State v. Leota

2019 UT App 194

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
AFIMUAO S. LEOTA,
Appellant.

Opinion
No. 20171012-CA
Filed November 29, 2019

Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 151402812

Teresa L. Welch and Christine Seaman, Attorneys
for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

POHLMAN, Judge:

¶1 Following a jury trial, Afimuao S. Leota was convicted of
one count of forcible sexual abuse for touching his fifteen-year-
old stepdaughter (Victim) on her breasts over her clothing. Leota
challenges the sufficiency of the evidence supporting his
conviction, arguing that the State failed to prove that his over-
the-clothing touch of Victim constituted indecent liberties and
that Victim’s testimony was too inherently improbable to be
credited. We reject his sufficiency challenge and affirm.
State v. Leota

BACKGROUND 1

¶2 Victim was eleven years old when Leota married Victim’s
mother and moved into their home. Victim perceived her
relationship with Leota to be “father/daughter,” and she called
him “daddy.”

¶3 In 2016, the State charged Leota with seventeen offenses,
ranging from rape and object rape to forcible sodomy and
forcible sexual abuse, based on Victim’s allegations. As relevant
here, 2 Leota was charged with one count of forcible sexual abuse
based on allegations that he put his hands on Victim’s clothed
breasts for a period of time, only removing them when Victim
indicated that the touch was not welcome.

¶4 A two-day trial for all the charges was held in 2017.
Victim testified about the alleged incident of abuse. She testified
that on one occasion when she was fifteen years old, she and
Leota were in her mother and Leota’s room, on their bed,
watching football. Victim was lying against Leota, who was
rubbing her back. She recounted that after Leota rubbed her
back, he put his hands on her breasts, over her clothing, and
asked, “Is it okay if Daddy does this?” Victim testified that she
“shrugged and just said, ‘huh-uh,’ like, I don’t know.” Leota
then apologized, telling her, “Sorry, Daddy shouldn’t have done
that” and removed his hands from her breasts.

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Reigelsperger, 2017 UT App 101,
¶ 2 n.1, 400 P.3d 1127 (cleaned up).

2. The jury acquitted Leota of sixteen of the charged offenses,
and we do not address them further.

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State v. Leota

¶5 A detective (Detective), who had spoken with Leota
about the incident approximately two-to-three months after
it occurred, also testified. Detective stated that, initially, Leota
denied any touching had occurred, indicating that he “didn’t
know of anything that had happened” with Victim. Leota
also explained that he and Victim had an affectionate
relationship, often hugging or cuddling on the couch, and that it
was common for Leota to “snuggle” with his other children as
well. And Detective recounted that Leota theorized that Victim
was angry with him and was “making up” the allegations
because he had recently disciplined her by taking away her
electronics.

¶6 Detective testified that as the interview progressed,
however, Leota recanted his initial denial of the touching
incident, eventually admitting that he had touched Victim’s
breasts over her clothing. Leota told Detective that he and
Victim had been “up on his bed in his bedroom” cuddling,
with Victim’s back “pressed up against [Leota’s] chest,” and
that at some point Leota’s “hands were accidentally on
[Victim’s] boobs.” Detective recounted that, when asked,
Leota “couldn’t explain what was accidental” about the
touching.

¶7 Leota then stated that, with his hands still on her
breasts, he asked Victim, “Are you okay with this?” When
Detective asked why Leota asked Victim that question, Leota
responded, “[B]ecause I was . . . touching her boobs.” Leota told
Detective that he removed his hands when Victim “eventually
said that she wasn’t okay with the touch” and that he
then apologized to Victim, telling her that “it wasn’t going
to happen again.” Detective testified that, toward the end
of the interview, Leota also told him that “he felt bad,”
expressing “some sort of remorse for what had happened”
as well as concern about the ramifications on his marriage.
Leota also indicated to Detective that “what he had done was
wrong.”

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State v. Leota

¶8 At trial, the State proceeded on the theory that Leota’s
over-the-clothing touching constituted the taking of indecent
liberties under Utah Code section 76-5-404, the forcible sexual
abuse statute. It asserted there was convincing evidence
that Leota had a “sexual interest in his own stepdaughter
and that he was willing to act on that interest by keeping his
hands on her breasts.” In this respect, the State emphasized the
nature of Leota’s relationship to Victim, urging that “it is
indecent for a stepfather to do this to his stepdaughter” and that
Leota and Victim’s “relationship dynamic should not be lost
as [the jury] consider[ed] whether or not what [it was] looking
at here is an indecent [liberty].” The State also reminded the
jury that, given Victim’s age and Leota’s relationship to Victim,
Victim could not have consented to Leota’s conduct as a matter
of law.

¶9 At the close of the State’s case, Leota moved for a directed
verdict on all counts, arguing that Victim’s statements and
testimony were “entirely uncredible” to the point that no
reasonable jury could convict him on any of the counts based on
her testimony. The court denied the motion, determining that
the jury could choose to accept Victim’s testimony and that any
issues with respect to Victim’s credibility represented “classic”
jury questions. At the close of all the evidence, Leota renewed
the motion, which the court again denied.

¶10 The jury convicted Leota of one count of forcible sexual
abuse based on his over-the-clothing touching of Victim’s
breasts. Before sentencing, Leota filed a motion to arrest
judgment. He argued that there was insufficient evidence to
support the conviction because the State presented evidence
indicating only that Leota “touched [Victim’s] breast over the
clothing, stopping when asked” and that such touching was not
of the “same magnitude of gravity” as the type of skin-to-skin
touching of a victim’s bare anus, buttocks, genitalia, or a female
breast required under the touching variant of the statute.
(Cleaned up.) The court denied the motion. Leota appeals.

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State v. Leota

ISSUE AND STANDARD OF REVIEW

¶11 Leota challenges the sufficiency of the evidence
supporting his conviction. “On a sufficiency of the evidence
claim we give substantial deference to the jury,” reviewing
“the evidence and all inferences which may reasonably be
drawn from it in the light most favorable to the verdict.” State v.
Ashcraft, 2015 UT 5, ¶ 18, 349 P.3d 664 (cleaned up). “We
will reverse a guilty verdict only when the evidence . . . is
sufficiently inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime of which he or she was
convicted.” State v. MacNeill, 2017 UT App 48, ¶ 51, 397 P.3d 626
(cleaned up).

ANALYSIS

¶12 Leota challenges the sufficiency of the evidence
supporting his forcible sexual abuse conviction on two grounds.
First, he argues that the evidence did not support his conviction
because the State failed to prove that his conduct constituted
indecent liberties under Utah Code section 76-5-404(1), the
forcible sexual abuse statute. Second, he argues that Victim’s
testimony was too inherently improbable to support the verdict.
We address each argument below.

I. Indecent Liberties

¶13 Leota argues that the verdict cannot be sustained because
the State failed to present sufficient evidence to establish that his
conduct constituted indecent liberties under Utah Code section
76-5-404(1). He cites evidence suggesting that his touch was
merely accidental but argues that even if the jury found
otherwise, the touch was “not of the same magnitude of gravity
as a skin-to-skin touch,” as required under the statute. We
disagree.

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State v. Leota

¶14 In a jury trial, the jury acts as the factfinder, and in this
role it is the jury’s duty and prerogative to serve as “the
exclusive judge of both the credibility of witnesses and the
weight to be given to particular evidence.” State v. Black, 2015 UT
App 30, ¶ 19, 344 P.3d 644 (cleaned up); see also State v. Ashcraft,
2015 UT 5, ¶ 29, 349 P.3d 664 (stating that a jury is entitled to
accept or reject “the existence of reasonable doubt posited by the
defense[]”); State v. Howell, 649 P.2d 91, 97 (Utah 1982)
(explaining that a jury is not “obligated to believe the evidence
most favorable to [the] defendant”). In this respect, a jury is also
entitled to draw reasonable inferences from the evidence
presented in reaching its findings. State v. Doyle, 2018 UT App
239, ¶ 24, 437 P.3d 1266. “A jury’s inference is reasonable unless
it falls to a level of inconsistency or incredibility that no
reasonable jury could accept.” Ashcraft, 2015 UT 5, ¶ 18 (cleaned
up). Thus, our role on appeal is to determine “simply whether
the jury’s verdict is reasonable in light of all of the evidence
taken cumulatively, under a standard of review that yields
deference to all reasonable inferences supporting the jury’s
verdict.” Id. ¶ 24. “As long as there is some evidence from which
all the necessary elements of the charged offenses can be proved,
there is sufficient evidence to find the defendant guilty beyond a
reasonable doubt.” State v. Johnson, 2015 UT App 312, ¶ 11, 365
P.3d 730.

¶15 Here, we conclude that the evidence was such that the
jury was well within its prerogative to determine that Leota’s
conduct constituted forcible sexual abuse. Under the forcible
sexual abuse statute it is unlawful for a person to touch one of
the enumerated body parts or otherwise take “indecent liberties”
with another person at least fourteen years of age:

A person commits forcible sexual abuse if the
victim is 14 years of age or older and, under
circumstances not amounting to rape, object rape,
sodomy, or attempted rape or sodomy, the actor
touches the anus, buttocks, or any part of the

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State v. Leota

genitals of another, or touches the breast of a
female, or otherwise takes indecent liberties with
another . . . with intent to cause substantial
emotional or bodily pain to any person or with the
intent to arouse or gratify the sexual desire of any
person, without the consent of the other . . . .

Utah Code Ann. § 76-5-404(1) (LexisNexis 2012). 3

¶16 The statute prohibits two variants of conduct: touching of
the enumerated body parts, and taking indecent liberties with
another. Id.; see also State v. Jacobs, 2006 UT App 356, ¶¶ 9–10, 144
P.3d 226. While the touching variant requires skin-to-skin contact,
the indecent liberties variant does not. Jacobs, 2006 UT App 356,
¶¶ 6–10. Rather, over-the-clothing touching may constitute
indecent liberties so long as the touching is of the “same
magnitude of gravity as that specifically described in the
statute.” State v. Carrell, 2018 UT App 21, ¶ 24, 414 P.3d 1030
(cleaned up); see also State v. Balfour, 2008 UT App 410, ¶¶ 14–15,
198 P.3d 471; Jacobs, 2006 UT App 356, ¶ 9 (“Thus, even when the
specified body parts are touched through clothing, the
perpetrator may still be punished under the indecent liberties
prong of the statute when, considering all the surrounding
circumstances, the conduct is comparable to the touching that is
specifically prohibited.”).

¶17 The jury in this case was instructed on both variants. As
to the differences between both variants and the requirements
for the indecent liberties variant specifically, the court instructed,

[T]here are two prongs to this statute. The
“touching” prong requires that the State prove that
the touching was not through clothing but skin to

3. Although Utah Code section 76-5-404 has since been amended,
we cite the version in effect at the time of Leota’s conduct.

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State v. Leota

skin. The “indecent liberties” prong does not
require a touching that is skin to skin.

....

The Utah statute prohibiting “Forcible Sexual
Abuse” specifies and prohibits certain enumerated
touching of the unclothed anus, genitals, or female
breast of another and then adds the phrase “or
otherwise takes indecent liberties” as a catch all
phrase extending the scope of the statute to forbid
other sexual misconduct of equal seriousness and
gravity as the “touching” prong. The “indecent
liberties” prong cannot be met by the State merely
by showing words were spoken. There must be
conduct as well, akin [to] and alike the “touching”
prong though any such touching need not be skin
to skin under that prong.

¶18 The court also instructed that, in evaluating whether the
conduct constituted indecent liberties, the jury “may consider
the following factors”: (1) “the nature of the other’s participation
and whether defendant required such participation,” (2) “the
duration of the act,” (3) “the presence or absence of clothing,”
(4) “defendant’s willingness to terminate his conduct at the
other’s request,” (5) “the relationship between the defendant and
the other,” (6) “the age of the other,” and (7) “how intrusive the
act was against the other’s person.” 4 See generally State v. Carvajal,
2018 UT App 12, ¶ 22, 414 P.3d 984 (setting forth the factors a
jury may consider in evaluating indecent liberties); State v. Lewis,
2014 UT App 241, ¶ 12, 337 P.3d 1053.

¶19 Considering these factors in the context of this case, we
are satisfied that the jury was presented with sufficient evidence

4. Leota does not challenge the jury instructions on appeal.

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State v. Leota

from which to convict Leota of taking indecent liberties with
Victim. First and foremost, the jury heard ample testimony about
Leota’s relationship to Victim—that he was her stepfather.
Indeed, she referred to him as “daddy,” and there was evidence
that the two otherwise had a close, affectionate relationship. It
was also undisputed that, at the time of the touching, Victim was
fifteen years old, and the jury was instructed that, given her age
and the familial relationship, Victim could not consent to the
touching as a matter of law.

¶20 Second, the jury heard evidence about the circumstances
surrounding the touching and, more specifically, the
vulnerability of Victim’s position (and, by extension, the
touching’s intrusiveness). For example, both Victim and Leota
stated that the touching occurred while they cuddled on his bed
watching television in his bedroom.

¶21 Third, as the State points out, the jury also heard evidence
supporting reasonable inferences that, regardless of whether
Leota at times characterized the touching as accidental, it was
not. While Leota told Detective that the touching was accidental,
he also told Detective that when he was holding Victim, his
hands “went over . . . to where her boobs were” and that, with
his hands on her breasts, he asked her if the touching was okay.
Detective also testified that Leota informed him that he did not
remove his hands until Victim “eventually” expressed
discomfort. Such evidence permitted reasonable inferences that,
rather than being a merely accidental touch, Leota intentionally
initiated the touching and then took advantage of his
stepdaughter as long as he thought he could.

¶22 These facts, taken together, support the jury’s
determination that Leota’s conduct was comparable to the
touching of another’s bare breast or buttocks. That Leota
disagrees with the jury’s evaluation of the evidence, and in
particular with its weighing of the relevant factors, is not a
sufficient basis on which to reverse. It was the jury’s prerogative

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to consider all the evidence presented, weigh the relevant factors
on which it had been instructed, and make findings according to
its assessment of the evidence. See Black, 2015 UT App 30, ¶ 19;
see also Ashcraft, 2015 UT 5, ¶ 24. Thus, we conclude that the
evidence in this case was sufficient to support the jury’s
determination that Leota’s conduct constituted the taking of
indecent liberties under our forcible sexual abuse statute. 5

II. Inherent Improbability

¶23 Leota also argues that the evidence was insufficient to
support the verdict because Victim’s testimony was inherently
improbable. We disagree.

5. Leota relies heavily on two cases from the 1980s—In re L.G.W.,
641 P.2d 127 (Utah 1982), and In re J.L.S., 610 P.2d 1294 (Utah
1980)—to support his argument that the evidence was
insufficient to support the jury’s verdict. However, both of those
cases were decided under a different version of the forcible
sexual abuse statute than the one that was applicable at the time
of Leota’s conduct. Compare In re L.G.W., 641 P.2d at 129 (citing
the forcible sexual abuse statute applicable at the time), and In re
J.L.S., 610 P.2d at 1295 (same), with Utah Code Ann. § 76-5-404(1)
(LexisNexis 2012). For example, the statute in effect at the time of
In re L.G.W. and In re J.L.S. criminalized the touching of only the
“anus or any part of the genitals of another”—arguably a more
difficult standard to meet in terms of proving that touching
clothed breasts was of the same magnitude as touching the anus
or the genitals—while the statute in effect at the time of Leota’s
conduct additionally criminalized touching of the buttocks or a
female’s breast. Compare Utah Code Ann. § 76-5-404(1) (Allen
Smith Co. 1978), with id. (LexisNexis 2012). Further, in both
cases, the relationship between the perpetrator of the abuse and
the victim was not that of stepfather and stepdaughter, the
relationship involved here. Both cases therefore have limited
value in resolving Leota’s sufficiency challenge.

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State v. Leota

¶24 In State v. Robbins, our supreme court explained that a
conviction must be based on “substantial reliable evidence” and
that while a trial court “must ordinarily accept the jury’s
determination of witness credibility, when the witness’s
testimony is inherently improbable, the court may choose to
disregard it.” 2009 UT 23, ¶¶ 14, 16, 210 P.3d 288 (cleaned up).
“The inherent improbability doctrine has very limited
applicability and comes into play ‘only in those instances where
(1) there are material inconsistencies in the testimony and
(2) there is no other circumstantial or direct evidence of the
defendant’s guilt.’” State v. Doyle, 2018 UT App 239, ¶ 17, 437
P.3d 1266 (quoting Robbins, 2009 UT 23, ¶ 19); see also State v.
Prater, 2017 UT 13, ¶ 38, 392 P.3d 398 (explaining that the court
in Robbins reached its inherent improbability determination by
relying on “inconsistencies in the [witness’s] testimony plus the
patently false statements the [witness] made plus the lack of any
corroboration”). In this respect, “[t]he existence of any additional
evidence supporting the verdict prevents the judge from
reconsidering the witness’s credibility.” Robbins, 2009 UT 23,
¶ 19; see also Prater, 2017 UT 13, ¶¶ 36–43 (reiterating that the
inherent improbability doctrine applies only if there is “no other
circumstantial or direct evidence” of a defendant’s guilt (cleaned
up)).

¶25 Here, Leota claims that Victim’s testimony was inherently
improbable such that the jury could not have convicted him of
forcible sexual abuse based on Victim’s allegations of the
touching. As support, Leota points to, among other things,
certain alleged inconsistencies and falsities with respect to
Victim’s testimony about conduct other than that associated with
the forcible sexual abuse conviction, as well as Victim’s
purported “reputation for dishonesty.”

¶26 However, we conclude that Leota’s inherent
improbability challenge fails because there is evidence apart
from Victim’s testimony supporting Leota’s conviction. The jury
heard Detective testify that Leota confessed to him that he

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inappropriately touched Victim’s breasts over her clothing on
the day of the incident. Indeed, Detective testified that although
Leota initially denied the allegations, he eventually admitted
that the incident occurred and he expressed recognition that his
actions were wrong. Under the principles set forth in Robbins
and Prater, the existence of this corroborative evidence, apart
from Victim’s testimony, soundly defeats Leota’s inherent
improbability challenge. See Prater, 2017 UT 13, ¶¶ 36–43;
Robbins, 2009 UT 23, ¶¶ 16–19.

CONCLUSION

¶27 We conclude that there was sufficient evidence to support
Leota’s conviction for one count of forcible sexual abuse. On this
basis, we affirm.

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