State v. Haltom

1 After the defendant was charged in 2000, the statute was
amended to read that a violation occurs when a defendant acts
recklessly or negligently in failing to ascertain the age of a
minor-buyer before intentionally distributing material harmful to
him or her. Utah Code Ann. § 76-10-1206 (2003 & Supp. 2005).
All citations to section 76-10-1206 in this opinion refer to the
statute in effect in the year 2000 when Mr. Haltom was charged.
2007 UT 22
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, No. 20050815
Plaintiff and Respondent,
v.
F I L E D
John Vonderhaar Haltom,
Defendant and Petitioner. February 23, 2007
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Third District, Salt Lake
The Honorable Dennis M. Fuchs
No. 001913808
Attorneys: Mark L. Shurtleff, Att’y Gen., Christine F. Soltis,
Asst. Att’y Gen., Salt Lake City, for plaintiff
W. Andrew McCullough, Midvale, for defendant
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 John Haltom was convicted of dealing in material
harmful to a minor, a third degree felony under Utah Code section
76-10-1206 (2000),1 and appealed his case to the court of
appeals. Utah Code section 76-10-1206 renders criminal the sale
of harmful material to a minor if the person making the sale
“fail[s] to exercise reasonable care in ascertaining the proper
age of a minor.” The court of appeals interpreted “reasonable
care” to be synonymous with ordinary negligence and concluded

No. 20050815 2
that the trial record contained adequate evidence of Mr. Haltom’s
negligence to affirm his conviction. We granted certiorari to
consider whether the court of appeals was correct when it
evaluated Mr. Haltom’s conduct against the standard of ordinary
negligence. We hold that the court of appeals was correct and
affirm.
STANDARD OF REVIEW AND BACKGROUND
¶2 The issue we take up today presents a pure question of
law. We therefore review the decision of the court of appeals
for correctness. We need not dwell on the facts that the jury
considered in convicting Mr. Haltom. By providing a brief
summary of the circumstances that led to Mr. Haltom’s felony
conviction, we merely provide context for our legal analysis and
offer fair warning that law enforcement officials, at least those
in the city of Midvale, are apt to display considerable zeal in
enforcing statutes that regulate the operation of sexually
oriented businesses and the sale of their products.
¶3 Mr. Haltom is a co-owner of Dr. John’s Lingerie and
Novelty Store. From the day it opened, Dr. John’s was not seen
as a welcome addition to Midvale’s commercial community, and the
offended citizens of Midvale complained to the police department
about the store’s wares. The department sent a thirty-year-old
detective to the store who twice bought adult-only videos without
being asked to verify his age. Based on his experience with the
purchases, the detective believed that the store would sell
merchandise to a minor. To advance his theory, the detective
solicited minors to test Dr. John’s age verification protocols.
The store first turned away a seventeen-year-old boy at its door,
but Dr. John’s failed its second test.
¶4 Brittany was seventeen years old when she entered
Dr. John’s on August 4, 2000. She would turn eighteen on
December 12, 2000. An employee approached Brittany when she
entered the store and asked for her identification. She
presented her driver’s license. The employee “glanced” at it but
permitted her to remain in the store. After touring the premises
for several minutes, Brittany selected the video “Getting Wet,
the Last Howl.” The video’s status as material harmful to a
minor was not disputed. See Utah Code Ann. § 76-10-1201(4), (6)
(2003) (defining “harmful” and “material”). Brittany brought the
video to the counter where Mr. Haltom was standing and sought to
purchase it. Mr. Haltom asked Brittany for her identification,
and she again produced her driver’s license. Mr. Haltom compared
Brittany’s features with the photograph on the license and asked
her to repeat her social security number. He asked her for her
address and questioned her closely about it because Brittany

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first gave Mr. Haltom a street name instead of the directional
coordinate number listed on her license. The sale of the video
and Mr. Haltom’s arrest followed.
¶5 The jury that convicted Mr. Haltom was instructed that
he could not be found guilty unless he acted recklessly when he
failed to accurately ascertain Brittany’s age. At the court of
appeals, Mr. Haltom claimed that, based on his own conduct and
his assumptions about the age verification measures undertaken by
the employee who confronted Brittany when she entered the store,
the evidence fell short of establishing his recklessness. The
State countered that the trial court erred when it instructed the
jury that recklessness was the requisite mental state for the
crime. The State argued that section 76-10-1206’s “reasonable
care” language made ordinary negligence the standard to establish
culpability for the crime of dealing in material harmful to
minors. The court of appeals agreed and found sufficient
evidence of Mr. Haltom’s negligence in the record to affirm his
conviction. We granted certiorari to review whether the court of
appeals correctly concluded that Mr. Haltom’s ordinary negligence
could result in his conviction of this third degree felony. We
hold that the court of appeals was correct.
ANALYSIS
¶6 According to Mr. Haltom, the State cannot brand a
person a felon for an act of ordinary negligence. So presented,
Mr. Haltom’s challenge does not ask us to resolve an ambiguity in
section 76-10-1206. He concedes that an act of ordinary
negligence may breach section 76-10-1206’s affirmative duty to
use “reasonable care” to authenticate the age of prospective
purchasers of harmful material. This case, then, is not about
whether the plain language of section 76-10-1206 communicates an
intention to punish negligent conduct as a crime, because it
clearly does. Rather, it is about whether, despite the statute’s
plain language, section 76-10-1206 must be interpreted to require
a degree of culpability beyond ordinary negligence.
¶7 Mr. Haltom proposes three reasons why section 76-10-
1206 cannot mean what it says; we find none to be persuasive.
First, Mr. Haltom contends that Utah law governing criminal
mental states generally forecloses bringing ordinary negligence,
as opposed to criminal negligence, within its scope. Utah Code
section 76-2-101, however, allows the Legislature to specify a
mental state that is different from the most commonly used ones
like knowing, reckless, or criminal negligence. Specifically,
section 76-2-101 states that a person has not committed an
offense unless (1) the conduct is prohibited by law and (2) the
person “acts intentionally, knowingly, recklessly, with criminal

No. 20050815 4
negligence, or with a mental state otherwise specified in the
statute defining the offense, as the definition of the offense
requires” (emphasis added). The Legislature exercised this power
legitimately when it inserted the “reasonable care” standard into
the text of section 76-10-1206.
¶8 Drawing on language from the Utah Court of Appeals’
opinions, Mr. Haltom next contends that the ordinary negligence
standard is limited to civil cases. He leans heavily on the
statement made in State v. Larsen that “‘[o]rdinary negligence,
which is the basis for a civil action for damages, is not
sufficient to constitute criminal negligence.’” 2000 UT App 106,
¶ 18, 999 P.2d 1252 (quoting State v. Standiford, 769 P.2d 254,
267 (Utah 1988)). We need not forswear the accuracy of this
statement to reject Mr. Haltom’s invocation of it. Ordinary
negligence and criminal negligence are not the same. This is not
to say that only criminal negligence may lead to criminal
sanctions. Ordinary negligence is, of course, the basis for
civil damage actions. Its domain is not, however, bounded to
civil actions.
¶9 Finally, Mr. Haltom attempts to stiffen his arguments
with an appeal to constitutional law. Although his brief
contains no direct citation to either the United States
Constitution or the Utah Constitution, Mr. Haltom contends that
United States Supreme Court precedent “surely support[s] the
contention that, in the area of distribution of non-obscene and
constitutionally protected adult materials, mere negligence in
distributing to a minor is not a constitutionally sound
standard.” Mr. Haltom looks to United States v. X-Citement
Video, Inc., 513 U.S. 64 (1994), as the case most supportive of
this contention. There, the Supreme Court read a scienter
requirement into a section of the Protection of Children Against
Sexual Exploitation Act of 1977. On its face, the text of the
act would have permitted the conviction of persons who sold [in
interstate commerce] visual depictions of minors engaged in
explicit sexual conduct without regard to whether the defendant
could reasonably discover the age of the persons depicted. Id.
at 69. The Supreme Court found it appropriate to fill the
scienter gap with the “knowing” mental state that Congress
assigned to other provisions of the act. Id. at 78. The Supreme
Court, however, did not go so far as to infer that holding a
defendant criminally accountable for distributing adult materials
to a minor through “mere negligence” would offend the United
States Constitution. Indeed, the Court’s statements suggest the
opposite. It noted that little or no mens rea might be necessary
to justify proscribing conduct in which “the perpetrator
confronts the underage victim personally and may reasonably be
required to ascertain the victim’s age.” Id. at 72 n.2. This

5 No. 20050815
describes precisely the encounter between Mr. Haltom and
Brittany. In short, the United States Supreme Court has imposed
no constitutional impediment to making merely negligent conduct
criminal, and neither do we. Accordingly, we affirm the court of
appeals.
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¶10 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.