State v. Jones

2018 UT App 110
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
GARVIN WAYNE JONES,
Appellant.
Opinion
No. 20160522-CA
Filed June 14, 2018
Second District Court, Farmington Department
The Honorable David R. Hamilton
No. 151700186
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 	Garvin Wayne Jones sexually abused Victim beginning
when she was eight years old. Jones’s abuse continued until
Victim was eleven years old and ranged from showing Victim
pornographic images to sodomizing and raping her. The State
charged Jones with child rape, as well as other crimes. The case
proceeded to trial where defense counsel objected to the child
rape elements in the jury instructions, asserting that the child
rape statutes were unconstitutionally overbroad and vague. The
trial court denied Jones’s motion and he now appeals. We reject
his arguments in full.

State v. Jones
20160522-CA 	2 	2018 UT App 110
BACKGROUND
¶2 	Victim had an unstable childhood. Due to her parents’
continued physical abuse and drug use, she went to live with an
aunt and uncle. Unfortunately, the instability continued in her
new home. Beginning when Victim was just eight years old,
Jones, who was living in the same home as Victim, began
sexually abusing her and continued to do so until she was eleven
years old.
¶3 	The abuse began with Jones touching her breasts and
vagina, 	then 	escalated 	to 	digital 	penetration, 	mutual
masturbation, oral sex, and vaginal and anal intercourse. Jones
also 	showed 	Victim 	pornographic material 	online 	and 	took
“photographs of her lying on his bed with her clothes off.”
¶4 	In August 2014, after multiple incidents of child abuse
and drug abuse at the home of the aunt and uncle, Victim was
removed from that home permanently. Several months later,
Victim began seeing a Division of Child and Family Services
therapist. Over the course of several sessions, Victim disclosed
the sexual abuse Jones had inflicted on her. Upon disclosure,
Victim 	was 	interviewed 	by 	a 	Child 	Protection 	Services
investigator and once again, Victim revealed that she had been
sexually abused by Jones. Officers then obtained search warrants
for 	Jones’s 	home, 	cell 	phone, 	and 	computers, 	where 	they
discovered more than six pornographic images of children under
the age of eighteen.
¶5 	Jones 	was 	arrested 	and 	the 	State 	charged 	him 	with
eighteen counts in total: three counts of child rape; three counts
of child sodomy; three counts of aggravated child sexual abuse;
six counts of sexual exploitation of a minor; and three counts of
dealing 	in 	material 	harmful 	to 	a 	minor. 	At 	trial, 	Victim’s
testimony on the rape charges alleged not only touching, but
also 	penetration. 	A 	nurse 	corroborated 	Victim’s 	statement,
testifying that Victim had disclosed that Jones had put his penis
“into” her vagina.

State v. Jones
20160522-CA 	3 	2018 UT App 110
¶6 	During 	trial, 	the 	parties 	discussed 	jury 	instructions.
Defense counsel objected to the elements instruction on the child
rape 	charges, 	asserting 	that 	the 	child 	rape 	statute 	was
unconstitutionally 	overbroad 	and 	vague.1 	Defense 	counsel
alleged 	that 	Utah 	Code 	section 	76-5-407 	“only 	requires
touching,” 	rather 	than 	penetration, 	which 	meant 	that 	the
conduct “merged” with “aggravated sexual abuse of a child.”2
The State responded that the distinction between child rape and
aggravated child sexual abuse was the body parts involved—
“for 	child 	rape, 	it 	had 	to 	be 	genital-to-genital 	contact; 	for
aggravated child sex abuse, it could be genital contact with other
body parts.” Ultimately, the trial court rejected Jones’s argument
and overruled his objection to the jury instructions.
¶7 	The jury convicted Jones on one count of child rape, one
count of child sodomy, three counts of aggravated child sexual
abuse, two counts of sexual exploitation of a minor, and three
counts of dealing in material harmful to a minor. Jones timely
appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 	On appeal, Jones raises two issues. First, he argues that
the trial court incorrectly determined that Utah Code section
76-5-402.1 (Rape of a Child), as modified by Utah Code section
76-5-407(2)(b)(v) (Applicability of Part), is not unconstitutionally
overbroad. Second, Jones contends that the trial court incorrectly
ruled 	that 	Utah 	Code 	section 	76-5-402.1, 	when 	read 	in
conjunction with Utah Code section 76-5-407(2)(b)(v), is not
unconstitutionally vague.
1. 	Both 	defense 	counsel 	and 	the 	trial 	court 	use 	the 	terms
“overbroad” and “vague” somewhat interchangeably. For the
purpose of our analysis, we address both doctrines separately.
2. Issues concerning merger have not been raised on appeal.

State v. Jones
20160522-CA 	4 	2018 UT App 110
¶9 	“Constitutional challenges to statutes present questions of
law, which 	we review for correctness.” 	Provo City Corp. v.
Thompson, 2004 UT 14, ¶ 5, 86 P.3d 735. Additionally, “legislative
enactments are presumed to be constitutional” and “those who
challenge a statute or ordinance as unconstitutional bear the
burden of demonstrating its unconstitutionality.” Greenwood v.
City of N. Salt Lake, 817 P.2d 816, 819 (Utah 1991).
ANALYSIS
¶10 	This case involves the constitutionality of the Rape of a
Child statute. Subsection (1) of the statute provides: “A person
commits rape of a child when the person has sexual intercourse
with a child who is under the age of 14.” Utah Code Ann. § 76-5-
402.1(1) 	(LexisNexis 	2017). 	Additionally, 	in 	any 	prosecution
commenced under section 76-5-402.1, section 76-5-407(2)(b) also
applies and provides that for cases involving the rape of a child,
“any touching, however slight, is sufficient to constitute the
relevant element of the offense . . . .” Id. § 76-5-407(2)(b).
¶11 	Jones attacks these statutes when read together as being
both unconstitutionally overbroad and vague. When a statute is
attacked as both overbroad and vague, the courts should first
determine “whether the enactment reaches a substantial amount
of constitutionally protected conduct.” Village of Hoffman Estates
v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). If the
conduct is deemed unprotected, “then the overbreadth challenge
must fail.” Id. The courts should “examine the facial vagueness
challenge 	and, 	assuming 	the 	enactment 	implicates 	no
constitutionally protected conduct, should uphold the challenge
only 	if 	the 	enactment 	is 	impermissibly 	vague 	in 	all 	of 	its
applications.” Id. at 494–95. To analyze the constitutionality of
these two statutes,3 we first address their alleged overbreadth,
3. When read together, sections 76-5-402.1 and -407(2)(b)(v) deal
specifically with the crime of child rape. See Utah Code Ann.
(continued…)

State v. Jones
20160522-CA 	5 	2018 UT App 110
followed by their alleged vagueness, and we hold that the trial
court was correct on both issues.
I. Overbreadth
¶12 	Jones first challenges the trial court’s ruling that section
76-5-402.1, 	when 	modified 	by 	section 	76-5-407, 	is 	not
unconstitutionally overbroad. See Utah Code Ann. §§ 76-5-402.1,
-407(2)(b)(v) (LexisNexis 2017). A statute is overbroad when it
criminalizes 	or 	otherwise 	impairs 	constitutionally 	protected
activity. See generally Hill v. Colorado, 530 U.S. 703, 731–32 (2000);
Village of Hoffman Estates v. Flipside, Hoffman, Estates, Inc., 455 U.S.
489, 495–96 (1982); State v. Frampton, 737 P.2d 183, 192 (Utah
1987).
¶13 	Section 76-5-402.1 states that sexual intercourse with a
child under the age of fourteen is considered rape of a child, and
section 76-5-407(2)(b)(v) describes what degree of penetration or
touching constitutes an element of that crime. Utah Code Ann.
§§ 76-5-402.1, -407(2)(b)(v). For the crime of raping a child, “any
touching, however slight, is sufficient to constitute the relevant
element of the offense.” Id. § 76-5-407(2)(b)(v). In contrast, the
relevant element in section 76-5-402.1(1) is sexual intercourse. See
id. § 76-5-402.1. When read in the context of one another, these
two statutes allow a finding that sexual intercourse occurred
without proof of penetration; although actual penetration—as in
this case—would also meet that definition. See Miller v. Weaver,
2003 UT 12, ¶ 17, 66 P.3d 592 (providing that statutes are
interpreted “in harmony with other statutes in the same chapter
and related chapters”).
¶14 	Jones identifies no general constitutional right to touch a
child’s genitals. Certainly there is no constitutional right to touch
(…continued)
§§ 76-5-402.1, -407(2)(b)(v) (LexisNexis 2017). For this reason, we
refer to these two statutes as “the child rape statutes.”

State v. Jones
20160522-CA 	6 	2018 UT App 110
a child’s genitals as part of sexual intercourse, no matter how
sexual intercourse might be defined. By virtue of the fact that
this type of abhorrent behavior is not a constitutionally protected
activity, Jones fails to meet the standard for overbreadth. See
Frampton, 737 P.2d at 192. Therefore, the trial court correctly
determined that section 76-5-402.1, when modified by section 76-
5-407(2)(b)(v), is not unconstitutionally overbroad.
II. Vagueness
¶15 	In addition to his overbreadth claim, Jones argues that the
trial court erred in ruling that section 76-5-402.1, when read in
conjunction 	with 	section 	76-5-407(2)(b)(v), 	is 	not
unconstitutionally vague. However, Jones lacks standing to raise
this challenge. The United States Supreme Court has explained
that vagueness challenges to “statutes which do not involve First
Amendment freedoms must be examined in the light of the facts
of the case at hand.” Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 495 n.7 (1982) (cleaned up).4
¶16 	It is well-established that a defendant “who engages in
some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others.” Id. at
495. 	“A 	court 	should 	therefore 	examine 	the 	[defendant’s]
conduct before analyzing other hypothetical applications of the
law.” Id. If the defendant’s conduct is clearly prohibited, then he
lacks 	standing 	to 	challenge 	the 	statute 	based 	on 	another’s
hypothetical conduct. See State v. Ansari, 2004 UT App 326, ¶ 44,
100 P.3d 231.
4. Jones’s alleged constitutional rights do not implicate the First
Amendment, and therefore, we evaluate the statutes’ vagueness
in light of Jones’s own conduct rather than any hypothetical
conduct of others not before the court. See Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982).

State v. Jones
20160522-CA 	7 	2018 UT App 110
¶17 	Jones ignores his conduct in this case. His alleged acts
include 	not 	only 	impermissibly 	touching 	Victim, 	but 	also
penetrating 	her. 	Both 	Victim 	and 	the 	nurse 	testified 	that
penetration 	occurred. 	Because 	Jones’s 	alleged 	conduct—
penetration—is clearly prohibited, he lacks standing to assert a
vagueness claim and we need not address the issue any further.
See Hoffman Estates, 455 U.S. at 495 (stating that, “A plaintiff who
engages 	in 	some 	conduct 	that 	is 	clearly 	proscribed 	cannot
complain of the vagueness of the law as applied to the conduct
of others.”).
CONCLUSION
¶18 	Jones’s overbreadth challenge fails because, when read
together, the child rape statutes do not prohibit any, let alone a
substantial 	amount 	of, 	constitutionally 	protected 	conduct.
Further, 	Jones 	lacks 	standing 	to 	challenge 	the 	statutes 	for
vagueness. For the foregoing reasons, the trial court correctly
held that the child rape statutes are neither unconstitutionally
overbroad, nor unconstitutionally vague.
¶19 	Affirmed.