2021 UT App 32

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

AARON DAVID ROSEN,

Appellant.

Opinion

No. 20190684-CA

Filed March 18, 2021

Fourth District Court, Provo Department

The Honorable M. James Brady

No. 171402518

Emily Adams, Freyja Johnson, and Cherise Bacalski, 

Attorneys for Appellant

Sean D. Reyes and John J. Nielsen, 

Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN

concurred.

ORME, Judge:

¶1 Aaron David Rosen appeals his conviction for unlawful 

sexual conduct with a 16-year-old (Victim). He argues that his 

trial counsel was ineffective for not challenging the 

constitutionality of the statutory scheme under which he was 

convicted. We reject his argument and affirm.
State v. Rosen

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BACKGROUND1

¶2 In 2017, Victim, then 16 years old, created a profile on a 

social networking site designed for adult same-sex encounters. 

He claimed to be 18 years old or older. Victim and Rosen, a 

former police officer in his 40s who had previously worked as a 

school resource officer, connected on the site and arranged to 

meet at Victim’s second-floor apartment for a sexual encounter. 

Once Rosen arrived at the apartment, Victim met him at the 

door. Victim was wearing his high school sweatshirt. The two 

immediately began kissing, which eventually progressed to 

mutual sexual touching and oral sex.

¶3 Victim’s father arrived unexpectedly, causing Victim and

Rosen to quickly get dressed, with Victim urging Rosen to leave 

by jumping from the balcony, which he did. Victim’s father, 

however, heard a noise come from the balcony and saw Rosen,

wearing a tank top and holding his shoes, as he was running 

away. Rosen sped off in his car, with Victim’s father in pursuit.

Victim’s father was able to get Rosen’s license plate number,

which police later used to identify and arrest Rosen. 

¶4 When confronted by police, Rosen claimed that he 

thought Victim was 23 years old and that he ran away from the 

apartment because he thought Victim’s husband or boyfriend 

had come home. Rosen also claimed that they “didn’t do 

anything,” but when asked whether he remembered touching 

Victim’s genitals, Rosen admitted to “just petting” over clothing.

¶5 The State charged Rosen with one count of unlawful 

sexual conduct with a 16- or 17-year-old, a third-degree felony, 

 

1. “On appeal, we recite the facts from the record in the light 

most favorable to the jury’s verdict and present conflicting 

evidence only as necessary to understand issues raised on 

appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
State v. Rosen

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and one count of unlawful sexual conduct with a minor, a class 

A misdemeanor. Under the applicable statutory scheme, a 

defendant who is “seven or more years older but less than 10 

years older than the minor at the time of the sexual conduct” can 

present the defense that he did not know, nor should he 

reasonably have known, the actual age of the minor. See Utah 

Code Ann. § 76-5-401.2(2)(a)(i) (LexisNexis Supp. 2020).2 But if 

the defendant is “10 or more years older than the minor at the 

time of the sexual conduct,” id. § 76-5-401.2(2)(a)(ii), the 

defendant cannot present the defense that he “mistakenly 

believed the victim to be 18 years of age or older at the time of 

the alleged offense or was unaware of the victim’s true age,” id.

§ 76-2-304.5(4) (2017). 

¶6 Being significantly more than ten years older than Victim, 

Rosen had no basis on which to argue a 

reasonable-mistake-of-age defense under the terms of the 

statute. A jury convicted Rosen as charged. The district court 

merged the misdemeanor and felony convictions. Rosen appeals.

ISSUE AND STANDARD OF REVIEW

¶7 Rosen raises one issue on appeal. He claims that his trial 

counsel was constitutionally ineffective for failing to challenge 

the applicable statutory scheme under the uniform operation of 

laws provision of the Utah Constitution. See Utah Const. art. I, 

§ 24.3 “When a claim of ineffective assistance of counsel is raised 

 

2. Because the relevant provisions of the Utah Code in effect 

when Rosen committed his offense do not materially differ from 

those currently in effect, we cite the current version of the code 

for convenience.

3. While known as the uniform operation of laws provision, 

Article I, Section 24 of the Utah Constitution has long been 

(continued...)
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for the first time on appeal, there is no lower court ruling to 

review and we must decide whether the defendant was 

deprived of the effective assistance of counsel as a matter of 

law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 

(quotation simplified).

ANALYSIS

¶8 To succeed on a claim of ineffective assistance of counsel, 

an appellant must show, first, “that counsel’s performance was 

deficient” and, second, “that the deficient performance 

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 

687 (1984). “Because failure to establish either prong of the test is 

fatal to an ineffective assistance of counsel claim, we are free to 

address [these] claims under either prong.” Honie v. State, 2014 

UT 19, ¶ 31, 342 P.3d 182. We limit our consideration of this case 

to the first prong.

¶9 In determining whether counsel’s performance was 

deficient, we “must indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional 

assistance,” Strickland, 466 U.S. at 689, and we “give trial counsel 

wide latitude in making tactical decisions and will not question 

such decisions unless there is no reasonable basis supporting 

them,” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (quotation 

simplified). “Moreover, deficient performance is not determined 

 

(...continued)

considered Utah’s version of the federal equal protection clause 

as the two “embody the same general principle.” Gallivan v. 

Walker, 2002 UT 89, ¶ 31, 54 P.3d 1069 (quotation simplified). See 

also Blue Cross & Blue Shield of Utah v. State of Utah, 779 P.2d 634, 

637 (Utah 1989) (“The principles and concepts embodied in the 

federal equal protection clause and the state uniform operation 

of the laws provision are substantially similar.”).
State v. Rosen

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in a vacuum; rather, it involves asking whether the strategy 

counsel employed was that of a reasonable, competent lawyer in 

the real-time context” of the proceeding. State v. Wilkes, 2020 UT 

App 175, ¶ 24, 479 P.3d 1142 (quotation simplified). “However, 

even where a court cannot conceive of a sound strategic reason 

for counsel’s challenged conduct, it does not automatically 

follow that counsel was deficient,” because “the ultimate 

question is always whether, considering all the circumstances, 

counsel’s acts or omissions were objectively unreasonable.” State

v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. Accord State v. Ray, 2020 

UT 12, ¶¶ 34–36, 469 P.3d 871.

¶10 To determine whether a statute violates the uniform 

operation of laws provision, courts “apply a three-step analysis: 

(1) whether the statute creates any classifications; (2) whether the 

classifications impose any disparate treatment on persons 

similarly situated; and (3) if there is disparate treatment, whether 

the legislature had any reasonable objective that warrants the 

disparity.” State v. Robinson, 2011 UT 30, ¶ 17, 254 P.3d 183 

(quotation simplified). Under the third step, if the challenged 

statute creates classifications based on age, courts apply a 

rational basis review to the Legislature’s decision. See Merrill v.

Utah Labor Comm'n, 2009 UT 26, ¶ 8, 223 P.3d 1089. “Rational 

basis scrutiny [is] a low bar under which classifications 

employed by the legislature are presumptively permissible.” 

Taylorsville City v. Mitchell, 2020 UT 26, ¶ 43, 466 P.3d 148 

(quotation simplified). And we “will uphold a statute under the 

rational basis standard if it has a reasonable relation to a proper 

legislative purpose, and is neither arbitrary nor discriminatory.”

State v. Angilau, 2011 UT 3, ¶ 10, 245 P.3d 745 (quotation 

simplified). Accord Mitchell, 2020 UT 26, ¶ 43.

¶11 Here, because Rosen did not raise a uniform operation of 

laws argument below, we do not directly address the 

constitutionality of the statutory scheme. Rather, we must 

consider the question through the restrictive lens employed in 
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reviewing claims of ineffective assistance of counsel. Thus, we 

must determine whether counsel performed deficiently in not 

challenging the scheme as being violative of the uniform 

operation of laws doctrine. See Strickland, 466 U.S. at 687. 

¶12 We can readily determine that Rosen’s counsel did not 

render deficient performance. A uniform operation of laws 

challenge is a relatively sophisticated undertaking. But even 

assuming that objectively reasonable counsel would have 

perceived the availability of such a challenge and investigated it 

with care, reasonable counsel could still have determined that 

any such attack on the statutory scheme might well have failed

under the third and final step of the operation of laws analysis. 

Reasonable counsel would know that the district court was 

required to apply the lenient rational basis review standard to 

the statutory scheme and that the court would likely conclude

that the Legislature had a rational basis for treating some 

younger defendants differently from defendants who were “10 

or more years older than the minor at the time of the sexual 

conduct.” See Utah Code Ann. § 76-5-401.2(2)(a)(i)–(ii)

(LexisNexis Supp. 2020). Reasonable counsel could have 

determined that the Legislature had a rational basis for the 

scheme because older adults are more likely to have greater 

authority in a minor’s eyes, making the minor more likely to 

acquiesce to the designs of older adults. See generally People v.

Cavallaro, 100 Cal. Rptr. 3d 139, 148 (Ct. App. 2009) (“The 

Legislature could have properly concluded that it was necessary 

to specifically prohibit sexual conduct between a 14- or 

15-year-old and an adult at least 10 years older and to include 

mandatory sex offender registration based upon a conviction for 

the offense, because of the potential for predatory behavior 

resulting from the significant age difference between the adult 

and the minor.”). Moreover, older adults may be better able to 

manipulate and control minors than are adults closer in age to 

the minors. And reasonable counsel might well have perceived

that the Legislature could have concluded that these older adults 
State v. Rosen

20190684-CA 7 2021 UT App 32

would be more intuitively aware of the apparent age 

discrepancy and reasonably be expected to comport themselves 

with more maturity and caution. 

¶13 In addition, reasonable counsel would have learned, in 

the course of basic research, that similar statutory schemes have 

been routinely upheld. See, e.g., Doe v. Oberweis Dairy, 456 F.3d 

704, 713 (7th Cir. 2006) (“In Illinois as elsewhere the crime is 

considered more serious the greater the disparity in ages 

between the parties. The theory is that a young girl (or boy) is 

likely to have particular difficulty resisting the blandishments of 

a much older man.”); State v. Anthony, 528 S.E.2d 321, 324 (N.C. 

2000) (holding that the legislature made “a legitimate legislative 

decision” in determining “that sexual intercourse or sexual acts 

with children deserve more severe punishment . . . based on a 

greater difference in age between the victim and the older 

defendant”); State v. Walborn, 729 So. 2d 504, 506 (Fla. Dist. Ct. 

App. 1999) (holding that the legislature’s decision “to limit 

criminal responsibility to persons twenty-four years of age and 

over” was reasonable “because the legislature felt that persons in 

this group were more likely than others to understand the 

consequences of their actions and to cause harm to minors who 

cannot appreciate the seriousness of their activities,” and that

“therefore, the age limitation . . . is not arbitrary when balanced 

against the goals of protecting minors from sexual exploitation”). 

While a line drawn at 10 years (as opposed to 9 or 11 or 10 3⁄4

years) is necessarily somewhat arbitrary because it leaves 

“people close to the boundary on either side . . . similarly 

situated,” reasonable counsel could have logically concluded

that this does not make the statutory scheme impermissible. See

Angilau, 2011 UT 3, ¶ 28. And this conclusion would be 

reinforced upon recognizing that the Utah Supreme Court and 

“the United States Supreme Court have held that age is a 

permissible method of classifying individuals where a rational 

basis exists.” See id. (quotation simplified). 
State v. Rosen

20190684-CA 8 2021 UT App 32

¶14 Thus, reasonable counsel could have determined that the 

statute would withstand rational basis review and that it was 

sensible to forgo an argument that was likely to fail. See State v. 

Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile 

objections does not constitute ineffective assistance of counsel.”).

Accordingly, Rosen has not overcome the “strong presumption 

that counsel’s conduct [fell] within the wide range of reasonable 

professional assistance,” see Strickland, 466 U.S. at 689, nor has he

“show[n] that counsel made errors so serious that counsel was 

not functioning as the ‘counsel’ guaranteed the defendant by the 

Sixth Amendment,” see id. at 687.

CONCLUSION

¶15 Reasonable counsel could have concluded that the 

Legislature had a rational basis for the scheme it enacted and 

that any challenge before the district court premised on the 

uniform operation of laws provision would likely have been 

fruitless. It therefore cannot be said that Rosen’s trial counsel 

was constitutionally ineffective in forgoing such a challenge.

¶16 Affirmed.