2021 UT App 32



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appellee , v. A ARON D AVID R OSEN , Appellant

.

Opinion N o. 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 , Attorney s for Appellant Sean D. Reyes and John J. Nielsen , Attorney s for Appellee

J UDGE G REGORY K. O RME authored th is Opinion , in which J UDGES M ICHELE M. C HRISTIANSEN F ORSTER and J ILL M. P OHLMAN 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 o f the statutory scheme under which he was convicted. We reject his argument and affirm

.State v. Rosen

20190684

- CA 2 2021 UT App 32 BACKGROUND 1

¶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 office r , connected on the site and arranged to
meet at Victim’s second

- floor apartment for a sexual encounter

. Once Rosen arriv ed at the apartment , Victim met him at the door

. Victim was wearing his high school sweatshirt

. T he 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 V ictim’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 though t 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 admit ted to “just petting” ov er clothing.

¶5 The S tate 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

20190684

- CA 3 2021 UT App 32 and one count of unlawful sexual conduct with a minor, a class A misdemeanor

. Under the applicable statutory scheme , a defendan t who is “seven or more year s 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 kno w , n or 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)(i i ), the defendant c annot 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. T he district court merged the misdemeanor and felony convictions . Rosen appeals.

ISSUE AND STANDARD O F 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 u niform operation of l aws prov ision of the Utah Constitution. See Utah Const. art. I, § 24. 3 “ When a claim of ineffective assistance of counsel is raised

2

. Because the relev ant 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, S ection 24 of the Utah Constitution has long been (continued...)State v. Rosen

20190684

- CA 4 2021 UT App 32 for the first time on appeal, there is no lower court ruling to revi ew 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 T o succeed on a claim of in effective assistance of counsel, an appellant must show, first , “ that counsel ’ s performance was deficient ” and, second, “ that the deficient performance prejudiced the d efense

. ” Strickland v. Washington , 466 U.S. 6 68, 6 87 ( 1984) . “ Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [ the se] claims under either prong. ” Honie v. State , 201 4 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 i ndulge a strong presumption that counsel’ s conduct falls within the wide range of reasonable professio nal assistance , ” Strickland , 466 U.S. at 6 8 9 , 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) consi dered Utah’s version of the federal equ al protection clause as the two “ embo dy the same general principle. ” Gallivan v. Walker , 2002 UT 89, ¶ 31, 54 P.3d 1069 (quotation simplified)

. S ee
a lso Blue C ross & 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

20190684

- CA 5 2021 UT App 32 in a vacuum; rather, it involv es asking whether the strategy

c ounsel employed was that of a reasonable, competent lawyer in the real

- time context ” of the pr oceeding. 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 coun sel was deficient , ” because “ the ultimate question is always whether, considering all the circumstances, counsel’s acts or omissions were objectively unreasonable. ” State

v. Scott , 202 0 UT 13, ¶ 36, 462 P.3d 350. A ccord State v. Ray , 2020 UT 12, ¶¶ 34

– 36, 469 P.3d 871.

¶10 To determine whether a statute violates the u niform

o peration of l aws 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 s ituated; and (3) if there is disparate treatment, whether the legislature had any reasonable objective that warrants the disparity

. ” State v. Robinson , 201 1 UT 30, ¶ 17, 254 P.3d 183 (quotation simplified). Under the third step , if the challenged
statute c reates classifications based on age , courts apply a rational basis review to the L egislature ’s decision. See Merrill v. Utah Labor Comm'n , 2009 U T 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 , 202 0 UT 26, ¶ 43, 466 P.3d 148 (quotation simplified). And w e “ will uphold a statute und er the rational basis standard if it has a reasonable relation to a p roper legislative purpose, and is neither arbitrary nor discriminatory.” State v. Angilau , 20 11 UT 3, ¶ 10, 245 P .3d 745 (quotation simplified)

. Accord Mitchell , 202 0 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 inState v. Rosen

20190684

- CA 6 2021 UT App 32 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 Ros en’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 investig ated it with care, reasonable counsel could still have determined that any such attack on the statutory scheme might well have fail ed under the third and final step of the operation of laws analysis. R easonable counsel would know that the district court wa s 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 ). R easonable counsel could have determined that t he 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 p roperly concluded that it was necessary to specifically prohib it 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 pot ential 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 perceive d that the Legislature could have concluded that these older adultsState 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) (“I n Illinois as elsewhere the crime is

con sidered 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. 200 0) (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 defend ant ”); State v. Walborn , 729 So. 2d 504, 506 (Fla. Dist. Ct. App. 1999) (holding that the l egislature’s decision “to limit criminal responsibility to persons twenty

- four years of age and

ove r” 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, ” a nd that

“ t herefore, the age limitation . . . is not arbitr ary when balanced against the goals of protecting minors from sexual exploitation”)

. W hile 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 conclude d that this does not make the statutory scheme impermissible

. See Angilau , 2011 UT 3, ¶ 28

. And this conclusion would be reinforced upon recognizing that t he Utah Supreme Court and “the United States Supreme Court have held that age is a permissible me thod 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 co unsel could have determined that the
statute would withstand rational basi s 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 (“F ailure 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 p rofession al assistance , ” s ee 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, ” s ee id. at 68 7

.

CONCLUSION

¶15 R easonable 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.