State v. Begay

2024 UT App 63

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
SYLVESTOR PETE BEGAY,
Appellant.

Opinion
No. 20230228-CA
Filed May 2, 2024

First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 211100268

Brady G. Stuart, Attorney for Appellant
Sean D. Reyes and Connor Nelson,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

HARRIS, Judge:

¶1 In 2021, Sylvestor Pete Begay was charged with two sex
crimes that the State asserted he had committed in 1996 or 1997.
Specifically, the State accused Begay—who was then twenty-
two—of raping and sexually abusing a girl (Laura 1) who was then
thirteen. Begay filed a motion to dismiss, asserting that the statute
of limitations had long since expired. The district court denied
Begay’s motion, and Begay asked for permission—which we
granted—to take an interlocutory appeal of that decision.

¶2 The statute of limitations question in this case turns on
whether a “report of the offense” was made to local law

1. A pseudonym.
State v. Begay

enforcement in January 1998, when Laura’s friend (Friend)
informed a local police officer (Officer) that Begay had been
“having sex” with Laura. Under the circumstances presented, we
conclude that Friend’s report was indeed a “report of the offense
to a law enforcement agency” that operated to start the running
of the statute of limitations. From this conclusion, it follows that
the limitations period expired in 2002, well before the statute was
amended (in 2008) to abolish any limitations period for these
categories of crimes, and well before these charges were filed (in
2021). We therefore reverse the district court’s order denying
Begay’s motion to dismiss, and we remand the case with
instructions to dismiss the charges.

BACKGROUND

Events That Occurred in the 1990s

¶3 In January 1998, Friend—who was then fourteen—met
with Officer and stated that she wanted to “press charges against
someone that [had] raped” her. She told Officer that Begay—a
person that she “hung out with” a lot and who she believed was
twenty-six at the time of the interview—had “fingered” her and
then “un[did] his pants” and “started having sex” with her,
despite her having told him “no” and that she was “not ready.”
Although Officer did not specifically ask Friend what she meant
by “having sex,” Officer apparently understood that term to
include vaginal intercourse: as follow-up questions, she asked
Friend if Begay “use[d] a condom,” whether “he ejaculated,” and
whether Friend had “started bleeding,” and she advised Friend to
take “a pregnancy test.”

¶4 At the end of the interview, Officer asked Friend whether
there were “other girls that [Begay] might have been having sex
with.” In response, Friend stated that she knew one such person

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but that she didn’t “know if [she could] tell” Officer about that
without “breaking confidentiality.” Officer then stated as follows:

Actually, if she’s under the age of eighteen and you
know that someone has been sexually abused,
you’re obligated by law to report them. . . . The
therapist said either you can report it or I can report
it because it’s got to be reported because it is against
the law. Especially if the person is under the age of
fourteen. That makes it an even more serious thing.

(Emphasis added.)

¶5 At this point, the transcript of the interview ends. But at an
evidentiary hearing in this case, Friend testified that she supplied
Officer with the name of the other girl—Laura—with whom
Begay had been having sex. Friend then relayed to Officer that
Begay had been doing “the same things” to Laura that he’d been
doing to her, and that Laura had “also had sex” with Begay.
Officer’s notes from the interview include Laura’s full name and
birthdate, indicating that Officer also knew that—depending on
the exact date of Laura’s encounters with Begay—Laura would
have been at most fourteen, and perhaps only thirteen, when the
alleged conduct occurred. But there is no indication in the record
that Friend gave Officer any date—estimated or not—on which
Begay purportedly had sexual contact with Laura. There is also
no indication in the record that Friend told Officer how she knew
about the contact between Begay and Laura, although Friend
testified later, at the evidentiary hearing, that she learned about it
from Laura directly; she explained that, when she and Laura were
assigned to “in-school suspension” together, Laura learned that
Begay had sexually assaulted Friend, and Laura “kind of
comfort[ed]” Friend by “letting [Friend] know that the same thing
had happened to her.”

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State v. Begay

¶6 Four days after her 1998 interview with Friend, Officer
interviewed Begay. During this interview, Begay acknowledged
having sex with Friend but claimed she had been “a willing
partner.” Toward the end of the interview, Officer asked Begay if
he had “gone out with other girls” Friend’s age, and Begay
admitted that he “ha[d] once.” Officer asked if that was with
Laura, and Begay acknowledged that it was. Officer then directly
asked Begay if he “had sex with” Laura, and Begay claimed that
he had not. A few minutes later, Officer asked again about Laura,
telling Begay that Friend had already informed Officer that Begay
“may have had sex with [Laura] also” but that she had not “been
able to get hold of [Laura] yet” to ask her about it directly. Officer
then asked, “What is [Laura] going to tell me when I do talk to
her? Is she going to tell me that you did or you didn’t [have sex]?”
Begay again denied having sex with Laura, telling Officer that, if
asked, Laura would “[s]ay that [he] did not have sex with her.”

¶7 Neither Officer nor any other law enforcement agent talked
with Laura at that time. And while the State—in 1998—charged
Begay with crimes related to his actions with Friend, it did not—
until 2021—charge Begay with any crimes related to Laura.

Recent Events

¶8 In 2021, Laura contacted police “to report a rape that
occurred 25 years ago.” In her report, she explained that when she
was thirteen years old, Begay—who was twenty-two at the time—
had “penetrated her vaginally with his penis” when he had
“taken her to the park near the tennis courts in his car.” She had
resisted, telling him, “I don’t think we should do this, like I don’t
think it’s safe, I don’t wanna do this.” And this was not their only
sexual encounter; Laura also claimed that Begay had
“penetrat[ed] her vagina with his fingers” on a later occasion “at
his adopted parent’s home.”

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State v. Begay

¶9 After receiving Laura’s report, officers interviewed Begay
again, and this time he told a different story regarding Laura: he
acknowledged that he had “sexual intercourse” with Laura some
twenty-five years ago, but he claimed it had been “consensual.”

¶10 The State then charged Begay with one count of rape of a
child and one count of sexual abuse of a child, asserting that the
events in question had occurred between January 1996 and
January 1997, before Laura had turned fourteen. Later, Begay filed
a motion asking the court to dismiss the charges, asserting that the
statute of limitations that applied at the time—a four-year statute
triggered by a “report of the offense to a law enforcement
agency,” see Utah Code § 76-1-303.5 (1996)—had begun to run in
January 1998 at the time of Friend’s interview with Officer, and
had therefore expired in 2002.

¶11 The district court held an evidentiary hearing on the issue.
Five witnesses testified, including Friend, Laura, and Officer, all
of whom testified about the 1990s events described above. Friend
also clarified that her intention in going to law enforcement in
January 1998 was not necessarily to report a crime committed
against Laura but “to report a crime against [her]self.” And
Officer acknowledged that, in her view, “if someone comes to the
police station and they tell [an officer] about a crime that they’re
aware of,” then it is “a report that’s been made.”

¶12 At the conclusion of the hearing, the district court made an
oral ruling denying Begay’s motion to dismiss. At the outset, the
court commented that the question was “very close.” But it ruled
that Friend’s statement to Officer was not a “report of the offense”
to law enforcement because, in the court’s view, Friend’s
statement “lack[ed] the specificity so that it would . . . actually
communicate information bearing on the elements of a crime.”
Begay’s attorney asked the court to “clarify” why a “report . . .
that [Laura] had had sex with” Begay wouldn’t qualify as a
“report,” and the court responded, “Because sex also doesn’t

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State v. Begay

always mean sex . . . . We had a President of the United States that
made that very clear . . . and so everyone has different
definitions.” On that basis, the court concluded that Friend’s
report “lack[ed] specificity.”

¶13 The court later memorialized its oral ruling in a written
order stating simply that it “adopts the factual and legal findings
stated on the record at the conclusion of the oral arguments.”
Begay sought permission to appeal this order, which we granted.

ISSUE AND STANDARD OF REVIEW

¶14 Begay appeals the district court’s denial of his motion to
dismiss the charges on statute-of-limitations grounds. As a
general matter, “[w]hether the [district] 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. And to
the extent that the question turns on statutory interpretation, we
review the district court’s decision for correctness. See State v.
Toombs, 2016 UT App 188, ¶ 18, 380 P.3d 390 (stating that
interpretation of the phrase “report of the offense” is a “legal
exercise, which we review for correctness” (quotation
simplified)), cert. denied, 390 P.3d 724 (Utah 2017). But to the extent
that the court made factual findings “concerning events relevant
to the application of the statute of limitations,” we apply a more
deferential standard, and “we will not disturb” such factual
findings “unless clearly erroneous.” See Green, 2005 UT 9, ¶ 15.

ANALYSIS

¶15 The parties agree that the version of the statute of
limitations that controls the outcome of this appeal is the one that
was in effect in the late 1990s, at the time of the alleged offenses
and at the time of Friend’s interview with Officer. That statute

20230228-CA 6 2024 UT App 63
State v. Begay

provided that “a prosecution may . . . be commenced for . . . [r]ape
of a child . . . [or] sexual abuse of a child . . . within four years after
the report of the offense to a law enforcement agency.” Utah Code § 76-
1-303.5 (1996) (emphasis added). 2

¶16 Our supreme court, interpreting this statute, has set forth
“a three-part test for evaluating whether something qualifies as a
‘report of the offense.’” See State v. Green, 2005 UT 9, ¶ 46, 108 P.3d
710. This test requires:

(1) a discrete and identifiable oral or written
communication[]

(2) that is intended to notify a law enforcement
agency that a crime has been committed and

2. In 2008, our legislature “repealed the section of the statute
imposing a four-year statute of limitations and expanded the
limitations period for” rape of a child and sexual abuse of a child,
among other offenses. See State v. Toombs, 2016 UT App 188, ¶ 15,
380 P.3d 390, cert. denied, 390 P.3d 724 (Utah 2017). Under current
(post-2008) law, prosecutions for these offenses may be
commenced “at any time.” See Utah Code § 76-1-301(2)(i), (n). But
“a statutory amendment enlarging a statute of limitations will
extend the limitations period applicable to a crime already
committed only if the amendment becomes effective before the
previously applicable statute of limitations has run.” State v. Lusk,
2001 UT 102, ¶ 26, 37 P.3d 1103; see also Mitchell v. Roberts, 2020 UT
34, ¶ 5, 469 P.3d 901 (holding that our legislature is “prohibited
from retroactively reviving a time-barred claim in a manner
depriving a defendant of a vested statute of limitations defense”).
Thus, if Begay is correct that the applicable statute of limitations
expired in 2002, then the 2008 statutory amendment cannot
operate to revive the expired limitations period.

20230228-CA 7 2024 UT App 63
State v. Begay

(3) that actually communicates information bearing
on the elements of a crime as would place the law
enforcement agency on actual notice that a crime
has been committed.

Id. Both sides agree that Friend’s statements to Officer in January
1998 constitute a discrete and identifiable oral communication,
and that the first element of the test is therefore satisfied. The State
does not agree, however, that the other two elements of the test
are satisfied here, and we discuss each in turn.

A. Communication Intended to Notify Police of a Crime

¶17 In the district court, the State did not make any argument
regarding the second element, telling the court that Friend’s
interview with Officer “probably satisfies the second prong of the
Green test.” But on appeal, the State reminds us that we can affirm
the district court’s decision on any ground apparent in the record,
and it now asserts that the second element was not satisfied. The
State grounds its argument in Friend’s statement, made at the
evidentiary hearing, that her intent in sitting down with Officer
for an interview was “to report a crime against [her]self,” and not
to report any crime involving Laura. The State bolsters its
argument by pointing to Friend’s expressed reluctance to tell
Officer about Laura, asserting that this indicates that Friend’s
intention in contacting police had nothing to do with Laura. The
State thus focuses on Friend’s general intent in sitting down for
the interview in the first place, and it asserts that the second
element cannot be met unless Friend’s general intent in going to
the police was to make a report about Laura. We disagree.

¶18 The second element turns not on Friend’s general intent in
reaching out to police at all, but instead on what her specific intent
was, at the end of the interview, when she—reluctantly or not—
answered Officer’s questions about Laura. Even if Friend’s initial
intent in contacting police had nothing to do with Laura, the

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second element is met if, in answering specific questions about
Laura and providing specific information about Laura, she
intended to “notify a law enforcement agency that a crime has
been committed.” See id. And on that point, the record is clear.

¶19 Recall that Friend initially hesitated when Officer asked
her if she knew of anyone else Begay had been “having sex with.”
Officer attempted to allay Friend’s hesitation by informing her
that she had a legal obligation—a presumed reference to the child
abuse reporting statute 3—to “report” known instances of sexual
abuse committed against children. In response to this admonition,
Friend then provided Officer with Laura’s name and told Officer
that Begay had been having sex with Laura. In context, it is clear
that this specific communication was intended to notify Officer
that a crime had been committed. The second element of the Green
test is therefore satisfied here.

B. Information Bearing on the Elements of a Crime

¶20 The closer question in this case is whether the third element
of the Green test is satisfied here. That element requires that the
communication in question actually contain “information bearing
on the elements of a crime as would place the law enforcement
agency on actual notice that a crime has been committed.” See id.

¶21 To satisfy this third element, it is not necessary for the
reporter to reference specific sections of the Utah Code, or even to
specify exactly which crime the reporter believes has been
committed. See id. ¶ 43 (“[I]t would be unreasonable to adopt an
overly narrow interpretation of an ‘offense,’ for instance, one that

3. Both in 1998 and today, subject to certain exceptions not
applicable here, “any person” who “has reason to believe that a
child has been subjected to” abuse is obligated to “immediately
notify the nearest peace officer.” Compare Utah Code § 62A-4a-
403(1) (1998), with id. § 80-2-602(1) (2023).

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could be satisfied only through reference to Utah Code sections.”).
On the other hand, a report does not satisfy this third element if it
contains “mere clues that criminal conduct has occurred.” See id.
Our supreme court has attempted to resolve this tension by
stating that the report must contain “a degree of articulation of
criminal conduct sufficient to permit a law enforcement agency to
conclude what was done and who did it without additional
investigation or analysis.” Id.

¶22 The court’s formulation of the element itself strongly
indicates that a report can satisfy the third element even if,
following receipt of the report, officers still have some question
about which specific crime, stemming from the reported conduct,
was actually committed. As our supreme court has formulated it,
this third element is satisfied if the report contains “information
bearing on the elements of a crime as would place the law
enforcement agency on actual notice that a crime has been
committed.” Id. ¶ 46 (emphasis added); see also McCamey v. State,
2017 UT App 97, ¶ 17, 400 P.3d 1114 (per curiam) (concluding that
a report did not contain sufficient information to satisfy the third
element because the communications in question “required
further investigation to determine what, if any, criminal activity
might have occurred” (emphasis added)), cert. denied, 406 P.3d 253
(Utah 2017). And this makes sense at a practical level, because lay
reporters of factual information will often not know the particular
requirements of the relevant criminal statutes. As we read the
relevant statute and our supreme court’s guidance as to how to
interpret it, the third element is satisfied if the report in question
includes sufficient information for police to conclude that
criminal activity took place and was committed by a particular
individual, even if police might not know, in that moment, exactly
which crime would be appropriate to charge. See Green, 2005 UT
9, ¶ 43 (stating that the report must allow police “to conclude what
was done and who did it”).

20230228-CA 10 2024 UT App 63
State v. Begay

¶23 Based on the information Friend provided, Officer knew
that Begay had been “having sex” with Laura. The State asserts
that this phrase is too vague for Officer to have known exactly
what transpired, and the district court agreed with that
reasoning. 4 We take a different view.

¶24 To resolve the question, as presented in this appeal, of
whether the phrase “having sex” is unduly vague, we need not
arrive at a generally applicable definition of the phrase. We can
readily assume, for purposes of the discussion, that the phrase
“having sex” might, as used in some contexts, connote sexual
activity other than vaginal intercourse. But even so, in this
particular case that phrase as used by Officer and Friend was
clearly intended to mean vaginal intercourse. Friend told Officer
that Begay began by “finger[ing]” her, then later “un[did] his
pants” and “started having sex” with her. While Officer did not
ask Friend to specify which body parts she was talking about,
Officer clearly understood the reference to mean vaginal
intercourse, because Officer followed up by advising Friend to
take “a pregnancy test,” and by asking Friend if Begay “use[d] a
condom,” whether “he ejaculated,” and whether Friend had
“started bleeding.”

¶25 Just seconds later, Officer asked Friend to identify “other
girls that [Begay] might have been having sex with.” And Friend
responded by telling Officer that Begay had been doing “the same
things” to Laura that he had been doing to her, and that he had
“also had sex” with Laura. In context, given the conversation

4. The district court—apparently on its own—analogized this
situation to the one in which former President Clinton infamously
denied having “sexual relations” with a White House intern. See
Jones v. Clinton, 36 F. Supp. 2d 1118, 1121, 1130 (E.D. Ark. 1999).
We find the analogy far less helpful here than the district court
did, chiefly because “sexual relations” is a different—and
arguably much vaguer—phrase than “having sex.”

20230228-CA 11 2024 UT App 63
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Officer and Friend had been having and how they had been using
the term “having sex,” it was clear to Officer that Friend was
asserting that Begay had engaged in vaginal intercourse with
Laura. Thus, at the conclusion of the interview, Officer knew
“what was done and who did it.” See id. Specifically, she knew
that, according to Friend, Begay had been engaging in vaginal
intercourse with Laura.

¶26 Officer also knew Laura’s birthdate, and from that
information was able to ascertain that, as of the date of the
interview with Friend, Laura was not quite fifteen. But Officer did
not yet know the exact date of the sexual interactions between
Laura and Begay. Given Laura’s age, those interactions had to
have occurred either (a) when Laura was fourteen or (b) when
Laura was younger than fourteen. Either way, though, Officer
knew that—if Friend’s report was true—Begay had committed a
felony crime by having sex with Laura.

¶27 If Laura had been younger than fourteen when Begay had
sex with her, Begay committed the first-degree felony crime of
rape of a child. See Utah Code § 76-5-402.1(1), (2) (1996) (stating
that “[a] person commits rape of a child when the person has
sexual intercourse with a child who is under the age of 14,” and
that the crime “is a first degree felony”); see also In re C.N., 2023
UT App 41, ¶ 37, 529 P.3d 1030 (holding that “the term ‘sexual
intercourse’ as used in the rape of a child statute” means “vaginal
sex”). But even if Laura had been fourteen when Begay had sex
with her, that still constituted criminal activity, albeit of a lesser
severity: in that instance, Begay would have committed the third-
degree felony crime of unlawful sexual intercourse. See Utah Code
§ 76-5-401(1), (2) (1997) (stating that “[a] person commits unlawful
sexual intercourse if . . . that person has sexual intercourse with a
person, not that person’s spouse, who is under sixteen years of
age,” and that the crime is “a felony of the third degree”).

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¶28 In a situation like this, where a law enforcement officer
receives a report clear enough to indicate that an individual
committed a crime, that report communicated sufficient
“information bearing on the elements of a crime as would place
the law enforcement agency on actual notice that a crime has been
committed.” See Green, 2005 UT 9, ¶ 46. And this is true even if the
officer does not know, at the conclusion of the interview, exactly
which crime stemming from the reported conduct would be
appropriate to charge. We therefore conclude that Friend’s report
to Officer satisfied the third element of the Green test. 5

¶29 We recognize that, in all three Utah appellate court
opinions that have considered whether a report was sufficient to
start the running of this particular statute of limitations, the courts
have concluded that the report was insufficient. See id. ¶¶ 40–54;
McCamey v. State, 2017 UT App 97, ¶¶ 14–20, 400 P.3d 1114 (per

5. At oral argument before this court, questions arose about
whether the two charges against Begay must rise or fall together
as concerns the propriety of dismissal, or whether we might be
able to separate them for purposes of considering whether
Friend’s report was sufficient. But neither side raised this issue in
front of the district court, and neither side attempted to argue it in
their briefs on appeal. Thus, as near as we can tell, both sides
appear to believe that the two charges rise or fall together. While
it is true that we have the discretion to affirm “on any legal
ground or theory apparent on the record,” see Bailey v. Bayles, 2002
UT 58, ¶ 10, 52 P.3d 1158 (quotation simplified), we decline to
exercise that discretion here. Neither party has briefed for us the
legal implications of treating the charges separately. And as a
factual matter, Friend reported that Begay did more than just
“have sex” with Laura: Friend stated that Begay had done “the
same things” to Laura that he had done to her, and she described
digital penetration as well as sexual intercourse. We therefore do
not discuss this issue further.

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curiam), cert. denied, 406 P.3d 253 (Utah 2017); State v. Toombs, 2016
UT App 188, ¶¶ 17–24, 380 P.3d 390, cert. denied, 390 P.3d 724
(Utah 2017). But these cases are all materially distinguishable
from this one. In both McCamey and Toombs, the reports were
vague and did not contain specific allegations of criminal activity.
See McCamey, 2017 UT App 97, ¶ 2 (recounting how a probation
officer told police that the defendant “was living in the home with
the children” and would “sometimes pick [his daughter] up from
school,” in violation of the terms of his probation, which forbade
him from having any contact with children); Toombs, 2016 UT App
188, ¶ 4 (stating that a neighbor, concerned that the defendant had
molested a child, told police that she “had heard” that the
defendant had “bathed” his sons and another child and gotten
them “ready for bed”). And in Green, there was not actually any
formal “report” of criminal activity, just a telephone call from “a
news reporter” asking a county attorney for comment on Green’s
“polygamous lifestyle,” as well as a later-discovered hodgepodge
of information in the possession of various state agencies that,
when considered together, pointed toward criminal activity. See
Green, 2005 UT 9, ¶¶ 3, 24. In this case, by contrast, Friend gave a
direct report to Officer in which she intended to notify Officer that
a crime had been committed, and that report included sufficient
information bearing on the elements of a crime to place Officer on
notice that Begay had committed a crime. See id. ¶ 46.

¶30 Nor is our conclusion here at odds with the public policies
identified by our supreme court in Green. See id. ¶ 45 (“[T]he
statutory evolution of limitations on actions for sexual offenses
against a child manifests a consistent commitment to a public
policy which assigns paramount importance to the heinous nature
of child sexual offenses and, owing in large part to the
vulnerability of the victim, the difficulty in achieving prompt
detection of the offense and prosecution of the perpetrator.”). In
this case, Officer received enough information from Friend to
conclude that Begay had committed sex crimes against Laura; this

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case therefore did not involve any “difficulty in achieving prompt
detection of the offense.” See id. Law enforcement agencies could
easily have taken action in 1998 to, if appropriate, eventually
charge Begay with crimes against Laura, just as they did
regarding crimes against Friend.

¶31 Finally, we acknowledge that our decision in this case will
likely feel unsatisfying to Laura. As a thirteen-year-old girl, she
was apparently—by Begay’s own later admission—the victim of
sex crimes, and local law enforcement officers knew about those
crimes in January 1998. Had those crimes occurred just a few years
later, they could—under current Utah Supreme Court
precedent—lawfully be prosecuted now pursuant to the 2008
statutory change. See supra note 2. But the outcome of this case is
controlled by the statute of limitations in effect in the late 1990s,
and under that statute, the State’s effort to prosecute Begay for
these crimes in 2021 comes nearly two decades too late. Like our
supreme court, we recognize that the “problems presented in a
case like this one are heart-wrenching,” and we too “have
enormous sympathy for victims of child sex abuse.” See Mitchell
v. Roberts, 2020 UT 34, ¶ 52, 469 P.3d 901. But we must apply the
law as it is written, and in this case that law compels dismissal of
the current charges against Begay.

CONCLUSION

¶32 The statute of limitations applicable to the charges in this
case started to run in January 1998, when Friend reported to
Officer that Begay had been “having sex” with Laura. Friend’s
report was made with the intent of notifying Officer that a crime
had been committed, and it contained sufficient information to
put police on notice that Begay had engaged in criminal sexual
activity with regard to Laura. Because the statute of limitations
expired in 2002, before both the 2008 statutory amendments and
the 2021 filing of these charges, the State may not now prosecute

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Begay for these crimes. We therefore reverse the district court’s
denial of Begay’s motion to dismiss, and we remand this case with
instructions to dismiss the charges.

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