State v. Garcia-Mejia , 402 P.3d 82 ( 2017 )

2017 UT App 129THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ANGEL GARCIA-MEJIA,
Appellant.
Opinion
No. 20151095-CA
Filed July 28, 2017
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 141901008
Alexandra S. McCallum, Robin K. Ljungberg, and
Katherine A. Conyers, Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES STEPHEN L. ROTH and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 A jury convicted Defendant Angel Garcia-Mejia of
sexually abusing five of his six children. Now, on appeal,
Defendant argues that his convictions were based on insufficient
evidence because the testimony of his children was “inherently
improbable” and the evidence failed to establish the requisite
mental state associated with his crimes. We affirm.
BACKGROUND
¶2 “Defendant is appealing from a jury verdict; thus we
recite the facts in a light most favorable to the jury’s verdict, but
present conflicting evidence to the extent necessary to clarify the
State v. Garcia-Mejia
issues raised on appeal.” See State v. Vigil, 922 P.2d 15, 18 (Utah
Ct. App. 1996) (citation and internal quotation marks omitted).
¶3 On Son’s ninth birthday, while traveling to pick up his
cake, Son confided to Mother that Defendant “was doing
inappropriate things” to him. Son explained that one morning,
about a month before, Defendant had been lying in bed, covered
by a blanket. He pushed Son’s “head down on his private” and
Defendant’s blanket-covered “middle private in the front” went
inside Son’s mouth, hurting Son’s throat. Furthermore,
Defendant and Son sometimes shared a bed, and “two or three
times a week,” Defendant would “pull down his underwear,”
then pull down Son’s “pants a little bit and then put”
Defendant’s “private” on Son’s unclothed butt cheek. Defendant
sometimes masturbated while Son was in bed next to him.
¶4 Mother drove home immediately, separated the children,
and asked each of them if Defendant had “ever done anything
that is inappropriate and made them feel uncomfortable.”
Including Son, five of the six children told Mother that
Defendant had sexually abused them. The State charged
Defendant with one count of sodomy on a child, a first degree
felony, and eight counts of aggravated sexual abuse of a child,
also first degree felonies.
¶5 At trial, Son’s twin brother (Twin) testified that when he
and Defendant slept in the same bed, Defendant “did some bad
stuff” to him, including touching Twin’s “private.” Twin
clarified, “The one that I use to pee with.” Defendant would
“move his hand” while touching Twin. Other times, Defendant
would “pull down his pants” and “try and put his private up”
Twin’s “butt.” When this happened, Defendant’s penis would
touch the “outside, like [the] butt cheek,” sometimes over Twin’s
pants and sometimes on his bare skin.
¶6 Another of Son’s brothers (Brother) testified about
interactions with Defendant when Brother was nine years old.
He explained that in the bathroom, Defendant “touched me in
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my private spot . . . [with h]is hand” when Brother’s clothes
were off. And while the two were in Defendant’s bed,
Defendant, with his hand, touched Brother in his “private spot”
over Brother’s clothes. Brother later clarified that when he
referred to his “private spot” he meant his penis. The touching in
the bathroom and in Defendant’s bed happened “more than one
time.” Brother also recounted abuse that had happened while he
was showering with Defendant. Defendant “put his private spot
in [Brother’s] butt,” touching Brother’s “butt cheek.”
¶7 Son’s oldest brother (Oldest) testified to events that
occurred when he was eleven years old. When he was alone with
Defendant in Defendant’s bedroom, “more than one time,”
Defendant put his hands down Oldest’s pants, touching his
“front private” inside his underwear; Defendant “was moving
his hand” while inside Oldest’s underwear. Oldest further
testified that he and Defendant sometimes showered together.
While in the shower, Defendant “was trying to put his front
private up [Oldest’s] butt” when his penis touched “the left part
of” Oldest’s butt cheek. Oldest also testified that he was present
in Defendant’s bedroom on the morning that Defendant “was
putting his private in [Son’s] mouth” and “holding” Son’s head.
See supra ¶ 3.
¶8 Finally, Son’s sister (Sister) testified that, when she was
twelve years old, Defendant “would touch [her] breast . . . [o]n
top of [her] clothes.” This happened “a couple of times,” and
each time, she “would try to slap him away.” Sister also testified
that Defendant “once tried to touch [her] below the waist.” “He
tried to put his hand . . . in [her] pants, but he didn’t succeed
because [she] slapped him away.”
¶9 Defendant maintained that he never touched his children
inappropriately. He suggested that someone might have
encouraged the kids to fabricate their accusations against him.
He also believed that the children had learned about different
sexual behaviors from inappropriate television shows or movies
and were “acting that stuff out.” In an interview with police,
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Defendant acknowledged that Son’s mouth had “come into
contact with his penis,” but he explained that “it hadn’t
happened the way the kids were saying it [had].” Instead,
according to Defendant, one morning he was in bed with an
erection. Son “grabbed his erect penis through the blanket, and
one of the boys,” either Oldest or Twin, “pushed [Son’s] head
onto his penis which was under the blanket.” Defendant was on
the phone and “told the boys to stop it.” Although Defendant
denied all of the other incidents testified to by the children, he
admitted showering with the boys and claimed that the boys did
“sexually inappropriate things in the shower in front of him.”
¶10 Defendant moved for a directed verdict on all of the
charges against him. The trial court denied the motions,
concluding that the State had presented sufficient evidence from
which a reasonable jury could find Defendant guilty of sodomy
on a child and aggravated sexual abuse of a child. The court
highlighted the testimony given by Son and Oldest that
Defendant had pushed Son’s “head down on his privates.” It
further specified that the testimony regarding “the way the
touching occurred,” “the number of times that it occurred and so
forth, are all things that would lead to an inference that would
be able to establish a prima facie case.” The jury thereafter
returned guilty verdicts on all nine counts. Defendant timely
appealed.
ISSUE AND STANDARD OF REVIEW
¶11 Defendant asks that we review the question of whether
his “convictions for sodomy on a child and aggravated sexual
abuse of a child should be reversed on all counts.” He argues
that “reasonable minds must have entertained a reasonable
doubt that he committed these offenses” because “the State
produced insufficient evidence to support his convictions.”
¶12 “To determine whether there was sufficient evidence to
convict a defendant, we do not examine whether we believe that
20151095-CA 4 2017 UT App 129State v. Garcia-Mejia
the evidence at trial established guilt beyond a reasonable
doubt.” State v. Holgate, 2000 UT 74, ¶ 18, 10 P.3d 346. Instead,
we consider whether, “after viewing the evidence and all
inferences drawn therefrom in a light most favorable to the
jury’s verdict, the evidence is sufficiently inconclusive or
inherently improbable such that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime for which he or she was convicted.” Id. (citation and
internal quotation marks omitted).
ANALYSIS
¶13 Defendant argues that the evidence here was too
inconclusive or inherently improbable to “demonstrate that he
intentionally/knowingly/recklessly engaged in a sexual act
involving his penis and [Son’s] mouth” and thus to sustain a
conviction of sodomy on a child. He similarly argues that the
evidence was insufficient to sustain his convictions of
aggravated sexual abuse of a child because “there is little to
show that he” engaged in the conduct alleged “with the intent to
gratify a sexual desire.” The evidence was inconclusive or
improbable, he contends, because: it was contradicted by his
own account; his account was corroborated in part by Oldest; the
boys’ testimonies contained inconsistencies; the children failed
to make any allegations of sexual abuse when they spoke with
an interviewer from DCFS the previous year; and there was
“evidence” that the children’s testimonies resulted from coercion
or exposure to sexually inappropriate materials.
I. Sodomy on a Child
¶14 “A person commits sodomy upon a child if the actor
engages in any sexual act upon or with a child who is under the
age of 14, involving the genitals or anus of the actor or the child
and the mouth or anus of either person, regardless of the sex of
either participant.” Utah Code Ann. § 76-5-403.1(1) (LexisNexis
Supp. 2016). Because the statute containing “the definition of the
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offense does not specify a culpable mental state[,] . . . intent,
knowledge, or recklessness shall suffice to establish criminal
responsibility.” See id. § 76-2-102 (2012).
¶15 Defendant’s conviction for sodomy on a child was based
on his behavior one morning when he pushed Son’s head down
toward his blanket-covered penis, which went inside Son’s
mouth, hurting Son’s throat. Son and Oldest both testified that
this happened, and Defendant’s own version of events included
that Son’s “head” was pushed “onto his penis which was under
the blanket.” The fact contested at trial, then, was whether
Defendant or another child had pushed Son’s head down.
¶16 Defendant argues that “the State failed to demonstrate
that he recklessly/knowingly/intentionally caused [Son’s] mouth
to come in contact with his penis.” Defendant lumps together the
three possible mental states throughout his brief and thus fails to
acknowledge that the evidence needed to support a conviction
based on one mental state might vary significantly from the
evidence needed to support another. For instance, he does not
discuss the possibility that his version of events might alone
support a conviction for sodomy on a child, where Defendant
does not contest that Son’s mouth came in contact with
Defendant’s penis, see id. § 76-5-403.1 (Supp. 2016), and the Utah
Code defines “recklessly” as when an actor “is aware of but
consciously disregards a substantial and unjustifiable risk that
the circumstances exist or the result will occur,” id. § 76-2-103(3)
(2012). “The risk must be of such a nature and degree that its
disregard constitutes a gross deviation from the standard of care
that an ordinary person would exercise under all the
circumstances as viewed from the actor’s standpoint.” Id. And
his argument on appeal, that the “evidence suggests that [Son’s]
contact with his penis was . . . inadvertent,” is not necessarily
inconsistent with a finding that Defendant acted recklessly.
¶17 But we need not decide the question of recklessness
because the evidence was sufficient to support a finding that
Defendant acted intentionally. See id. § 76-2-104(2) (setting forth
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the hierarchy of mental states and directing that if “acting
recklessly is sufficient to establish the culpable mental state for
an element of an offense, that element is also established if a
person acts intentionally or knowingly”). Defendant engaged in
the conduct at issue intentionally “or with intent or willfully
with respect to the nature of his conduct” if it was “his conscious
objective or desire to engage in the conduct.” Id. § 76-2-103(1).
Son testified that Defendant pushed his head down to
Defendant’s penis and that Defendant’s penis went in his mouth.
Oldest testified that Defendant “put[] his private in [Son’s]
mouth” while “holding” Son’s head. This testimony regarding
Defendant’s volitional act of holding Son’s head supports a
finding that Defendant intentionally committed sodomy on a
child because it demonstrates that it was Defendant’s “conscious
objective or desire” to engage in a “sexual act upon or with” Son
“involving the genitals” of Defendant “and the mouth” of Son.
See id.; id. § 76-5-403.1(1) (Supp. 2016).
¶18 Defendant contests that the evidence was sufficient to
support such a finding. In his view, the evidence “suggests that
the alleged sodomy on a child did not happen the way the kids
were saying it [had].” Defendant points out that in his version of
events, he “was under the blankets with a morning erection”
while “speaking on the phone” when either Twin or Oldest
“pushed [Son’s] head onto his penis which was under the
blanket.” He also points out that this “account was corroborated
in part by [Oldest], who recalled that [Defendant] was on the
phone when the incident occurred.”1 Defendant concludes that
his “account—including evidence that his attention was focused
on his telephone conversation and evidence that his penis
remained underneath the blanket—suggests that he did not
recklessly/knowingly/intentionally” commit sodomy on a child.
Thus, Defendant’s argument on this point is that there was
1. So, in the same breath, Defendant encourages us to disregard
Oldest’s version of events while simultaneously using it to
support his own.
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contradictory evidence presented at trial and that the jury
should have believed the evidence presented that favored
Defendant.
¶19 In this regard, Defendant’s argument mirrors the one set
forth by the defendant in State v. Howell, 649 P.2d 91 (Utah 1982),
who “contend[ed] that the evidence, as a matter of law, [was]
insufficient to justify his conviction.” Id. at 97. And the Utah
Supreme Court’s analysis in that case applies here:
Defendant’s contention that the evidence adduced
at trial was insufficient to support his conviction
presumes that the jury was obligated to believe the
evidence most favorable to defendant rather than
that presented in opposition by the State. Such is
not the law. The existence of contradictory
evidence or of conflicting inferences does not
warrant disturbing the jury’s verdict. It is within
the exclusive province of the jury to judge the
credibility of the witness and the weight of the
evidence. It is not sufficient that on appeal an
appellate court views the evidence as less than
wholly conclusive. To overturn a verdict on the
ground of insufficiency of the evidence, this Court
would have to find that reasonable minds would
entertain a reasonable doubt as to guilt. Clearly
there is substantial credible evidence to support
defendant’s conviction, and it was not, as
contended, so lacking and insubstantial that
reasonable men could not have reached the verdict
beyond a reasonable doubt.
Id. (citations omitted). The State presented evidence. Defendant
presented conflicting evidence. That the jury resolved the
conflict against Defendant does not mean that the evidence was
legally insufficient to support Defendant’s conviction; it means
that the jury engaged in its appointed role as factfinder. See id.
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¶20 In addition to reiterating his version of events and
arguing that the jury should have believed it, Defendant argues
that Son’s and Oldest’s testimonies about this incident were
“inherently improbable” because they “suffered from multiple
inconsistencies.” (Citing State v. Robbins, 2009 UT 23, ¶ 8, 210
P.3d 288.) “Moreover,” Defendant argues, “the children did not
make any allegations of sexual abuse when they were
interviewed by DCFS,” the year before the allegations in this
case came to light. Finally, Defendant argues that there was
evidence that the allegations against him were the result of
coercion.
¶21 Defendant suggests that the jury should not have believed
the boys’ accounts, because, for instance, Son “testified
inconsistently regarding whether [Defendant] would sleep with
his underwear on or off when [Son] was in the bed” and Oldest
testified that he witnessed inappropriate shower behavior
between Defendant and Twin, while Twin “affirmatively
testified that he never showered with” Defendant. But
Defendant fails to convince us that the boys’ testimonies were
inherently improbable. For one thing, the inconsistencies
Defendant alleges had nothing to do with the event leading to
Defendant’s conviction for sodomy on a child. And inasmuch as
Defendant argues that the inconsistencies generally called the
boys’ credibility into question, we have previously indicated that
even where a witness’s testimony is inconsistent, the “choice
between conflicting testimony is within the province of the jury.”
State v. Pedersen, 802 P.2d 1328, 1330 (Utah Ct. App. 1990)
(citation and internal quotation marks omitted).
¶22 In Pedersen, a minor’s “testimony at trial was somewhat
different from her previous statements,” but the inconsistencies
did not “conflict[] as to the material elements of the crime
charged,” the minor “was not improperly influenced by the
questions posed to her during examination,” and the minor
“testified to all the elements of the crime charged.” Id. at 1330–
31. “We view[ed] [that] case as hinging on the credibility of the
witnesses,” and because “[c]redibility is within the province of
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the jury, to which we defer,” we affirmed the defendant’s
convictions. Id. at 1331, 1332. Like Pedersen, the case before us
hinges on the credibility of the witnesses. And because the jury
determined the boys’ accounts of this particular incident were
more credible than Defendant’s, we defer to that finding.
¶23 Defendant also argues that the boys’ testimonies were
inconclusive or inherently improbable because the children
failed to make any allegations of sexual abuse when, the
previous year, they were interviewed by DCFS. However, the
charges being investigated at that time dealt with potential
physical, not sexual, abuse of the children. Further, we have
previously noted that “[d]elayed discovery and reporting are
common” with “sexual offenses involving child victims.” State v.
Hoyt, 806 P.2d 204, 209 (Utah Ct. App. 1991); see also State v. Bair,
2012 UT App 106, ¶ 47, 275 P.3d 1050 (explaining that the
commonness of delayed disclosure in child sexual abuse cases is
“a fact already recognized by Utah courts”). Ultimately, the
evidence adduced at trial on this point was slim, to say the least.
On cross-examination, Mother was asked, “So November of
2013, did you make a report to DCFS?” She indicated that she
had and explained that the report had nothing to do with sexual
abuse. She was then asked, “Now during those interviews, to
your information, did any of the children disclose any of what
you’re talking about here today?” And she said, “No.” Finally,
Defendant’s attorney asked, “And that was during that same
time period, wasn’t it?” to which Mother responded, “A little bit
before, yes.” This was the extent of the information the jury
heard regarding the DCFS interviews with the children the year
before the sexual abuse allegations came to light, and it is the
entirety of the evidence on which Defendant asks us to disturb
the jury’s verdict. We decline to do so.
¶24 Regarding Defendant’s contention that the evidence was
insufficient to support his conviction because the children’s
allegations were the result of coercion, we are similarly
unconvinced. The jury heard testimony that Defendant believed
the children had been encouraged to fabricate their allegations.
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But this belief was unsupported by any details, and Defendant
never indicated who he thought might have been behind such
encouragement, even though he was asked specifically by a
detective to identify who might have done so. The jury also
heard that the children sometimes watched sexually
inappropriate materials. But as we have already discussed, the
jury is tasked with factfinding. And it was free to believe or not
to believe the evidence regarding fabrication. That it chose not to
believe does not mean that Defendant’s conviction is
unsupported by the evidence. See State v. Kazda, 545 P.2d 190, 192
(Utah 1976) (“The jury, whose prerogative it is to choose what
evidence it will believe, chose to believe that of the State.”).
¶25 In short, Defendant argues that the evidence regarding
the sodomy charge, including what he deems to be inconsistent
and inherently improbable testimony from the many victims, is
akin to State v. Robbins, 2009 UT 23, 210 P.3d 288. We disagree. In
Robbins, our supreme court determined that “the clear record of
inconsistencies in [the witness’s] testimony, and in light of the
clarification of our inherent improbability standard that [the
court] announce[d]” in that case, warranted vacating the
defendant’s conviction. Id. ¶ 25. The facts underlying that
determination included, among others, the following: The
alleged victim was interviewed by DCFS and assured the
interviewer that Robbins had never abused her. Id. ¶ 4. She was
interviewed a second time and told the interviewer that “she felt
safe at home.” Id. ¶ 6. The victim thereafter accused Robbins of
an incident of sexual abuse that had allegedly occurred three
years previously. Id. ¶ 7. Her “recollection of the alleged sexual
abuse incident suffered from multiple inconsistencies,”
including what age she was when the abuse occurred, what sort
of clothes she was wearing at the time, and the details of the type
and duration of the touching. Id. ¶ 8. When asked about the
inconsistencies, her explanation was “that she had a hearing
problem like her grandfather, a fact objectively not true.” Id.
¶26 Recently, the supreme court reaffirmed the decision in
Robbins and clarified when it is appropriate for an appellate
20151095-CA 11 2017 UT App 129State v. Garcia-Mejia
court to reevaluate a factfinder’s credibility determination. See
generally State v. Prater, 2017 UT 13, 392 P.3d 398. The court
explained, “In Robbins, the child’s additional patently false
statements and not just her inconsistent accounts, which could
be explained by her age and lack of sophistication, allowed the
court to reassess her credibility.” Id. ¶ 38. “It was the
inconsistencies in the child’s testimony plus the patently false
statements the child made plus the lack of any corroboration that
allowed [the] court to conclude that insufficient evidence
supported Robbins’s conviction.” Id. (emphasis in original).
¶27 The facts before us differ dramatically from Robbins. As
the court in Prater pointed out, the court in Robbins could
reevaluate the child’s credibility, in part, because the child was
the sole witness and there was no corroborating evidence. Id.
¶ 36. Multiple victim-witnesses exist here, all of whom testified
to similar abuse at the hands of Defendant. In addition,
Defendant’s own version of events largely corroborates the
testimony provided by the boys with regard to the sodomy
charge. Beyond the corroborating evidence that distinguishes
this case from Robbins, any inconsistencies in the boys’
testimonies can “be explained by [their] age and lack of
sophistication,” and there were no “patently false statements”
made. See id. ¶ 38. Given the framework clarified in Prater, this is
simply not the sort of case where this court is able to reevaluate
the factfinder’s credibility determinations.
¶28 We are not persuaded that the alleged inconsistencies in
the boys’ testimonies, the delay in reporting Defendant’s abuse,
or any evidence suggesting fabrication of the allegations render
the evidence against Defendant insufficient as a matter of law.
We therefore affirm Defendant’s conviction for sodomy on a
child.
II. Aggravated Sexual Abuse of a Child
¶29 The jury properly found Defendant guilty of aggravated
sexual abuse of a child if it found that he touched “the anus,
20151095-CA 12 2017 UT App 129State v. Garcia-Mejia
buttocks, or genitalia of any child, the breast of a female child, or
otherwise [took] indecent liberties with a child . . . with the
intent to arouse or gratify the sexual desire of any person
regardless of the sex of any participant.” See Utah Code Ann.
§ 76-5-404.1(2) (LexisNexis Supp. 2016). On appeal, Defendant
focuses his argument on the intent element of the crime:
“Specifically, he argues that the evidence failed to show that he
acted with the intent to gratify a sexual desire.” Defendant
instead suggests that “any such contact was incidental and
nonsexual and occurred when [Defendant] was ‘roughhousing’
with the children, be it in the shower or in his bedroom.”2
¶30 There was sufficient evidence presented from which the
jury could have inferred that Defendant engaged in the behavior
at issue with the intent to arouse or gratify sexual desire.
Defendant is correct that “[n]one of the children testified that
[Defendant] had an erection during these encounters” and that
“there was no evidence that [Defendant] said anything during
these interactions.” But “[i]t is well established that intent can be
proven by circumstantial evidence. [Intent] may be inferred from
the actions of the defendant or from surrounding circumstances.
The factfinder . . . is entitled to draw all reasonable inferences
from the facts and from the actions of the defendant.” State v.
Whitaker, 2016 UT App 104, ¶ 13, 374 P.3d 56 (omission and
second alteration in original) (citations and internal quotation
marks omitted); accord State v. Davis, 711 P.2d 232, 234 (Utah
1985) (per curiam) (“As to defendant’s intent or state of mind,
2. To the extent Defendant attempts to challenge the evidence
supporting the actus reus of his crimes, it is only by reiterating
his argument that the children’s testimonies were “inherently
improbable” and the result of coercion, in the same way he
challenged his sodomy-on-a-child conviction. We determine that
the jury was free to believe the evidence supporting Defendant’s
convictions for aggravated sexual abuse of a child, just as it was
free to believe the evidence supporting his conviction for
sodomy on a child. See supra ¶¶ 18–28.
20151095-CA 13 2017 UT App 129State v. Garcia-Mejia
intent need not be proved by direct evidence, but may be
inferred from defendant’s conduct and surrounding
circumstances.”); State v. Murphy, 674 P.2d 1220, 1223 (Utah
1983) (“[I]ntent need not be proved by direct evidence” but
“may be inferred from the actions of the defendant or from
surrounding circumstances.”); State v. Kennedy, 616 P.2d 594, 598
(Utah 1980) (“Wherever a special intent is an element of a
criminal offense, its proof must rely on inference from
surrounding circumstances.”); State v. Cooley, 603 P.2d 800, 802
(Utah 1979) (“Specific intent may be inferred from acts. It may be
shown like many other facts from the surrounding
circumstances.” (citation and internal quotation marks omitted));
State v. Robertson, 2005 UT App 419, ¶ 15, 122 P.3d 895 (“[I]ntent
. . . is a state of mind, which is rarely susceptible of direct proof[;]
it can be inferred from conduct and attendant circumstances in
the light of human behavior and experience.” (citation and
internal quotation marks omitted)); see also In re D.M., 2013 UT
App 220, ¶ 11, 310 P.3d 741 (holding that in light of an
individual’s “conduct in exposing and touching [another’s]
testicles and the attendant circumstances,” the factfinder’s
“inference that [the individual] possessed a sexual intent” was
not clearly erroneous (citation and internal quotation marks
omitted)).
¶31 “Circumstantial evidence has routinely been used to
prove specific intent.” Whitaker, 2016 UT App 104, ¶ 14.
When intent is proven by circumstantial evidence,
we must determine (1) whether the State presented
any evidence that [the 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.
Id. ¶ 13 (alterations in original) (quoting State v. Holgate, 2000 UT
74, ¶ 21, 10 P.3d 346).
20151095-CA 14 2017 UT App 129State v. Garcia-Mejia
¶32 We therefore first consider whether the State presented
any evidence that Defendant sexually abused his children with
the intent to arouse or gratify sexual desire. See id. We conclude
that the State did. The evidence includes the testimony of five
children, all twelve years of age or younger, that Defendant had
sexual contact with them on multiple occasions. The contact was
similar among the four boys. All four suffered abuse when
Defendant’s penis touched their butt cheeks. See Utah Code Ann.
§ 76-5-404.1(2). Son testified that Defendant would “pull down
his underwear,” then pull down Son’s “pants a little bit and then
put” Defendant’s “private” on Son’s unclothed butt cheek. Son
also stated that Defendant sometimes masturbated while Son
was in bed next to him. Twin testified that Defendant would
“pull down his pants” and “try and put his private up” Twin’s
“butt.” Brother testified that while he was showering with
Defendant, Defendant “put his private spot in [Brother’s] butt,”
touching Brother’s “butt cheek.” And Oldest testified that while
showering with Defendant, Defendant “was trying to put his
front private up [Oldest’s] butt” when his penis touched “the left
part of” Oldest’s butt cheek. Three of the boys testified that
Defendant touched their genitalia, and two of them said that he
moved his hand while doing so. Twin testified that Defendant
touched his “private.” Brother testified that Defendant “touched
me in my private spot . . . [with h]is hand” both over and under
Brother’s clothes. And Oldest testified that “more than one
time,” Defendant put his hands down Oldest’s pants, touching
his “front private” inside his underwear. This is evidence that
Defendant’s intent was to arouse or gratify sexual desire.
¶33 We next consider whether the inferences “that can be
drawn from that evidence have a basis in logic and reasonable
human experience sufficient to prove that” Defendant acted with
the requisite intent. See Whitaker, 2016 UT App 104, ¶ 13 (citation
and internal quotation marks omitted). We have previously
determined that “the existence of multiple victims (and
consequently multiple similar acts) supported an inference of
intent.” See id. ¶ 14. This reasoning applies here. That five
children testified to abuse by the same perpetrator, four of them
20151095-CA 15 2017 UT App 129State v. Garcia-Mejia
giving very similar accounts,3 cuts against Defendant’s
contention that any perceived sexual contact was actually
“incidental and nonsexual and occurred when [Defendant] was
‘roughhousing’ with the children.” So, too, does the specific
evidence that Defendant would move or remove
pants/underwear while engaging in the charged conduct. Son,
Twin, Oldest, and Sister all testified that Defendant pulled down
their underwear, pulled down his own underwear, or put or
attempted to put his hand down their pants in order to touch
them. The jury was entitled to draw an inference from
Defendant’s repeated behavior that it was done with the intent
to arouse or gratify a sexual desire. See id.; see also State v. Singh,
2011 UT App 396, ¶ 10, 267 P.3d 281 (“Given the similarity of the
3. We acknowledge that the abuse Sister suffered varied from the
abuse suffered by her brothers, but Defendant does not
separately challenge the evidence supporting the one count of
aggravated sexual abuse of a child stemming from his contact
with Sister. Instead, he argues only that Sister’s account, like that
of her brothers, was “inherently improbable” because “there was
evidence that the children’s testimony” resulted from coercion.
This argument has already been addressed. See supra ¶ 29 note 2.
We nevertheless briefly note that where Defendant generally
alleges that his sexual contact with the children was the
incidental result of roughhousing with them, the evidence
presented at trial lends no support for the idea that his touching
of Sister’s breasts happened in this manner. Sister testified that
Defendant would roughhouse and joke around with her
brothers, but she never indicated that he did the same with her.
Mother similarly testified that Defendant and “the boys” did “a
lot of roughhousing.” And where Sister testified that Defendant
“would come up to [her] and—he was very hesitant, but he
would touch [her] breast,” it is dubious that Defendant’s
intention was anywhere near as innocent as he suggests. We
thus conclude that the jury could have inferred beyond a
reasonable doubt that Defendant touched Sister with the intent
to arouse or gratify a sexual desire.
20151095-CA 16 2017 UT App 129State v. Garcia-Mejia
witnesses’ testimony regarding the sexual nature of Defendant’s
actions and the trial court’s credibility determinations, sufficient
evidence supported the court’s inference that Defendant
committed his acts against the victim with the intent to arouse or
sexually gratify himself.”).
¶34 Circumstantial evidence existed from which the jury
could have reasonably inferred that Defendant engaged in the
behavior at issue with the intent to arouse or gratify a sexual
desire. See Utah Code Ann. § 76-5-404.1(2) (LexisNexis Supp.
2016). Accordingly, we decline to disturb the jury’s verdict
finding Defendant guilty of eight counts of aggravated sexual
abuse of a child.
CONCLUSION
¶35 There was sufficient evidence to convict Defendant of
sodomy on a child and aggravated sexual abuse of a child. And
because we generally defer to the jury’s role in determining
credibility and finding facts, we affirm Defendant’s convictions.
20151095-CA 17 2017 UT App 129