State v. Silveira

2022 UT App 78

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ANTHONY DAVID SILVEIRA,
Appellant.

Opinion
No. 20210421-CA
Filed June 24, 2022

Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 211905365

Janet Lawrence and Ian L. Quiel,
Attorneys for Appellant
Sean D. Reyes and William M. Hains,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

ORME, Judge:

¶1 Anthony David Silveira appeals the district court’s denial
of his motion for pretrial release, in connection with sexual abuse
he allegedly perpetrated on Ruby, 1 his then-twelve-year-old
half-sister. Silveira argues that the court erred in determining both
that substantial evidence existed to support the charged conduct
and that there was clear and convincing evidence that he was a
substantial danger to an individual or the community at large. We
disagree and affirm.

1. A pseudonym.
State v. Silveira

BACKGROUND

¶2 In 2021, the State filed a sworn information in the district
court alleging that Silveira committed four counts of rape of a
child, three counts of aggravated sexual abuse of a child, and one
count of sodomy upon a child—all first-degree felonies. The
information asserted that probable cause existed based on the
following:

The statement of 14-year-old Ruby that between
June 20, 2019, and June 21, 2019, . . . she spent the
night at her adult half-brother, Anthony David
Silveira’s apartment. Silveira had been drinking.
Silveira made a bed on the floor for Ruby near the
couch where he slept. Ruby stated that Silveira
asked her if she wanted to cuddle, and she told him
no. Ruby stated that she fell asleep and was woken
up early in the morning to Silveira touching her
inappropriately. Ruby stated that Silveira had
moved her underwear over and was rubbing her
vagina with his hand. Silveira then removed Ruby’s
underwear and pushed her dress up over her chest.
Silveira unbuckled Ruby’s bra and was holding
Ruby’s arms above her head by the wrists with his
left hand. Ruby stated that Silveira was “kissing all
over my chest and neck” then “he started going
down to like my stomach. And then he went to my
thighs and then he started, like, putting his mouth
on my vagina.” Ruby stated that Silveira put two of
his fingers into her vagina and moved his fingers in
a back-and-forth movement. Silveira then start[ed]
using his mouth and rubbed his tongue on Ruby’s
vagina and would spit. Silveira then tried putting
his penis into Ruby’s vagina 4 times. Ruby stated
that Silveira then just stopped. Silveira said he was
sorry and asked Ruby not to tell anyone about this.

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State v. Silveira

¶3 The sworn information was signed by “B. Shupe” of the
Salt Lake City Police Department, and the information stated that
the “evidence [was] obtained from . . . B. Shupe,” Ruby, and two
other individuals referred to by their initials. As part of the
information, the State requested that Silveira be held without bail.
It asserted that there was “substantial evidence supporting the
charge and clear and convincing evidence that [Silveira] would
constitute a substantial danger to any other individual or to the
community.” The court then issued a no-bail warrant.

¶4 After Silveira was apprehended and arrested, he filed a
motion for release on bail or to pretrial services. To support his
motion, Silveira submitted an exhibit showing that he was
incarcerated in the county jail from June 2, 2019, to June 30, 2019,
which, he argued, rendered it impossible for him to have
perpetrated the charged offenses. At a subsequent hearing on the
matter, Silveira argued that because he had “undisputed proof”
that he was incarcerated during this time, he “couldn’t have done
what the State alleges he did.” Thus, Silveira argued, the State
failed to present substantial evidence of the charged crimes,
warranting a no-bail hold. He also argued that he did not pose a
substantial danger to the community because he had no prior
sexual abuse convictions, “was a model probationer” on a prior
conviction, and received a “glowing” recommendation from his
probation officer recommending termination of his probation on
a previous conviction. See Utah Code Ann. § 77-20-1(2)(c)
(LexisNexis Supp. 2021) (allowing a defendant to be held without
bail if a felony is alleged, “there is substantial evidence to support
the charge[,] and the court finds by clear and convincing evidence
that the individual would constitute a substantial danger to any
other individual or to the community”). 2 He also claimed that he

2. The applicable portion of the Utah Code has since been
amended. Therefore, we cite the code in effect at the relevant time.

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State v. Silveira

was employed, would be living with a “close sister,” and “has sort
of a quasi stepchild, a girlfriend’s kid.”

¶5 The prosecutor responded that the date of the offenses was
“not an element that the State has to prove in a child sexual abuse
case” and that due to the young age of the alleged victim, her
inability to accurately provide a specific date of the crime that
occurred two years earlier “is not going to be fatal to the State’s
case.” The prosecutor argued that Ruby’s “statement has
provided the necessary proof,” i.e., “substantial evidence that . . .
a sexual abuse crime occurred against a child, [and] that [Silveira]
did it,” which was sufficient “to keep [Silveira] in custody.”
Regarding Silveira being a danger to the community, the
prosecutor responded that it was “not unusual for sex offenders
to have little to no criminal history” and that he had “grave
concerns that [Silveira] would be going home with . . . a
stepchild.”

¶6 The court denied Silveira’s motion. It ruled that his
incarceration during the dates listed in the information was not
fatal to the State’s case because “it does not constitute an element
of the crime.” The court further stated that it “has concerns with
regard to [Silveira] posing a substantial danger to the
community,” and it determined not to “grant[] a release or bail at
this juncture.” Silveira appeals this ruling. 3

ISSUE AND STANDARD OF REVIEW

¶7 Silveira asserts that the district court erred in denying his
motion for pretrial release or bail. The parties disagree on the
appropriate standard of review. The State argues that we should

3. Under Utah Code section 77-20-1(9), an appeal could “be taken
from an order of a court denying bail to the Utah Court of
Appeals[.]”

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State v. Silveira

review this issue for abuse of discretion, while Silveira contends
that we should review it for correctness. We need not resolve this
dispute here because, even under the correctness standard of
review urged by Silveira, we ascertain no error by the district
court. 4

ANALYSIS

¶8 Under Utah Code section 77-20-1, a defendant charged
with a felony could be held without bail if (1) “there is substantial
evidence to support the charge” and (2) “the court finds by clear
and convincing evidence that,” as relevant here, “the individual
would constitute a substantial danger to any other individual or
to the community.” Utah Code Ann. § 77-20-1(2)(c) (LexisNexis
Supp. 2021). We address each issue in turn.

I. Substantial Evidence

¶9 Silveira contends that the district court erred in ruling that
the State presented substantial evidence to support the charged
conduct because (1) the State “failed to provide any reliable
evidence that [he] committed the alleged crimes” and (2) contrary
to the court’s holding, “[t]he dates of the alleged criminal activity
provided in the Information are not inconsequential.” 5 We

4. The appropriate standard of review applicable in this context is
currently under consideration by the Utah Supreme Court in State
v. Randolph, No. 20200881-SC (Utah argued Feb. 7, 2022).

5. Silveira also contends that before the district court, “the state’s
arguments impermissibly attempted to shift the burden of proof
at the detention hearing from the state to the defendant.” We
decline to address this argument, however, because Silveira does
not assert that the district court shifted the burden of proof to him.
Thus, we have nothing to consider because based on “the nature
(continued…)

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State v. Silveira

conclude that Silveira’s first argument was not preserved and
therefore decline to address it on its merits, leaving us to contend
only with the merits of his second argument.

A. Reliable Evidence

¶10 Silveira argues that substantial evidence did not exist
because the State “offered no evidence” of his guilt “beyond B.
Shupe’s declaration in the Information,” which “is not sufficient
to constitute substantial evidence where no reliability criteria
have been satisfied.” But before the district court, Silveira argued
only that the State could not show substantial evidence because
he was incarcerated when the State alleged the crimes were
committed and thus he “couldn’t have done what the State alleges
he did.” This was the extent of Silveira’s argument regarding
substantial evidence.

¶11 At oral argument before this court, Silveira argued that
because his challenge to the dates of the crime preserved the issue
of substantial evidence more generally, he is permitted to raise
other unique arguments for the first time on appeal so long as they
relate to the broader issue of substantial evidence. Silveira’s
attempt to characterize his new arguments on appeal as simply
falling under the large umbrella of the substantial evidence issue,
for purposes of preservation, is unavailing.

¶12 Our Supreme Court has directed us, when analyzing
preservation, to “view issues narrowly, but also made it clear that
new arguments, when brought under a properly preserved issue
or theory, do not require an exception to preservation.” State v.
Johnson, 2017 UT 76, ¶ 14 n.2, 416 P.3d 443 (emphasis in original).
The Court clarified that “[s]uch arguments include citing new
authority or cases supporting an issue that was properly

of our appellate jurisdiction,” we “review the decisions of lower
courts” and not “the actions of counsel—at least not directly.”
State v. Hummel, 2017 UT 19, ¶ 107, 393 P.3d 314.

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State v. Silveira

preserved.” Id. But “an argument based upon an ‘entirely distinct
legal theory’ is a ‘new claim or issue’ and must be separately
preserved.” True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 32,
427 P.3d 338 (quoting Johnson, 2017 UT 76, ¶ 14 n.2).

¶13 The reliability-of-the-evidence issue that Silveira raises for
the first time on appeal is an entirely distinct legal theory from the
timing-of-the-crime issue he raised below. While both issues may
fall under the broad category of sufficient evidence, they entail
completely different analyses and are distinct legal theories
regarding whether the State presented substantial evidence. One
issue concerns whether the evidence provided was sufficiently
reliable to be believed, while the other issue is an inquiry into
whether Silveira’s alibi made it impossible for him to have
committed the alleged crimes. The former “is not merely a new
argument to support the issue raised below, but an entirely
distinct legal theory” needing to be separately preserved. See id.
(quotation simplified).

¶14 This point is further driven home by considering the
purpose for our preservation rule, which is to “give[] the trial
court an opportunity to address the claimed error, and if
appropriate, correct it,” and this “avoids unnecessary appeals and
retrials.” Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828
(quotation simplified). Here, the district court was not on
notice that, separate and apart from Silveira’s alibi defense, it
was being asked to rule on whether the evidence the State
provided from B. Shupe and the other listed individuals was
sufficiently reliable to meet the substantial evidence standard.
The court, therefore, had no opportunity to consider the
reliability of the evidence in the information because this issue
was never brought to its attention. Thus, this issue was not
preserved below, and we decline to address it. See id. ¶ 12 (“An
issue is preserved for appeal when it has been presented to the
district court in such a way that the court has an opportunity to
rule on it.”) (quotation simplified).

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State v. Silveira

B. Dates of the Alleged Crimes

¶15 Silveira contends that the district court erred in finding that
substantial evidence existed even though he provided
“undisputed proof” that he was incarcerated during the dates on
which the State alleged in the information that he committed the
crimes. Specifically, Silveira argues that his “proof that he could
not have committed the offenses on the dates alleged is not minor
or unimportant” and “weighs heavily in [his] favor and defeats
any conclusion that a reasonable mind could find the state offered
substantial evidence against [him].” We disagree.

¶16 The specific date an offense occurred “is generally not an
element which the prosecution must prove at trial,” State v. Fulton,
742 P.2d 1208, 1213 (Utah 1987), and it is not an element of any of
the charges here, see Utah Code Ann. §§ 76-5-402.1 (LexisNexis
2017), -403.1, -404.1 (Supp. 2021). Accordingly, a “mere assertion
of an alibi defense does not impose on the prosecution the
additional burden of proving the precise date of the act.” Fulton,
742 P.2d at 1213. Additionally, our case law is replete with the
admonition that, owing to the difficulty many children have in
remembering details of sexual abuse with specificity, the specific
date is not required for notice to a defendant or for obtaining a
conviction at trial in child sexual abuse cases. See, e.g., State v.
Taylor, 2005 UT 40, ¶ 12, 116 P.3d 360 (“We have also
acknowledged that in child sexual abuse prosecutions,
identifying the specific date, time, or place of the offense is often
difficult owing to the inability of young victims to provide this
information. Responding to the realities of cognitive
development, we have been less demanding of exact times and
dates when young children are involved.”); State v. Wilcox, 808
P.2d 1028, 1033 (Utah 1991) (“If we were to hold that . . . no offense
could be charged because the alleged victim is too young to testify
with certainty concerning the time, dates, or places where the
abuse occurred, we would leave the youngest and most
vulnerable children with no legal protection. An abuser could

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State v. Silveira

escape prosecution merely by claiming that the child’s inability to
remember the exact dates and places of the abuse impaired the
abuser’s ability to prepare an alibi defense.”); State v. Robbins, 709
P.2d 771, 773 (Utah 1985) (“We recognize that children are often
not able to identify with a high degree of reliability, and
sometimes not at all, when an event in the past took place.”); In re
J.E.G., 2020 UT App 94, ¶ 23, 468 P.3d 1048 (“Victim’s inability to
remember the specific date is not fatal to the State’s case.”). Given
this case law, an alibi defense does not necessarily defeat a
conclusion that substantial evidence exists to hold a felony
defendant without bail. 6

6. The parties offer divergent standards that a district court must
follow in making a substantial evidence determination in the bail
context. Silveira argues, quoting JLPR LLC v. Procurement Policy
Board, 2021 UT App 52, 492 P.3d 784, an administrative law case,
that the district court must “consider[] all the evidence in the
record, both favorable and contrary,” and determine whether “a
reasonable mind could reach the same conclusion.” See id. ¶ 15
(quotation simplified). The State counters, quoting State v.
Kastanis, 848 P.2d 673 (Utah 1993) (per curiam), that the standard
requires “the district court to determine whether the facts
adduced by the State, notwithstanding contradiction of them by
defense proof, warrant the conclusion that if believed by a jury
they furnish a reasonable basis for a verdict.” See id. at 676
(quotation simplified). We do not need to resolve this dispute
here, however, because even under Silveira’s proffered standard,
the court did not err. Here, the court considered the alibi evidence
along with the State’s evidence, and the alibi evidence alone does
not lead us to the conclusion that reasonable minds could not
reach the same conclusion as the court that the specific date of the
crime was not conclusive in this case. To the extent that Silveira
argues that the court should have considered other evidence
under this standard, such as the reliability of the witnesses listed
(continued…)

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State v. Silveira

¶17 Silveira argues that this line of cases is not applicable to a
court’s substantial evidence determination when ruling to hold a
defendant without bail because these cases generally “address[]
the constitutional sufficiency of the notice, not evidentiary
trustworthiness.” We acknowledge that none of the cases cited
deals directly with a court’s substantial evidence determination in
the bail context. But this does not change the usual rule that the
alleged dates of offenses in child sexual abuse cases are not
determinative, and the State is not required to prove the specific
dates, even at trial. Silveira does not offer a reason why the State’s
burden would be more onerous in an interlocutory context than it
is at trial, where the guilt-beyond-a-reasonable-doubt standard
comes into play. So we view this premise as equally applicable
when a district court makes its substantial evidence
determination at this earlier stage of the proceeding. Thus, like at
trial, an alibi defense is not necessarily outcome determinative in
the bail setting.

¶18 We conclude that the district court did not err in
determining that the State provided substantial evidence of the
charged conduct even in the face of Silveira’s alibi defense,
because the alibi does not, as Silveira contends, categorically
establish that he did not sexually abuse Ruby when she was
twelve years old. All Silveira’s alibi does is provide an argument
to be presented at trial that Ruby’s credibility is questionable
because she could not remember the specific date of the alleged
sexual abuse and because the dates she first provided to the police
were apparently incorrect. But it does not, by itself, overcome the

or the qualifications of the signer of the probable cause statement,
these arguments are not preserved, as previously explained, and
we decline to address them. See supra ¶¶ 10–14. It is worth noting
that this issue is also currently before the Utah Supreme Court in
State v. Randolph, No. 20200881-SC (Utah argued Feb. 7, 2022).

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State v. Silveira

district court’s ruling that substantial evidence existed to sustain
its no-bail determination.

II. Substantial Danger to Any Other Individual
or the Community

¶19 Silveira also argues that “[n]o facts support the court’s
conclusion that [he] was a ‘substantial danger to the community’”
and, thus, “the district court erred in concluding the state showed
by clear and convincing evidence that [he] was so dangerous that
he must be denied bail.” As previously discussed, under Utah
Code section 77-20-1(2)(c), once a court has made its substantial
evidence determination, it may hold a defendant without bail if it
also finds, by clear and convincing evidence, that the defendant
constitutes, in relevant part, “a substantial danger to any other
individual or to the community” at large. Utah Code Ann.
§ 77-20-1(2)(c) (LexisNexis Supp. 2021). Clear and convincing
evidence “implies something more than . . . a preponderance, or
greater weight, of the evidence; and something less than proof
beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay,
2011 UT 71, ¶ 24, 270 P.3d 430 (quotation simplified). “Courts that
assess these comparative degrees of certainty have characterized
the clear and convincing standard as the existence of facts that
make a conclusion very highly probable.” Id. (quotation
simplified).

¶20 Silveira’s contention that “no facts” supported the district
court’s ruling is incorrect. In the probable cause statement, Ruby’s
allegations detailed serious sexual offenses Silveira committed
against a twelve-year-old child with whom he held an apparent
position of trust as her older half-brother. The statement also
indicated that Silveira attempted to cover up this abuse by
telling Ruby “not to tell anyone about this.” And at the bail
hearing, Silveira stated that he would be spending time around
his girlfriend’s child, whom he referred to as his “quasi
stepchild.”

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State v. Silveira

¶21 Here, there is evidence that Silveira presented a substantial
danger, at the very least, to his girlfriend’s child. See Utah Code
Ann. § 77-20-1(2)(c) (stating that a court can hold a defendant
without bail if, among other things, there is evidence that the
defendant “would constitute a substantial danger to any other
individual”) (emphasis added). Based on the sworn allegation that
Silveira had sexually abused a child, clear and convincing
evidence existed that Silveira would be a substantial danger to his
girlfriend’s child because he would again be potentially placed in
a position of trust over that child—or so it is fair to infer given his
“stepchild” reference. Thus, it was “very highly probable,” see
Essential Botanical Farms, 2011 UT 71, ¶ 24 (quotation simplified),
that Silveira was a substantial danger to his “quasi stepchild,” and
it was not error to continue to hold Silveira without bail. 7

CONCLUSION

¶22 The district court did not err in ruling that Silveira’s alibi
defense did not overcome the State’s proffered substantial
evidence that he was guilty of the alleged crimes. The court also
did not err in ruling that clear and convincing evidence existed
that Silveira constituted a substantial danger to his girlfriend’s
child.

¶23 Affirmed.

7. While the district court premised its decision on there being
clear and convincing evidence that Silveira was a substantial
danger to the community at large, we can “affirm on any ground
apparent in the record,” Trapnell & Assocs., LLC v. Legacy Resorts,
LLC, 2020 UT 44, ¶ 30, 469 P.3d 989, and clear and convincing
evidence in the record strongly suggests that Silveira was a
danger to his girlfriend’s child, specifically.

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