State v. Rosen

2021 UT App 32
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
A ARON DAVID R OSEN ,
Appellant.
Opinion
No. 20190684-CA
Filed March 18, 2021
Fourth District Court, Provo Department
The Honorable M. James Brady
No. 171402518
Emily Adams, Freyja Johnson, and Cherise Bacalski,
Attorneys for Appellant
Sean D. Reyes and John J. Nielsen,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and JILL M. POHLMAN
concurred.
ORME, Judge:
¶1 	Aaron David Rosen appeals his conviction for unlawful
sexual conduct with a 16-year-old (Victim). He argues that his
trial 	counsel 	was 	ineffective 	for 	not 	challenging 	the
constitutionality of the statutory scheme under which he was
convicted. We reject his argument and affirm.

State v. Rosen
20190684-CA 	2 	2021 UT App 32
BACKGROUND1
¶2 	In 2017, Victim, then 16 years old, created a profile on a
social networking site designed for adult same-sex encounters.
He claimed to be 18 years old or older. Victim and Rosen, a
former police officer in his 40s who had previously worked as a
school resource officer, connected on the site and arranged to
meet at Victim’s second-floor apartment for a sexual encounter.
Once Rosen arrived at the apartment, Victim met him at the
door. Victim was wearing his high school sweatshirt. The two
immediately 	began 	kissing, 	which 	eventually 	progressed 	to
mutual sexual touching and oral sex.
¶3 	Victim’s father arrived unexpectedly, causing Victim and
Rosen to quickly get dressed, with Victim urging Rosen to leave
by jumping from the balcony, which he did. Victim’s father,
however, heard a noise come from the balcony and saw Rosen,
wearing a tank top and holding his shoes, as he was running
away. Rosen sped off in his car, with Victim’s father in pursuit.
Victim’s father was able to get Rosen’s license plate number,
which police later used to identify and arrest Rosen.
¶4 	When 	confronted 	by 	police, 	Rosen 	claimed 	that 	he
thought Victim was 23 years old and that he ran away from the
apartment because he thought Victim’s husband or boyfriend
had 	come 	home. 	Rosen 	also 	claimed 	that 	they 	“didn’t 	do
anything,” but when asked whether he remembered touching
Victim’s genitals, Rosen admitted to “just petting” over clothing.
¶5 	The State charged Rosen with one count of unlawful
sexual conduct with a 16- or 17-year-old, a third-degree felony,
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence 	only 	as 	necessary 	to 	understand 	issues 	raised 	on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

State v. Rosen
20190684-CA 	3 	2021 UT App 32
and one count of unlawful sexual conduct with a minor, a class
A 	misdemeanor. 	Under 	the 	applicable 	statutory 	scheme, 	a
defendant who is “seven or more years older but less than 10
years older than the minor at the time of the sexual conduct” can
present 	the 	defense 	that 	he 	did 	not 	know, 	nor 	should 	he
reasonably have known, the actual age of the minor. See Utah
Code Ann. § 76-5-401.2(2)(a)(i) (LexisNexis Supp. 2020).2 But if
the defendant is “10 or more years older than the minor at the
time 	of 	the 	sexual 	conduct,” 	id. 	§ 	76-5-401.2(2)(a)(ii), 	the
defendant 	cannot 	present 	the 	defense 	that 	he 	“mistakenly
believed the victim to be 18 years of age or older at the time of
the alleged offense or was unaware of the victim’s true age,” id.
§ 76-2-304.5(4) (2017).
¶6 	Being significantly more than ten years older than Victim,
Rosen 	had 	no 	basis 	on 	which 	to 	argue 	a
reasonable-mistake-of-age 	defense 	under 	the 	terms 	of 	the
statute. A jury convicted Rosen as charged. The district court
merged the misdemeanor and felony convictions. Rosen appeals.
ISSUE AND STANDARD OF REVIEW
¶7 	Rosen raises one issue on appeal. He claims that his trial
counsel was constitutionally ineffective for failing to challenge
the applicable statutory scheme under the uniform operation of
laws provision of the Utah Constitution. See Utah Const. art. I,
§ 24.3 “When a claim of ineffective assistance of counsel is raised
2. Because the relevant provisions of the Utah Code in effect
when Rosen committed his offense do not materially differ from
those currently in effect, we cite the current version of the code
for convenience.
3. While known as the uniform operation of laws provision,
Article I, Section 24 of the Utah Constitution has long been
(continued…)

State v. Rosen
20190684-CA 	4 	2021 UT App 32
for the first time on appeal, there is no lower court ruling to
review 	and 	we 	must 	decide 	whether 	the 	defendant 	was
deprived of the effective assistance of counsel as a matter of
law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587
(quotation simplified).
ANALYSIS
¶8 	To succeed on a claim of ineffective assistance of counsel,
an appellant must show, first, “that counsel’s performance was
deficient” 	and, 	second, 	“that 	the 	deficient 	performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984). “Because failure to establish either prong of the test is
fatal to an ineffective assistance of counsel claim, we are free to
address [these] claims under either prong.” Honie v. State, 2014
UT 19, ¶ 31, 342 P.3d 182. We limit our consideration of this case
to the first prong.
¶9 	In 	determining 	whether 	counsel’s 	performance 	was
deficient, we “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance,” Strickland, 466 U.S. at 689, and we “give trial counsel
wide latitude in making tactical decisions and will not question
such decisions unless there is no reasonable basis supporting
them,” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (quotation
simplified). “Moreover, deficient performance is not determined
(…continued)
considered Utah’s version of the federal equal protection clause
as the two “embody the same general principle.” Gallivan v.
Walker, 2002 UT 89, ¶ 31, 54 P.3d 1069 (quotation simplified). See
also Blue Cross & Blue Shield of Utah v. State of Utah, 779 P.2d 634,
637 (Utah 1989) (“The principles and concepts embodied in the
federal equal protection clause and the state uniform operation
of the laws provision are substantially similar.”).

State v. Rosen
20190684-CA 	5 	2021 UT App 32
in a vacuum; rather, it involves asking whether the strategy
counsel employed was that of a reasonable, competent lawyer in
the real-time context” of the proceeding. State v. Wilkes, 2020 UT
App 175, ¶ 24, 479 P.3d 1142 (quotation simplified). “However,
even where a court cannot conceive of a sound strategic reason
for 	counsel’s 	challenged 	conduct, 	it 	does 	not 	automatically
follow 	that 	counsel 	was 	deficient,” 	because 	“the 	ultimate
question is always whether, considering all the circumstances,
counsel’s acts or omissions were objectively unreasonable.” State
v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. Accord State v. Ray, 2020
UT 12, ¶¶ 34–36, 469 P.3d 871.
¶10 	To 	determine 	whether 	a 	statute 	violates 	the 	uniform
operation of laws provision, courts “apply a three-step analysis:
(1) whether the statute creates any classifications; (2) whether the
classifications 	impose 	any 	disparate 	treatment 	on 	persons
similarly situated; and (3) if there is disparate treatment, whether
the legislature had any reasonable objective that warrants the
disparity.” State v. Robinson, 2011 UT 30, ¶ 17, 254 P.3d 183
(quotation simplified). Under the third step, if the challenged
statute 	creates 	classifications 	based 	on 	age, 	courts 	apply 	a
rational basis review to the Legislature’s decision. See Merrill v.
Utah Labor Comm'n, 2009 UT 26, ¶ 8, 223 P.3d 1089. “Rational
basis 	scrutiny 	[is] 	a 	low 	bar 	under 	which 	classifications
employed by the legislature are presumptively permissible.”
Taylorsville City v. Mitchell, 2020 UT 26, ¶ 43, 466 P.3d 148
(quotation simplified). And we “will uphold a statute under the
rational basis standard if it has a reasonable relation to a proper
legislative purpose, and is neither arbitrary nor discriminatory.”
State v. Angilau, 2011 UT 3, ¶ 10, 245 P.3d 745 (quotation
simplified). Accord Mitchell, 2020 UT 26, ¶ 43.
¶11 	Here, because Rosen did not raise a uniform operation of
laws 	argument 	below, 	we 	do 	not 	directly 	address 	the
constitutionality 	of 	the 	statutory 	scheme. 	Rather, 	we 	must
consider the question through the restrictive lens employed in

State v. Rosen
20190684-CA 	6 	2021 UT App 32
reviewing claims of ineffective assistance of counsel. Thus, we
must determine whether counsel performed deficiently in not
challenging 	the 	scheme 	as 	being 	violative 	of 	the 	uniform
operation of laws doctrine. See Strickland, 466 U.S. at 687.
¶12 	We can readily determine that Rosen’s counsel did not
render 	deficient 	performance. 	A 	uniform 	operation 	of 	laws
challenge is a relatively sophisticated undertaking. But even
assuming 	that 	objectively 	reasonable 	counsel 	would 	have
perceived the availability of such a challenge and investigated it
with care, reasonable counsel could still have determined that
any such attack on the statutory scheme might well have failed
under the third and final step of the operation of laws analysis.
Reasonable counsel would know that the district court was
required to apply the lenient rational basis review standard to
the statutory scheme and that the court would likely conclude
that 	the 	Legislature 	had 	a 	rational 	basis 	for 	treating 	some
younger defendants differently from defendants who were “10
or more years older than the minor at the time of the sexual
conduct.” 	See 	Utah 	Code 	Ann. 	§ 76-5-401.2(2)(a)(i)–(ii)
(LexisNexis 	Supp. 	2020). 	Reasonable 	counsel 	could 	have
determined that the Legislature had a rational basis for the
scheme because older adults are more likely to have greater
authority in a minor’s eyes, making the minor more likely to
acquiesce to the designs of older adults. See generally People v.
Cavallaro, 100 Cal. Rptr. 3d 139, 148 (Ct. App. 2009) (“The
Legislature could have properly concluded that it was necessary
to 	specifically 	prohibit 	sexual 	conduct 	between 	a 	14- 	or
15-year-old and an adult at least 10 years older and to include
mandatory sex offender registration based upon a conviction for
the offense, because of the potential for predatory behavior
resulting from the significant age difference between the adult
and the minor.”). Moreover, older adults may be better able to
manipulate and control minors than are adults closer in age to
the minors. And reasonable counsel might well have perceived
that the Legislature could have concluded that these older adults

State v. Rosen
20190684-CA 	7 	2021 UT App 32
would 	be 	more 	intuitively 	aware 	of 	the 	apparent 	age
discrepancy and reasonably be expected to comport themselves
with more maturity and caution.
¶13 	In addition, reasonable counsel would have learned, in
the course of basic research, that similar statutory schemes have
been routinely upheld. See, e.g., Doe v. Oberweis Dairy, 456 F.3d
704, 713 (7th Cir. 2006) (“In Illinois as elsewhere the crime is
considered 	more 	serious 	the 	greater 	the 	disparity 	in 	ages
between the parties. The theory is that a young girl (or boy) is
likely to have particular difficulty resisting the blandishments of
a much older man.”); State v. Anthony, 528 S.E.2d 321, 324 (N.C.
2000) (holding that the legislature made “a legitimate legislative
decision” in determining “that sexual intercourse or sexual acts
with children deserve more severe punishment . . . based on a
greater difference in age between the victim and the older
defendant”); State v. Walborn, 729 So. 2d 504, 506 (Fla. Dist. Ct.
App. 1999) (holding that the legislature’s decision “to limit
criminal responsibility to persons twenty-four years of age and
over” was reasonable “because the legislature felt that persons in
this group were more likely than others to understand the
consequences of their actions and to cause harm to minors who
cannot appreciate the seriousness of their activities,” and that
“therefore, the age limitation . . . is not arbitrary when balanced
against the goals of protecting minors from sexual exploitation”).
While a line drawn at 10 years (as opposed to 9 or 11 or 10 ¾
years) 	is 	necessarily 	somewhat 	arbitrary 	because 	it 	leaves
“people close to the boundary on either side . . . similarly
situated,” reasonable counsel could have logically concluded
that this does not make the statutory scheme impermissible. See
Angilau, 	2011 	UT 	3, 	¶ 	28. 	And 	this 	conclusion 	would 	be
reinforced upon recognizing that the Utah Supreme Court and
“the United States Supreme Court have held that age is a
permissible method of classifying individuals where a rational
basis exists.” See id. (quotation simplified).

State v. Rosen
20190684-CA 	8 	2021 UT App 32
¶14 	Thus, reasonable counsel could have determined that the
statute would withstand rational basis review and that it was
sensible to forgo an argument that was likely to fail. See State v.
Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile
objections does not constitute ineffective assistance of counsel.”).
Accordingly, Rosen has not overcome the “strong presumption
that counsel’s conduct [fell] within the wide range of reasonable
professional assistance,” see Strickland, 466 U.S. at 689, nor has he
“show[n] that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment,” see id. at 687.
CONCLUSION
¶15 	Reasonable 	counsel 	could 	have 	concluded 	that 	the
Legislature had a rational basis for the scheme it enacted and
that any challenge before the district court premised on the
uniform operation of laws provision would likely have been
fruitless. It therefore cannot be said that Rosen’s trial counsel
was constitutionally ineffective in forgoing such a challenge.
¶16 	Affirmed.