1 D.M. was also adjudicated delinquent of one count of

sodomy on a child (Allegation IV) arising from events that

(continued...) 2013 UT App 220

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH

, IN THE INTEREST OF D.M., A PERSON UNDER

EIGHTEEN YEARS OF AGE

.

D.M.,

Appellant,

v.

S TATE OF U TAH

, Appellee.

Memorandum Decision

No. 20120085

‐ CA

Filed September 6, 2013

Third District Juvenile, Salt Lake Department

The Honorable Andrew A. Valdez

No. 1022844

Kristine M. Rogers, Monica Maio, and

David L. Johnson, Attorneys for Appellant

John E. Swallow and Kris C. Leonard, Attorneys

for Appellee

J UDGE W ILLIAM A. T HORNE J R

. authored this Memorandum

Decision, in which J UDGES S TEPHEN L. R OTH and

M ICHELE M. C HRISTIANSEN concurred.

THORNE, Judge:

¶1 D.M. appeals from the juvenile court’s order adjudicating

him delinquent on one count of sexual abuse of a child (Allegation

III), 1 a second degree felony when committed by an adult. SeeIn re D.M.

1 (...continued)

occurred after the events of Allegation III. D.M. does not chal

‐ lenge his adjudication on Allegation IV on appeal.

2 The transcript reveals that D.M. asked for a directed

verdict rather than for dismissal. However, both the juvenile

court and the parties thereafter and on appeal refer to D.M.’s

motion as a motion to dismiss, and we accept that characteriza

‐

tion for purposes of this decision.

20120085

‐ CA 2013 UT App 220 2 generally Utah Code Ann. § 76

‐ 5

‐ 404.1(3) (LexisNexis Supp. 2013).

We affirm.

¶2 Allegation III originally charged D.M. with sodomy on a

child, asserting that eleven

‐ year

‐ old D.M. had made nine

‐ year

‐ old

T.I. perform oral sex on him during a 2009 sleepover at D.M.’s

home. On the first day of D.M.’s trial on September 23, 2011, T.I.

testified that during the sleepover D.M. had dared him to crawl

under a futon. D.M. joined T.I. under the futon and asked him to

remove his pants. When T.I. refused, D.M. pulled T.I.’s pants down

and touched T.I.’s testicles for a short period of time. D.M. then

went into the bathroom for a few minutes, during which time T.I.

left D.M.’s house and returned home.

¶3 At the end of the first day of trial, after the State rested its

case, the State asked the juvenile court to amend the date of the

incident alleged in Allegation IV to comport with the evidence

adduced at trial. The juvenile court allowed the amendment but

granted D.M. a trial continuance to investigate and prepare any

defenses that might be created by the amendment.

¶4 D.M. then asked the juvenile court to dismiss Allegation III

because the State had failed to present testimony of oral–genital

contact as required by the State’s sodomy theory. 2 See generally id.

§ 76

‐ 5

‐ 403.1(1) (defining sodomy on a child). The State responded

by asking that Allegation III be amended to the lesser offense ofIn re D.M.

3 In his reply brief, D.M. argues for the first time that the

juvenile court’s September 23, 2011 amendment of Allegation III

was improper because it charged a new offense and—despite the

nearly six

‐ week delay between the first and second days of

trial—failed to give D.M. adequate time to prepare a defense.

(continued...)

20120085

‐ CA 2013 UT App 220 3 sexual abuse of a child, which does not contain an element of

oral–genital contact. See id. § 76

‐ 5

‐ 404.1. After a discussion with the

parties, the juvenile court ruled from the bench on the competing

requests, stating, “I’m going to deny the motion to dismiss. I’m

going to allow you to amend to sex abuse of a child

. . . .” At the

end of the trial, which resumed six weeks later, the juvenile court

adjudicated D.M. delinquent on Allegations III and IV.

¶5 On appeal, D.M. argues that the juvenile court erred in not

dismissing Allegation III because the State failed to present

evidence of oral–genital contact in its case in chief. To survive a

mid

‐ trial motion to dismiss, the State must have established a

prima facie case of guilt by producing “‘believable evidence of all

the elements of the crime charged.’” State v. Emmett

, 839 P.2d 781,

784 (Utah 1992) (quoting State v. Smith

, 675 P.2d 521, 524 (Utah

1983)). “The denial of a motion to dismiss for failure to establish a

prima facie case is a question of law we review for correctness.”

State v. Spainhower

, 1999 UT App 280, ¶ 4, 988 P.2d 452.

¶6 It is undisputed that the State failed to present evidence of

oral–genital contact in support of Allegation III, and thus the

allegation could not survive D.M.’s motion to dismiss as originally

charged. However, the State responded to D.M.’s motion by asking

the juvenile court to amend the charge to sexual abuse of a child,

which has no element of oral–genital contact, and the juvenile court

granted the State’s request. D.M.’s appellate brief does not address

the effect of the juvenile court’s amendment of Allegation III on his

motion to dismiss, nor does it raise any argument that the

amendment was improper. 3 Because the juvenile court amendedIn re D.M.

3 (...continued)

“However, we will not address arguments raised for the first

time in an appellant’s reply brief.” State v. Bryant

, 2012 UT App

264, ¶ 24 n.5, 290 P.3d 33.

4 We acknowledge that the juvenile court did not rely on

its prior amendment of Allegation III and instead purported to

adjudicate sexual abuse of a child as a lesser included offense of

the original charge of sodomy. However, because we hold that

the juvenile court had already amended Allegation III to charge

(continued...)

20120085

‐ CA 2013 UT App 220 4 Allegation III to charge sexual abuse of a child, we see no error in

the juvenile court’s denial of D.M.’s motion to dismiss that

allegation altogether.

¶7 We acknowledge D.M.’s assertion that there was confusion

in the days leading up to the resumption of trial on November 2,

2011, about whether the State’s prosecution of Allegation III would

proceed on a sodomy theory or as sexual abuse of a child.

However, at an October 31, 2011 telephone conference that D.M.

had requested to resolve confusion over the allegations, D.M. failed

to raise the issue of what crime was being charged in Allegation III.

Instead, the conference focused solely on the unrelated amendment

to Allegation IV. D.M. did not apprise the juvenile court of the

confusion over the status of Allegation III, even when the State

indicated that the only amendment to the petition was the

amendment to Allegation IV. Nor did he raise the issue upon the

resumption of trial.

¶8 Thus, D.M. had multiple opportunities to address and

resolve the alleged confusion over the amendment to Allegation III

prior to his adjudication for sexual abuse of a child as alleged in the

amended allegation. Under these circumstances, D.M.’s complaint

of unfair surprise that he was ultimately adjudicated for sexual

abuse of a child is unavailing. 4 Cf. State v. Valdez

, 2006 UT 39, ¶ 44,In re D.M.

4 (...continued)

sexual abuse of a child, we need not address D.M.’s argument

that the juvenile court committed plain error in concluding that

sexual abuse of a child is a lesser included offense of sodomy.

Because Allegation III had already been amended to charge

sexual abuse of a child rather than sodomy, any error by the

juvenile court in treating that allegation as a sodomy charge and

then reducing it has no effect on the validity of D.M.’s adjudica

‐

tion on the actual charge stated in the amended allegation.

20120085

‐ CA 2013 UT App 220 5 140 P.3d 1219 (discussing “sandbagging” in the context of untimely

objections to jury makeup); State v. Jackson

, 2011 UT App 318,

¶¶ 28–34, 263 P.3d 540 (applying a forfeiture analysis to a

defendant’s failure to raise a statute of limitations defense prior to

his conviction on the time

‐ barred offense).

¶9 D.M. further argues that the State presented insufficient

evidence to establish the crime of sexual abuse of a child because

the State did not establish D.M.’s “intent to arouse or gratify the

sexual desire of any person.” Utah Code Ann. § 76

‐ 5

‐ 404.1(2)

(LexisNexis Supp. 2013). Although he did not present this

argument to the juvenile court, D.M. argues that the juvenile

court’s adjudication that he had committed sexual abuse of a child

constitutes plain error because there was no direct evidence of

D.M.’s sexual intent and the facts are not so obviously or explicitly

sexual that an inference of sexual intent is justified. See generally

State v. Verde

, 770 P.2d 116, 121–22 (Utah 1989) (discussing plain

error as an exception to the preservation rule). However, we must

sustain the juvenile court’s judgment unless “it is against the clear

weight of the evidence” or we otherwise reach “a definite and firm

conviction that a mistake has been made.” In re K.O.

, 2010 UT App

155, ¶ 5, 238 P.3d 59 (citation and internal quotation marks

omitted). Further, we will uphold a juvenile court’s inferences

“‘unless the logic upon which their extrapolation from the evidence

is based is so flawed as to render the inference clearly erroneous.’”

Id. (quoting State v. Briggs

, 2008 UT 75, ¶ 11, 197 P.3d 628).In re D.M.

20120085

‐ CA 2013 UT App 220 6 ¶10 Although D.M. is correct that there was no direct evidence

of his intent to gratify or arouse a sexual desire, intent “is a state of

mind, which is rarely susceptible of direct proof.” State v. Robertson

,

2005 UT App 419, ¶ 15, 122 P.3d 895 (citation and internal

quotation marks omitted). In the absence of direct proof, intent

“can be inferred from conduct and attendant circumstances in the

light of human behavior and experience.” Id

. (citation and internal

quotation marks omitted). Such inferences are routinely employed

in cases requiring proof of sexual intent. See, e.g.

, State v. Bhag

Singh

, 2011 UT App 396, ¶¶ 9–10, 267 P.3d 281 (mem.) (inferring

intent where defendant kissed and fondled the victim); State v. Hall

,

946 P.2d 712, 724 (Utah Ct. App. 1997) (inferring intent where the

defendant pulled down the victim’s shorts and stroked her genital

area).

¶11 In this case, the juvenile court heard testimony from T.I. that

D.M. had pulled down T.I.’s pants and touched his testicles while

the two of them were under a futon during a sleepover. T.I.

testified that the incident made him feel “scared,” and the juvenile

court expressly found that T.I. was a “very credible” witness. In

light of D.M.’s conduct in exposing and touching T.I.’s testicles and

the “attendant circumstances,” see Robertson

, 2005 UT App 419, ¶ 15

(citation and internal quotation marks omitted), we cannot say that

the juvenile court’s inference that D.M. possessed a sexual intent

“is so flawed as to render the inference clearly erroneous,” see In re

K.O.

, 2010 UT App 155, ¶ 5 (citation and internal quotation marks

omitted).

¶12 D.M. further argues that the ordinary standards for inferring

sexual intent are insufficient to establish his intent because he was

only eleven years old at the time of the offense. See, e.g.

, In re Jerry

M.

, 69 Cal. Rptr. 2d 148, 154 (Ct. App. 1997) (“[T]he younger the

minor the less likely his acts are with the specific intent of sexual

arousal.”). However, we see no indication that the juvenile court

failed to consider D.M.’s young age in determining that he

possessed the requisite intent. Further, D.M. presents no Utah

authority for the proposition that an eleven

‐ year

‐ old cannotIn re D.M.

5 We recognize that the burden of proving D.M.’s intent

was on the State.

20120085

‐ CA 2013 UT App 220 7 possess sexual intent as a matter of law, nor did he present

evidence below that eleven

‐ year

‐ olds in general—or himself in

particular—are incapable of forming sexual intent. 5 Under these

circumstances, we cannot say that the juvenile court’s intent

finding constituted plain error. See In re B.R.

, 2007 UT 82, ¶ 12, 171

P.3d 435 (“When a foundation for the [juvenile] court’s decision

exists in the evidence, an appellate court may not engage in a

reweighing of the evidence.”).

¶13 For these reasons, we affirm the juvenile court’s order

adjudicating D.M. delinquent for sexual abuse of a child as charged

in the amended Allegation III.