State of Utah v. Marin

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Osbaldo Marin,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000772-CA

F I L E D
September 27, 2001 2001 UT App 278 -----

Fifth District, Cedar City Department
The Honorable J. Philip Eves

Attorneys:
Dale W. Sessions, Cedar City, for Appellant
David E. Doxey and Scott M. Burns, Cedar City, for Appellee

-----

Before Judges Greenwood, Billings, and Orme.

GREENWOOD, Presiding Judge:

Appellant appeals his conviction of Abuse of a Disabled Adult, in violation of Utah Code Ann. § 76-5-111 (1999), claiming the trial court abused its discretion in finding his conduct was sexually motivated and in sentencing him to the maximum sentence. Appellant also argues that the trial court erred in failing to consider the relevant factors before sentencing him. We affirm.

At sentencing, the trial court "found that there was a sexual motivation to the crime, even though the crime of which Mr. Marin was convicted is not per se a sex crime." The trial court's finding is supported by testimony from Detective Kevin Minefee, who investigated three other sex offenses involving Appellant. The trial court's finding is also supported by testimony from Officer Benjamin Rowley, who authored the presentence investigation report. The trial court explained its rationale for determining that there was a sexual motivation as follows:

Based on th[e] ambiguity in the [trial] testimony[,] the Court was unable to determine that the touching involved the genitals of the [victim], and . . . the Court clearly explained at that time that therefore it could not find Mr. Marin guilty of sexual battery.

On the other hand, the Court found that the crime of abuse of a disabled adult had been committed because the touching in the crotch area of the [victim], whether it involved touch[ing] of her genitals or not, constituted abuse under the provisions of 76-5-111 . . . because it placed the [victim] in fear of imminent physical harm, and it constituted gross lewdness.

A trial court acts within its discretion when it amends or adds to its findings before a final judgment is entered. See State v. Gerrard, 584 P.2d 885, 887 (Utah 1978). Given the circumstances of this case, we cannot say that "no reasonable [person] would take the view adopted by the trial court." Id. Thus, we see no abuse of discretion.

Appellant also contends the trial court abused its discretion in imposing the maximum sentence. "A sentence in a criminal case should be appropriate for the defendant in light of his background and the crime committed and also serve the interests of society which underlie the criminal justice system." State v. McClendon, 611 P.2d 728, 729 (Utah 1980). "[T]he sentencing judge[] [has] discretion in determining what punishment fits both the crime and the offender." State v. Lipsky, 608 P.2d 1241, 1249 (Utah 1980). At the close of trial, the trial court informed Appellant that it was inclined to sentence him to the maximum sentence and offered him an opportunity to submit a presentence investigation report. The presentence investigation report suggests that Appellant's crime was sexually motivated, reveals two other similar incidents in which Appellant was convicted of Gross Lewdness, and recommends the same maximum one-year sentence the trial court was originally inclined to impose. The presentence investigation report provides no reason to sentence appellant to something less than the maximum sentence, and Appellant failed to convince the trial court there were errors in the report. There is no indication the trial judge was unduly influenced by bias in the report, and thus there was no abuse of discretion.

Lastly, Appellant contends the trial court abused its discretion by failing to consider all legally relevant factors before sentencing him. The trial court took into account that appellant had been previously convicted of Gross Lewdness, that he had violated his probation, and that he had disobeyed a court order. For these reasons, the trial court agreed to accept the sentencing recommendation in the presentence investigation report and sentenced Appellant to the maximum sentence of one year, to be served consecutively to any previous sentence. Appellant has failed to demonstrate the trial court did not consider his rehabilitative needs or legally relevant factors in sentencing him. We therefore conclude the trial court did not abuse its discretion.

Affirmed.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 

______________________________
Judith M. Billings, Judge
 
 

______________________________
Gregory K. Orme, Judge