*1 STEWART, J., the views ex- concurs in dissenting Judge
pressed opinion
CHRISTOFFERSEN. HALL, JJ., having dis-
WILKINS and themselves, do
qualified participate not
herein. Utah, In the L.
STATE of Interest J.
S., eighteen age.
No.
Supreme Court of Utah.
April DeLand, & Robert M. of McRae McRae
Vernal, appellant. for Gen., Hansen, Atty. William W. Robert B. Gen., Lake Barrett, City, Atty. Asst. Salt respondent. MAUGHAN, Justice: judgment appeal is from finding District Juvenile Court Third taking indecent liber- defendant ties minor in violation of named All 76-5—404. We reverse. statu- Section tory to Utah references are Code Annotat- ed, 1953, as amended. complained allegedly took
The incident place at the Antler Motel on June Vernal, Utah. At time of inci- employed as a complainant dent the was testified that room maid the motel. She cleaning one while she the bathtub defendant, year the rooms the a 17 room, male, put entered his arms on her placed around her his hands clothed breasts. complainant recounted: me, and I put
A: He his arms around just, he he had his turned ’round hands all over.
1295 Q: particular What parts your body The term “indecent liberties” was used put
did he prior his hands on? but in a different context Penal Code, which repealed was in 1973. Section A: My breasts. 76-7-9 stated.2 Q: Your breasts. Any place else? Every person child, who shall assault a A: No. female, whether male or under age the Q: What say? did he years, fourteen and shall take indecent liberties with or on the of such said, A: He because I give wouldn’t it to child, without committing, intending or him he going was to take it.1 attempting to commit the crime rape, Q: you What did tell him? child, upon such with or without the A: I told him to get leave me consent, child’s of a felony. alone. In defining the term “indecent liberties” Q: Did you do anything? under prior statute this Court ex- A: I pushed plained: him. I told him if he didn’t
leave I going office, was to call the the liberties,” term “indecent so he left. as used in the statute is clearly self-defin- ing. . We every per- think that 23, 1978, On June a week al- after the son of ordinary intelligence the most leged occurred, incident the complainant understanding, who is familiar with notified her parents of the incident and merely the English rudiments of lan- the they reported it to police. the The defend- guage, understands what is meant when ant was subsequently guilty by found the he, else, or anyone is charged having with violating Juvenile Court of 76-5- Section taken indecent liberties with of a child.3 In interpretation an 76-5- Section heading Under “Forcible Sexual 404(1), the format of the signifi- statute is Abuse,” provides: 76-5-404 Section cant. In part, legislature the first de- A commits forcible sexual scribes in detail specific pro- conduct if, abuse circumstances not scribed, viz., the actor’s touching the anus amounting rape sodomy, attempt- genitals part, another. In the second ed rape or sodomy, the actor touches the separated which is from the first by the any part anus or of anoth- disjunctive “or” the conduct condemned is er, or otherwise takes indecent liberties generalized terms, viz., set forth in “other- or causes another to take wise takes indecent liberties with another.” indecent liberties with the actor or anoth- disjunctive The use of the in combination er, with intent to cause substantial emo- with term “otherwise” is indicative of an tional or bodily pain to any person or proscribe intent to type conduct of intent to arouse or equal gravity to that interdicted in the first sexual desire of any person, without the part, although the acts are committed in a other, consent of regardless sex way different or manner than that set forth of any participant. part.4 in the first Forcible State v. Macmillan5 felony sexual abuse is a this Court stated in a statute like 76-7-9 the terms degree. third complainant way alleged pri- that three 4. Otherwise is defined as in a different times day manner, question or to the the defendant made circumstances or con- under different ditions, similar statements to her. International Dic- Webster’s Third New tionary. R.N., Utah, 2. See State of Utah in interest of 21, supra, P. 833. at 46 Utah 145 5. See note Macmillan, 19, 22, 3. State v. 46 Utah 145 P. Saunders, 834 See also State v. Utah assault”
“indecent liberties” and indecent The legislature the statute. rather than However, this statute were convertible. attempting types to set forth the various indecent assault specifically with an might dealt sexual aberrations that constitute a age of fourteen. equivalent a child under the of serious sexual assault “indecent stating the term specifically This Court phrase defined utilized the self-defining was determin- liberties” “otherwise takes with an- indecent liberties *3 of within the context the ing meaning However, the other.” there is no ex- intent statute, viz., of of the elements the pressed one to of phrase take this the con- of the victim. Without age (which crime was the text of the is statute directed to liberties,” in reading term “indecent nature), the in- conduct of a more serious and victim, age the conjunction with the of the simple touching felony clude offensive as a a statute would precision required penal for offense. manifest; by this Court
not be as indicated touching grab or momentary Macmillan, viz., every its in in statement of an adolescent bing of the clothed breasts ordinary intelligence understands person of boy girl year a does not by seventeen charged is meant when he is with the “otherwise takes phrase come within with the having taken indecent liberties with indecent liberties another.” a person of child. interpreted the phrase cannot be statutory subsuming a present scheme as 76-5-404(1), present In the statute touching where the circum mere offensive derive liberties” cannot term “indecent the of do not indicate conduct sufficient stances meaning of re requisite specificity the specific de gravity equated to be being read in constitutionally, by quired Though in the scriptions set forth statute. victim, age of the but the conjunction with is to be the conduct of the defendant not referring as to conduct of it be considered if condoned, admired, approved or much less magnitude gravity spe of as that same the anger, touching was in fact no no there statute, poten the cifically described injury, or he actual violence desisted infirmity vagueness is rectified. tial This, upon request. cou immediately her pled complaint with the fact no was made imposes of statute part The first the week, the a leads us to the about matter for specific acts of against an interdiction the should not rea conclusion his misconduct genitals the or of touching actor’s anus the sonably regarded as of the seriousness proscribes “or part another. The second proscribed by the statute. with an- takes indecent liberties otherwise legislature failed to The mere fact the other, to take indecent or causes another dealing provision type with this another, enact a .” liberties with the actor or touching justify not inclusion ante, offensive does “otherwise” con- As noted the term the terms of the manner, of this conduct within obviously, way notes a different or present causing statute.6 the actor part second condemns the. or victim to touch the anus
the J., STEWART, J., CROCKETT, of the same C. the or conduct actor part the first magnitude as set forth in concur. R.N., supra, (1) note at he contact is offensive knows that the
6. See State interest person; legislature should address the the other or If the statutory by present (2) person problem he knows that the other suffers created provision dealing by enacting a or which renders from mental disease defect scheme Code, touching. incapable appraising nature The Model Penal him or this her Assault, conduct; 213.4, appropri- presents an or Sexual of his her § ate person provides: approach. he is un- This section knows that other committed; being is aware that a sexual act A who has sexual contact with anoth- old; is than 10 other less spouse, not er his or causes such other to have him, sexual contact with of sexual misdemeanor, assault, if: HALL, (dissenting): Justice interpretation For Court to now tie the of a statute which contains this “self- I adopt majority opinion do not inas- precise specification defined” term to a much as it reaches a conclusion reverse victim, age only illogical, is not by addressing the trial court an issue not appeal. any raised below nor support but is without in the law. event, I do not subscribe to the view that Totally foregoing, appel- unrelated to the (U.C.A., 76-5-404), the statute does presents only lant two issues for our consid- encompass not as an offense the unlawful eration, both which are based touching of the breasts as well as the anus insufficiency claimed of the evidence. He genitals. proof first contends there no reads, part, Said statute pertinent intent his sexual desires follows: breasts; touching unlawful of the victim’s A commits forcible sexual abuse secondly, he contends that since the victim’s if .he touches the anus or any *4 uncorroborated, testimony was and since part of the or other- the crime “easy was one to accuse and wise takes indecent liberties with anoth- against,” difficult to defend that her testi- er, . . with intent ... to mony was incredible. gratify arouse or any sexual desire of
person [Emphasis . . added.] First, intent, addressing the issue of it light In of the facts and circumstances of long has rule that the been established case, appellant this wherein the verbally necessary may intent inferred from the expressed engage his desire to in a sexual attendant facts and circumstances.3 In act, I can only fondling conclude that his Peterson,4 very v. the rule was suc State the victim’s breasts graphic constituted a cinctly as stated follows: example of what was meant the statuto- respect With to the intent: It is true ry language: “or otherwise takes indecent prove that the was unable to direct- State liberties with another.” mind ly what was in rela- the defendant’s previously This Court has held that the victim; tive to to the doing harm sufficiently spe- term “indecent liberties” is having any such that he in fact denied apprise person particular cific to of the However, his version does not intent. charged.1 acts which he is In v. State fact, nor does it even neces- establish the Macmillan, “thoroughly agree[d] the Court vitiate the sarily raise sufficient doubt to Supreme with the Court Minnesota”2 so, If it were it would lie conviction. adopted following language: to de- power within the defendant liberties,”
the term “indecent
conviction which de-
practically any
feat
woman,
when used with reference to a
young,
self-defining
upon
old or
is
his state of mind. As
pended
person’s power
conduct,
other means for the
old and the actor is at least
sistance; or
fare; or
the other
the actor has
over him.
thority and the actor
detained in a
sponsible
(5)
(6)
he has
the other
the other
the other
other’s
person;
administering
substantially
hospital
general supervision
is his
knowledge drugs,
supervisory
to
person
appraise
guardian
purpose
is less than 21
or other institution and
is
is
in
less than [16]
or control his or her
or
impaired
[4]
custody
employing
or otherwise re-
years
disciplinary
preventing
intoxicants or
of his wel-
older than
the other
law
years
with-
au-
re-
4. 22 Utah 2d
2. State v.
3. State v.
1. State v.
P.2d 486
App.
purpose
(1903).
(1915).
function is not to determine majority opinion addresses a matter cence, conflicting evi- weight give Court that was not reversing the District dence, witnesses, or the credibility and, by raised the defendant below or here weight testimony. given to be defendant’s hence, or ad- be considered should not ****** now. dressed defendant, has set the standard for Court I points raised On determining sufficiency of evidence to re- Mr. concur the comments made or so Justice Hall in his dissent. quire that it be so inconclusive inherently improbable that reasonable reasonably
minds could not believe de- a crime.
fendant had committed Unless of lack showing
there is a clear of evi-
dence, upheld. will be jury verdict Utah, also, 1; also, Supra, the same stan- see State v. footnote Ward, applicable appealed 10 Utah 2d dard of review is cases court, juvenile see from the State Utah K.K.H., Utah, Interest of P.2d