State v. Winter

554 P.3d 355

2024 UT App 98

STATE of Utah, Appellee,

v.John Thomas WINTER, Appellant.

No. 20220474-CA

Court of Appeals of Utah.

Filed July 18, 2024

Third District Court, Salt Lake Department, The Honorable Vernice S. Trease, No. 191908361

Andrea J. Garland and Isaac E. McDougall, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, and Connor Nelson, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Ryan M. Harris and Amy J. Oliver concurred.

Opinion

MORTENSEN, Judge:

¶ 1 John Thomas Winter pled no contest to one count of sodomy on a child, reserving his right to appeal whether his case should have been dismissed on statute-of-limitations grounds. Through successive amendments, the Utah Legislature had lengthened the applicable limitations period—each time before the prior limitations period had run. For a number of reasons, Winter claims that the amendments could not apply to his case. The district court rejected Winter’s arguments, and we do too. As a result, we affirm the district court’s rulings and Winter’s conviction.

BACKGROUND

¶2 Sometime between August 30, 1988, and August 30, 1990, Winter sexually abused Sarah,¹ his cousin. At the time, Sarah was five or six years old, and Winter was an adult living with Sarah’s family. Winter would enter Sarah’s bedroom late at night and "unroll [her] out of the blanket and touch [her] vagina" under her clothing with his fingers. While Sarah could not recall the exact number of times this happened, she testified that it happened "repeatedly." Additional abuse occurred around this same time when Winter babysat Sarah. Winter would touch Sarah’s vagina and make her "put his penis in [her] mouth." Winter grabbed Sarah by the neck and told her that "he would kill [her] if [she] told anybody."

¶3 Sarah told her friend about the abuse each time it happened. Then at age twelve, Sarah told her "whole family," but no action was taken. Over the years, she told additional family members about the abuse. She has since seen Winter at family events and when he "showed up" uninvited at her wedding.

¶4 In 2019, Sarah reported the abuse to law enforcement. And in October 2019, the State charged Winter with one count of sodomy on a child, one count of aggravated sexual abuse of a child, and one count of sexual abuse of a child. At a preliminary hearing later that same month, Sarah testified about the abuse and identified Winter as the perpetrator. The district court bound Winter over on all charges for trial.

¶5 In December 2019, Winter filed a motion to dismiss the charges for violation of ex post facto provisions of the United States and Utah Constitutions because the statute of limitations being applied "was different now than when the acts [were] alleged." The State opposed the motion but also amended the charge of aggravated sexual abuse of a child to sexual abuse of a child in order to remedy any ex post facto issues. Winter withdrew the motion as he believed the amended charges "resolve[d] any issue" related to ex post facto law violations.

¶6 In November 2020, Winter filed a second motion for dismissal, this time under rule 25 of the Utah Rules of Criminal Procedure. See Utah R. Crim. P. 25(b)(1) ("The court shall dismiss the information or indictment when … [t]here is unreasonable or unconstitutional delay in bringing defendant to trial …."). Winter argued that because the original statute of limitations had run, the charges violated his due process rights under the Utah Constitution. In its opposition to the motion, the State argued that because the original statute of limitations for the charged offenses had not run before the legislature amended and expanded it, the amended statute of limitations applied to Winter's charges. In the State’s view, the extended statute of limitations had not expired and therefore there was no violation of Winter’s due process rights. The district court agreed with the State and denied Winter’s motion. Winter petitioned this court for permission to mount an interlocutory appeal from the district court’s order, which we denied.

¶7 As part of a plea agreement, Winter entered a no contest plea to one count of sodomy on a child while reserving the right to appeal "the question of the statute of limitations." See id. R. 11(j); State v. Sery, 758 P.2d 935, 937–40 (Utah Ct. App. 1988). In exchange, the State dropped the two sexual abuse of a child charges and a separate case pending against Winter. The district court sentenced Winter to "an indeterminate term of not less than five years and which may be life in prison" for the sodomy on a child conviction. Winter appeals.

ISSUES AND STANDARDS OF REVIEW

[1–4] ¶8 Winter raises two issues on appeal. First, Winter argues that, under section 68-3-3 of the Utah Code, the district court erred by retroactively applying an amended statute of limitations for his charged crimes because the amended limitations period is longer than the limitations period applicable at the time the abuse occurred. "Whether the trial court applied the proper statute of limitations is a matter of law that we review for correctness." State v. Green, 2005 UT 9, ¶ 15, 108 P.3d 710. Additionally, when the issue requires us to engage in statutory interpretation, we review the district court’s decision for correctness. State v. Toombs, 2016 UT App 188, ¶ 18, 380 P.3d 390. However, "[w]e review the trial court’s findings concerning events relevant to the application of the statute of limitations as questions of fact, which we will not disturb unless clearly erroneous." Green, 2005 UT 9, ¶ 15, 108 P.3d 710. The State argues that Winter did not preserve this issue for appeal. Winter asserts that the issue was preserved but also argues in the alternative that the district court’s actions amounted to plain error—an exception to our preservation requirement. "Plain error is a question of law reviewed for correctness." State v. Popp, 2019 UT App 173, ¶ 19, 453 P.3d 657 (cleaned up).

[5] ¶9 Second, Winter argues that the district court violated his due process rights by applying the amended statute of limitations. "Constitutional issues, including questions regarding due process, are questions of law that we review for correctness." State v. Charles, 2011 UT App 291, ¶ 17, 263 P.3d 469 (cleaned up).

ANALYSIS

¶10 To properly address each of Winter’s claims, we begin by reciting the relevant legislative history of the statute of limitations for sodomy on a child. As stated above, Winter’s abuse of Sarah took place sometime between August 30, 1988, and August 30, 1990. For purposes of this analysis, we will assume the abuse happened in 1988—the earliest possible date of Winter’s conduct. In 1988, the statute of limitations for sodomy on a child was "one year after the report of the offense to law enforcement officials, so long as no more than eight years ha[d] elapsed since the alleged commission of the offense." Utah Code § 76-1-303(c) (1988). In 1991, the legislature extended the statute of limitations to "within four years after the report of the offense to a law enforcement agency." Act of Feb. 25, 1991, ch. 175, § 2, 1991 Utah Laws 681, 681 (codified as Utah Code § 76-1-303(3) (1991)); see also Act of Feb. 20, 1995, ch. 232, § 4, 1995 Utah Laws 791, 791 (codified as Utah Code § 76-1-303.5 (1996)) (changing the applicable subsection but maintaining the same statute of limitations for sodomy on a child). In 2008, the legislature amended the statute once again, this time eliminating any statute of limitations defense for sodomy on a child. Act of Feb. 11, 2008, ch. 129, § 1, 2008 Utah Laws 1143, 1143 (codified as Utah Code § 76-1-301(13) (2008)) ("Notwithstanding any other provisions of this code, prosecution for the following offenses may be commenced at any time: … sodomy on a child ….").

I. Statutory Claim

¶11 Winter first argues that the district court "prejudicially erred by failing to follow section 68-3-3." That section states that a "provision of the Utah Code is not retroactive, unless the provision is expressly declared to be retroactive." Utah Code § 68-3-3. Winter contends that because the amendments to the statute of limitations did not include express declarations of retroactivity, "they applied only prospectively to crimes occurring after their effective dates" and thereby did not apply to Winter.

[6–8] ¶12 The State argues that Winter has not preserved this issue for our review on appeal, and we agree. "When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation." State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443.

An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on it. To provide the court with this opportunity, the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority.

Id. (cleaned up). "We view issues narrowly," and an issue is unpreserved "when the appellant raises a legal theory entirely distinct from the legal theory" raised before the district court. Ahhmigo, LLC v. Synergy Co. of Utah, LLC, 2022 UT 4, ¶ 18, 506 P.3d 536 (cleaned up).

[9, 10] ¶13 Winter’s arguments to the district court made no mention of section 68-3-3; instead, in his motion to dismiss the charges, he framed his arguments against retroactive application of the statute of limitations solely as a violation of his due process rights. Winter argues that his statutory theory against retroactivity was preserved for appellate review by these due process arguments. To support this assertion, Winter points us to our supreme court’s decision in Patterson v. Patterson, 2011 UT 68, 266 P.3d 828, which states that "we routinely consider new au- thority relevant to issues that have properly been preserved" and...