] buttocks.”
We disagree.
¶37 First, we again note that, while Defendant correctly
observes that First Victim’s oral testimony did not describe him
touching her buttocks, the video footage shows Defendant
touching First Victim on (or very near) her buttocks on several
occasions. The footage also clearly depicts Defendant’s right
hand under First Victim’s skirt at least once. On other occasions,
the precise location of Defendant’s hands cannot be seen, but
because of the position of Defendant’s body relative to First
Victim’s, it is clear that one of Defendant’s hands is between
their bodies and could very well be on First Victim’s buttocks.
Further, on at least one occasion, First Victim can be heard
remarking that Defendant had been “pulling [her] pants up.”
¶38 As noted previously, a jury is entitled to draw inferences
from evidence, “based on logic and human experience,” that are
“reasonable and not speculative” and that “support a conclusion
that one possibility is more probable than another.” Cristobal,
2014 UT App 55, ¶ 7 (citations and internal quotation marks
omitted). It would not have been improper for the jury to find,
after viewing the video evidence, that Defendant touched First
20150924-CA 18 2018 UT App 21State v. Carrell
Victim’s buttocks. Thus, we conclude that the evidence was
sufficient to support inclusion of the word “buttocks” in the
elements jury instructions regarding First Victim.
¶39 Because the “buttocks” and “indecent liberties” portions
of the jury instructions were supported by evidence presented at
trial, we conclude that the trial court did not err in giving those
instructions to the jury.
II
¶40 Next, Defendant raises an issue with the trial court’s
instructions regarding the mental state required for conviction.
Specifically, Defendant contends that the trial court erred by
providing the jury with mental state instructions defining
“intentionally” and “knowingly” that were separate from the
instructions listing the elements of aggravated sexual abuse of a
child. We find no improprieties in the manner in which the trial
court instructed the jury regarding the required mental state.
¶41 Here, the elements instruction presented to the jury for
aggravated sexual abuse of a child stated that the jury could not
find Defendant guilty unless it found both (1) that Defendant
“[k]nowingly or intentionally . . . touched any part of the
genitals . . . or buttocks of [First Victim] or otherwise took
indecent liberties with [First Victim],” and (2) that Defendant did
so “[w]ith the intent to arouse or gratify the sexual desires of any
person.” 6 The terms “knowingly” and “intentionally” were
defined in separate instructions.
¶42 Defendant concedes that all of these instructions are
legally correct. Indeed, the trial court used the Model Utah Jury
6. As noted previously, the elements instruction with respect to
Second Victim was identical, but omitted the reference to
“buttocks.”
20150924-CA 19 2018 UT App 21State v. Carrell
Instructions for both the elements of aggravated sexual abuse of
a child and for the definitions of “intentionally” and
“knowingly.” Nevertheless, Defendant maintains that the trial
court should have provided additional guidance to the jury as to
which level of intent was applicable to each element of
aggravated sexual abuse. Defendant posits that the jury may
have been confused about whether it could convict Defendant
for “intentionally or knowingly” touching or taking indecent
liberties with First or Second Victim without finding that he also
specifically intended to arouse or gratify the sexual desires of
any person. To support this contention, Defendant cites State v.
Hutchings, 2012 UT 50, 285 P.3d 1183, which he maintains is
“identical” to this case with respect to this issue.
¶43 In Hutchings, a defendant was charged with aggravated
assault, a crime with “two elements, each with different mental
states: (1) committing a simple assault and (2) having the intent
to cause serious bodily injury.” Id. ¶ 11. The first element has no
statutorily prescribed mental state, and therefore a defendant
meets the first element if he commits simple assault with either
“intent, knowledge, or recklessness.” Id. ¶ 12 (quoting Utah
Code Ann. § 76-2-102 (LexisNexis 2017)). The second element
has a statutorily-prescribed mental state, requiring that a
defendant commit the assault with “intent to cause a serious
bodily injury.” Id. The main issue in Hutchings was whether this
second element could be met where a defendant merely
intended to commit the act that ended up resulting in serious
bodily injury, or whether it could be met only if a defendant
actually intended to cause the injury. Our supreme court ruled
that “[t]he mere intent to act, without the intent to cause the
result, is insufficient under the aggravated assault statute,” and
that “[c]ulpability for aggravated assault requires an actual
intent to cause the serious bodily harm.” Id. ¶ 14. Based on this
holding, the court concluded that the jury instruction regarding
intent was potentially confusing, because it stated that “‘[a]
person engages in conduct intentionally . . . when it is his
20150924-CA 20 2018 UT App 21State v. Carrell
conscious objective or desire to engage in the conduct or cause the
result.’” Id. ¶ 19 & n.6 (emphasis added).
¶44 Defendant attempts to draw a parallel with Hutchings by
asserting that, in this case, there are also two elements, each with
a separate mental state requirement: he must have both
(a) intentionally or knowingly touched the victims’ private parts or
taken indecent liberties with the victims, and (b) done so with a
specific intent to arouse sexual desire. Defendant argues that it
would have been better for the elements instructions for
aggravated sexual abuse of a child to be combined with the
instructions providing the definition of “intentionally” and
“knowingly.”
¶45 We disagree. The potential for confusion in Hutchings
stemmed from the statutory interpretation question that the
court resolved in that case, namely, whether the aggravated
assault statute required a defendant to actually intend to injure
the victim, or whether it was sufficient for a defendant to merely
intend to commit the act that ended up injuring the victim. We
have no such statutory interpretation question before us here,
and therefore we do not perceive the instructions given by the
trial court to have been confusing.
¶46 Indeed, we find persuasive the State’s argument that the
instructions provided to the jury “presented no potential for
confusion similar to that addressed in Hutchings.” By stating
explicitly that the Defendant could not be found guilty unless he
both “[k]nowingly or intentionally . . . touched any part of the
genitals . . . or buttocks of [First Victim] or otherwise took
indecent liberties with [First Victim]” and that he did so “[w]ith
the intent to arouse or gratify the sexual desires of any person,”
the instructions put the jury on notice that any touching
Defendant committed would not only need to itself be
“intentionally or knowingly” committed, but also, to warrant a
conviction, Defendant would have had to commit the touching
20150924-CA 21 2018 UT App 21State v. Carrell
with the particular intent to arouse or gratify. Further,
Defendant’s argument does not take into account the
longstanding rule that we read jury instructions “in their entire
context and give[] meaning in accordance with the ordinary and
usual import of the language as it would be understood by lay
jurors.” State v. Kennedy, 2015 UT App 152, ¶ 28, 354 P.3d 775(citation and internal quotation marks omitted). When the jury
encountered language in an instruction describing a particular
mental state, we presume that they interpreted that language in
light of the definitional instructions they were given.
¶47 Accordingly, the instructions used in this case regarding
mens rea were not improper, and the trial court did not err when
it provided them to the jury.
III
¶48 Finally, Defendant contends that the district court should
have granted his motion for a directed verdict, and thus that the
jury’s decision to convict him should be overturned, because the
State’s evidence was “inconclusive” as to both (a) whether
Defendant committed an illegal touching of either victim and
(b) whether Defendant did so “with the specific intent to arouse
or gratify his sexual desires.” After review of the evidence,
including viewing the video footage that was admitted into
evidence at trial, we disagree.
¶49 When considering whether to overturn a jury’s verdict on
the ground that the evidence presented was insufficient to
support a conviction, we consider the evidence and all
reasonable inferences therefrom in the light most favorable to
the jury’s verdict and uphold the verdict if “we conclude that
some evidence exists from which a reasonable jury could find
that the elements of the crime have been proven beyond a
reasonable doubt.” State v. Mills, 2012 UT App 367, ¶ 40, 293
P.3d 1129 (brackets, citation, and internal quotation marks
omitted). In the present case, the verdict must stand so long as
20150924-CA 22 2018 UT App 21State v. Carrell
some evidence exists from which a reasonable jury could have
found both (a) that Defendant touched the buttocks (of First
Victim) or genitalia (for either victim) or otherwise took indecent
liberties with either victim, and (b) that Defendant did so with
intent to arouse or gratify the sexual desire of any person.
¶50 As a threshold matter, Defendant urges us to disregard
First Victim’s testimony as inherently improbable before making
our determination regarding sufficiency of the evidence. While
normally the court must accept a jury’s determination as to the
credibility of witnesses and the weight to afford witness
testimony, a court may choose to disregard certain testimony on
a sufficiency of the evidence review if that testimony is
“inherently improbable.” State v. Robbins, 2009 UT 23, ¶ 16, 210
P.3d 288. In Robbins, our supreme court determined that courts
possess limited “discretion” to “reevaluate the jury’s credibility
determinations,” but “only when the court is convinced that the
credibility of the witness is so weak that no reasonable jury
could find the defendant guilty beyond a reasonable doubt.” Id.
¶¶ 18–19. Courts are empowered to exercise this limited
discretion “only in those instances where (1) there are material
inconsistencies in the testimony and (2) there is no other
circumstantial or direct evidence of the defendant’s guilt.” Id.
¶ 19; accord State v. Prater, 2017 UT 13, ¶ 33, 392 P.3d 398.
¶51 Neither of those prerequisites is present here. In support
of his contention that First Victim’s testimony was materially
inconsistent, Defendant notes that “[First Victim] never actually
told her father that [Defendant] was touching her ‘peepee’ under
her clothes,” but instead “only rubbed herself on the outside of
her clothes when talking to her father about sitting on the bus
seat.” In addition, Defendant points out that First Victim did not
talk to the detective who interviewed her about Defendant’s
alleged conduct during her first interview, and stated during the
20150924-CA 23 2018 UT App 21State v. Carrell
second interview nearly a year later that her therapist “told her
what to say.” 7 While these facts may certainly provide fodder for
cross-examination or for closing argument, they are not the sort
of “material inconsistencies” referenced in Robbins or Prater. This
is so for two reasons.
¶52 First, we note that Defendant’s recitation of the evidence
is selective. Although it is true that First Victim “rubbed herself
on the outside of her clothes while talking to her father about
sitting on the bus seat,” as Defendant asserts, Defendant omits
the fact that First Victim also told her father that Defendant
“made it soft” for her. Defendant also fails to mention that First
Victim, upon being asked about the bus driver for a second time,
rubbed her crotch again and said, “[d]oes that feel good?” In
addition, while First Victim was indeed unresponsive during her
first interview with the detective and stated during her second
interview that her therapist “told [her] what to say,” Defendant
omits the therapist’s explanation that she simply told First
Victim to tell the truth to the detective.
¶53 Second, we note that even if Defendant’s description of
First Victim’s testimony were complete, Defendant still would
not succeed on a Robbins challenge. The mere fact that a
witness’s account changes between her initial interview with
police and her testimony at trial is by itself insufficient. See
Prater, 2017 UT 13, ¶ 39 (noting that mere inconsistency with
prior testimony does not render subsequent testimony
7. Defendant also brings up the fact that during one account,
First Victim mentioned that Defendant sometimes touched her
while she was sitting on his lap. Defendant takes exception to
this, claiming that “none of the video showed [First Victim] ever
sitting on [Defendant’s] lap.” This is incorrect. In fact, the video
evidence shows First Victim sitting on Defendant’s lap on
several occasions.
20150924-CA 24 2018 UT App 21State v. Carrell
“‘apparently false’” because “[t]he question of which version of
[the witnesses’] stories was more credible is the type of question
we routinely require juries to answer”). In order to meet the first
element of the Robbins test, the witness’s testimony at trial must
be internally inconsistent; the fact that a witness’s trial testimony
is somewhat at odds with other evidence in the case, including
perhaps that witness’s own prior statement, is not enough to
render that testimony “inherently improbable.”
¶54 In addition, the second Robbins prerequisite is not met
here. Other circumstantial and direct evidence of Defendant’s
guilt exists, both in the testimony of First Victim’s father and in
the video evidence showing Defendant’s interactions with First
and Second Victim. These pieces of evidence corroborate First
Victim’s testimony, and thus are fatal to Defendant’s Robbins
argument. Because neither element of the Robbins test is met
here, the trial court properly declined to exercise its discretion to
disregard the jury’s assessment of First Victim’s credibility.
¶55 Because First Victim’s testimony was not inherently
improbable, the jury had “extraordinarily broad” latitude to
assess her credibility, Lyon v. Bryan, 2011 UT App 256, ¶ 10, 262
P.3d 1199, and assign her testimony whatever weight it felt was
appropriate. Given that First Victim testified at trial that
Defendant touched her “peepee” “like every day,” her testimony
alone would have been sufficient to allow a reasonable jury to
find that the elements of aggravated sexual abuse had been
proven beyond a reasonable doubt with respect to each charged
instance regarding First Victim.
¶56 But the jury in this case was not obligated to rely solely on
First Victim’s testimony. Instead, it also had access to the video
evidence, which corroborated First Victim’s testimony. As we
previously noted, the video evidence shows Defendant touching
First Victim’s clothed buttocks and placing his hands under her
skirt on several occasions, and on other occasions shows his
20150924-CA 25 2018 UT App 21State v. Carrell
hands somewhere low on her body while his shoulder
rhythmically moves up and down. The video evidence also
shows Defendant grabbing Second Victim’s clothed genitals for
several seconds on several occasions, often while she struggles.
From this, a reasonable jury could have inferred that Defendant
either touched or took “indecent liberties” with both First and
Second Victim.
¶57 Defendant finally argues, with respect to both First and
Second Victim, that even if the State had proven beyond a
reasonable doubt that Defendant touched First and Second
Victim’s genitalia, the State did not allege sufficient evidence to
establish that he did so “for the purpose of causing arousal or
sexual gratification,” especially “[g]iven the insignificant amount
of time that [Defendant] is alleged to have touched [Second
Victim].” When specific intent is an element of a crime,
prosecutors must prove that intent beyond a reasonable doubt.
See State v. Cooley, 603 P.2d 800, 802 (Utah 1979). However, intent
“need not be proved by direct evidence” but “may be inferred
from the actions of the defendant or from surrounding
circumstances.” State v. Murphy, 674 P.2d 1220, 1223 (Utah 1983).
In fact, because “‘intent . . . is a state of mind, which is rarely
susceptible of direct proof,’” a defendant’s intent “‘can be
inferred from conduct and attendant circumstances in the light
of human behavior and experience.’” State v. Robertson, 2005 UT
App 419, ¶ 15, 122 P.3d 895 (quoting State v. Brooks, 631 P.2d 878,
881 (Utah 1981)).
¶58 In this case, the jury had before it testimony from First
Victim that Defendant touched her genitals every day, video
evidence that corroborated First Victim’s account, and video
evidence showing Defendant placing his hand on Second
Victim’s genitals after she was already unbuckled from her seat
and despite her struggling. The video evidence further showed
Defendant appearing to smell or lick his fingers on several
occasions after touching First Victim. In the past, we have
20150924-CA 26 2018 UT App 21State v. Carrell
indicated that a jury may properly infer a defendant’s intent to
gratify his sexual desires from that defendant’s decision to touch
a child’s genitals. See State v. Hall, 946 P.2d 712, 724 (Utah Ct.
App. 1997). Further, we note that Defendant cites no case law
supporting his inference that he would need to touch Second
Victim’s genitals for a period longer than several seconds in
order for the jury to properly infer he intended to cause the
arousal or sexual gratification of any person. The evidence
before the jury was sufficient to support the inference that
Defendant touched First and Second Victim for his own arousal
or sexual gratification.
¶59 First Victim’s testimony was not inherently improbable,
and the jury was properly allowed to consider it. That testimony,
coupled with the other evidence introduced in the case,
including the video evidence, was sufficient to support the jury’s
verdict. 8 Accordingly, the trial court did not err in denying
Defendant’s motion for a directed verdict.
CONCLUSION
¶60 The trial court did not err in including, in the jury
instructions, the term “buttocks” or language describing
8. We reviewed the video footage associated with not only the
incidents for which the jury convicted Defendant, but also the
incidents for which the jury acquitted Defendant. As noted,
Defendant does not ask us to, and we do not, engage in a count-
by-count analysis of the arguments presented. However, we note
that, in general, there is a qualitative difference in behavior
between the incidents for which Defendant was convicted and
the incidents for which he was acquitted. By all appearances, the
jury did a thorough job of analyzing each separately-charged
incident and convicting Defendant only on the charges for which
it found convincing evidence of guilt.
20150924-CA 27 2018 UT App 21State v. Carrell
“indecent liberties,” and did not err in refusing to combine the
mental state and elements instructions. The trial court also did
not err in denying Defendant’s motion for directed verdict,
because the evidence in the record amply supported Defendant’s
convictions.
¶61 Affirmed.
20150924-CA 28 2018 UT App 21