State v. Gibson, 366 P.3d 876

Background

Defendant David Allen Gibson was tried for two counts of aggravated sexual abuse of a child based on two alleged inappropriate touchings during an overnight visit; the jury convicted on one count and acquitted on the other.
The State alleged an aggravating factor that elevated the offense to a first-degree felony: Gibson occupied a "position of special trust" with respect to the victim.
Gibson moved for a partial directed verdict to reduce charges to second-degree felonies, arguing insufficient evidence that he held a position of special trust. The motion was denied.
Defense objected to a witness who had attended the preliminary hearing (invoking Rule 615), argued the verdicts were inconsistent, and requested a lesser-included instruction for sexual battery; the trial court rejected these claims.
On appeal Gibson raised four main arguments: sufficiency as to the aggravating factor/partial directed verdict; improper witness testimony after attendance at a preliminary hearing; inconsistent verdicts requiring a new trial; and failure to instruct on sexual battery as a lesser included offense. The Court of Appeals affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Gibson)	Held
Partial directed verdict / position of special trust	Some evidence supported jury submission: Gibson gave permission for overnight stay, directed children, covered them with blankets, obtained compliance and silence — jury could find undue influence	Gibson argued he was not in a statutorily enumerated position of authority (e.g., babysitter, stepparent), so evidence was insufficient to prove a position of special trust and charge should be reduced	Denial of partial directed verdict affirmed: appellant failed to marshal contrary evidence; fact-sensitive question reserved for jury and not clearly erroneous
Witness exclusion (Rule 615)	Any attendance at preliminary hearing did not necessarily violate exclusion; no showing of actual prejudice or altered testimony	Witness attended preliminary hearing and thus testimony was improperly bolstered/prejudicial	Affirmed: no persuasive showing that Rule 615 was violated or that the witness materially changed testimony or caused prejudice
Inconsistent verdicts / new trial	Guilty on one count and not the other does not alone require a new trial; sufficiency of evidence supports conviction	Verdicts were "glaringly" inconsistent given events occurred twice in same overnight timeframe, indicating jury confusion	Denial of new trial affirmed: inconsistency alone insufficient; defendant did not show insufficiency of evidence or other error
Lesser included instruction (sexual battery)	Instruction not required because defendant failed to show overlapping elements and rational basis to convict on lesser offense	Requested sexual battery instruction based on testimony of touching buttocks/genitalia; jury could convict of lesser offense instead	Rejection affirmed: defendant inadequately briefed element overlap and rational basis; legal test for lesser-included not met

Key Cases Cited

State v. Montoya, 84 P.3d 1183 (Utah 2004) (standard for reviewing denial of directed verdict / sufficiency of evidence)
State v. Watkins, 309 P.3d 209 (Utah 2013) (holding that occupying enumerated position still requires proof that defendant could exercise undue influence)
State v. Tanner, 221 P.3d 901 (Utah Ct. App. 2009) (position-of-special-trust analysis is fact-sensitive and for the trier of fact)
State v. Rowley, 189 P.3d 109 (Utah Ct. App. 2008) (father of victim’s friend found to occupy position of special trust based on frequent supervision and overnight visits)
State v. Billsie, 131 P.3d 239 (Utah 2006) (Rule 615 witness exclusion; defendant must show prejudice from violation)
State v. Carlson, 635 P.2d 72 (Utah 1981) (trial court discretion on witness exclusion; defendant must show witness changed testimony)
State v. LoPrinzi, 338 P.3d 253 (Utah Ct. App. 2014) (inconsistent verdicts alone do not require reversal; defendant must show additional error)
State v. Powell, 154 P.3d 788 (Utah 2007) (two-part test for lesser-included offense instruction)
State v. Reece, 349 P.3d 712 (Utah 2015) (standard of review for refusal to give lesser included instruction)