State v. Silveira

514 P.3d 166

STATE of Utah, Appellee,

v.Anthony David SILVEIRA, Appellant.

No. 20210421-CA

Court of Appeals of Utah.

Filed June 24, 2022

Janet Lawrence and Ian L. Quiel, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, and William M. Hains, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.

Opinion

ORME, Judge:

¶1 Anthony David Silveira appeals the district court's denial of his motion for pretrial release, in connection with sexual abuse he allegedly perpetrated on Ruby,¹ his then-twelve-year-old half-sister. Silveira argues that the court erred in determining both that substantial evidence existed to support the charged conduct and that there was clear and convincing evidence that he was a substantial danger to an individual or the community at large. We disagree and affirm.

BACKGROUND

¶2 In 2021, the State filed a sworn information in the district court alleging that Silveira committed four counts of rape of a child, three counts of aggravated sexual abuse of a child, and one count of sodomy upon a child—all first-degree felonies. The information asserted that probable cause existed based on the following:

The statement of 14-year-old Ruby that between June 20, 2019, and June 21, 2019, ... she spent the night at her adult half-brother, Anthony David Silveira's apartment. Silveira had been drinking. Silveira made a bed on the floor for Ruby near the couch where he slept. Ruby stated that Silveira asked her if she wanted to cuddle, and she told him no. Ruby stated that she fell asleep and was woken up early in the morning to Silveira touching her inappropriately. Ruby stated that Silveira had moved her underwear over and was rubbing her vagina with his hand. Silveira then removed Ruby's underwear and pushed her dress up over her chest. Silveira unbuckled Ruby's bra and was holding Ruby's arms above her head by the wrists with his left hand. Ruby stated that Silveira was "kissing all over my chest and neck" then "he started going down to like my stomach. And then he went to my thighs and then he started, like, putting his mouth on my vagina." Ruby stated that Silveira put two of his fingers into her vagina and moved his fingers in a back-and-forth movement. Silveira then start[ed] using his mouth and rubbed his tongue on Ruby's vagina and would spit. Silveira then tried putting his penis into Ruby's vagina 4 times. Ruby stated that Silveira then just stopped. Silveira said he was sorry and asked Ruby not to tell anyone about this.

¶3 The sworn information was signed by "B. Shupe" of the Salt Lake City Police Department, and the information stated that the "evidence [was] obtained from ... B. Shupe," Ruby, and two other individuals referred to by their initials. As part of the information, the State requested that Silveira be held without bail. It asserted that there was "substantial evidence supporting the charge and clear and convincing evidence that [Silveira] would constitute a substantial danger to any other individual or to the community." The court then issued a no-bail warrant.

¶4 After Silveira was apprehended and arrested, he filed a motion for release on bail or to pretrial services. To support his motion, Silveira submitted an exhibit showing that he was incarcerated in the county jail from June 2, 2019, to June 30, 2019, which, he argued, rendered it impossible for him to have perpetrated the charged offenses. At a subsequent hearing on the matter, Silveira argued that because he had "undisputed proof" that he was incarcerated during this time, he "couldn't have done what the State alleges he did." Thus, Silveira argued, the State failed to present substantial evidence of the charged crimes, warranting a no-bail hold. He also argued that he did not pose a substantial danger to the community because he had no prior sexual abuse convictions, "was a model probationer" on a prior conviction, and received a "glowing" recommendation from his probation officer recommending termination of his probation on a previous conviction. See Utah Code Ann. § 77-20-1(2)(c) (LexisNexis Supp. 2021) (allowing a defendant to be held without bail if a felony is alleged, "there is substantial evidence to support the charge[,] and the court finds by clear and convincing evidence that the individual would constitute a substantial danger to any other individual or to the community").² He also claimed that he was employed, would be living with a "close sister," and "has sort of a quasi stepchild, a girlfriend's kid."

¶5 The prosecutor responded that the date of the offenses was "not an element that the State has to prove in a child sexual abuse case" and that due to the young age of the alleged victim, her inability to accurately provide a specific date of the crime that occurred two years earlier "is not going to be fatal to the State's case." The prosecutor argued that Ruby's "statement has provided the necessary proof," i.e., "substantial evidence that ... a sexual abuse crime occurred against a child, [and] that [Silveira] did it," which was sufficient "to keep [Silveira] in custody." Regarding Silveira being a danger to the community, the prosecutor responded that it was "not unusual for sex offenders to have little to no criminal history" and that he had "grave concerns that [Silveira] would be going home with ... a stepchild."

¶6 The court denied Silveira's motion. It ruled that his incarceration during the dates listed in the information was not fatal to the State's case because "it does not constitute an element of the crime." The court further stated that it "has concerns with regard to [Silveira] posing a substantial danger to the community," and it determined not to "grant[ ] a release or bail at this juncture." Silveira appeals this ruling.³

ISSUE AND STANDARD OF REVIEW

¶7 Silveira asserts that the district court erred in denying his motion for pretrial release or bail. The parties disagree on the appropriate standard of review. The State argues that we should review this issue for abuse of discretion, while Silveira contends that we should review it for correctness. We need not resolve this dispute here because, even under the correctness standard of review urged by Silveira, we ascertain no error by the district court.⁴

ANALYSIS

¶8 Under Utah Code section 77-20-1, a defendant charged with a felony could be held without bail if (1) "there is substantial evidence to support the charge" and (2) "the court finds by clear and convincing evidence that," as relevant here, "the individual would constitute a substantial danger to any other individual or to the community." Utah Code Ann. § 77-20-1(2)(c) (LexisNexis Supp. 2021). We address each issue in turn.

I. Substantial Evidence

¶9 Silveira contends that the district court erred in ruling that the State presented substantial evidence to support the charged conduct because (1) the State "failed to provide any reliable evidence that [he] committed the alleged crimes" and (2) contrary to the court's holding, "[t]he dates of the alleged criminal activity provided in the Information are not inconsequential."⁵ We conclude that Silveira's first argument was not preserved and therefore decline to address it on its merits, leaving us to contend only with the merits of his second argument.

A. Reliable Evidence

¶10 Silveira argues that substantial evidence did not exist because the State "offered no evidence" of his guilt "beyond B. Shupe's declaration in the Information," which "is not sufficient to constitute substantial evidence where no reliability criteria have been satisfied." But before the district court, Silveira argued only that the State could not show substantial evidence because he was incarcerated when the State alleged the crimes were committed and thus he "couldn't have done what the State alleges he did." This was the extent of Silveira's argument regarding substantial evidence.

¶11 At oral argument before this court, Silveira argued that because his challenge to the dates of the crime preserved the issue of substantial evidence more generally, he is permitted to raise other unique arguments for the first time on appeal so long as they relate to the broader issue of substantial evidence. Silveira's attempt to characterize his new arguments on appeal as simply falling under the large umbrella of the substantial evidence issue, for purposes of preservation, is unavailing.

¶12 Our Supreme Court has directed us, when analyzing preservation, to "view issues narrowly, but also made it clear that new arguments , when brought under a properly preserved issue or theory, do not require an exception to preservation." State v. Johnson , 2017 UT 76, ¶ 14 n.2, 416 P.3d 443 (emphasis in original). The Court clarified that "[s]uch arguments include citing new authority or cases supporting an issue that was properly preserved." Id. But "an argument based upon an ‘entirely distinct legal theory’ is a ‘new claim or issue’ and must be separately preserved." True v. Utah Dep't of Transp. , 2018 UT App 86, ¶ 32, 427 P.3d 338 (quoting Johnson , 2017 UT 76, ¶ 14 n.2, 416 P.3d 443 ).

¶13 The reliability-of-the-evidence issue that Silveira raises for the first time on appeal is an entirely distinct legal theory from the timing-of-the-crime issue he raised below. While both issues may fall under the broad category of sufficient evidence, they entail completely different analyses and are distinct legal theories regarding whether the State presented substantial evidence. One issue concerns whether the evidence provided was sufficiently reliable to be believed, while the other issue is an inquiry into whether Silveira's alibi made it impossible for him to have committed the alleged crimes. The former "is not merely a new argument to support the issue raised below, but an entirely distinct legal theory" needing to be separately preserved. See id. (quotation simplified).

¶14 This point is further driven home by...