State v. Wheeler Sr.

State v. Wheeler Sr.

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

James Wheeler Sr.,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20030952-CA

F I L E D

(June 3, 2005)

2005 UT App 255

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Second District Juvenile, Ogden Department, 177342

The Honorable Kathleen M. Nelson

Attorneys: Randall W. Richards, Ogden, for Appellant

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Orme.

BENCH, Associate Presiding Judge:

James Wheeler Sr. appeals a conviction of one count of contributing to the delinquency of a minor in violation of Utah Code section 78-3a-801. See Utah Code Ann. § 78-3a-801 (2002). Wheeler contends that the evidence presented at trial was not sufficient to convict him of contributing to the delinquency of a minor. "When reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court's judgment unless it is against the clear weight of the evidence or if [we] otherwise reach[] a definite and firm conviction that a mistake has been made." State v. Gordon, 2004 UT 2,¶5, 84 P.3d 1167 (alterations in original) (citations and quotations omitted).

An adult contributes to the delinquency of a minor when he or she "commits any act or engages in any conduct which he knows or should know would have the effect of causing or encouraging a minor to commit an act which would be a misdemeanor or infraction criminal violation of any . . . statute or . . . ordinance if committed by an adult." Utah Code Ann. § 76-10-2301(2) (2003). As part of an agreement with Youth Corrections, Wheeler's minor son had to attend school every day and could not visit Wheeler without permission. The son's violation of this agreement by missing school to visit Wheeler twice in March 2003 placed him in contempt of court, which if committed by an adult would be a misdemeanor. See Utah Code Ann. § 78-32-10 (2002); Utah Code Ann. § 76-3-204(3) (2003).

Wheeler asserts that the evidence is not sufficient because the State did not prove that Wheeler knowingly caused or encouraged his son's contemptuous behavior. The evidence, however, reflects that Wheeler knew that his son's case manager (Green) had to give the son permission to visit Wheeler. Wheeler testified that the son told him on both visits that Green had authorized the visit and that he did not have classes at school that day. However, the juvenile court did not find Wheeler's testimony credible. Green testified that Wheeler knew that he was personally responsible for confirming that a visitation had been authorized. Wheeler also knew that he was required to attend parent counseling before visitation would be allowed, which he had not attended at the time of the visits. Despite Wheeler's knowledge of the visitation terms, he allowed his son to visit during school hours without confirming authorization or reporting the visits.

Moreover, the cases Wheeler cites in his brief to substantiate his assertion that the evidence did not support a conviction are clearly distinguishable. Wheeler correctly states in his brief, "the juvenile in this present case was the son of the defendant, thereby giving the defendant greater control and understanding of the situation." The defendants in each of the cited cases did not have a relationship or any prior involvement with the minor and, therefore they were less likely to cause or encourage the minor's behavior. See State v. Dung Hung Vo, 585 P.2d 464 (Utah 1978); State v. Macri, 28 Utah 2d 69, 498 P.2d 355 (1972); State v. Terwilliger, 1999 UT App 337, 992 P.2d 490. Further, in Dung Hung Vo and Macri, the court observed that merely providing shelter to a minor is not in violation of any law, where the evidence did not show that the minor was engaged or exposed to any criminal or immoral conduct while at the defendant's premises. See Dung Hung Vo, 585 P.2d at 466. In contrast, Wheeler's son was in contempt of court when he visited Wheeler.

The evidence reflects that Wheeler knew or should have known that by allowing the two separate visits in March 2003 he caused or encouraged the son to violate the agreement with Youth Corrections. See Utah Code Ann. § 76-10-2301(2). Therefore, the juvenile court's ruling that Wheeler contributed to the
delinquency of a minor is not against the clear weight of the evidence. See Gordon, 2004 UT 2 at ¶5.

Accordingly, we affirm.

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Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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Gregory K. Orme, Judge