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Show if MONDAY, NOVEMER 18, 1974 INTERMOUNT A IN COMMERCIAL RECORD PAGE TWELVE In The Supreme Court of The State of Utah knowingly causes another reasonably to fear imminent serious bodily injury. State Of Utah, in the interest of: No. 13633. R. N. , a person under 18 years of age. i November 8, 1974 FILED The foregoing statutes represent a significant departure from the U. C. A. 1953, provided: statutory scheme, wherein Section 9, Allan E. Mecham, Clerk Every person who shall assault a child, whether male or female, under the age of fourteen years, and shall take indecent liberties with or on the person of such child, without committing, intending or attempting to commit the crime of rape, upon such child, with or without the child's consent, is guilty CALLISTER, Chief Justice: Juvenile, R. N. , appeals from an adjudication of the juvenile court that he was within the jurisdiction thereof as provided in Section U. C. A. of a reason A amended as 1965, law. state 1953, by violating petition was filed alleging that R. N. on or about July 28, 1973, in violation of Section U. C. A. 1953, as amended 1973, did take indecent liberties with L. L. , a female not his wife, under 14 years of age, with intent to arouse or gratify his own sexual desires. This matter was tried before the court, and at the conclusion of the trial, the court ruled that R.N. had committed an assault. The court ordered that the petition be amended to allege that on or about July 28, 1973, R.N., in violation of Section )(c), U. C. A. 1953, as amended 1973, did assault L. L. No formal findings of fact or conclusions of law were made by the court. On a printed form, denominated findings of fact, a square was checked, to indicate that the allegations in the petition were proven. The form then recited that by reason of the foregoing findings of fact, the person named on the reverse side was adjudicated within Section 77 of the Juvenile Court Act of 1965 as amended. of a felony. 55-1077- 76-5-4- 76-5-10- cross-examinati- 1. This statute was completely revised during the 1974 session of the legislature, effective April 4, 1974. Section U.C. A. 1953, provided: 04, 76-7-- 04. 1, assault is an unlawful attempt coupled with a present to commit a violent injury on the person of another. ability An 2(1 By L. L. 's account, the two went riding on her bicycle at approximately 9:00 o'clock in the evening. L. L. , who was 13 years old, was the passenger, and R.N. , who was 17 years old, was the driver. The two, at R. N. 's suggestion, went into an abandoned apartment house. L. L. sat down on a bed to talk with R.N. They proceeded to embrace, and R.N. made an indecent proposition. According to L. L. , R. N. partially removed her Levi's and proceeded to touch areas proscribed by Section L. L. jumped from the bed; she admitted on that R.N. made no attempt to restrain her. As.L. L. proceeded to the door, R.N. grabbed her arm but immediately released it, and L. L. exited from the building. A girl friend of L. L. 's informed her parents of the incident, whereupon L. L. was interrogated and the police were summoned. 76-5-4- prior 76-7-- Under this prior statutory scheme, taking indecent liberties with. a child was considered a form of aggravated assault, and simple assault was a lesser, included offense. 2 The new statutory provisions concerning assault The considerably narrowed the prior definition of Section was court new confronted with a dilemma caused the juvenile by penal code; the circumstances were such that the court expressed the view that a determination that R. N. had committed a felony was unmerited, a record thereof might impair his future. On the other hand, the improper acts of R. N. did not coincide with the elements of Section The court orally expressed the view that the evidence did not indicate a show of force or violence. There is little in the record to indicate that the victim reasonably feared imminent serious bodily injury. The only evidence indicating a show of force was R.N. 's momentarily grasping xf L. L. 's arm as she departed the scene. Nevertheless the court concluded, after reviewing the specific elements of Section that R. N. had committed a violation thereof. (76-5-10- ' 76-7-- 2) 1. on R. N. urges that to be within the jurisdiction of the juvenile court by reason of the commission of an offense (Section the court must state with particularity the findings of fact upon which it bases its jurisdiction 1)), Without written findings and with the comments from the (Section bench, it is impossible to ascertain whether or not the court found that R.'N.V by a show of force or violence caused L. L. reasonably to fear imminent serious bodily harm. The record is further cloudy as to whether the court determined tht the assault set forth in Section was a lesser, included offense of Section or if the court ordered the petition to be amended to conform to the evidence as provided fn Section 55-10-1- At the conclusion of the presentation of the evidence, the judge stated that from the evidence he was convinced that the boy went beyond the point of decency and did start to exert pressure or to intimidate the girl, but he did not make any threats or use force. The court was interrupted by the prosecution. The court then continued that it was difficult to believe the situation justified a felony charge under the circumstances. The court explained that even though it didn't make any difference in terms of his disposition of the case, he was concerned with the charaterization of the situation in regard to the record and the future, and he didn't think it was entirely correct. Defense counsel asserted that he had not appeared in court to defend assault. The court responded that he knew this'. Defense counsel pointed out that there were different elements in the two crimes. The trial court stated that he understood the claim of the defense that assault was probably not a lesser, included offense; and, therefore, the court would be out of line in attempting to find the party guilty of any lesser offense that was not technically included in the charge. The court commented that it would look an offense of simple and see. The prosecution brought to the attention of the court the fact that the term "assault" was not used in forcible sexual abuse statute, The 76-5-4- 04. 55-10-- Under Section as a civil proceeding. Rule 52(a), The court responded by reading the provisions of Section and commented that there was a possibility there, but there was no of force or violence in the instant case. The court continued: real show U. R. C. The prosecution inquired if that were the court's ruling. The court responded: That's my ruling. I find the boy guilty of simple assault, and place him on probation and then continue the matter for In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58A, Requests for findings are not necessary for purposes of review .... Counsel neither waived the requirements of Rule 52(a), 55-10-1- WE CONCUR: F. Henri Henriod, Justice A. H. U. C. A. 1953, as amended 1973, provides: J. Allan Crockett, Justice stances not amounting to rape or sodomy, or attempted rape or sodomy, he touches the anus or any part of the genitals of another, or otherwise takes indecent liberties with another, or causes another to take indecent liberties with himself or another, with intent to arouse or gratify the sexual desire of any person, without the consent of the other. R. L. tTuckett, Justice Section provides that an act of sexual abuse is without sent where the victim is under 14 years of age. (7) (1) A U. C. A. 1953, as amended 1973, provides: person commits assault if: Uniform Commercial Code Filings - 792- WALLACE, KEVIN M., 4095 W. 5615 S.,Krns, (2) Forcible sexual abuse is a felony of the third degree. 02, Ellett, Justice 02. (1) A person commits forcible sexual abuse if, under circum- 76-5-1- P. ,' 00. R. N. further contends that there was insufficient evidence to support a determination that he committed an assault; Rule 52(b), U. R. C. P. R. N. cites In the Matter of Winship, 3 wherein it was held that during the adjudicatory stage of a delinquency proceeding, the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. On appeal, R.N. urges that the findings and conclusions were insufficient to support a determination that he had committed an assault. Furthermore, there was insufficient evidence to support the conclusion that R.N. had violated Section Section U. R. C. nor the provisions of Section In the state of the present record, there are insufficient findings of fact and conclusions of law to support the probation review. 04, P. , provides: 2. State v. Waid, 9? Utah 297, 301, 67 P. 2d 647 (1937); State v. Close, 28 Utah 2d 144, 146, 499 P. 2d 287 (1972). 3. 397 U.S. 358, 25 L. Ed. 2d 368, 90 S.Ct. 1068 (1970). ' appropriate that the fact finder assess the evidence in light of the "beyond a reasonable doubt" standard. The judgment of the juvenile court is reversed, and the case is remanded for further proceedings in accordance with this opinion. be my inclination. 76-5-4- a proceeding in a child's case is regarded Since this case must be reversed and remanded to the juvenile court to make specific findings of fact and conclusions of law, it would be more So the only possible analogy would be by show of force or violence he intentionally and knowingly caused another reasonable fear of imminent serious bodily injury. But . . . I guess that would still be my inclination. That would still Section 98. 02. Defense counsel queried: "Is it simple assault, is that it?" 76-5-1- 02 04 adjudication that R.N. is within the jurisdiction of the juvenile court. prosecution responded in the affirmative to a query from the court as to whether there had to be an injury under the new statute, 76-5-1- 76-5-1- 76-5-4- con- UT to Gen Cr Co; HIIG, 7 93 --HANSEN ELECTklC, INC.; 25 N. 200 W.,.Bntfl, UT 84010 to Ut Bk & Trst; trencher, backhoe, 794cWEIGHT, SANDRA, Mur, UT GARY B. & - 797-MYE- trlr. VAUGHN B., 127 Oak St., Mdvl,UT 84047 to Aetna Fin Co; HIIG. SHIRREAL, 38 Rose Cir., Mur, UT 84107 to RS, Aetna Fin; 4082 S. 1355 W., 84107 to Ben Fin 4180 W., Krns, Aetna Fin; 805-DEV0S- DANIEL DEB IE, T., 1408 Alder Rd., Tlrsvl, 84107 to Aetna Fin Co: UT HHG. GARY N, Co; HHG. (c) By a show of force or violence, he intentionally or HHG. 796- HOLT, SLC, Co; UT to HHG. CHARLES & W. 3350 23 84115 HIIG. L. , 4735 S. UT S.. to Dial Fin r |