2020 UT App 94

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.E.G.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

STATE OF UTAH,

Appellee,

v.

J.E.G.,

Appellant.

Opinion

No. 20190116

Filed June 11, 2020

Third District Juvenile Court, West Jordan Department

The Honorable Renee Jimenez

No. 1144745

Daniel R. Black, Attorney for Appellant

Sean D. Reyes and Nathan H. Jack, 

Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY

concurred.

ORME, Judge:

¶1 Appellant J.E.G. (JEG) challenges his adjudication as a 

delinquent on two counts of sexual abuse of a child under 14. He 

argues that the juvenile court erred in allowing the State to 

amend its petition after all the evidence was presented, thereby

thwarting his alibi defense and violating the Double Jeopardy 

Clause, and in finding that the State met its burden to prove 

beyond a reasonable doubt that he committed the offenses. We 

disagree and affirm.
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BACKGROUND1

¶2 Sometime in mid-August 2015, the victim (Victim), her 

two sisters, and her mother moved in with JEG’s family. During 

some of the time Victim lived there, her mother and JEG’s 

mother both worked during the day, which resulted in JEG

accompanying Victim and her younger sister home from school, 

where they would remain without any adult supervision until 

their mothers returned from work. One day after arriving home,

Victim was alone in the bedroom she shared with her mother 

and sisters watching television, when JEG entered and stuck his 

hand under Victim’s underwear and touched her genitals for “a 

couple minutes.” This type of abuse was not an isolated incident 

but occurred “more than once” when JEG and Victim were both

quite young—JEG was 11 or 12 years old, and Victim was 8 

years old.

¶3 Around seven months after the last incident of abuse, and 

after Victim and her family had moved out of JEG’s home,

Victim told her mother what had happened, but her mother did 

not immediately report it to law enforcement. It was not until 

nearly two years after the abuse occurred—and more than one 

year after Victim disclosed it to her mother—that the abuse was

reported and a detective (Detective) at the Children’s Justice 

Center interviewed Victim (the CJC interview). During the CJC 

interview, Victim could not identify exactly when the abuse 

happened, but she believed that the first incident occurred a few 

days after school started in August and the last incident took 

place sometime in December. 

 

1. “When reviewing a bench trial, we recite the facts from the 

record most favorable to the findings of the trial court.” State v. 

Layman, 953 P.2d 782, 784 n.1 (Utah Ct. App. 1998) (quotation 

simplified), aff'd, 1999 UT 79, 985 P.2d 911.
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¶4 In 2018, the State charged JEG by petition with two 

allegations of sexual abuse of a child under 14 years old.2 Based 

on the CJC interview, the petition stated that the first event

occurred “[b]etween August 1, 2015 and August 31, 2015” and 

the second “[b]etween December 1, 2015 and December 31, 

2015.” 

¶5 At trial, Victim detailed the last time JEG touched her 

genitals in the bedroom, but she could not remember the first 

time it happened, only that JEG had touched her “[m]ore than 

one time” and that it had all taken place when she was in second 

or third grade. Detective then testified that based on the CJC 

interview, it was “clear to [him] that these alleged incidents 

happened only when there were no adults in the apartment” and 

that the first incident occurred in “middle to late August.” He 

later testified that he understood all the abuse happened 

“between August and December of 2015.” A recording of the 

CJC interview was then admitted into evidence. In the interview,

Victim told Detective that JEG committed the first instance of 

abuse on the “third or fourth day of school” in August 2015. 

Victim also told Detective that the last instance of abuse occurred 

near the time she and her family moved out of JEG’s home to 

live with her grandmother. 

¶6 JEG attempted to discredit Victim’s account in three ways. 

First, he presented evidence that the abuse could not have taken 

place in August or December. Specifically, he contended that

Victim’s mother did not start working until October, suggesting

that her mother would have been home during the alleged 

timeframe of the first instance of abuse in August, contradicting

 

2. Given JEG’s age at the time of the incidents in question, we 

recognize that the appropriate exercise of prosecutorial 

discretion might instead have led to a referral for counseling or a 

diversionary agreement. 
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Victim’s consistent statements that no adults were present in the 

house when the abuse transpired. And concerning the last 

incident of abuse alleged to have occurred in December, JEG

elicited testimony, including from Victim’s mother, that Victim 

and her family moved out of JEG’s family home in November, 

meaning no instance of abuse could have occurred in December. 

Second, JEG testified that he would not have abused Victim 

because he is homosexual. Third, JEG’s mother testified that she 

kicked Victim’s family out of the house after she caught her 

brother and Victim’s mother having sex in the living room. JEG

argued in closing that Victim’s mother might have encouraged

Victim to “fabricat[e] an allegation” against JEG to retaliate 

against JEG’s mother and suggested this provided reasonable 

doubt that JEG committed the offenses.

¶7 After closing argument, the State moved to conform the 

petition to the evidence at trial to change the timeframe charged 

in the petition from “[b]etween August 1, 2015 and August 31, 

2015” for the first allegation, and “[b]etween December 1, 2015 

and December 31, 2015” for the second allegation, to “[o]n or 

about August 1, 2015 through December 31, 2015” for both 

allegations. JEG responded that the State could not amend the 

petition “after [it] has rested, especially not after the defense has 

rested.” The juvenile court declined to rule on the motion at the 

time and gave the parties one week to brief the issue.

¶8 In his brief, JEG argued that under rule 4 of the Utah 

Rules of Criminal Procedure, his “due process rights would be 

prejudiced if the State were allowed to amend the Petition after 

the close of evidence, and after defense counsel’s closing 

argument, when the crux of [his] defense at trial was based on 

the dates alleged in the Petition” and “because of the nature of 

the allegations in this case and the importance of the dates to 

both [Victim’s] allegations and the credibility of defense 

witnesses.” JEG also asserted that if the “Court were to allow the 

State to amend the Petition, [it] would also have to grant [him] a 
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new trial on the amended Petition, such that he could prepare a 

defense in accordance with the new allegations, in order to 

preserve his rights to due process.” 

¶9 The juvenile court granted the State’s motion but ruled 

that “[a]lthough Rule 4 does not apply in Juvenile Court cases, it 

is clear that the defense prepared their case in relation to the 

specific dates listed in [the petition]” and “[i]f the State is 

permitted to amend its petition to conform to the evidence 

presented at trial . . . [JEG’s] substantial rights of due process are 

prejudiced.” The court therefore granted JEG a continuance to 

present additional trial testimony and exhibits, if he desired, to 

defend against the amended petition and ameliorate the 

prejudice it found.

¶10 At a subsequent scheduling conference, the court set 

future trial dates, but JEG conceded that he had no additional 

evidence to present. He subsequently filed an interlocutory 

appeal challenging the court’s ruling, which we denied. 

Following our denial, JEG rejected the future trial dates and 

submitted the case to the juvenile court, with JEG’s counsel 

explaining, “[A]fter reviewing all possible scenarios, we do not 

believe that it is possible to remedy or to mitigate the prejudice 

that my client has had in this case.” The court subsequently 

found JEG delinquent on two counts of sexual abuse of a child

under 14 years of age.

3

¶11 JEG appeals. 

 

3. The juvenile court’s disposition of the case was rather gentle: 

probation, therapy, and some community service. JEG does not 

challenge the disposition on appeal.
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ISSUES AND STANDARDS OF REVIEW

¶12 JEG raises three issues on appeal. First, he argues that the 

juvenile court erred by allowing the State to amend the petition 

after the close of evidence and after closing arguments, thereby 

prejudicing him and violating his due process rights under the 

United States and Utah constitutions.4 “[W]e review the court’s 

decision to permit the prosecution to amend the [petition] only 

for an abuse of discretion.” State v. Hamblin, 2010 UT App 239, 

¶ 26, 239 P.3d 300. 

¶13 Second, JEG contends that the juvenile court violated his 

right to be free from double jeopardy by allowing the State to 

amend the petition. “We review the trial court’s legal 

conclusions for correctness.” State v. Larsen, 2000 UT App 106, 

¶ 10, 999 P.2d 1252.

¶14 Third, JEG asserts that the juvenile court erred by finding 

the State met its burden to prove the allegations in the amended 

petition beyond a reasonable doubt. “When reviewing a juvenile 

court’s decision for sufficiency of the evidence, we must consider 

all the facts, and all reasonable inferences which may be drawn 

therefrom, in a light most favorable to the juvenile court’s 

determination, reversing only when it is against the clear weight 

of the evidence, or if the appellate court otherwise reaches a 

definite and firm conviction that a mistake has been made.” In re

V.T., 2000 UT App 189, ¶ 8, 5 P.3d 1234 (quotation simplified).

 

4. Although JEG asserts that the juvenile court’s decision 

violated his rights under the Utah Constitution, he has not 

undertaken a separate analysis to establish that he would receive 

greater protections under the Utah Constitution. Accordingly,

we do not consider whether JEG’s claim would have a different 

outcome under the Utah Constitution. 
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ANALYSIS

I. Amended Petition

¶15 JEG argues that the juvenile court misapplied rule 4 of the 

Utah Rules of Criminal Procedure by allowing the State to 

amend the petition after the close of evidence and closing 

arguments, “thereby substantially prejudicing [his] rights, 

including the right to due process.” Before beginning our 

analysis, we note that the mission of the juvenile court in 

addressing delinquency is to remediate behavioral problems and 

address the particular needs of juvenile offenders, especially, as 

here, with very young wrongdoers. See Utah Code Ann. 

§ 78A-6-102(5)(b), (g) (LexisNexis 2018)5 (stating that “[t]he 

purpose” of the juvenile court is, among other things, to “order 

appropriate measures to promote guidance and control . . . as an 

aid in the prevention of future unlawful conduct and the 

development of responsible citizenship” and to “act in the best 

interests of the minor in all cases”). Although there is an overlay 

of due process rights under In re Gault, 387 U.S. 1 (1967), and its 

progeny, delinquency proceedings in juvenile court ultimately 

are civil proceedings and the rules of criminal procedure do not 

apply across the board. See In re L. G. W., 641 P.2d 127, 130 (Utah 

1982) (“The informal and flexible procedures of the juvenile 

court need not conform with all of the requirements of a criminal 

trial.”) (quotation simplified). But “[i]t is well settled that 

juvenile court procedures must [still] conform to the 

fundamental requirements of due process and fair treatment.”

Id. at 129.

 

5. Because the statutory provisions in effect at the relevant time 

do not differ in any way material to our analysis from those now 

in effect, we cite the current version of the Utah Code for 

convenience.
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¶16 Here, even if rule 4 applied to the proceeding, the juvenile 

court ameliorated any potential prejudice by providing JEG

ample opportunity to present additional evidence or to submit 

additional documents. Rule 4 provides that “[t]he court may 

permit an information to be amended after the trial has 

commenced but before verdict if no additional or different 

offense is charged and the substantial rights of the defendant are 

not prejudiced.”6 Utah R. Crim. P. 4(d). Recognizing the 

potential prejudice to JEG, the court ruled that this prejudice

could be cured through a continuance so that JEG could “present 

additional trial testimony and exhibits in order to defend the 

amended petition.” Thus, JEG cannot demonstrate on appeal 

that the court erred because he was granted, but rejected, the 

very thing to which he was entitled under rule 4. See State v. 

Wilson, 771 P.2d 1077, 1085 (Utah Ct. App. 1989) (“Whenever the 

prosecution changes its position, a defendant may seek a 

continuance but the failure of a defendant to seek [or accept] a 

continuance negates any claim of surprise and amounts to a 

waiver of any claim of variance.”) (quotation simplified). The 

same result obtains as a matter of due process. See State v. Fulton, 

742 P.2d 1208, 1215 (Utah 1987) (“[W]henever the prosecution 

changes its position, a defendant may seek a continuance. If the 

trial court finds the variance to be prejudicial, it must grant a 

continuance as a matter of right.”) (emphasis added); State v.

Myers, 302 P.2d 276, 280 (Utah 1956) (“It would be a mockery of 

the constitutional rights of [the] defendant to allow the state to 

falsely state the particulars of the offense charged and then 

without amendment and without giving defendant additional time

to meet new evidence beyond those particulars obtain a 

conviction founded on said evidence.”) (emphasis added).

 

6. It is undisputed that “no additional or different offense” was 

charged in the amended petition. Utah R. Crim. P. 4(d). 
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¶17 Furthermore, JEG received nearly the exact remedy he 

requested from the juvenile court when he asserted that if the

“Court were to allow the State to amend the Petition, [it] would 

also have to grant [him] a new trial on the amended Petition, 

such that he could prepare a defense in accordance with the new 

allegations in order to preserve his rights to due process.” 

Although the court did not grant him a new trial, it offered JEG

additional trial dates and a sufficient opportunity to “prepare a 

defense in accordance with the new allegations,” just as he 

asked, and just as due process required and rule 4 would 

require, if applicable. Moreover, JEG has not demonstrated that 

the court’s course of action was insufficient to cure the prejudice 

it recognized.

¶18 We therefore agree with the State that “[p]rejudicial error 

happens only when the defendant is foreclosed from preparing a 

defense, not when the amendment undermines previously 

prepared defenses.” See State v. Taylor, 2005 UT 40, ¶ 9, 116 P.3d 

360 (“As 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, the constitutional 

requirement is fulfilled.”) (quotation simplified). Cf. State v. 

Wilcox, 808 P.2d 1028, 1032 (Utah 1991) (“The right to adequate 

notice in the Utah Constitution requires the prosecution to state 

the charge with sufficient specificity to protect the defendant 

from multiple prosecutions for the same crime and to give notice 

sufficient for the one charged to prepare a defense.”) (emphasis 

added). Thus, JEG’s “failure to [accept the] continuance is fatal

to his claim, and accordingly, we affirm the trial court’s 

decision.” See Wilson, 771 P.2d at 1085.

II. Double Jeopardy 

¶19 JEG argues that the juvenile court violated his right to be 

free from double jeopardy by allowing the State to amend the 

petition and “then reopening the trial stage for the defense to 
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present further evidence addressing the amended petition.” The 

Double Jeopardy Clause provides that no person “shall . . . be 

subject for the same offense to be twice put in jeopardy of life or 

limb.” U.S. Const. amend. V. “The constitutional guarantee 

against double jeopardy affords a criminal defendant three 

separate protections by prohibiting: (1) a second prosecution for 

the same offense after acquittal; (2) a second prosecution for the 

same offense after conviction; and (3) multiple punishments for 

the same offense.” State v. Miller, 747 P.2d 440, 444 (Utah Ct. 

App. 1987). Assuming this jurisprudence is fully applicable to 

the juvenile delinquency context, it is undisputed that JEG was 

not subject to multiple punishments for the same offense, and 

thus the only way JEG could have been subjected to double 

jeopardy is if he was required to defend against a second 

prosecution for offenses of which he had already been acquitted 

or convicted.

¶20 JEG did not suffer double jeopardy here because he was 

not subjected to another prosecution for abuse of a child under 

age 14 after an acquittal or a conviction following the State’s

amendment of the petition. His case was still open and the court 

had not yet made its decision. JEG argues that although the 

juvenile court had not made its final decision before ruling on 

the State’s motion to amend the petition, he was subjected to 

double jeopardy because, “[h]ad the State not moved to amend 

the Petition after hearing [his] final argument and theory of the 

case, it is almost certain that the Juvenile Court would have 

ruled that same day immediately after closing arguments.” But 

in making this argument, JEG does not acquaint us with any 

authority in support of the proposition that an individual’s

constitutional protections against double jeopardy can be 

violated before a verdict in a case is reached based on whatever 
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20190116 11 2020 UT App 94

step the court would otherwise have taken next.7 To the 

contrary, case law is clear that a defendant’s right to be free from 

double jeopardy can be violated only after a final verdict has 

been reached. See, e.g., Arizona v. Washington, 434 U.S. 497, 505, 

509 (1978) (holding that district courts “may discharge a 

genuinely deadlocked jury and require the defendant to submit 

to a second trial” because no verdict has been reached, and 

“[u]nlike the situation in which the trial has ended in an 

acquittal or conviction, retrial is not automatically barred when a 

criminal proceeding is terminated without finally resolving the 

merits of the charges against the accused”); State v. Trafny, 799 

P.2d 704, 709 (Utah 1990) (holding that the double jeopardy 

clause protects only defendants who are subject to a “second 

prosecution for the same offense after acquittal . . . [or] after

conviction”) (emphasis added) (quotation otherwise simplified);

State v. Strand, 674 P.2d 109, 114 (Utah 1983) (holding that the 

defendant had “not been twice put in jeopardy for the same 

offense” as a result of an amended information).

¶21 Thus, because the juvenile court had not reached a final 

decision in this case with respect to JEG’s delinquency, the 

 

7. JEG relies on the single criminal episode statutory scheme in 

sections 76-1-402 and 76-1-403 of the Utah Code to support his 

double jeopardy argument. But “the analysis for a double 

jeopardy challenge is distinct from the analysis under the single 

criminal episode statute,” Salt Lake City v. Josephson, 2019 UT 6, 

¶ 13, 435 P.3d 255, which “adopts a species of res judicata or 

claim preclusion for criminal cases—barring prosecutions for 

different offenses committed as part of a single criminal episode,” 

State v. Ririe, 2015 UT 37, ¶ 6, 345 P.3d 1261 (emphasis in 

original). There is no suggestion in the case before us that the 

amended petition charged different offenses arising out of a 

single criminal episode, so that statute is inapplicable.
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proceeding was still in process, and JEG was not subjected to 

double jeopardy when the court allowed the State to amend the 

petition.

III. Sufficiency of the Evidence

¶22 Lastly, JEG argues that “the juvenile court erred by 

finding the State met its burden to prove the allegations in the 

petition beyond a reasonable doubt, even after the State 

amended the petition.” In juvenile delinquency proceedings, the 

State’s petition must contain “the date and place of the offense,”8

Utah R. Juv. P. 17(a)(1), and “the state has the burden to prove 

the allegations of the petition beyond a reasonable doubt,” 

id. R. 24(b)(6). “When reviewing a juvenile court’s decision for 

sufficiency of the evidence, we must consider all the facts, and 

all reasonable inferences which may be drawn therefrom, in a 

light most favorable to the juvenile court’s determination.” In re

P.G., 2015 UT App 14, ¶ 20, 343 P.3d 297 (quotation simplified). 

And “we will reverse that determination only when it is against 

the clear weight of the evidence, or if we otherwise reach a 

definite and firm conviction that a mistake has been made.” Id.

(quotation simplified). 

¶23 Here, the amended petition alleged that the two instances 

of sexual abuse occurred sometime “[o]n or about August 1, 2015

through December 31, 2015.” The crux of JEG’s attack on appeal 

is that “the State . . . failed to meet the burden of proof given that 

all the evidence alleged that the incident(s) occurred in August 

and/or December, which was impossible.” But the amended 

petition, unlike the original petition, was consistent with the 

incidents taking place at some point between October, when 

 

8. Time is not an “express element of the statute under which 

[JEG] was charged.” See State v. Robbins, 709 P.2d 771, 772 (Utah 

1985). See also Utah Code Ann. § 76-5-404.1 (LexisNexis 2017).
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Victim’s mother was working and out of the house, and 

November, when Victim’s family moved out of the house. And 

although Victim stated during the CJC interview that the 

incidents occurred in August and December, she also testified 

that they happened after JEG walked her home from school 

when no other parent was home. It was reasonable for the 

juvenile court to infer, as it did, that the abuse happened 

between October and November, i.e., that Victim was wrong 

about the specific months but right about the timeframe 

suggested by her recollection that no adults were home right 

after school. This inference was appropriate because Victim and 

JEG were in school during this time as well, and JEG would have 

walked her home during these months and would have been at 

home with Victim without any adults present. Such an inference 

is appropriate because children often have difficulty 

remembering the specific dates of abuse, especially when it 

occurs more than once, as was the case here. See State v. Wilcox,

808 P.2d 1028, 1033 (Utah 1991) (“The problem of young children 

who are unable to specify a date on which abuse occurred or a 

location where it occurred is exacerbated by situations in which 

the abuse occurred on many occasions over a long period of 

time, a not-uncommon occurrence.”); State v. Robbins, 709 P.2d 

771, 773 (Utah 1985) (“We recognize that children are often not 

able to identify with a high degree of reliability, and sometimes 

not at all, when an event in the past took place.”). Thus, Victim’s 

inability to remember the specific date is not fatal to the State’s 

case. See State v. Fulton, 742 P.2d 1208, 1213 (Utah 1987).

¶24 Although the State had difficulty “establish[ing] the time 

and date of the offense” and had to amend the petition to 

conform to the evidence presented at trial, which “will almost 

always reduce the credibility of the prosecution’s case,” it does 

not compel the conclusion that the State failed to prove the 

allegations beyond a reasonable doubt. See id. at 1213 n.6. In 

essence, this is a he-said-she-said case, and in such cases, given 
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the factfinder’s advantaged position in observing the witnesses 

firsthand, it is the factfinder’s responsibility, “not the appellate 

court’s[,] to weigh that evidence and make a determination of 

fact.” State v. Skinner, 2020 UT App 3, ¶ 35, 457 P.3d 421

(quotation simplified). And here, the court, having seen 

firsthand Victim’s struggle to recall the exact dates, nonetheless 

found that “[t]he testimony provided by [Victim] was credible 

and consistent with [the CJC] interview.” JEG’s attack on 

Victim’s credibility on appeal, based on her inability to recall 

more precisely the dates of the abuse that occurred years ago,

does not overcome the juvenile court’s credibility determination. 

Thus, given Victim’s consistent testimony of abuse and the 

court’s explicit finding with respect to Victim’s credibility, which 

finding JEG has not shown to be clearly erroneous, we cannot 

say there was insufficient evidence to support the court’s ruling

on delinquency. See In re P.G., 2015 UT App 14, ¶ 20.

CONCLUSION

¶25 The juvenile court did not err in allowing the State to 

amend its petition after closing argument because any prejudice 

JEG suffered from that amendment was ameliorated by the 

court’s offer to continue the case and allow JEG ample time to 

prepare a defense to the amended petition. The amendment to 

the petition likewise did not violate JEG’s constitutional 

protections against double jeopardy because the court had not 

issued a verdict prior to the petition being amended. Finally, 

there was sufficient evidence for the court to adjudge JEG

delinquent, beyond a reasonable doubt. 

¶26 Affirmed.