State v. Winter

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                           Appellee,
                              v.
                     JOHN THOMAS WINTER,
                          Appellant.

                            Opinion
                       No. 20220474-CA
                       Filed July 18, 2024

           Third District Court, Salt Lake Department
                The Honorable Vernice S. Trease
                          No. 191908361

           Andrea J. Garland and Isaac E. McDougall,
                    Attorneys for Appellant
                Sean D. Reyes and Connor Nelson,
                     Attorneys for Appellee

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
     JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1     John Thomas Winter pled no contest to one count of
sodomy on a child, reserving his right to appeal whether his case
should have been dismissed on statute-of-limitations grounds.
Through successive amendments, the Utah Legislature had
lengthened the applicable limitations period—each time before
the prior limitations period had run. For a number of reasons,
Winter claims that the amendments could not apply to his case.
The district court rejected Winter’s arguments, and we do too. As
a result, we affirm the district court’s rulings and Winter’s
conviction.
                         State v. Winter


                        BACKGROUND

¶2     Sometime between August 30, 1988, and August 30, 1990,
Winter sexually abused Sarah, 1 his cousin. At the time, Sarah was
five or six years old, and Winter was an adult living with Sarah’s
family. Winter would enter Sarah’s bedroom late at night and
“unroll [her] out of the blanket and touch [her] vagina” under her
clothing with his fingers. While Sarah could not recall the exact
number of times this happened, she testified that it happened
“repeatedly.” Additional abuse occurred around this same time
when Winter babysat Sarah. Winter would touch Sarah’s vagina
and make her “put his penis in [her] mouth.” Winter grabbed
Sarah by the neck and told her that “he would kill [her] if [she]
told anybody.”

¶3     Sarah told her friend about the abuse each time it
happened. Then at age twelve, Sarah told her “whole family,” but
no action was taken. Over the years, she told additional family
members about the abuse. She has since seen Winter at family
events and when he “showed up” uninvited at her wedding.

¶4     In 2019, Sarah reported the abuse to law enforcement. And
in October 2019, the State charged Winter with one count of
sodomy on a child, one count of aggravated sexual abuse of a
child, and one count of sexual abuse of a child. At a preliminary
hearing later that same month, Sarah testified about the abuse and
identified Winter as the perpetrator. The district court bound
Winter over on all charges for trial.

¶5     In December 2019, Winter filed a motion to dismiss the
charges for violation of ex post facto provisions of the United
States and Utah Constitutions because the statute of limitations
being applied “was different now than when the acts [were]
alleged.” The State opposed the motion but also amended the
charge of aggravated sexual abuse of a child to sexual abuse of a

1. A pseudonym.


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                           State v. Winter


child in order to remedy any ex post facto issues. Winter
withdrew the motion as he believed the amended charges
“resolve[d] any issue” related to ex post facto law violations.

¶6     In November 2020, Winter filed a second motion for
dismissal, this time under rule 25 of the Utah Rules of Criminal
Procedure. See Utah R. Crim. P. 25(b)(1) (“The court shall dismiss
the information or indictment when . . . [t]here is unreasonable or
unconstitutional delay in bringing defendant to trial . . . .”). Winter
argued that because the original statute of limitations had run, the
charges violated his due process rights under the Utah
Constitution. In its opposition to the motion, the State argued that
because the original statute of limitations for the charged offenses
had not run before the legislature amended and expanded it, the
amended statute of limitations applied to Winter’s charges. In the
State’s view, the extended statute of limitations had not expired
and therefore there was no violation of Winter’s due process
rights. The district court agreed with the State and denied
Winter’s motion. Winter petitioned this court for permission to
mount an interlocutory appeal from the district court’s order,
which we denied.

¶7      As part of a plea agreement, Winter entered a no contest
plea to one count of sodomy on a child while reserving the right
to appeal “the question of the statute of limitations.” See 

R. 11(j); State v. Sery, 

, 937–40 (Utah Ct. App. 1988). In
exchange, the State dropped the two sexual abuse of a child
charges and a separate case pending against Winter. The district
court sentenced Winter to “an indeterminate term of not less than
five years and which may be life in prison” for the sodomy on a
child conviction. Winter appeals.


             ISSUES AND STANDARDS OF REVIEW

¶8     Winter raises two issues on appeal. First, Winter argues
that, under section 68-3-3 of the Utah Code, the district court erred


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                           State v. Winter


by retroactively applying an amended statute of limitations for his
charged crimes because the amended limitations period is longer
than the limitations period applicable at the time the abuse
occurred. “Whether the trial court applied the proper statute of
limitations is a matter of law that we review for correctness.” State
v. Green, 

, 

. Additionally, when the
issue requires us to engage in statutory interpretation, we review
the district court’s decision for correctness. State v. Toombs, 

, 

. However, “[w]e review the trial
court’s findings concerning events relevant to the application of
the statute of limitations as questions of fact, which we will not
disturb unless clearly erroneous.” Green, 

. The State
argues that Winter did not preserve this issue for appeal. Winter
asserts that the issue was preserved but also argues in the
alternative that the district court’s actions amounted to plain
error—an exception to our preservation requirement. “Plain error
is a question of law reviewed for correctness.” State v. Popp, 

, 

 (cleaned up).

¶9     Second, Winter argues that the district court violated his
due process rights by applying the amended statute of limitations.
“Constitutional issues, including questions regarding due
process, are questions of law that we review for correctness.” State
v. Charles, 

, 

 (cleaned up).


                             ANALYSIS

¶10 To properly address each of Winter’s claims, we begin by
reciting the relevant legislative history of the statute of limitations
for sodomy on a child. As stated above, Winter’s abuse of Sarah
took place sometime between August 30, 1988, and August 30,
1990. For purposes of this analysis, we will assume the abuse
happened in 1988—the earliest possible date of Winter’s conduct.
In 1988, the statute of limitations for sodomy on a child was “one
year after the report of the offense to law enforcement officials, so
long as no more than eight years ha[d] elapsed since the alleged


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                           State v. Winter


commission of the offense.” Utah Code § 76-1-303(c) (1988). In
1991, the legislature extended the statute of limitations to “within
four years after the report of the offense to a law enforcement
agency.” Act of Feb. 25, 1991, ch. 175, § 2, 

, 681
(codified as Utah Code § 76-1-303(3) (1991)); see also Act of Feb. 20,
1995, ch. 232, § 4, 

, 791 (codified as Utah Code
§ 76-1-303.5 (1996)) (changing the applicable subsection but
maintaining the same statute of limitations for sodomy on a
child). In 2008, the legislature amended the statute once again, this
time eliminating any statute of limitations defense for sodomy on
a child. Act of Feb. 11, 2008, ch. 129, § 1, 

, 1143
(codified as Utah Code § 76-1-301(13) (2008)) (“Notwithstanding
any other provisions of this code, prosecution for the following
offenses may be commenced at any time: . . . sodomy on a
child . . . .”).

                         I. Statutory Claim

¶11 Winter first argues that the district court “prejudicially
erred by failing to follow section 68-3-3.” That section states that
a “provision of the Utah Code is not retroactive, unless the
provision is expressly declared to be retroactive.” Utah Code § 68-
3-3. Winter contends that because the amendments to the statute
of limitations did not include express declarations of retroactivity,
“they applied only prospectively to crimes occurring after their
effective dates” and thereby did not apply to Winter.

¶12 The State argues that Winter has not preserved this issue
for our review on appeal, and we agree. “When a party fails to
raise and argue an issue in the trial court, it has failed to preserve
the issue, and an appellate court will not typically reach that issue
absent a valid exception to preservation.” State v. Johnson, 

, 

.

       An issue is preserved for appeal when it has been
       presented to the district court in such a way that the
       court has an opportunity to rule on it. To provide


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                           State v. Winter


       the court with this opportunity, the issue must be
       specifically raised by the party asserting error, in a
       timely manner, and must be supported by evidence
       and relevant legal authority.

 (cleaned up). “We view issues narrowly,” and an issue is
unpreserved “when the appellant raises a legal theory entirely
distinct from the legal theory” raised before the district court.
Ahhmigo, LLC v. Synergy Co. of Utah, LLC, 

, 

 (cleaned up).

¶13 Winter’s arguments to the district court made no mention
of section 68-3-3; instead, in his motion to dismiss the charges, he
framed his arguments against retroactive application of the
statute of limitations solely as a violation of his due process rights.
Winter argues that his statutory theory against retroactivity was
preserved for appellate review by these due process arguments.
To support this assertion, Winter points us to our supreme court’s
decision in Patterson v. Patterson, 

, 

, which
states that “we routinely consider new authority relevant to issues
that have properly been preserved” and are “unwilling to
disregard controlling authority that bears upon the ultimate
resolution of a case solely because the parties did not raise it
below.” Id. ¶ 18. Patterson “confirm[ed] that we view issues
narrowly, but also made it clear that new arguments, when
brought under a properly preserved issue or theory, do not
require an exception to preservation.” Johnson, 

, ¶ 14
n.2. New arguments include things such as “citing new authority
or cases supporting an issue that was properly preserved.” 

Patterson requires “courts to look at the underlying policies to
determine whether new arguments are actually entirely new
issues” that may or may not be preserved. 

 Our supreme court
has pointed out that “every case cited in Patterson to support the
assertion that this court has refused to consider new arguments
on appeal, dealt with entirely new legal theories” and therefore
involved matters that were unpreserved. 

 (cleaned up).



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                           State v. Winter


¶14 In Ahhmigo, LLC v. Synergy Co. of Utah, LLC, 

, 

, an appeal followed arbitration proceedings concerning
one party’s failure to deliver product that the other party had
already paid for. 

 ¶¶ 1–2. On appeal, the appellant argued that
“the arbitrator manifestly disregarded the law when he failed to
credit an alleged stipulation between the parties” that a provision
of their contract “was not a liquidated damages provision.” Id.
¶ 14. The appellant did not argue an exception to preservation but
instead argued that “it preserved the issue by submitting to the
district court the issue of whether [the appellee] was entitled to
keep both [of the appellant’s] payments and the resale proceeds.”
Id. ¶ 17 (cleaned up). According to the appellant, “that issue
include[d] its argument about liquidated damages because Utah
law limits damages by excluding proceeds from resale, unless a
liquidated damages provision provides otherwise.” Id. (cleaned
up). Our supreme court was unpersuaded and determined that
the appellant’s “effort to evade our preservation rule by broadly
defining the issue it raised in the district court [was] unavailing.”
Id. ¶ 18 (cleaned up). The court concluded that the appellant’s
argument on appeal was an entirely distinct legal theory from that
which it raised below because before the district court the
appellant focused on “whether the arbitrator manifestly
disregarded the law when he failed to apply the damages
framework” laid out in our caselaw, while on appeal the appellant
asked “whether the arbitrator manifestly disregarded the law
when he chose to ignore the parties’ stipulation that the contract
did not contain a liquidated damages provision.” Id. ¶ 19 (cleaned
up). The court reasoned that “a party may not preserve an issue
by merely mentioning it” and that the appellant “at best” “briefly
mentioned the alleged agreement between the parties to the
district court,” which, “as our preservation rule makes clear, is not
enough.” Id. ¶ 22 (cleaned up).

¶15 In True v. Utah Department of Transportation, 

, 

, without arguing an exception to preservation,
the appellants contended that their proximate cause argument



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                          State v. Winter


connected to a waiver of governmental immunity under the
application of new caselaw was preserved on appeal because “the
basic issue of whether [the appellee had] immunity” had been
raised. Id. ¶ 21 (cleaned up). Our court disagreed because “even
though the overarching issue of causation was before the district
court, the [appellants] did not preserve the distinct legal theory
. . . advanced on appeal.” Id. ¶ 22.

¶16 Like in Ahhmigo and True, Winter argues that his statutory
argument is preserved by the arguments he made below, but we
are unpersuaded by Winter’s “effort to evade our preservation
rule by broadly defining the issue” he raised before the district
court. Ahhmigo, 

 (cleaned up). Winter argued
before the district court that the statute of limitations had run on
the claims against him and that alone was sufficient grounds to
dismiss the case. He argued further that the Utah Constitution
barred the charges because he had a vested right to retain the
statute of limitations defense due to the limitations period
having run. Importantly, he made no mention of section 68-3-3
in his arguments to the district court, and he did not ask the
district court to weigh in on the legal theory that this statute—
as opposed to other legal principles—compelled a result in his
favor. In contrast, on appeal, Winter’s legal theory is that,
regardless of whether the statute of limitations had run, section
68-3-3 prevents the retroactive application of a statute of
limitations without an express provision in the later-enacted
statute. Winter “never presented this theory or the underlying
line of reasoning” to the trial court.” Federated Cap. Corp. v.
Deutsch, 

, 

. “A party may not
preserve an issue by merely mentioning it,” Ahhmigo, 

 (cleaned up), and here Winter did not even do that much.
Thus, because Winter did not preserve for appellate review the
specific legal theory he now raises on appeal, we turn to his
alternative argument and examine the theory under the plain
error standard.




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                           State v. Winter


¶17 For us to consider an unpreserved issue on appeal, an
appellant must establish that an exception to preservation applies,
and plain error is one such exception. Johnson, 

.
“To demonstrate plain error, a defendant must establish that (i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful.” Id. ¶ 20 (cleaned up). Failure
to meet any of these requirements is fatal to a claim of plain error.
Id.

¶18 Our supreme court has rejected Winter’s statutory
argument in the context of a rape of a child charge, determining
that the amended statute of limitations applied retroactively, even
in the face of section 68-3-3. State v. Green, 

, ¶¶ 20–22,

. No district court judge would be expected to ignore
such on-point precedent. And, if following this precedent were
indeed to be an error, as Winter claims it is, that error—requiring
the judge to disregard an opinion from our supreme court directly
discussing the issue—would be far from obvious to the district
court. Indeed, the reverse would be true—it would be obvious to
the district court that it would be error to contravene supreme
court precedent. Thus, given this precedent, the district court did
not commit plain error by not sua sponte applying section 68-3-3
in the manner now urged by Winter.

¶19 Alternatively, in Utah, well-established precedent holds
that “because statutes of limitations are procedural in nature, a
legislative amendment enlarging a limitation[s] period may be
applied retroactively to crimes committed before the amendment
where the limitations defense has not accrued to the defendant
before the amendment becomes effective.” State v. Lusk, 

, 

 (cleaned up); accord Garcia v. State, 

, 

.

¶20 In State v. Clark, 

, 

, our supreme
court discussed retroactivity of statutes and clarified that “we
apply the law as it exists at the time of the event regulated by the



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                           State v. Winter


law in question.” Id. ¶ 13. The court continued that the difference
in the treatment of amended substantive statutes—beholden to
section 68-3-3—versus those that are procedural—such as the
statute of limitations—is “the nature of the underlying occurrence
at issue.” Id. ¶ 14.

       On matters of substance the parties’ primary rights
       and duties are dictated by the law in effect at the
       time of their underlying primary conduct (e.g., the
       conduct giving rise to a criminal charge or civil
       claim). When it comes to the parties’ procedural
       rights and responsibilities, however, the relevant
       underlying conduct is different: the relevant
       occurrence for such purposes is the underlying
       procedural act (e.g., filing a motion or seeking an
       appeal).

Id. Thus, the law governing procedural occurrences is “the law in
effect at the time of the procedural act, not the law in place at the
time of the occurrence giving rise to the parties’ substantive
claims.” Id.

¶21 Under this precedent—where the statute of limitations has
been held to be a procedural matter—the district court did not
plainly err by denying Winter’s motion to dismiss because at the
time of the procedural act—the filing of the charges—the statute
of limitations had not yet run. Winter, at the earliest, abused Sarah
in 1988. At that time, the statute of limitations was one year after
the report of the offense to law enforcement, so long as no more
than eight years had passed since the time of the alleged abuse.
The legislature amended the statute three years later, in 1991, at
which point Sarah had not reported the abuse to law enforcement
and at least five years remained before the statute of limitations
would have run under the eight-year requirement. Thus, because
the “limitations defense ha[d] not accrued” before the 1991
amendment became effective, the amendment applied to Winter’s



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                          State v. Winter


crimes. See Lusk, 

. Under the 1991 statute, the
statute of limitations was expanded to four years after a report of
the offense to law enforcement. When the legislature amended the
statute again in 2008, Sarah had not made a report of the abuse to
law enforcement, so the statute of limitations had again not yet
run, thus the 2008 amendment applied. Under the 2008
amendment, a statute of limitations defense for sodomy on a child
was eliminated entirely. Thus, because at no point since 1988 did
the statute of limitations run before it was amended, when Sarah
reported the abuse to law enforcement in 2019, the 2008
elimination of the statute of limitations was in effect and the
charges were not time-barred.

¶22 Thus, under either analysis, existing caselaw runs counter
to Winter’s position, and therefore the district court did not
plainly err by not sua sponte applying section 68-3-3 in the
manner now urged by Winter, and the court did not plainly err in
denying Winter’s motion to dismiss.

                      II. Due Process Claim

¶23 Winter next argues that the district court violated his due
process rights “by failing to apply the statute of limitations that
applied at the time of his alleged crimes and which expired before
the State filed the instant charges.” 2 Under the Utah Constitution,
“[n]o person shall be deprived of life, liberty or property, without
due process of law.” Utah Const. art. I, § 7. The Due Process


2. As part of this argument, Winter contends that his due process
rights were violated because the amendments to the statute of
limitations “violate constitutional ex post facto prohibitions.” See
State v. Marshall, 

, 

 (“Article I,
§ 10, of the [United States] Constitution prohibits the States from
passing any ex post facto law.” (cleaned up)). However, Winter
concedes that he “waived the ex post facto claim,” and we therefore
will not address this issue.


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                           State v. Winter


Clause is a “constitutional standard measured by reference to
traditional notions of fair play and substantial justice.” Mitchell v.
Roberts, 

, 

 (cleaned up). “The bare
essentials of due process have been characterized as notice of the
proposed action of deprivation and an opportunity to be heard in
a meaningful manner.” In re Baby Girl T., 

, ¶ 16, 

 (cleaned up). However, due process “is flexible and
requires such procedural protections as the particular situation
demands.” Id. ¶ 31 (cleaned up).

¶24 The procedural protections required here have been clearly
laid out by both the legislature and our supreme court. The Utah
Rules of Criminal Procedure require dismissal when the
“prosecution is barred by the statute of limitations.” Utah R. Crim.
P. 25(b)(5). When “an issue concerning the statute of limitations is
raised” in a sodomy on a child case, “the judge shall determine by
a preponderance of the evidence whether the prosecution is
barred by the limitations in [the statute].” Utah Code § 76-1-306. 3
Statutory amendments “enlarging a statute of limitations”—such


3. Winter argues that this statute required the district court to
make factual findings as to whether the “preponderance of the
evidence” supported the conclusion that the statute of limitations
had run. See Utah Code § 76-1-306. Winter contends that the
district court made no such findings and did not determine which
statute of limitations applied. However, this statute does not
require the district court to enter factual findings on the record;
instead, it sets forth the standard of proof district courts are to
apply. Absent any indication otherwise, “we can reasonably
assume that the court actually made [any required] findings” to
reach its decision. State v. Weeks, 

, 

(cleaned up) (rejecting a defendant’s argument to read a
sentencing statute as requiring courts to make factual findings on
the record). The record here gives us no reason to think that the
district court applied a lesser standard or failed to determine the
appropriate statute of limitations to apply.


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                          State v. Winter


as the 1991 and 2008 amendments here—“will extend the
limitations period applicable to a crime already committed only if
the amendment becomes effective before the previously
applicable statute of limitations has run, thereby barring
prosecution of the crime.” State v. Toombs, 

,

 (cleaned up); see also State v. Green, 

,

; State v. Lusk, 

, 

.

¶25 Because the limitations period never ran on Winter’s
charges ahead of each amendment, the amendments extending
and later eliminating the statute of limitations retroactively
applied to the charges against him. Thus, Winter never had a right
to rely on a statute of limitations defense because the statute of
limitations never ran on his charges and his due process rights
were not violated. Therefore, we reject Winter’s argument. 4


                         CONCLUSION

¶26 Winter’s claims regarding the applicability of Utah Code
section 68-3-3 are unpreserved. The district court did not plainly
err when it did not sua sponte apply that statute in the manner
Winter now urges, and it did not plainly err by applying existing
caselaw regarding the retroactivity of amendments to the statute
of limitations. Furthermore, applying the then-applicable statute
of limitations did not violate Winter’s due process rights.
Accordingly, we affirm.



4. To the extent that Winter asks us to depart from our supreme
court’s precedent, we reject his request as we do not have the
authority to do so. In re G.D., 

, 

(explaining that the “court of appeals is bound” by our supreme
court’s precedent and any effort before this court to overturn
those decisions is “futile”). Winter does not argue otherwise. We
recognize that Winter makes these arguments eyeing an eventual
petition to our supreme court.


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