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IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Tony Gordon Holt,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030207-CA
 

F I L E D
(June 24, 2004)
 

2004 UT App 213

 

-----

Third District, Salt Lake Department

The Honorable William Barrett

Attorneys: John Walsh, Salt Lake City, for Appellant

Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee

-----

Before Judges Bench, Greenwood, and Orme.

GREENWOOD, Judge:

    Defendant, Tony Holt, appeals his conviction of forcible sexual abuse, a second degree felony, in violation of Utah Code Annotated section 76-5-404 (1999). We affirm.

I. Amending the Information

    Defendant first argues that the trial court erred when it allowed the State to amend the information immediately before his trial and immediately after the parties had presented evidence at his trial. Whether a trial court properly grants a motion to amend an information is a question of law that is reviewed for correctness, according the trial court some deference for its factual findings. See State v. Bush, 2001 UT App 10,10, 47 P.3d 69. In general, "[t]he 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); see also State v. Ramon, 736 P.2d 1059, 1062 (Utah Ct. App. 1987).

A. Amending the information prior to trial.

    Immediately before Defendant's trial, the trial court allowed the State to amend the information to conform to the preliminary hearing testimony. The amended information changed the dates of the first three counts that Defendant had been charged with, added a location for the third count, and dropped the remaining count. Defendant contends that "[c]hanging the dates and location of the alleged crime, literally minutes before the trial work[ed] a terrible injustice to [him]." We disagree.

    Because only the dates and location of the offenses were changed in the amended information, no additional or different offenses were charged. Moreover, although Defendant objected to the amended information, he failed to request a continuance after the information was amended. Therefore, Defendant waived his right to argue unfair surprise or prejudice. See State v. Wilson, 771 P.2d 1077, 1085 (Utah Ct. App. 1989) (noting that "defendant did not request a continuance in order to remedy the alleged prejudice [resulting from the State being permitted to amend an information during trial] and, therefore, waived his right to complain on appeal"). Accordingly, the trial court did not err in allowing the State to amend the information immediately before Defendant's trial.

B. Amending the information after the parties had finished
presenting evidence.

    After all the evidence had been presented at Defendant's trial, the State argued that it had established that the victim was thirteen when the aggravated sexual abuse had occurred.(1) The State, however, asked the trial court--in the event it was unable to determine how old the victim was at the time--to change the charge of aggravated sexual abuse to forcible sexual abuse. The following day, the trial court allowed the State to make this change, concluding that forcible sexual abuse was a lesser included offense of aggravated sexual abuse.(2)

    "Whether an amendment charges an additional or different offense turns on whether different elements are required to prove the offense charged in the amended information or whether the offense charged in the amended information increased the potential punishment from that originally charged." Tillman v. Cook, 855 P.2d 211, 215 (Utah 1993) (footnote omitted); see also Utah Code Ann. 76-1-402(3)(a) (1999) (stating that offense is lesser included when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged").

    The elements of aggravated sexual abuse of a child are (1) touching the anus, buttocks, or genitals (2) of a child younger than the age of 14 (3) with the intent to cause emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person, (4) when the accused occupies a position of special trust to the victim. See Utah Code Ann.  76-5-404.1(1), (2), 4(h) (1999). The elements of forcible sexual abuse are (1) touching the anus, buttocks, or genitals (2) of a person 14 years of age or older (3) with the intent to cause emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person, and (4) without the consent of the other. See id. 76-5-404(1) (1999).

    A comparison of the elements of these two offenses belies any notion that forcible sexual abuse is a lesser included offense of aggravated sexual abuse. The age requirements of the two offenses are not only different but are mutually exclusive. More importantly, lack of consent is presumed when an individual is charged with aggravated sexual abuse of a child, whereas lack of consent must be proven when an individual is charged with forcible sexual abuse. Therefore, forcible sexual abuse can only be established when the additional element of lack of consent is proven. For these reasons, we conclude that forcible sexual abuse is a different offense than aggravated sexual abuse of a child and therefore, that the trial court erred when it allowed the State to amend the information at the end of Defendant's trial.

    However, despite the trial court's error, it is clear that Defendant did not suffer any harm or prejudice as a result. Defendant's theory during his trial was that he never inappropriately touched the victim, and that even if he had, it was purely accidental. In no way did he claim that there was inappropriate touching, but that the victim consented. The defense that he raised was available regardless of whether he was charged with aggravated sexual abuse of a child or forcible sexual abuse. Therefore, we decline to reverse Defendant's conviction. See Tillman, 855 P.2d at 215-16 (refusing to reverse conviction even though trial court erred in allowing State to amend information because defendant had failed to demonstrate prejudice).

II. Sufficiency of the Evidence

    Defendant also argues that the evidence was insufficient to establish that he committed the crime of forcible sexual abuse. A trial court's findings of fact in a criminal bench trial are reviewed under a clearly erroneous standard.(3) See City of Orem v. Lee, 846 P.2d 450, 452 (Utah Ct. App. 1993). A trial court's finding is clearly erroneous if 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." Spanish Fork City v. Bryan, 1999 UT App 61,5, 975 P.2d 501 (quotations and citations omitted).

    In this case, the trial court made the following findings of fact: (1) that the victim was fourteen years old when the offense occurred; (2) that Defendant touched the victim's vaginal area with his finger over her underwear; (3) that the touching was intentional and done in order to arouse or gratify Defendant's sexual desire; and (4) that the touching was done without the victim's consent. These findings were based on the victim's testimony, which the court found to be credible; Defendant's testimony, which the court found to be less than credible and a "little too precise"; and the testimony of Detective Montgomery, particularly Defendant's admission to the detective that it was possible that he had touched the victim's vaginal area.

    Rather than addressing the trial court's findings, Defendant simply reargues the evidence presented at trial, focusing in particular on the inconsistencies in the victim's testimony.(4) Significantly, Defendant failed to address his incriminating statement to Detective Montgomery that it was possible he could have touched the victim's vaginal area. Based on the foregoing, we cannot say that the trial court's findings were "against the clear weight of the evidence." Bryan, 1999 UT App 61 at 5 (quotations and citations omitted). Accordingly, we reject Defendant's sufficiency claim and affirm his conviction.

______________________________

Pamela T. Greenwood, Judge

-----

WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

Gregory K. Orme, Judge

1. One of the elements of aggravated sexual abuse is that the victim must be under the age of fourteen. See Utah Code Ann.  76-5-404.1(1) (1999).

2. The State argues that Defendant cannot challenge the trial court's decision to allow the State to change the charge of aggravated sexual abuse of a child to forcible sexual abuse because he did not properly object to the State's motion to amend the information. However, the record reflects that when the State made its motion, Defendant objected to amending the information "at this late date," and therefore objected to the timing of the amended information. Because it is not possible to analyze whether the timing of the amended information was proper without analyzing whether the forcible sexual abuse is a lesser included offense, see Utah R. Crim. P. 4(d), it is proper for this court to address this issue.

3. Defendant states on several occasions that he is not challenging the trial court's findings of fact. However, Defendant devotes significant attention to the victim's trial testimony--upon which the trial court based most of its findings of fact--arguing that it lacked credibility. Therefore, Defendant's sufficiency claim is properly reviewed under a clearly erroneous standard.

4. Although the victim's testimony admittedly contained some minor inconsistencies, the trial court was "in the best position to assess the credibility of witnesses and to derive a sense of the proceeding as a whole, something an appellate court cannot hope to garner from a cold record." State v. Pena, 869 P.2d 932, 936 (Utah 1994).

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opinions/mds/holt062404.htm 18:16:20 GMT -->