This case involves an internet sting operation conducted by an undercover police officer posing as someone offering a minor for sex with adults. The Court of Appeals reviewed whether Austin had taken a substantial step towards attempting to perform sexual acts with a minor.
Facts of the Case
Austin began chatting online with an undercover officer who was posing as a twenty-five-year-old man. When Austin brought up the topic of underage sex, the officer responded that he lives with his 13-year-old-cousin and the two of them “do stuff all the time.” Austin expressed interest in having sex with them both, and the officer suggested they meet up that night. Austin declined the meet-up but sent multiple messages reaching out over the next few days. The officer continued to bring the focus back to the cousin, to make it clear that any meet-up would not only be with a consenting adult.
Austin continued to ask questions and make comments about having sex with the 13-year-old-cousin. The undercover officer told Austin multiple times that it was fine if he wasn’t comfortable with this, attempting to offer Austin an opportunity to leave the conversation. Eventually Austin agreed to meet at a park, supposedly near some townhomes where the officer and cousin lived. When Austin arrived at the park he was arrested and police found condoms, sexual lubricant, and a sex toy he had brought as well.
Austin was charged with attempted sodomy on a child, and his case eventually went to trial. Austin’s attorneys argued there was insufficient evidence that Austin had attempted to commit this offense, stating, “going to a park and meeting up with an officer and nothing more is not a substantial step.” Austin also testified that what he said about the cousin was only role play, and if there had been a child at the park he would have immediately left. Austin was convicted by the jury of attempted sodomy on a child.
Issue on Appeal
Austin appealed his conviction, claiming that there was insufficient evidence to support his conviction. The Court reviewed whether there was sufficient evidence that Austin intended to commit sodomy on a child and had taken a substantial step toward committing this offense.
Analysis
Utah’s attempt statute requires that an actor take a substantial step towards committing a crime that they actually intend to commit. The Utah Supreme Court has stated that a substantial step requires “significant conduct in the form of an overt act.” An overt act is something more than mere preparation and takes an actor closer to committing a crime while falling short of completing it.
In his conversations with the undercover officer, Austin discussed specific sexual acts that would constitute sodomy on a child. Austin and the officer also planned a meet-up at a specific time and location where the acts were meant to occur. In the context of these conversations, Austin’s arrival at the park went “beyond mere preparation for the crime and amounted to significant conduct in the form of an overt act.” Austin brought with him condoms, lubricant, and a sex toy, further corroborating his intent to have sex at the meet-up. The undercover officer also made it clear in their conversations that the meet-up would involve sex with both the consenting adult and thirteen-year-old-cousin as well.
The Court of Appeals also rejected Austin’s claim that his comments were merely fantasy and role play. During their conversations Austin expressed concern about not wanting to hurt the cousin while they had sex. Austin clearly believed that cousin was a real person, and recognized “the tangible harm Cousin could suffer as a result of the planned activity.”
Holding
The Court upheld Austin’s conviction, rejective his argument that he had not taken a substantial step towards committing this offense. Austin’s prior conversations and conduct corroborated his intent to have sex with a minor when he showed up at the park.