District Court, Farmington Department The Honorable David R.
Hamilton No. 151700186.
L. Wiggins, Attorney for Appellant.
D. Reyes and John J. Nielsen, Attorneys for Appellee.
David N. Mortensen authored this Opinion, in which Judges
Michele M. Christiansen and Diana Hagen concurred.
Garvin Wayne Jones sexually abused Victim beginning when she
was eight years old. Jones's abuse continued until Victim
was eleven years old and ranged from showing Victim
pornographic images to sodomizing and raping her. The State
charged Jones with child rape, as well as other crimes. The
case proceeded to trial where defense counsel objected to the
child rape elements in the jury instructions, asserting that
the child rape statutes were unconstitutionally overbroad and
vague. The trial court denied Jones's motion and he now
appeals. We reject his arguments in full.
Victim had an unstable childhood. Due to her parents'
continued physical abuse and drug use, she went to live with
an aunt and uncle. Unfortunately, the instability continued
in her new home. Beginning when Victim was just eight years
old, Jones, who was living in the same home as Victim, began
sexually abusing her and continued to do so until she was
eleven years old.
The abuse began with Jones touching her breasts and vagina,
then escalated to digital penetration, mutual masturbation,
oral sex, and vaginal and anal intercourse. Jones also showed
Victim pornographic material online and took
"photographs of her lying on his bed with her clothes
In August 2014, after multiple incidents of child abuse and
drug abuse at the home of the aunt and uncle, Victim was
removed from that home permanently. Several months later,
Victim began seeing a Division of Child and Family Services
therapist. Over the course of several sessions, Victim
disclosed the sexual abuse Jones had inflicted on her. Upon
disclosure, Victim was interviewed by a Child Protection
Services investigator and once again, Victim revealed that
she had been sexually abused by Jones. Officers then obtained
search warrants for Jones's home, cell phone, and
computers, where they discovered more than six pornographic
images of children under the age of eighteen.
Jones was arrested and the State charged him with eighteen
counts in total: three counts of child rape; three counts of
child sodomy; three counts of aggravated child sexual abuse;
six counts of sexual exploitation of a minor; and three
counts of dealing in material harmful to a minor. At trial,
Victim's testimony on the rape charges alleged not only
touching, but also penetration. A nurse corroborated
Victim's statement, testifying that Victim had disclosed
that Jones had put his penis "into" her vagina.
During trial, the parties discussed jury instructions.
Defense counsel objected to the elements instruction on the
child rape charges, asserting that the child rape statute was
unconstitutionally overbroad and vague. Defense counsel
alleged that Utah Code section 76-5-407 "only requires
touching, " rather than penetration, which meant that
the conduct "merged" with "aggravated sexual
abuse of a child."The State responded that the distinction
between child rape and aggravated child sexual abuse was the
body parts involved- "for child rape, it had to be
genital-to-genital contact; for aggravated child sex abuse,
it could be genital contact with other body parts."
Ultimately, the trial court rejected Jones's argument and
overruled his objection to the jury instructions.
The jury convicted Jones on one count of child rape, one
count of child sodomy, three counts of aggravated child
sexual abuse, two counts of sexual exploitation of a minor,
and three counts of ...