                This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                2013 UT 28

                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH
                           STATE OF UTAH,
                       Plaintiff and Respondent,
                                      v.
                        ANTHONY WATKINS,
                       Defendant and Petitioner.

                             No. 20110458
                          Filed May 10, 2013

            On Certiorari to the Utah Court of Appeals

                   Eighth District, Vernal Dep’t
                 The Honorable John R. Anderson
                         No. 081800579

                                Attorneys:
  John Swallow, Att’y Gen., Jeanne B. Inouye, Asst. Att’y Gen.,
                Salt Lake City, for respondent
     Michael K. Mohrman, Mitchell S. Maio, Jamie G. Pleune,
                  Salt Lake City, for petitioner

   JUSTICE PARRISH authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
             JUSTICE DURHAM, and JUSTICE LEE joined.


    JUSTICE PARRISH, opinion of the Court:
                          INTRODUCTION
     ¶1 Anthony Watkins was convicted of aggravated sexual
abuse of a child, H.C. His conviction was based on the holding that
he occupied a “position of special trust in relation to the victim”
under Utah Code section 76-5-404.1(4)(h). Because Mr. Watkins was
temporarily staying in the spare bedroom of H.C.’s father’s house,
the district court and the court of appeals both held that he was an
“adult cohabitant of a parent [of the victim].” Id.; State v. Watkins,
2011 UT App 96, ¶ 16, 250 P.3d 1019. The position of “adult
cohabitant of a parent” is one of several positions specifically
referenced in section 76-5-404.1(4)(h). The question before us is
whether Mr. Watkins’s status as an “adult cohabitant” of H.C.’s
                         STATE v. WATKINS
                       Opinion of the Court

father was sufficient, as a matter of law, to support the conclusion
that he occupied a “position of special trust in relation to [H.C.].”
     ¶2 We vacate Mr. Watkins’s conviction and remand the case
for further proceedings. The fact that a defendant occupies one of
the positions listed in section 76-5-404.1(4)(h), such as “adult
cohabitant of a parent,” is insufficient, standing alone, to aggravate
the crime of sexual abuse of a child. Rather, to establish that a
defendant occupies a “position of special trust in relation to the
victim,” the State must establish that the defendant occupies “a
position of authority” in relation to the victim and must further
establish that “by reason of that position [the defendant] is able to
exercise undue influence over the victim.” Id. § 76-5-404.1(4)(h).
                         BACKGROUND
     ¶3 In September of 2008, Mr. Watkins temporarily moved in
with his niece, Tristan Schoenberger; her husband, Joe Schoenberger;
and their family. The Schoenbergers had three children of their own
living in the home. In addition, Mr. Shoenberger’s daughter from a
prior relationship, H.C., regularly visited and stayed overnight on at
least two occasions while Mr. Watkins was present.
     ¶4 During Mr. Watkins’s stay, the Schoenbergers told their
children to call Mr. Watkins “Uncle Tony.” But H.C. testified that
she simply called him “Tony,” not understanding how he fit into the
family. Though Mr. Watkins watched the children on at least one
occasion and would speak up if he saw the children doing some-
thing inappropriate, Mrs. Shoenberger testified that Mr. Watkins did
not have a formal role in the daily operations of the family.
    ¶5 On approximately October 15, 2008, H.C. stayed over at the
Schoenbergers. After H.C. and her brothers had gone to bed in
H.C.’s room, Mr. Watkins came into the room and lay down next to
H.C. Mr. Watkins then “started kissing [H.C.’s] head and kind of
pinching [her] butt.” H.C. “told him to leave” and when he did not,
“[she] got mad and told him to leave again,” at which point Mr.
Watkins left the room.
      ¶6 Later, “[Mr. Watkins] came back in and gave [H.C. a] $100
bill and told [her] not to tell anybody.” While H.C. told her father
about the one hundred dollar bill the next morning, she did not tell
him about the rest of the incident until a few weeks later.
    ¶7 The State charged Mr. Watkins with aggravated sexual
assault of a child under Utah Code section 76-5-404.1(4)(h). State v.
Watkins, 2011 UT App 96, ¶ 5, 250 P.3d 1019. The State asserted that

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Mr. Watkins’s status as an “adult cohabitant of a parent” constituted
an aggravating factor because he occupied a “position of special
trust” under section 76-5-404.1(4)(h). Id.
     ¶8 The case was tried to a jury. At the close of the State’s case,
Mr. Watkins moved for dismissal, arguing that the State had failed
to satisfy the statutory elements of aggravated sexual abuse of a
child under Utah Code section 76-5-404.1(4)(h) because it had failed
to demonstrate that Mr. Watkins occupied a “position of special
trust” in relation to H.C. and that under Utah Code section 76-5-
401.1(2), he had not acted with the “intent to arouse or gratify the
sexual desire of any person.” Id.
     ¶9 The district court denied Mr. Watkins’s motion to dismiss
and concluded that “the position of trust was simply indicated by a
mature adult and a 10-year-old child who had lived in the same
home” and that the jury should decide the issue of intent. Id.
(internal quotation marks omitted). The jury convicted Mr. Watkins
as charged. Id.
      ¶10 Prior to sentencing, Mr. Watkins filed a motion for a new
trial, asserting in part the same theories he had raised in his motion
to dismiss. The district court denied the motion and sentenced
Mr. Watkins to a prison term of ten years to life.
     ¶11 Mr. Watkins appealed the denial of his motions to dismiss
and for a new trial to the court of appeals. Id. ¶¶ 7–8. Mr. Watkins
argued, among other things, that he was not in a “position of special
trust” in relation to H.C. and could not therefore have used such a
position to exert undue influence over her. Id. ¶¶ 9, 11 n.5.
     ¶12 The court of appeals rejected Mr. Watkins’s argument,
holding that Mr. Watkins held a “position of special trust” under its
interpretation of section 76-5-404.1(4)(h). Id. ¶ 9. It ruled:
       [A] position of special trust may be established in two
       ways:
           either by occupying a position specifically listed
           by statute or by fitting the definition of a position
           of special trust, which the statute clearly defines
           as a position occupied by a person in a position of
           authority, who, by reason of that position is able
           to exercise undue influence over the victim.
Id. ¶ 11 (footnote omitted) (internal quotation marks omitted).
Because Mr. Watkins was a cohabitant of H.C.’s father, a position
specifically listed in the statute, the court of appeals concluded that

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                         Opinion of the Court

he held a “position of special trust” in relation to H.C. as a matter of
law. Id. ¶ 16. And it rejected Mr. Watkins’s argument that the
temporary nature of his residence with H.C.’s father was relevant.
Id. ¶.
     ¶13 On certiorari, Mr. Watkins argues that the court of appeals
erred in its interpretation of section 76-5-404.1(4)(h). Specifically, he
contends that the court erred when it held that proof of Mr.
Watkins’s position as a cohabitant of H.C.’s father created an
irrebuttable presumption that Mr. Watkins both occupied a “position
of authority, [and], by reason of that position [was] able to exercise
undue influence over the victim.” UTAH CODE § 76-5-404.1(4)(h).
    ¶14 We granted certiorari and have jurisdiction pursuant to
Utah Code section 78A–3–102(3)(a).
                     STANDARD OF REVIEW
     ¶15 On certiorari, we review the decision of the court of
appeals for correctness. State v. Visser, 2000 UT 88, ¶ 9, 22 P.3d 1242.
Likewise, a question of statutory construction is reviewed for
correctness and we accord no deference to the legal conclusions of
the court of appeals. State v. Martinez, 2002 UT 80, ¶ 5, 52 P.3d 1276.
                             ANALYSIS
     I. THE PLAIN LANGUAGE OF UTAH CODE SECTION
          76-5-404.1(4)(h) PRESENTS THREE POSSIBLE
            INTERPRETATIONS THAT AFFECT ITS
               APPLICATION TO MR. WATKINS
     ¶16 Utah Code section 76-5-404.1 articulates the elements of
sexual abuse of a child. Under subsection (4)(h), the crime of sexual
abuse of a child is aggravated if “the offense was committed by a
person who occupied a position of special trust in relation to the
victim.” UTAH CODE § 76-5-404.1(4)(h) (emphasis added). Subsec-
tion (4)(h) states that a
       “position of special trust” means that position occu-
       pied by a person in a position of authority, who, by
       reason of that position is able to exercise undue
       influence over the victim, and includes, but is not
       limited to, a youth leader or recreational leader who is
       an adult, adult athletic manager, adult coach, teacher,
       counselor, religious leader, doctor, employer, foster
       parent, baby-sitter, adult scout leader, natural parent,
       stepparent, adoptive parent, legal guardian, grandpar-
       ent, aunt, uncle, or adult cohabitant of a parent.

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                        Opinion of the Court

Id. (emphasis added).
     ¶17 Mr. Watkins argues that the court of appeals erred when
it held that he occupied a “position of special trust” based solely on
the fact that he occupied the enumerated position of “adult
cohabitant of a parent of the victim.” Specifically, Mr. Watkins
argues that the State was required to show both that he occupied a
“position of authority” over H.C. and, “by reason of that position
[wa]s able to exercise undue influence over [her].” The State
responds that
       proof that a person occupies one of the statute’s
       twenty listed positions in relation to a child, including
       the position of “adult cohabitant of a parent,” is, as a
       matter of law, proof that he stands in a position of
       authority, by which means he has the capacity to
       exercise undue influence over the child.
     ¶18 “When interpreting statutes, our primary goal is to evince
the true intent and purpose of the Legislature.” State v. Martinez,
2002 UT 80, ¶ 8, 52 P.3d 1276 (internal quotation marks omitted). In
doing so, “[w]e first interpret the statute according to its plain
language.” Wilcox v. CSX Corp., 2003 UT 21, ¶ 8, 70 P.3d 85. Here,
the statute reveals three possibilities as to the legal significance of a
finding that a defendant occupied the position of an “adult
cohabitant of a parent.” Specifically, the statute raises a question of
whether the enumerated positions are “position[s] of special trust”
or “position[s] of authority.” UTAH CODE § 76-5-404.1(4)(h). This
question leads to three possible interpretations of the statute that
impact the elements of the crime of which Mr. Watkins was con-
victed.
     ¶19 The first possible interpretation of the statute is advocated
by the State and was adopted by the district court and the court of
appeals. Under this interpretation, the fact that a defendant occupies
an enumerated position is the legal equivalent of proof both that the
defendant occupies a “position of authority” and, “by reason of that
position is able to exercise undue influence over the victim.” Under
this reading of the statute, a finding that the defendant was an
“adult cohabitant of a parent” would constitute proof that the
defendant occupies a “position of special trust.” Thus, to aggravate
a defendant’s sexual abuse of a child, the State need prove only that
the defendant occupies an enumerated position “in relation to the
victim.” Id.



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                        Opinion of the Court

     ¶20 A second possible interpretation of section 76-5-404.1(4)(h)
is that a defendant’s occupation of an enumerated position estab-
lishes only that the defendant occupies a “position of authority.”
Under this interpretation, to establish that a defendant occupies a
“position of special trust,” the State would be required to prove both
that (1) the defendant occupies a position of authority (whether
enumerated or not) in relation to the victim, and (2) the defendant,
by reason of that position, “is able to exercise undue influence over
the victim.” Id.
      ¶21 A third possible interpretation of the statute is the one
advanced by Mr. Watkins. Under his proposed interpretation, the
list of enumerated positions is merely illustrative of positions that
are likely to fulfill the requirements of the aggravating statute. Thus,
the occupation of such a position does not absolve the State of its
burden to prove that the defendant met underlying elements of
section 76-5-404.1(4)(h), namely that (1) the defendant actually
occupies a position of authority in relation to the victim, and (2) by
means of that position is able to exercise undue influence over the
victim. Id.
   II. BASED ON A TEXTUAL ANALYSIS OF THE STATUTE
       AND REFERENCE TO LEGISLATIVE HISTORY, THE
         POSITIONS LISTED IN UTAH CODE SECTION
        76-5-404.1(4)(h) ARE POSITIONS “OCCUPIED BY
          A PERSON IN A POSITION OF AUTHORITY”
     ¶22 Having identified the possible interpretations of the
statute, we now assess their reasonableness to determine if the
statute is ambiguous. A statute is ambiguous only ”if it is reasonably
susceptible of different interpretations.” Grant v. Utah State Land Bd.,
485 P.2d 1035, 1037 (Utah 1971) (emphasis added).
      ¶23 In interpreting statutes, “our primary objective is to
ascertain the intent of the [L]egislature.” Summit Operating, LLC v.
Utah State Tax Comm’n, 2012 UT 91, ¶ 11, 293 P.3d 369 (internal
quotation marks omitted). “Because the best evidence of the
[L]egislature’s intent is the plain language of the statute itself, we
first look to the plain language of the statute.” Id. (footnote omitted)
(internal quotation marks omitted). In addition, we “interpret[]
statutes to give meaning to all parts, and avoid[] rendering portions
of the statute superfluous.” Id. (second and third alternations in
original) (internal quotation marks omitted).
    ¶24 “[W]hen statutory language is ambiguous—in that its
terms remain susceptible to two or more reasonable interpretations

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                         Opinion of the Court

after we have conducted a plain language analysis—we generally
resort to other modes of statutory construction and seek guidance
from legislative history . . . .” Marion Energy, Inc. v. KFJ Ranch P’ship,
2011 UT 50, ¶ 15, 267 P.3d 863 (internal quotation marks omitted); see
also Wilcox v. CSX Corp., 2003 UT 21, ¶ 12, 70 P.3d 85 (where
statutory ambiguity exists “it is . . . proper to look to legislative
history and policy considerations for guidance in our statutory
interpretation”); Martinez v. Media-Paymaster Plus/Church of Jesus
Christ of Latter-Day Saints, 2007 UT 42, ¶ 47, 164 P.3d 384 (“[I]f the
language is ambiguous, the court may look beyond the statute to
legislative history . . . to ascertain the statute’s intent.”).
  A. Mr. Watkins’s Proposed Interpretation is Unreasonable Because
      it Does not Comport with the Statute’s Plain Language
     ¶25 Mr. Watkins contends that we should interpret the
enumerated positions as “illustrative, not definitive,” of positions
that might place a defendant in a “special position of trust.” But
such an interpretation neither comports with the plain language of
the statute nor “give[s] meaning to all parts [of the statute].” Summit
Operating, 2012 UT 91, ¶ 11 (internal quotation marks omitted).
     ¶26 The statute reads in relevant part: “‘[P]osition of special
trust’ means that position occupied by a person in a position of
authority, who, by reason of that position is able to exercise undue
influence over the victim, and includes, but is not limited to . . . [an]
adult cohabitant of a parent.” UTAH CODE § 76-5-404.1(4)(h)
(emphasis added).
     ¶27 The statutory language clearly states that the list of
enumerated positions was meant to include, and not simply to
illustrate, positions that are, as a matter of law, “position[s] of
authority” or “position[s] of special trust.” Thus, Mr. Watkins’s
suggested interpretation that the enumerated positions were not
intended to comprise part of the legal definition of an aggravating
factor contradicts the plain language of the statute. We therefore
reject it.
          B. The Other Possible Interpretations of Utah Code
             Section 76-5-404.1(4)(h) are Both Reasonable
                 Interpretations of the Statutory Text
     ¶28 The State’s proposed interpretation equates proof that a
defendant occupied an enumerated position with proof that the
defendant occupied a “position of special trust.” The State asserts
that the Legislature intended that, as a matter of law, a defendant
who occupies an enumerated position both (1) occupies a “position

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                         Opinion of the Court

of authority” and (2) has the ability to “exercise undue influence.”
While we find this to be a plausible interpretation, it is not the only
plausible interpretation, and we conclude that the other plausible
interpretation is most consistent with the statutory text and legisla-
tive history.
     ¶29 When undertaking statutory interpretation, “we do not
view individual words and subsections in isolation; instead, our
statutory interpretation requires that each part or section be
construed in connection with every other part or section so as to
produce a harmonious whole.” Summit Operating, 2012 UT 91, ¶ 11
(internal quotation marks omitted). Thus, we assume that the
Legislature intended for the statute, as a whole, to be read in
harmony. Determining which plausible statutory interpretation
evinces the Legislature’s intent can therefore be accomplished by
comparing possible interpretations of the ambiguous language with
the accompanying unambiguous statutory language.
    ¶30 The plain language of the statute creates an enhanced
penalty for perpetrators who both occupied a “position of authority”
and had the ability to “exercise undue influence” over their victims.
UTAH CODE § 76-5-404.1(4)(h).1 “[W]e presume that the Legislature
used each term advisedly, and we endeavor to] give effect to each
term . . . .” Versluis v. Guar. Nat’l. Cos., 842 P.2d 865, 867 (Utah 1992).



   1
     For instance, in State v. Tanner, a school bus driver was con-
victed of aggravated sexual abuse of a child under Utah Code
section 76-5-404.1(4)(h), even though a school bus driver is not listed
as an enumerated position. 2009 UT App 326 ¶ 13, 221 P.3d 901.
Despite the fact that the defendant did not occupy an enumerated
position, the State demonstrated that, as a bus driver, (1) the
defendant occupied a position of authority in relation to the victim,
and (2) that because of his position the defendant was able to
exercise undue influence over the victim. Id. ¶ 18–20.
    Similarly, in State v. Beason, a step-grandparent was convicted of
aggravated sexual abuse of a child under a former version of Utah
Code section 76-5-404.1(4)(h). 2000 UT App 109, ¶ 1, 2 P.3d 459. At
the time, neither a grandparent nor a step-grandparent were
enumerated positions under the statute. Id. ¶ 17. However, the
court held that a defendant could be convicted of aggravated sexual
abuse of a child if the State could demonstrate that the defendant (1)
occupied a position of authority, and (2) by reason of that position
is able to exercise undue influence over the victim. Id. ¶ 20.

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     ¶31 The State’s proposed interpretation is based on the premise
that the final clause of section 76-5-404.1(4)(h), which states that it
“includes . . . adult cohabitant of a parent,” modifies the statute’s
initial clause. Under the State’s interpretation, the initial clause,
which states that “the offense was committed by a person who
occupied a position of special trust in relation to the victim” is
modified by the enumerated list. But these two clauses are sepa-
rated by two other clauses, one of which states that a “‘position of
special trust’ means that position occupied by a person in a position
of authority.” UTAH CODE § 76-5-404.1(4)(h). It is also a reasonable
interpretation that the enumerated list was intended to modify the
clause regarding a “position of authority,” rather than the phrase
“position of special trust.” And this interpretation is consistent with
the statutory text, inasmuch as positions such as an “adult athletic
manager, adult coach, teacher, counselor, religious leader, doctor,
[and] employer” are all positions of authority, but not necessarily
positions of special trust in which the perpetrator is able to exercise
undue influence over the victim.
     ¶32 We can conceive of many situations in which a perpetrator
might occupy an enumerated position of authority but still be unable
to exercise undue influence over the victim. For example, listed
among the enumerated positions is the position of “natural parent.”
Id. In the case of adoption, birth parents do not cease to be “natural
parents.” In many situations, however, the child’s birth parents
have no contact with the child; thus, they have no opportunity to
exercise any influence over the child, much less undue influence.
Under the State’s proposed interpretation, however, the child’s birth
parents could still be convicted under section 76-5-404.1(4)(h), as
“natural parents.” Such may also be the case with estranged
relatives, doctors who care for children in limited capacities, or
religious leaders at higher levels of a religious hierarchy whom the
victim does not recognize from his religious or leadership capacity.
Here, while Mr. Watkins may have occupied one of the enumerated




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                        Opinion of the Court

positions,2 he still may have lacked any capacity to exercise undue
influence over H.C.
     ¶33 We also find it significant that the Legislature chose to
include the list of enumerated positions within a subsection
enhancing the penalty for those who both occupied a “position of
authority” and were “able to exercise undue influence.” UTAH CODE
§ 76-5-404.1(4)(h). Had the Legislature intended to enhance the
sentence for all perpetrators who occupied each of the enumerated
positions, it could have included a separate subsection stating that
defendants who occupied certain positions could be convicted as a
matter of strict liability. It chose not to do so. And the language
specifying the underlying elements of a “position of special trust”
would be rendered superfluous with regards to the majority of
defendants if a perpetrator’s occupation of an enumerated position
were sufficient, standing alone, to subject him to the enhanced
penalty.




   2
      In the instant case, the jury instructions incorporated the
definition of cohabitant found in the Cohabitant Abuse Act, Utah
Code section 78B-7-102(2), and informed the jury that Mr. Watkins
was a cohabitant of Mr. Schoenberger if he was “related by blood or
marriage to [Mr. Schoenberger]” or he “resides or has resided in the
same residence as [Mr. Schoenberger].” State v. Watkins, 2011 UT
App 96, ¶ 12, 250 P.3d 1019 (internal quotation marks omitted). It is
worth noting that the Cohabitant Abuse Act’s definition of cohabita-
tion has been specifically rejected by case law in other contexts. See,
e.g., Haddow v. Haddow, 707 P.2d 669, 672 (Utah 1985) (stating, in a
case to determine appropriate alimony payments, that cohabitation
includes two elements: “the sharing of a common abode” and a
“relatively permanent sexual relationship akin to that generally
existing between husband and wife”); State v. Barlow, 335 P.2d 629,
631 (Utah 1959) (stating, in prosecuting bigamy, that cohabitation is
“living together as husband and wife” (internal quotation marks
omitted)). Thus, counsel’s failure to dispute the jury instruction’s
definition of a cohabitant raises possible concerns about his effective-
ness.

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                        Opinion of the Court

        C. Our Determination that the Enumerated Positions in
           Utah Code Section 76-5-404.1(4)(h) are Positions
           “Occupied by a Person in a Position of Authority”
                is Consistent with Legislative History
     ¶34 Having identified two reasonable interpretations of the
statutory text, we conclude that the statute is ambiguous. “Where
[statutory] text leaves room for more than one interpretation . . . , the
legislative history may be consulted to the extent it informs the
prevailing understanding of the ambiguous words of the statute at
the time of its enactment.” J.M.W. v. T.I.Z, (In re adoption of Baby
E.Z.), 2011 UT 38, ¶ 112, 266 P.3d 702. Here, the legislative history
is particularly relevant because it directly addresses the competing
interpretations of section 76-5-404.1(4)(h).
      ¶35 In 1998, section 76-5-404.1(4)(h) was amended to expand
the list of enumerated positions and to add the position of “an adult
cohabitant of a parent.” 1998 Utah Laws 418. During the legislative
process, the Attorney General’s office weighed in as to its under-
standing of the Legislature’s intent regarding the statute and the
State’s burden in applying the proposed amendment. In a memo-
randum to the Legislature, the Attorney General’s office stated that
even if a defendant occupied one of the enumerated positions, “the
prosecution must prove not just that the defendant occupied such a
position, but that such person ‘by reason of that position is able to
exercise undue influence over the victim.’” Memorandum from Rob
Parrish, Asst. Att’y Gen., to Utah State Legis., Explanation of House
Bill 267 - Sex Abuse of a Child (undated).
     ¶36 In addition, the legislative history reveals correspondence
between the Attorney General’s Office and the Legislative General
Counsel’s Office as to whether “to simply end subsection (h) with
the phrase ‘is able to exercise undue influence over the victim’” or
to “list all the possible persons to which this [statute] might apply.”
E-mail from Rob Parrish, Asst. Att’y Gen., to Janetha Hancock (Nov.
24, 1997, 1:48 PM) (emphasis added). This correspondence further
suggests that the Legislature’s intent was to punish those who both
occupied “position[s] of authority” and by virtue of those positions,
possessed the ability to “exercise undue influence.” Absolutely
nothing in the legislative history suggests that the Legislature’s
intent was to create strict liability for all who occupy one of the
enumerated positions.
     ¶37 The Attorney General’s memorandum to the Legislature
clearly contradicts the interpretation of the statute proffered by the


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                         STATE v. WATKINS
                       Opinion of the Court

State and adopted by the district court and the court of appeals.
Rather, it lends support to our conclusion that the enumerated
positions refer to those who occupy “position[s] of authority”—not
to those who occupy positions of special trust or to those who are
necessarily in positions where they are “able to exercise undue
influence over the victim.” UTAH CODE § 76-5-404.1(4)(h).
    ¶38 In short, the legislative history coincides with the language
of the statute and supports the conclusion that the Legislature
intended to aggravate child sexual abuse only in those cases where
the perpetrator occupied both a “position of authority” and was
“able to exercise undue influence” in relation to the victim. Id.3
                          CONCLUSION
     ¶39 Proof that a defendant occupies one of the enumerated
positions under Utah Code section 76-5-404.1(4)(h) suffices to
establish only that the defendant occupied a “position of authority.”
But for the State to establish aggravated sexual abuse of a child
under subsection (4)(h), it must prove both that the defendant
occupied a “position of authority” over the victim and that the
position gave the defendant the ability to “exercise undue influence”
over the victim. Because the lower courts did not require the State
to establish both elements, we vacate Mr. Watkins’s conviction and
remand for further proceedings consistent with this opinion.




   3
     Our conclusion that the State is required to prove both that the
defendant occupied a position of authority and was able to exercise
undue influence over the victim likewise accords with the rule of
lenity. The rule of lenity applies “when, after consulting traditional
canons of statutory construction, we are left with an ambiguous
statute,” United States v. Shabani, 513 U.S. 10, 17 (1994), and “pre-
scribes the narrow construction of ambiguous penal laws against the
state.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 44, 267
P.3d 863 (Lee, J., dissenting).



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