2013 UT App 177

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH

, Plaintiff and Appellee,

v.

P AUL J OHN H ATTRICH

, Defendant and Appellant.

Opinion

No. 20111091

‐ CA

Filed July 18, 2013

Sixth District, Richfield Department

The Honorable Marvin Bagley

No. 091600098

Grant W.P. Morrison and Laura J. Fuller, Attorneys

for Appellant

John E. Swallow and Jeffrey S. Gray, Attorneys for

Appellee

J UDGE M ICHELE M. C HRISTIANSEN authored this Opinion, in

which J UDGES C AROLYN B. M C H UGH and S TEPHEN L. R OTH

concurred.

CHRISTIANSEN, Judge:

¶1 Defendant Paul John Hattrich appeals his convictions for

three counts of first degree felony sodomy on a child. We affirm.

BACKGROUND

¶2 Between 1994 and 1999, Defendant sexually victimized five

juveniles. In May 2009, the State filed an information chargingState v. Hattrich

20111091

‐ CA 2013 UT App 177 2 Defendant with thirty sexual offenses against children. Over the

next two years, the State amended the information four times.

¶3 Prior to the preliminary hearing, Defendant filed three

motions: (1) a motion for a change of venue, (2) a motion to dismiss

nine counts of the Second Amended Information, and (3) a motion

to sever the counts for trial. The trial court denied outright the

venue and dismissal motions. Also, the trial court granted the

motion to sever as to counts 26 and 27—dealing in material

harmful to a minor—but denied the motion as to the remaining

counts.

¶4 Following the trial court’s ruling on these motions, but

before the scheduled preliminary hearing, the State filed a Third

Amended Information on March 2, 2011, charging Defendant with

twenty

‐ seven counts of various sexual offenses involving the five

victims. The counts in the information included two counts of rape

of a child, both first degree felonies, see Utah Code Ann. § 76

‐ 5

‐ 402.1(1), (2) (Michie Supp. 1996); thirteen counts of sodomy on a

child, all first degree felonies, see id. § 76

‐ 5

‐ 403.1(1), (2); nine counts

of aggravated sexual abuse of a child, all first degree felonies, see id.

§ 76

‐ 5

‐ 404.1(1), (3)(b)(d), (4); one count of sexual abuse of a child,

a second degree felony, see id. § 76

‐ 5

‐ 404.1(1), (2); and two counts

of dealing in material harmful to a minor, both third degree

felonies, see id. § 76

‐ 10

‐ 1206(1)(a), (3) (Michie 1995).

¶5 The preliminary hearing was held on June 21, 2011, more

than three months after the State filed the Third Amended

Information. At the close of that hearing, the magistrate bound

Defendant over for trial on all counts except count 21, third degree

felony sexual abuse of a child, which the magistrate dismissed.

Defendant subsequently filed three additional motions: (1) a

motion to dismiss the Third Amended Information based upon

multiplicity concerns or, in the alternative, to reduce the counts; (2)

a motion to quash bindover; and (3) a motion to dismiss the Third

Amended Information for constitutional and rule violations. The

trial court denied all three motions. The State ultimately filed aState v. Hattrich

20111091

‐ CA 2013 UT App 177 3 Fourth Amended Information, omitting the sexual abuse count

dismissed at the preliminary hearing and the two counts of dealing

in material harmful to a minor that the trial court had previously

severed. Trial was scheduled to begin August 22, 2011.

¶6 Prior to trial, Defendant entered into a plea agreement with

the State. He pleaded guilty to three counts of sodomy on a child

in exchange for dismissal of the remaining counts. Defendant’s

guilty pleas were entered “conditional on Defendant’s right to

appeal any issues which ha[d] arisen or been litigated in this case.”

Thereafter, the trial court sentenced Defendant to a prison term of

fifteen years to life for each count and ordered the sentences to run

concurrently. Defendant appeals, challenging his convictions on

various grounds.

ISSUES AND STANDARDS OF REVIEW

¶7 Defendant first argues that the trial court erred in denying

his motion for a change of venue. The decision to grant or deny a

motion for a change of venue “lies within the sound discretion of

the trial court

. . . and [an appellate court] will not disturb that

decision unless an abuse of discretion is shown.” State v. James

, 767

P.2d 549, 551 (Utah 1989).

¶8 Defendant next contends that the trial court improperly

denied his motion to sever the counts for trial. “[T]he grant or

denial of severance is a matter within the discretion of the trial

judge, so we reverse [a denial] only if the trial judge’s refusal to

sever charges is a clear abuse of discretion in that it sacrifices the

defendant’s right to a fundamentally fair trial.” State v. Burke

, 2011

UT App 168, ¶ 15, 256 P.3d 1102 (alterations in original) (citation

and internal quotation marks omitted).

¶9 Third, Defendant challenges the trial court’s denial of his

motion to quash bindover. “When the review of a [trial] court’s

denial of a motion to quash a bindover implicates questions of law,State v. Hattrich

20111091

‐ CA 2013 UT App 177 4 we review for correctness, giving no deference to the [trial] court’s

legal conclusions.” State v. Timmerman

, 2009 UT 58, ¶ 7, 218 P.3d

590.

¶10 Defendant also argues that the trial court erred in denying

his two motions to dismiss the Third Amended Information for

violation of the rules against multiplicity and constitutional and

rule violations. “[T]he propriety of a trial court’s decision to grant

or deny a motion to dismiss is a question of law that we review for

correctness.” State v. Salazar

, 2005 UT App 241, ¶ 4, 114 P.3d 1170

(alteration in original) (citation and internal quotation marks

omitted).

¶11 Finally, Defendant argues that there were no exigent

circumstances to justify his warrantless arrest in the privacy of his

home. Even though this issue was not preserved before the trial

court, Defendant asserts that appellate review is appropriate

because exceptional circumstances exist. See generally State v. Low

,

2008 UT 58, ¶ 19, 192 P.3d 867 (“When a party fails to preserve an

issue for appeal, [appellate courts] will address the issue only if (1)

the appellant establishes that the district court committed plain

error, (2) exceptional circumstances exist, or (3) in some situations,

if the appellant raises a claim of ineffective assistance of counsel in

failing to preserve the issue.” (citations and internal quotation

marks omitted)).

ANALYSIS

I. The Trial Court Acted Within Its Discretion by Denying

Defendant’s Motion To Change Venue.

¶12 Defendant first argues that the trial court abused its

discretion by denying his motion to change venue. “The right to

trial by an impartial jury is guaranteed by both the United States

Constitution and the Utah Constitution.” State v. Stubbs

, 2005 UT

65, ¶ 9, 123 P.3d 407; see also U.S. Const. amend. VI; Utah Const.State v. Hattrich

20111091

‐ CA 2013 UT App 177 5 art. 1, § 12. Furthermore, rule 29 of the Utah Rules of Criminal

Procedure provides, “If the prosecution or a defendant in a

criminal action believes that a fair and impartial trial cannot be had

in the jurisdiction where the action is pending, either may, by

motion,

. . . ask to have the trial of the case transferred to another

jurisdiction.” Utah R. Crim. P. 29(d)(1). Defendant asserts that he

could not receive a fair and impartial trial in Sevier County—the

location where Defendant committed the criminal acts charged in

this case.

¶13 Criminal defendants may properly challenge a trial court’s

denial of a change of venue motion following conviction by a jury.

When such is the case, we consider “whether [the] defendant was

ultimately tried by a fair and impartial jury.” State v. Widdison

, 2001

UT 60, ¶ 38, 28 P.3d 1278. However, when a defendant challenges

a denial of a change of venue motion on interlocutory appeal, we

employ a totality of the circumstances test. See State v. James

, 767

P.2d 549, 552 (Utah 1989). The Utah Supreme Court has identified

four factors courts should examine in making this determination.

See id. “Factors to be considered include (1) the standing of the

victim and the accused in the community; (2) the size of the

community; (3) the nature and gravity of the offense; and (4) the

nature and extent of publicity.” Id

. Under this framework, the

burden is on the defendant to raise a “reasonable likelihood” that

a fair and impartial trial could not have been afforded to him or

her. See id. Because Defendant’s appeal follows the entry of his

guilty plea, as opposed to a conviction by a jury, it is impossible

“for us to assess the composition of the jury as it was actually

impaneled to determine whether [Defendant] was ultimately tried

by a fair and impartial jury.” See Stubbs

, 2005 UT 65, ¶ 16.

Therefore, we will review the trial court’s denial of Defendant’s

motion to change venue for an abuse of discretion by applying the

James factors in light of the totality of the circumstances of this case.

¶14 A review of the James factors demonstrates that the trial

court did not abuse its discretion by denying Defendant’s motion

to change venue. First, with regard to the standing of DefendantState v. Hattrich

20111091

‐ CA 2013 UT App 177 6 and the victims in the community, Defendant argues that his

employment as a Federal Express delivery person routinely placed

him in contact with residents of Sevier County. Defendant

therefore contends that his “employment accentuate[d] the

difficulty of seating a jury, which has not been touched in some

way, either directly or through family or friends, with this crime.”

Defendant does not identify how his possible contact with the

members of his Sevier County community may have negatively

affected the impartiality of a potential jury pool. Indeed, one could

infer the opposite—i.e., that Defendant’s personal relationships

with potential jurors actually lean in his favor. Furthermore,

because neither Defendant nor any of the victims were public

figures or officials, there was little chance that their standing in the

community would have unduly influenced the outcome of a trial.

¶15 Second, Defendant argues that the “small, tight

‐ knit nature

of the community in Sevier County [would have] impaired the

fairness and impartiality of [his] trial.” Defendant again fails to

specify how exactly this factor would have prejudiced his trial.

¶16 The third factor—consideration of the nature and gravity

of the offense—is more compelling. Defendant was charged

with multiple counts of rape of a child, sodomy on a child,

and aggravated sexual abuse of a child. Obviously, the heinous

nature of these crimes is likely to have some effect on the

local unincorporated community of Sevier, which is where

the offenses actually occurred and where the population is

about 100. The population of Sevier County is about 20,000.

See State & County QuickFacts, Sevier County, Utah, U.S. Census

Bureau http://quickfacts.census.gov/qfd/states/49/49041.html (last

visited July 10, 2013). However, the State makes a persuasive point

that the crimes were alleged to have occurred between 1994 and

1999, more than ten years before Defendant was first charged in

2009. Also, by the time the charges were filed and trial was to be

scheduled, the victims had since grown into adulthood, moved

outside Sevier County, and were working professionals with

careers in such areas as the military and medicine. Although timeState v. Hattrich

1. Defendant argues that the trial court “should have granted the

motion in respect to all of the counts,” which he requested to be

joined and severed from the remaining counts as follows: counts

(continued...)

20111091

‐ CA 2013 UT App 177 7 likely has not minimized the impact of these crimes on the victims

themselves, we agree with the State that “the passion [in the

community] that may arise from the seriousness of the charges is

likely tempered by the passing of time and the fact that the victims

have largely moved on with their lives.”

¶17 The final James factor requires review of the nature and

extent of the publicity surrounding the charges. Defendant claims

that “[t]here had been publicity

. . . in the local newspapers

. . . and

by virtue of the small community a shocking awareness that

Defendant had surfaced as an apparent child molester.” However,

Defendant fails to identify any record evidence to demonstrate

which specific newspapers carried the story or any example of

“shocking awareness” in the community. Indeed, the trial court

found that “[t]here ha[d] been no publicity to keep from getting [to]

a jury” and that “[t]his case has been kept quiet in [Sevier] county.”

¶18 Considering the totality of the circumstances, Defendant has

not raised a “reasonable likelihood” that a fair and impartial trial

could not have been afforded to him. Accordingly, we conclude

that the trial court did not abuse its discretion by denying

Defendant’s motion to change venue.

II. The Trial Court Acted Within Its Discretion by Denying

Defendant’s Motion To Sever the Remaining Counts.

¶19 Prior to the preliminary hearing, Defendant filed a motion

to sever the twenty

‐ seven counts contained in the Second

Amended Information. The trial court granted Defendant’s motion

as to counts 26 and 27—dealing in material harmful to a

minor—but denied the motion as to the remaining counts. 1 OnState v. Hattrich

1. (...continued)

1 and 2, rape of a child; counts 3, 4, 5, 6, 7, 8, 9, and 10, sodomy on

a child; counts 11, 12, 13, 14, 15, 16, 17, and 18, aggravated sexual

abuse of a child; counts 19 and 20, sodomy on a child; counts 21

and 22, sexual abuse of a child and aggravated sexual abuse of a

child, respectively; counts 23, 24, and 25, sodomy on a child; and

counts 26 and 27, dealing in material harmful to a minor. In his

motion, Defendant argued that “[e]ach of the joined together

counts should be tried in a separate trial from the other joined

together [c]ounts.” Severing the counts according to Defendant’s

request would have required seven separate trials.

20111091

‐ CA 2013 UT App 177 8 appeal, Defendant argues that the counts should have been severed

in order to prevent prejudice. See Utah Code Ann. § 77

‐ 8a

‐ 1(4)(a)

(LexisNexis 2012) (“If the court finds a defendant or the

prosecution is prejudiced by a joinder of offenses or defendants in

an indictment or information or by a joinder for trial together, the

court shall order an election of separate trials of separate counts,

grant a severance of defendants, or provide other relief as justice

requires.”). According to Defendant, the “risk of prejudice

. . . was

significant, if only by the sheer number of charges and which

charges are, short of being a capital offense,

. . . the most serious

offenses in the State of Utah.”

¶20 Defendant fails to persuade us, however, that he faced any

actual prejudice. Rather, his argument consists of conclusory

statements regarding the respective counts in the information

without any discussion of how joinder of those counts prejudiced

him under the law. For example, Defendant notes that the elements

of rape of a child are different from the elements of the other

offenses with which he is charged but then simply concludes,

“These counts should have been severed from the others.”

Defendant fails to explain how or why the difference in the

statutory elements is relevant or prejudicial in this circumstance.

Furthermore, from the minutes entered at the motion hearing, it

appears that the court based its denial of Defendant’s motion onState v. Hattrich

2. As observed in State v. Lamb

, 2013 UT App 5, 294 P.3d 639,

The previous publication of the Utah Code contains

the word ‘together’ as indicated in the quoted

language. See Utah Code Ann. § 77

‐ 8a

‐ 1 (LexisNexis

2008). Although this word is not included in the most

recent publication of the Utah Code, see id. (2012),

this omission appears to be inadvertent because the

statute has not been amended since the previous

publication, see id. history.

Lamb, 2013 UT App. 5, ¶ 7 n.3.

3. In his affidavit, the detective stated, among other things, that

(continued...)

20111091

‐ CA 2013 UT App 177 9 “affidavits filed and Utah law.” The minutes also indicate that the

court found a “lack of prejudice in trying the charges together” and

that it made the “same analysis that the Court of Appeals made in

the Milton Bradley case.” At no point does Defendant’s brief refer

to any supporting affidavits, the trial court’s written ruling, or

analysis of the “ Milton Bradley ” case. In short, Defendant’s

argument is under developed and leaves us unconvinced that he

was prejudiced by the joinder. See Utah. R. App. P. 24(a)(9).

¶21 Moreover, Utah Code section 77

‐ 8a

‐ 1 allows for joinder of

multiple felony counts in the same information so long as “each

offense is a separate count and if the offenses charged are

. . . based

on the same conduct or are otherwise connected [together 2 ] in their

commission; or

. . . alleged to have been part of a common scheme

or plan.” See Utah Code Ann. § 77

‐ 8a

‐ 1(1). Based on the motion

hearing minutes, the trial court determined that after examining

the “affidavits filed and Utah law,” “there was a common scheme

over a few years time.” There was only one affidavit

submitted—that of the detective involved in the case. A review of

this affidavit confirms that the crimes alleged in the information

were connected in their commission and part of a common scheme

or plan. 3 Because the charges were properly joined and becauseState v. Hattrich

3. (...continued)

(1) “[a]buse was occurring simultaneously to all three victims

during the years of 1994, 1995, and 1996”; (2) “[a]ll of the abuse

began under similar circumstances of grooming” and Defendant’s

“grooming pattern was the same for each [victim],” including

enticing the victims to his home, introducing them to pornographic

photos and movies, discussing adolescent sexual issues,

befriending each victim’s family, and eventually progressing to

casual touching and then sexual contact; (3) “[a]ll of the abuse that

has been charged occurred at the Defendant’s residence in Sevier,

Utah, except one incident at the river near his home”; (4) [e]ach of

the victims’ descriptions of Defendant’s residence were “so

similar” that it was “evident that [they] spent a great deal of time

there”; and (5) “Defendant perpetrated upon each [victim] tens if

not hundreds of times” the same types of sexual abuse.

20111091

‐ CA 2013 UT App 177 10 Defendant has failed to demonstrate any prejudice, the trial court

did not abuse its discretion by denying Defendant’s motion to

sever.

III. The Trial Court Did Not Err in Denying Defendant’s Motion

To Quash Bindover.

¶22 Defendant filed a motion to quash bindover following the

preliminary hearing, which motion the trial court denied. On

appeal, Defendant’s challenge to the trial court’s denial of his

motion to quash is three fold. He contends that the magistrate

(1) applied the wrong bindover standard at the preliminary

hearing, (2) should have granted Defendant’s motion to continue

the preliminary hearing, and (3) should not have allowed the State

to introduce the written statement of a witness at the preliminary

hearing in lieu of oral testimony.

A. The Magistrate Applied the Correct Bindover Standard.State v. Hattrich

20111091

‐ CA 2013 UT App 177 11 ¶23 At the close of the preliminary hearing, the magistrate

stated, “At a preliminary hearing stage, the standard of proof is

probable cause, probable cause that something occurred. I like the

definition of probable cause as a reason to believe

, and at the stage of

preliminary hearing, the Court is to take all inferences in favor of

the State.” (Emphasis added.) The Utah Supreme Court has

explained that “a defendant may be bound over for trial only if the

prosecution produces evidence sufficient to demonstrate probable

cause that the charged crimes were committed,” and that a

“showing of probable cause entails only the presentation of

evidence sufficient to support a reasonable belief that the defendant

committed the charged crime.” State v. Ramirez, 2012 UT 59, ¶¶ 8–9,

289 P.3d 444 (emphasis added) (citation and internal quotation

marks omitted).

¶24 Defendant argues that the magistrate’s reference to “a

reason to believe” is distinct from the applicable standard of a

“reasonable belief.” As an initial matter, Defendant has not

preserved this issue for appeal because he failed to raise it before

the trial court. Additionally, Defendant’s plea agreement limits the

issues he may raise on appeal to those “which have arisen or been

litigated in this case.” Defendant’s failure to raise or litigate this

issue below precludes him from now arguing it on appeal.

¶25 Nevertheless, Defendant’s argument lacks merit. Even

though we acknowledge that a “reason to believe” is not the same

as “a reasonable belief,” the magistrate applied the probable cause

standard which is the correct standard for bindover at a

preliminary hearing. Defendant would have us dissect a singular,

passive, oral statement made by the magistrate in describing the

probable cause standard as grounds for reversing his bindover.

Such an inquiry focuses on a possible semantic misstatement rather

than the law actually applied. The magistrate explicitly stated that

after evaluating the facts as they were presented to him, he found

“that there [was] probable cause to believe that Defendant Hattrich

committed all of the counts that are alleged with the exception of

Count No. 21.” (Emphasis added.) Defendant does not challengeState v. Hattrich

20111091

‐ CA 2013 UT App 177 12 the probable cause determination on any other ground, such as the

sufficiency of the evidence. Accordingly, we conclude that the

magistrate applied the correct bindover standard.

B. Defendant Waived His Challenge to the Magistrate’s Denial

of His Motion to Continue.

¶26 On the morning of the preliminary hearing, the State

informed Defendant’s counsel that one of the State’s three

witnesses scheduled to testify would be submitting a written

statement in lieu of live testimony. Defendant argues that “[h]aving

the witness’s affidavit given to him[] immediately before the

preliminary hearing, where he had virtually no opportunity to

review the affidavit, denied Defendant his due process rights.”

Defendant claims that had he known the witness would not be

present to testify at the hearing, he would have subpoenaed the

witness.

¶27 Upon commencement of the hearing, defense counsel

immediately moved the court for a continuance or bifurcation of

the preliminary hearing with the expectation of subpoenaing the

witness to testify later. The magistrate provisionally denied the

motion but informed defense counsel that “[i]f at the end of the

evidence [defense counsel] wants to make a motion for a

continuance for the purpose of subpoenaing the witness, [the court

would] hear the motion, and

. . . address it at that point.” However,

defense counsel never renewed the motion for a continuance at the

close of the preliminary hearing. Consequently, the State contends

that Defendant has waived any claim that he was entitled to a

continuance. We agree.

¶28 Rule 16 of the Utah Rules of Criminal Procedure provides

several remedies to mitigate any prejudice to a criminal defendant

caused by unanticipated testimony. See Utah R. Crim. P. 16(g). One

such remedy is a continuance of the proceedings. Id. Yet “[w]hen

the prosecution introduces unexpected testimony, a defendant

essentially waive[s] his right to later claim error if the defendantState v. Hattrich

20111091

‐ CA 2013 UT App 177 13 fails to request a continuance or seek other appropriate relief under

Rule 16(g).” State v. Rugebregt

, 965 P.2d 518, 522 (Utah Ct. App.

1998) (second alteration in original) (citation and internal quotation

marks omitted). Here, Defendant effectively waived his right to

raise this claim on appeal because, despite having requested a

continuance at the commencement of the preliminary hearing, he

failed to renew the motion as instructed by the magistrate. See State

v. Hansen

, 2002 UT 114, ¶ 16, 61 P.3d 1062 (“[W]hen a court

properly defers ruling on an issue that has been raised and plainly

instructs the objecting party to re

‐ raise the issue at a specific later

time if its objection remains,

. . . [and] if no such later objection is

made, the party has not presented [the issue] to the trial court in a

manner sufficient to obtain a ruling thereon, thereby preserving the

issue for review.” (third alteration in original) (citations and

internal quotation marks omitted)).

C. The Magistrate’s Decision To Admit the Written Statement

In Lieu of Oral Testimony Did Not Violate Defendant’s

Constitutional Confrontation Rights.

¶29 Defendant also argues that his rights under the

Confrontation Clause of the Sixth Amendment to the United States

Constitution and under the Utah Constitution were violated when

the magistrate admitted the witness’s written statement at the

preliminary hearing, thereby denying Defendant an opportunity to

cross

‐ examine that witness. Defendant argues that a preliminary

hearing, as opposed to a probable cause determination at an

arraignment, is a critical stage of a prosecution and thus entitles

criminal defendants the right to confront and cross

‐ examine all

adverse witnesses.

¶30 The Utah Supreme Court has already addressed this precise

issue in State v. Timmerman

, 2009 UT 58, 218 P.3d 590. In that case,

the state introduced at the preliminary hearing the written

statement of a witness who was unavailable to testify because she

invoked the spousal privilege. Id. ¶ 4. Over the defendant’s

objection, the magistrate admitted the witness’s statement andState v. Hattrich

20111091

‐ CA 2013 UT App 177 14 ultimately bound the defendant over for trial. Id. The defendant

subsequently moved to quash the bindover on the same

constitutional grounds as does Defendant in this case. See id. ¶ 5.

The trial court denied the motion to quash, ruling that the

confrontation rights afforded by both the United States and Utah

constitutions do not apply to preliminary hearings. Id

.

¶31 The Utah Supreme Court affirmed. Id. ¶¶ 13, 16 (holding

“that the federal Confrontation Clause does not apply to

preliminary hearings” and “that the plain language of the 1995

amendment to article I, section 12 of the Utah Constitution

removed the constraints of Utah’s Confrontation Clause from

preliminary hearings”). Notably, the supreme court rejected the

same arguments Defendant now advances in an attempt to

distinguish between the probable cause determinations at

arraignments and those at preliminary hearings and the

corresponding level of confrontation rights. See id. ¶ 12. Because the

Timmerman holding squarely addresses the factual and legal issues

present in the case before this court, we determine that the

magistrate properly admitted the witness statement in lieu of the

witness’s actual testimony.

¶32 Because all three grounds for Defendant’s appeal on this

point fail, we affirm the trial court’s denial of his motion to quash

bindover.

IV. The Trial Court Properly Denied Defendant’s Motion To

Dismiss for Violation of the Rule Against Multiplicity.

¶33 Defendant argues that the trial court erred by denying his

motion to dismiss the Third Amended Information because the

counts charged violate the rule against multiplicity. The rule

against multiplicity stems “from the 5th Amendment [Double

Jeopardy Clause], which prohibits the Government from charging

a single offense in several counts and is intended to prevent

multiple punishments for the same act.” State v. Morrison

, 2001 UT

73, ¶ 24, 31 P.3d 547 (citation and internal quotation marksState v. Hattrich

20111091

‐ CA 2013 UT App 177 15 omitted). “‘The test is whether the individual acts are prohibited,

or the course of action which they constitute. If the former, then

each act is punishable separately

. . . . If the latter, there can be but

one penalty.’” Blockburger v. United States

, 284 U.S. 299, 302 (1932)

(omission in original) (quoting Wharton’s Criminal Law § 34 n.3

(11th ed.)). Thus, evaluation of a multiplicity claim requires

analysis of the statutes under which a criminal defendant is

charged. State v. Rasabout

, 2013 UT App 71, ¶¶ 16–17, 299 P.3d 625.

¶34 The Utah Legislature has instructed courts to construe the

“laws of this state

. . . according to the fair import of their terms to

promote justice.” Utah Code Ann. § 76

‐ 1

‐ 106 (LexisNexis 2012). In

State v. Morrison

, 2001 UT 73, 31 P.3d 547, the supreme court

employed this approach as it evaluated a multiplicity challenge to

the sexual exploitation of a minor statute. See id. ¶ 25. The court

construed the statute to mean that “each individual ‘visual

representation’ of child pornography that is knowingly possessed

by a defendant constitutes the basis for a separate offense.” Id. ¶ 26

(citing Utah Code Ann. § 76

‐ 5a

‐ 3 (1999) (current version at Utah

Code Ann. § 76

‐ 5b

‐ 201 (LexisNexis 2012))). The court held that,

“[t]herefore, the rule against multiplicity was not violated” when

a defendant was charged with fifty separate counts. Id. ¶¶ 2, 26.

¶35 Here, Defendant was charged with multiple counts of rape

of a child, sodomy on a child, and sexual abuse of a child.

Examination of these statutes reveals that the legislature intended

to criminalize each individual act and not “the course of action

which they constitute.” See Blockburger, 284 U.S. at 302 (citation and

internal quotation marks omitted). When Defendant committed

these offenses, Utah Code section 76

‐ 5

‐ 402.1 provided, “A person

commits rape of a child when the person has sexual intercourse with

a child who is under the age of 14.” Utah Code Ann. § 76

‐ 5

‐ 402.1(1)

(Michie Supp. 1996) (emphasis added). Section 76

‐ 5

‐ 403.1 provided,

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 ofState v. Hattrich

20111091

‐ CA 2013 UT App 177 16 the actor or the child and the mouth or anus of either

person, regardless of the sex of either participant.

Id. § 76

‐ 5

‐ 403.1(1) (emphasis added). And section 76

‐ 5

‐ 404.1

provided,

A person commits sexual abuse of a child if, under

circumstances not amounting to rape of a child,

object rape of a child, sodomy upon a child, or an

attempt to commit any of these offenses, the actor

touches the anus, buttocks, or genitalia of any child,

the breast of a female child younger than 14 years of

age, or otherwise takes indecent liberties with a child, or

causes a child to take indecent liberties with the actor or

another with intent to cause substantial emotional or

bodily pain to any person or with the intent to arouse

or gratify the sexual desire of any person regardless

of the sex of any participant.

Id. § 76

‐ 5

‐ 404.1(1) (emphases added). Just as each visual

representation of child pornography possessed by the defendant in

Morrison constituted a separate offense, it is clear from the “fair

import” of the above

‐ cited statutes that the legislature intended to

prohibit each individual act of rape, sodomy, or sexual abuse of a

child. Accordingly, the State was free to charge multiple counts of

the same crime so long as each count represented a separate act of

rape, sodomy, or sexual abuse committed by Defendant. By doing

so, the State did not violate the rule against multiplicity.

V. The Trial Court Properly Denied Defendant’s Motion to

Dismiss Claiming Constitutional and Rule Deficiencies.

¶36 Defendant also argues that the trial court erred in not

dismissing the Third Amended Information on the grounds that

the charging document violated his due process rights embodied

in the Utah Constitution and rule 4 of the Utah Rules of Criminal

Procedure. Specifically, Defendant contends that the original andState v. Hattrich

4. Rule 4 has since been amended, effective April 1, 2012. It now

reads,

The court may permit an information to be amended

at any time before trial has commenced so long as the

substantial rights of the defendant are not

prejudiced. If an additional or different offense is

charged, the defendant has the right to a preliminary

hearing on that offense as provided under these rules

and any continuance as necessary to meet the

amendment.

Utah R. Crim. P. 4(d) (2013).

20111091

‐ CA 2013 UT App 177 17 the four amended informations failed to provide adequate notice

of the dates and locations of his then

‐ alleged crimes, thereby

“wreak[ing] havoc on Defendant’s ability to defend himself.”

¶37 The Utah Constitution provides that “[n]o person shall be

deprived of life, liberty or property, without due process of law,”

Utah Const. art. 1, § 7, and that criminal defendants have the right

“to demand the nature and cause of the accusation against [them],”

and to be provided with a “copy thereof,” id. § 12. Also, at the time

the Third Amended Information was filed, rule 4 of the Utah Rules

of Criminal Procedure provided in relevant part, “The court may

permit an indictment or information to be amended at any time

before verdict if no additional or different offense is charged and

the substantial rights of the defendant are not prejudiced.” Utah R.

Crim. P. 4(d) (2011). 4

¶38 Under rule 4(d), “the trial court may allow an information

to be amended if two conditions are met: (1) no additional or

different offense is charged, and (2) the substantial rights of the

defendant[] are not prejudiced.” State v. Bush

, 2001 UT App 10,

¶ 11, 47 P.3d 69 (alternation in original) (citation and internal

quotation marks omitted). Defendant argues that the State has the

burden of showing that both prongs of rule 4(d) are met before a

court may allow for an amendment. However, in Tillman v. Cook,State v. Hattrich

20111091

‐ CA 2013 UT App 177 18 855 P.2d 211 (Utah 1993), the Utah Supreme Court held that even

where new and additional offenses were charged with the

amendment of a first degree murder charge to include aggravating

circumstances, rule 4(d) was not violated because the defendant–

‐

not the State—“ha[d] shown no prejudice because of the

amendment.” Id. at 214–15. Also, in State v. Holt

, 2004 UT App

213U (mem.), this court determined that even though the trial court

erred when it allowed the state to amend an information at the end

of a defendant’s trial because the amendment created a new and

additional offense, “it [was] clear that [the d]efendant did not

suffer any harm or prejudice as a result.” Id. at para. 9.

Consequently, we declined to reverse the defendant’s conviction in

that case. See id.

¶39 Thus, rule 4(d) case law suggests that even if an amended

information does create a new and additional offense, reversal is

only appropriate if the defendant can demonstrate that his or her

substantial rights are prejudiced as a result of the amendment.

Here, whether or not the Third Amended Information charged

Defendant with new and additional offenses is inconsequential to

our resolution of this issue because Defendant has not established

that his substantial rights were prejudiced by any new charges.

¶40 At the heart of Defendant’s prejudice argument is his claim

that the repeated amendments to the information hampered his

defense and violated his due process rights by presenting him with

“constantly moving targets in terms of dates, times, and events.”

Defendant’s argument lacks merit. The supreme court has

explained that due process does not “expressly mandate

identification of the exact date when an alleged offense occurred.”

State v. Taylor

, 2005 UT 40, ¶ 9, 116 P.3d 360. This is especially true

of sexual abuse prosecutions where “identifying the specific date,

time, or place of the offense is often difficult owing to the inability

of young victims to provide this information.” Id. ¶ 12. Rather,

“due process requires that an accused be given sufficiently precise

notification of the date of the alleged crime so that he can prepare

his defense.” State v. Nelson

‐ Waggoner

, 2004 UT 29, ¶ 20, 94 P.3d 186State v. Hattrich

20111091

‐ CA 2013 UT App 177 19 (emphasis added) (citation and internal quotation marks omitted).

The analysis requires “weighing of the completeness of the notice

and its adequacy for the defendant’s purposes against the

background of the information legitimately available to the

prosecuting authority .” Taylor

, 2005 UT 40, ¶ 9 (emphasis added)

(citation and internal quotation marks omitted). The constitutional

requirement is fulfilled “[a]s 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.” Id. (alteration in

original) (citation and internal quotation marks omitted).

¶41 We determine that the State provided Defendant with

adequate notice.

[T]he notice to which a defendant is constitutionally

entitled may come through one or all of three

sources: the charging information, a response to a bill

of particulars under rule 4(e) of the Utah Rules of

Criminal Procedure, or a response, under section

77

‐ 14

‐ 1 of the [Utah] Code, to a demand for the place,

date, and time of the offense charged.

State v. Wilcox

, 808 P.2d 1028, 1031 (Utah 1991). The State provided

Defendant with all three forms of notice in this instance. Defendant

asserts that the bill of particulars and the section 77

‐ 14

‐ 1 demand

response are insufficient because they do not correspond to the

Fourth Amended Information, which became the final charging

document. Though the State addressed a different charging

document, the State’s response to Defendant’s section 77

‐ 14

‐ 1

demand provided Defendant with enough detail because the

Fourth Amended Information neither added to nor substantively

changed the counts set forth in the Third Amended Information.

The Fourth Amended Information removed only the counts that

had been previously severed or dismissed. In addition, although it

appears that the bill of particulars corresponded only to the Second

Amended Information, Defendant has not included a copy of the

bill of particulars in the record on appeal. Accordingly, because weState v. Hattrich

20111091

‐ CA 2013 UT App 177 20 cannot evaluate whether the bill of particulars was sufficient to

address Defendant’s specificity concerns, we must assume that the

bill of particulars filed by the State was adequate. See State v.

Litherland

, 2000 UT 76, ¶ 11, 12 P.3d 92 (“If an appellant fails to

provide an adequate record on appeal, [an appellate court] must

assume the regularity of the proceedings below.” (citation and

internal quotation marks omitted)).

¶42 A review of both the Third Amended Information and the

section 77

‐ 14

‐ 1 demand response confirms that the State gave

Defendant “sufficiently precise notification,” see Nelson

‐ Waggoner

,

2004 UT 29, ¶ 20 (citation and internal quotation marks omitted),

in light of the “information legitimately available to the

prosecuting authority,” Taylor

, 2005 UT 40, ¶ 9 (citation and

internal quotation marks omitted). Examined together, these

documents provide the years, names, and frequency with which

Defendant was then alleged to have committed the crimes charged.

The State obtained this information entirely from the victims’

memories of events that had transpired more than a decade prior.

It was the best information available to the prosecution.

¶43 Furthermore, Defendant was provided with the Third

Amended Information on March 2, 2011. The preliminary hearing

was held on June 21, 2011, and trial was not scheduled to begin

until August 22, 2011. Thus, Defendant had more than three

months from the time he was provided with the Third Amended

Information to prepare for the preliminary hearing and an

additional two months to prepare for trial. In other words,

Defendant had ample time to prepare a defense both for the

preliminary hearing and trial. Cf. Tillman v. Cook, 855 P.2d 211,

215–16 (Utah 1993) (explaining that no prejudice resulted where the

defendant was bound over after the information was amended at

the close of the preliminary hearing and where the defendant had

more than three months after the amendment to prepare a defense

for trial). Therefore, Defendant’s rights were not substantially

prejudiced.State v. Hattrich

5. Defendant also claims that the lack of specific dates and times for

the offenses charged in the Third Amended Information prevented

him from preparing an adequate alibi defense. However, the

language of the statutes does not impose on the State an obligation

to prove precise dates, even when Defendant has concerns about

establishing an alibi defense. In other words, dates are not elements

of the crimes charged against Defendant. See State v. Fulton

, 742

P.2d 1208, 1213 (Utah 1987) (“[A]n alibi defense challenges the

State’s ability to prove the statutory elements. Therefore, the mere

assertion of an alibi defense does not impose on the prosecution the

additional burden of proving the precise date of the act. The

burden on the prosecution remains the same, i.e., to establish all

elements of the crime beyond a reasonable doubt.” (footnote

omitted)).

20111091

‐ CA 2013 UT App 177 21 ¶44 In sum, we conclude that Defendant’s due process rights

under the Utah Constitution and rule 4(d) were not violated,

because the State provided Defendant with adequate notice and he

had ample time to prepare a defense. Thus, we affirm the trial

court’s ruling denying Defendant’s motion to dismiss for

constitutional and rule deficiencies. 5

VI. Defendant’s Claim That No Exigent Circumstances Justified

His Warrantless Arrest Inside His Home Is Unpreserved.

¶45 Finally, Defendant contends that there were no exigent

circumstances justifying his warrantless arrest inside his home. See

generally Payton v. New York

, 445 U.S. 573, 583 (1980) (holding that

the Fourth Amendment prohibits police from making a warrantless

and nonconsensual entry into a private residence in order to arrest

a suspect unless exigent circumstances exist). Defendant concedes

that he did not preserve this issue for appeal because it was not

presented to the trial court. See State v. Holgate

, 2000 UT 74, ¶ 11, 10

P.3d 346 (“As a general rule, claims not raised before the trial court

may not be raised on appeal.”). Nevertheless, Defendant argues

that we should address his warrantless arrest claim under theState v. Hattrich

20111091

‐ CA 2013 UT App 177 22 exceptional circumstances exception to the preservation rule. “The

exceptional circumstances doctrine is used sparingly, properly

reserved for truly exceptional situations, for cases

. . . involving

rare procedural anomalies, and [may be employed] where a change

in law or the settled interpretation of law color[s] the failure to

have raised an issue at trial.” Provo City v. Ivie

, 2008 UT App 287,

¶ 6, 191 P.3d 841 (alterations and omission in original) (citations

and internal quotation marks omitted).

¶46 Defendant has not identified how this case constitutes a

“rare procedural anomal[y].” See id. Nor has he demonstrated how

an intervening “change in law or the settled interpretation of law”

justifies his failure to raise the warrantless arrest claim below. See

id. (citation and internal quotation marks omitted). Thus, the

exceptional circumstances exception does not apply, and we

decline to address Defendant’s unpreserved claim on appeal.

Additionally, Defendant’s plea agreement limits the issues he may

raise on appeal to those “which have arisen or been litigated in this

case.” Defendant’s failure to raise or litigate this issue below also

precludes him from arguing it on appeal.

CONCLUSION

¶47 Defendant has not shown error in the trial court’s denial of

his motions and Defendant failed to preserve his warrantless arrest

claim. Accordingly, we affirm.