State v. Thompson

2025 UT App 185

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROWDY LEE THOMPSON,
Appellant.

Opinion
No. 20240027-CA
Filed December 18, 2025

Fourth District Court, Provo Department
The Honorable Sean M. Petersen
No. 071403619

Randall W. Richards and Benjamin R. Richards,
Attorneys for Appellant
Derek E. Brown and Karen A. Klucznik,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.

ORME, Judge:

¶1 Nearly 20 years ago, Rowdy Lee Thompson pled guilty to
sexually abusing a minor. After completing a jail sentence and
probation, he sought to take advantage of a new Utah statute
which allows an offender who was under 21 at the time, and
whose crime did not involve force or coercion, to be removed
from the sex offender registry after 10 years. Thompson filed a
motion to clarify his sentence, asking the district court to make a
specific finding that his offense did not involve force or coercion.
The court denied the motion, determining that, based on the
victim’s statement, it could not make such a finding.
State v. Thompson

¶2 On appeal, Thompson takes issue with this determination.
He argues the court relied on irrelevant factors while ignoring
relevant ones. He also contends the court plainly erred in
accepting—or, in the alternative, that his trial counsel (Counsel)
was ineffective in failing to object to—a misstatement of the law
advanced by the prosecutor. We disagree and affirm.

BACKGROUND

¶3 In 2007, 19-year-old Thompson and his roommates invited
a group of girls to their apartment. One of the girls—13-year-old
Anna 1—later provided a written statement to police in which she
claimed that Thompson flirted with her as she sat on the couch in
the apartment. Anna stated that she and Thompson then went
into his bedroom where he kissed her and suggested that they
have sex. She also stated that when she told Thompson “no,” he
called her a “fucking bitch,” pushed her down onto the bed hard
enough to make her head hit the wall, got on top of her, and raped
her.

¶4 Thompson was charged with rape of a child or,
alternatively, object rape of a child, both first-degree felonies. But
he later pled guilty to one charge of sexual abuse of a child, a
second-degree felony. The statement in support of the guilty plea
laid out the elements of the offense, stating,

[A]t the time and place alleged, the Defendant,
under circumstances not amounting to rape of a
child, object rape of a child, sodomy upon a child, or
an attempt to commit any of these offenses, touched
the genitalia of a female child with his hand with the

1. A pseudonym.

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State v. Thompson

intent to arouse or gratify the sexual desire of the
Defendant.

¶5 The plea agreement further indicated,

The Defendant has been allowed to plead the facts
as supported by Defendant’s statement to the police
when arrested, a psycho-sexual evaluation and
polygraph examination which comport with
Defendant’s version of the event. The Prosecution
and the Defense find that such an agreement is
appropriate in light of the discrepancies in the
victim’s statement and the results of the
aforementioned psycho-sexual evaluation and
polygraph.

Accordingly, the plea was based on Thompson’s version of
events, which was as follows:

[A]t the time and place alleged, the Defendant met
the victim at his college apartment. The Defendant
and the victim played video games and then went
to Defendant’s bedroom where Defendant touched
the victim’s genitals with his hand with the intent to
arouse or gratify his sexual desire.

¶6 The court accepted the plea, and Thompson was sentenced
to a suspended prison term, 310 days in jail, and 36 months of
probation. In 2011, Thompson’s probation was successfully
terminated. Due to the nature of his offense, he was placed on the
sex offender registry.

¶7 In March 2022, Thompson moved for a two-step reduction
of his sentence from a second-degree felony to a class A
misdemeanor. But the parties eventually concluded that the
reduction was “prohibited.” So in April 2023, Thompson filed a
motion to clarify his sentence. At that time, section

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State v. Thompson

77-41-105(3)(c)(iii)(A) of the Utah Code provided that “an
offender who commits the offense when the offender is under 21
years of age” and whose offense “does not involve force or
coercion” may, pursuant to section 77-41-105(3)(a), be removed
from the sex offender registry “10 years after termination of
sentence.” See Utah Code Ann. § 77-41-105(3)(iii)(A) (LexisNexis
2023). 2 Thompson, who was under 21 at the time of the offense
and who had been registered for over 10 years by the time he filed
his motion to clarify, asked the district court to find that his
offense did not involve force or coercion so he could be removed
from the registry.

¶8 At a hearing on the motion to clarify, Thompson focused
on the fact that force and coercion were not elements of the offense
of sexual abuse of a child. He argued that his guilty plea to that
offense was based on his own version of events, which did not
include any force or coercion. And he pointed out that the results
of his psychosexual evaluation and polygraph examination
comported with this version of events. He also urged the court not
to rely on Anna’s written statement in determining whether the
offense involved force or coercion.

¶9 The prosecutor argued that a finding regarding force or
coercion should not rely on the statutory elements of the charged
offense, stating, “[I]f I’m not mistaken, I don’t believe that the
word ‘force’ appears in any of the elements of any child sex abuse
statute: Rape of a child, object rape of a child, sex abuse of a child,
aggravated sex abuse of a child. And I’m almost certain that that
word ‘force’ is not included.” The State also argued that, based on
Anna’s written statement to the police, the court could not find
that Thompson’s abuse of Anna did not involve force or coercion.

2. The relevant provisions have since been repealed and re-
codified. Throughout this opinion we cite the provisions in effect
at the time the court ruled on Thompson’s motion.

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State v. Thompson

¶10 In an oral ruling, the court 3 concluded,

The Court is in receipt of the victim’s written
statement. The statement does indicate and alleges
that the defendant used force and/or coercion. As it
relates to this matter, the facts described by the
victim preclude the defendant from receiving
modification of his current lifetime registration
requirement under Subsection (3)(c)(iii) as the Court
cannot make a finding based upon its review that
the offense does not involve force or coercion.

Thus, the court denied Thompson’s motion to clarify—the
decision from which he now appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Thompson argues the district court ignored certain factors
and improperly considered others—namely, Anna’s written
statement—in reaching its conclusion regarding force or coercion.
The parties disagree about the applicable standard of review.
Thompson argues this is an issue reviewed for abuse of discretion,
consistent with other sentencing decisions. The State counters that
because the issue being appealed is the denial of the motion to
clarify—not specifically a sentencing decision—we should
instead review the denial for correctness. Because the district
court’s conclusion was based on its review of the written record,
which we are in the same position to assess, we agree with the
State and review the court’s denial of the motion to clarify for
correctness. See State v. Jiminez-Wiss, 2015 UT App 36, ¶ 15, 345
P.3d 743.

3. Judge Sean M. Petersen, who ruled on Thompson’s motion to
clarify, did not preside over the initial criminal proceedings.

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State v. Thompson

¶12 Thompson also argues the district court plainly erred in
accepting, and Counsel was ineffective in failing to object to, the
prosecutor’s alleged misstatement of the law regarding force or
coercion in sex offenses. Claims of plain error and ineffective
assistance of counsel present questions of law that we also review
for correctness. See State v. Samora, 2022 UT App 7, ¶ 16, 504 P.3d
195, cert. denied, 525 P.3d 1254 (Utah 2022).

ANALYSIS

¶13 Thompson filed a motion to clarify his sentence because he
was required to register as a sex offender for life. See Utah Code
Ann. § 77-41-105(3)(c)(ii) (LexisNexis 2023). But Utah Code
section 77-41-105(3)(c)(iii)(A)—enacted after Thompson was
sentenced—provided an exception to lifetime registration, stating
that “[i]f the sentencing court at any time after conviction
determines that the offense does not involve force or coercion,
lifetime registration . . . does not apply to an offender who
commits the offense when the offender is under 21 years old.” If
this exception applies, “the offender need only register for the
duration of his or her sentence plus ten years.” State v. Lightel, 2025
UT App 40, ¶ 10, 567 P.3d 610, cert. denied, 574 P.3d 523 (Utah
2025). See Utah Code Ann. § 77-41-105(3)(a), (3)(c)(iii)(A). Having
completed his sentence and been registered as a sex offender for
10 years thereafter, Thompson sought to be removed from the
registry. But the district court concluded that it could not make
the necessary finding that Thompson’s abuse of Anna did not
involve force or coercion. Thompson raises two challenges to this
conclusion. As hereafter explained, we are not persuaded by
Thompson’s arguments.

I. Consideration of Improper Factors

¶14 Thompson first argues that the district court failed to
consider certain relevant factors, including his version of events

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State v. Thompson

as set forth in the plea agreement and the results of both the
psychosexual evaluation and the polygraph examination he took
shortly after the abuse. And he argues the court improperly relied
on Anna’s written statement to the police. But we see no error
here.

¶15 First, Thompson provides no indication that the court
did not consider the factors he urges it should have. The court
had before it the record of the case. Although incomplete due to
its vintage, the record included the plea agreement and the
results of both the psychosexual evaluation and the
polygraph examination. From this record, the court concluded it
could not make a finding that Thompson’s abuse of Anna did
not involve force or coercion. True, the court specifically
recognized Anna’s statement, noting that the statement
“does indicate and alleges that [Thompson] used force and/or
coercion,” and concluded that the facts therefore
“preclude [Thompson] from receiving modification of his current
lifetime registration requirement . . . as the Court cannot make a
finding based upon its review that the offense does not involve
force or coercion.” But this shows that the court was swayed by
Anna’s statement—not that it “solely” relied on it, as Thompson
argues.

¶16 Thompson further argues that because the plea agreement
noted that Anna’s statement contained “discrepancies,” the
statement was “irrelevant” and the court should not
have considered it at all. But the plea agreement contained
concessions made by both the State and Thompson. One of
those was that the plea would be based on Thompson’s version of
events. See State v. Yates, 918 P.2d 136, 139 (Utah Ct. App. 1996)
(noting that “in plea agreement cases, the ‘facts’ listed in
final, often amended, charging documents follow from an
agreed upon penalty” and that pleas “are entered based
upon imaginary or fictional sets of facts”) (quotation simplified).
These facts were relevant for sentencing. But the plea

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State v. Thompson

agreement and the facts contained therein did not limit the
court’s consideration of other facts in the record or otherwise
constrain the determination that the court was required to
make here. 4 This is so because both the plea agreement and
Thompson’s version of events were silent as to whether
Thompson used force or coercion in “touch[ing] the victim’s
genitals with his hand.”

¶17 Section 77-41-105(3)(c)(iii)(A) required the district court to
make a finding on whether Thompson’s abuse involved force or
coercion. Given the silence of the plea agreement concerning force
or coercion, we conclude that the court correctly considered the
other materials in the record before it, including Anna’s
statement.

4. Relatedly, Thompson argues that the court’s consideration of
Anna’s statement was a breach of the plea agreement—which, in
his view, required the court to consider only his version of events.
Thompson relies on this court’s opinion in State v. Yates, 918 P.2d
136 (Utah Ct. App. 1996), wherein we stated that because a
defendant pled guilty to theft, the court “should not have
considered evidence or argument at sentencing about the actual
value of the stolen property” because the “actual value is
irrelevant after the State and the defendant have entered into a
plea agreement.” Id. at 139. But Yates is readily distinguishable, as
it concerned the evidence the court considered at sentencing. And
there, we held that the district court improperly considered
evidence that explicitly contradicted the agreed-upon value set
forth in the plea agreement. Here, in this unique post-sentencing
posture, the court was required to determine whether
Thompson’s offense involved force or coercion. And the plea
agreement was silent as to those factors. Thus, Thompson has not
persuaded us that the district court breached the plea agreement
by considering Anna’s statement.

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State v. Thompson

II. Incorrect Statement of the Law

¶18 During oral argument on Thompson’s motion to clarify,
the prosecutor noted that Thompson was “charged with child sex
offenses” and stated, “[I]f I’m not mistaken, I don’t believe that
the word ‘force’ appears in any elements of any child sex abuse
statute: Rape of a child, object rape of a child, sex abuse of a child,
aggravated sex abuse of a child.” Thompson argues that the
district court plainly erred in relying on this misstatement of law
and, in the alternative, that Counsel was ineffective in failing to
object to it. We disagree.

¶19 “Although plain error and ineffective assistance of counsel
are distinct concepts, they each require the defendant to
demonstrate that the alleged error or deficiency resulted in
prejudice,” meaning “that there is a reasonable probability that
but for the alleged errors, the result of the proceeding would have
been different.” State v. Haar, 2021 UT App 109, ¶¶ 53–54, 500 P.3d
102 (quotation simplified). Because both claims “share a common
standard of prejudice,” the lack of such a showing “will prove
fatal to each” claim. Id. ¶ 53 (quotation simplified).

¶20 We agree with Thompson that the prosecutor’s statement
was legally incorrect because, at the time he made the statement,
“force, duress, violence, intimidation, coercion, menace, or threat
of harm” were aggravating factors to a sexual abuse of a child
charge. See Utah Code Ann. § 76-5-404.3(2)(a)(i)(B) (LexisNexis
2023). But we are not convinced that, absent this misstatement, the
district court would have reached a different conclusion
regarding whether Thompson’s abuse of Anna involved force or
coercion.

¶21 In determining whether an offense involves force or
coercion in this context, the court cannot simply evaluate the
statutory elements of the offense. See State v. Lightel, 2025 UT App
40, ¶ 20, 567 P.3d 610 (rejecting the defendant’s argument that a

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finding of force or coercion under section 77-41-105(3)(c)(iii)(A) is
premised solely on the statutory elements of the offense at issue,
as, in some cases, this would result in a defendant having to show
“only . . . that he or she was under age twenty-one at the time of
the crime,” which would be “contrary to the legislature’s plain
mandate that a two-factored factual inquiry be employed before
excepting an adult offender from otherwise-required lifetime
registration”) (emphases in original), cert. denied, 574 P.3d 523
(Utah 2025). Moreover, had the court looked to the statute here, it
would be evaluating the elements of sexual abuse, which do not
include force or coercion—not the elements of aggravated sexual
abuse, which do. So any misstatement of the law regarding other
sexual offenses did not affect the court’s analysis of whether
Thompson’s sexual abuse of Anna involved force or coercion.

¶22 Thus, even without the prosecutor’s misstatement of the
law, there is no likelihood of the court reaching a different
conclusion. Because Thompson has not shown that he was
prejudiced, he “cannot succeed under the rubric of either plain
error or ineffective assistance” and both claims fail. Haar, 2021 UT
App 109, ¶ 54 (quotation simplified).

CONCLUSION

¶23 In addressing Thompson’s motion to clarify, the district
court properly considered the entire record before it, including
Anna’s written statement to the police. And Thompson has not
shown that the court plainly erred insofar as it relied on the
prosecutor’s misstatement of the law regarding sexual offenses or
that Counsel was ineffective in failing to object to it.

¶24 Affirmed.

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