State v. Rosen

               THE UTAH COURT OF APPEALS

                      STATE OF UTAH,
                        Appellee,
                            v.
                    AARON DAVID ROSEN,
                        Appellant.

                           Opinion
                       No. 20190684-CA
                     Filed March 18, 2021

           Fourth District Court, Provo Department
               The Honorable M. James Brady
                        No. 171402518

       Emily Adams, Freyja Johnson, and Cherise Bacalski,
                   Attorneys for Appellant
               Sean D. Reyes and John J. Nielsen,
                    Attorneys for Appellee

   JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
                        concurred.

ORME, Judge:

¶1     Aaron David Rosen appeals his conviction for unlawful
sexual conduct with a 16-year-old (Victim). He argues that his
trial counsel was ineffective for not challenging the
constitutionality of the statutory scheme under which he was
convicted. We reject his argument and affirm.
                          State v. Rosen


                        BACKGROUND 1

¶2     In 2017, Victim, then 16 years old, created a profile on a
social networking site designed for adult same-sex encounters.
He claimed to be 18 years old or older. Victim and Rosen, a
former police officer in his 40s who had previously worked as a
school resource officer, connected on the site and arranged to
meet at Victim’s second-floor apartment for a sexual encounter.
Once Rosen arrived at the apartment, Victim met him at the
door. Victim was wearing his high school sweatshirt. The two
immediately began kissing, which eventually progressed to
mutual sexual touching and oral sex.

¶3    Victim’s father arrived unexpectedly, causing Victim and
Rosen to quickly get dressed, with Victim urging Rosen to leave
by jumping from the balcony, which he did. Victim’s father,
however, heard a noise come from the balcony and saw Rosen,
wearing a tank top and holding his shoes, as he was running
away. Rosen sped off in his car, with Victim’s father in pursuit.
Victim’s father was able to get Rosen’s license plate number,
which police later used to identify and arrest Rosen.

¶4    When confronted by police, Rosen claimed that he
thought Victim was 23 years old and that he ran away from the
apartment because he thought Victim’s husband or boyfriend
had come home. Rosen also claimed that they “didn’t do
anything,” but when asked whether he remembered touching
Victim’s genitals, Rosen admitted to “just petting” over clothing.

¶5     The State charged Rosen with one count of unlawful
sexual conduct with a 16- or 17-year-old, a third-degree felony,

1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Daniels, 

, 

.




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                           State v. Rosen


and one count of unlawful sexual conduct with a minor, a class
A misdemeanor. Under the applicable statutory scheme, a
defendant who is “seven or more years older but less than 10
years older than the minor at the time of the sexual conduct” can
present the defense that he did not know, nor should he
reasonably have known, the actual age of the minor. See 

(2)(a)(i) (LexisNexis Supp. 2020). 2 But if
the defendant is “10 or more years older than the minor at the
time of the sexual conduct,” 

 § 76-5-401.2(2)(a)(ii), the
defendant cannot present the defense that he “mistakenly
believed the victim to be 18 years of age or older at the time of
the alleged offense or was unaware of the victim’s true age,” id.
§ 76-2-304.5(4) (2017).

¶6     Being significantly more than ten years older than Victim,
Rosen     had    no     basis    on    which     to    argue    a
reasonable-mistake-of-age defense under the terms of the
statute. A jury convicted Rosen as charged. The district court
merged the misdemeanor and felony convictions. Rosen appeals.


             ISSUE AND STANDARD OF REVIEW

¶7       Rosen raises one issue on appeal. He claims that his trial
counsel was constitutionally ineffective for failing to challenge
the applicable statutory scheme under the uniform operation of
laws provision of the Utah Constitution. See Utah Const. art. I,
§ 24. 3 “When a claim of ineffective assistance of counsel is raised

2. Because the relevant provisions of the Utah Code in effect
when Rosen committed his offense do not materially differ from
those currently in effect, we cite the current version of the code
for convenience.

3. While known as the uniform operation of laws provision,
Article I, Section 24 of the Utah Constitution has long been
                                                (continued…)


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                           State v. Rosen


for the first time on appeal, there is no lower court ruling to
review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of
law.” Layton City v. Carr, 

, 

(quotation simplified).


                            ANALYSIS

¶8      To succeed on a claim of ineffective assistance of counsel,
an appellant must show, first, “that counsel’s performance was
deficient” and, second, “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 

 (1984). “Because failure to establish either prong of the test is
fatal to an ineffective assistance of counsel claim, we are free to
address [these] claims under either prong.” Honie v. State, 

, 

. We limit our consideration of this case
to the first prong.

¶9     In determining whether counsel’s performance was
deficient, we “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance,” Strickland, 

, and we “give trial counsel
wide latitude in making tactical decisions and will not question
such decisions unless there is no reasonable basis supporting
them,” State v. Clark, 

, 

 (quotation
simplified). “Moreover, deficient performance is not determined

(…continued)
considered Utah’s version of the federal equal protection clause
as the two “embody the same general principle.” Gallivan v.
Walker, 

, 

 (quotation simplified). See
also Blue Cross & Blue Shield of Utah v. State of Utah, 

 (Utah 1989) (“The principles and concepts embodied in the
federal equal protection clause and the state uniform operation
of the laws provision are substantially similar.”).




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                           State v. Rosen


in a vacuum; rather, it involves asking whether the strategy
counsel employed was that of a reasonable, competent lawyer in
the real-time context” of the proceeding. State v. Wilkes, 

, 

 (quotation simplified). “However,
even where a court cannot conceive of a sound strategic reason
for counsel’s challenged conduct, it does not automatically
follow that counsel was deficient,” because “the ultimate
question is always whether, considering all the circumstances,
counsel’s acts or omissions were objectively unreasonable.” State
v. Scott, 

, 

. Accord State v. Ray, 

, ¶¶ 34–36, 

.

¶10 To determine whether a statute violates the uniform
operation of laws provision, courts “apply a three-step analysis:
(1) whether the statute creates any classifications; (2) whether the
classifications impose any disparate treatment on persons
similarly situated; and (3) if there is disparate treatment, whether
the legislature had any reasonable objective that warrants the
disparity.” State v. Robinson, 

, 

(quotation simplified). Under the third step, if the challenged
statute creates classifications based on age, courts apply a
rational basis review to the Legislature’s decision. See Merrill v.
Utah Labor Comm'n, 

, 

. “Rational
basis scrutiny [is] a low bar under which classifications
employed by the legislature are presumptively permissible.”
Taylorsville City v. Mitchell, 

, 

(quotation simplified). And we “will uphold a statute under the
rational basis standard if it has a reasonable relation to a proper
legislative purpose, and is neither arbitrary nor discriminatory.”
State v. Angilau, 

, 

 (quotation
simplified). Accord Mitchell, 

.

¶11 Here, because Rosen did not raise a uniform operation of
laws argument below, we do not directly address the
constitutionality of the statutory scheme. Rather, we must
consider the question through the restrictive lens employed in



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                          State v. Rosen


reviewing claims of ineffective assistance of counsel. Thus, we
must determine whether counsel performed deficiently in not
challenging the scheme as being violative of the uniform
operation of laws doctrine. See Strickland, 

.

¶12 We can readily determine that Rosen’s counsel did not
render deficient performance. A uniform operation of laws
challenge is a relatively sophisticated undertaking. But even
assuming that objectively reasonable counsel would have
perceived the availability of such a challenge and investigated it
with care, reasonable counsel could still have determined that
any such attack on the statutory scheme might well have failed
under the third and final step of the operation of laws analysis.
Reasonable counsel would know that the district court was
required to apply the lenient rational basis review standard to
the statutory scheme and that the court would likely conclude
that the Legislature had a rational basis for treating some
younger defendants differently from defendants who were “10
or more years older than the minor at the time of the sexual
conduct.” See 

(2)(a)(i)–(ii)
(LexisNexis Supp. 2020). Reasonable counsel could have
determined that the Legislature had a rational basis for the
scheme because older adults are more likely to have greater
authority in a minor’s eyes, making the minor more likely to
acquiesce to the designs of older adults. See generally People v.
Cavallaro, 

 (Ct. App. 2009) (“The
Legislature could have properly concluded that it was necessary
to specifically prohibit sexual conduct between a 14- or
15-year-old and an adult at least 10 years older and to include
mandatory sex offender registration based upon a conviction for
the offense, because of the potential for predatory behavior
resulting from the significant age difference between the adult
and the minor.”). Moreover, older adults may be better able to
manipulate and control minors than are adults closer in age to
the minors. And reasonable counsel might well have perceived
that the Legislature could have concluded that these older adults



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                          State v. Rosen


would be more intuitively aware of the apparent age
discrepancy and reasonably be expected to comport themselves
with more maturity and caution.

¶13 In addition, reasonable counsel would have learned, in
the course of basic research, that similar statutory schemes have
been routinely upheld. See, e.g., Doe v. Oberweis Dairy, 

 (7th Cir. 2006) (“In Illinois as elsewhere the crime is
considered more serious the greater the disparity in ages
between the parties. The theory is that a young girl (or boy) is
likely to have particular difficulty resisting the blandishments of
a much older man.”); State v. Anthony, 

 (N.C.
2000) (holding that the legislature made “a legitimate legislative
decision” in determining “that sexual intercourse or sexual acts
with children deserve more severe punishment . . . based on a
greater difference in age between the victim and the older
defendant”); State v. Walborn, 

 (Fla. Dist. Ct.
App. 1999) (holding that the legislature’s decision “to limit
criminal responsibility to persons twenty-four years of age and
over” was reasonable “because the legislature felt that persons in
this group were more likely than others to understand the
consequences of their actions and to cause harm to minors who
cannot appreciate the seriousness of their activities,” and that
“therefore, the age limitation . . . is not arbitrary when balanced
against the goals of protecting minors from sexual exploitation”).
While a line drawn at 10 years (as opposed to 9 or 11 or 10 ¾
years) is necessarily somewhat arbitrary because it leaves
“people close to the boundary on either side . . . similarly
situated,” reasonable counsel could have logically concluded
that this does not make the statutory scheme impermissible. See
Angilau, 

. And this conclusion would be
reinforced upon recognizing that the Utah Supreme Court and
“the United States Supreme Court have held that age is a
permissible method of classifying individuals where a rational
basis exists.” See 

 (quotation simplified).




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                           State v. Rosen


¶14 Thus, reasonable counsel could have determined that the
statute would withstand rational basis review and that it was
sensible to forgo an argument that was likely to fail. See State v.
Kelley, 

, 

 (“Failure to raise futile
objections does not constitute ineffective assistance of counsel.”).
Accordingly, Rosen has not overcome the “strong presumption
that counsel’s conduct [fell] within the wide range of reasonable
professional assistance,” see Strickland, 

, nor has he
“show[n] that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment,” see 

.


                          CONCLUSION

¶15 Reasonable counsel could have concluded that the
Legislature had a rational basis for the scheme it enacted and
that any challenge before the district court premised on the
uniform operation of laws provision would likely have been
fruitless. It therefore cannot be said that Rosen’s trial counsel
was constitutionally ineffective in forgoing such a challenge.

¶16    Affirmed.




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