Can a defendant challenge the wrong version of a statute and still win on appeal? State v. Avina Explained

Background and facts

Zachariah Lee Avina was convicted of object rape, forcible sexual abuse, and lewdness for sexual acts he committed against his niece (Mary) between 2010 and 2013, when she was fourteen to sixteen years old. The State’s theory of non-consent rested on Avina’s position of special trust as Mary’s uncle under Utah Code sections 76-5-404.1 and 76-5-406. Before trial, Avina moved to dismiss the object rape and forcible sexual abuse counts, arguing those non-consent provisions were unconstitutional as applied to him. After the State rested at trial, Avina filed a second motion to dismiss under rule 16 of the Utah Rules of Criminal Procedure, contending the State had withheld material witness statements. The trial court denied both motions, and the jury convicted Avina on all five counts.

Key legal issues

Two issues were presented on appeal: (1) whether the non-consent provisions of the object rape and forcible sexual abuse statutes were unconstitutional as applied to Avina; and (2) whether the trial court abused its discretion in denying Avina’s rule 16 motion to dismiss based on alleged discovery violations. The constitutional question was reviewed for correctness, with Avina bearing the burden of demonstrating unconstitutionality. The discovery ruling was reviewed for abuse of discretion.

Court’s analysis and holding

The court rejected both arguments. On the constitutional issue, the court applied the foundational principle that courts evaluate the version of a statute in effect at the time the charged conduct occurred. Avina’s opening brief attacked only the current version of the statutes — the post-Watkins amendments that eliminated the requirement to prove undue influence for enumerated relationship categories. But the 2013 version of the statutes, which governed Avina’s conduct, expressly required the State to prove that the defendant’s position of authority enabled him to exercise undue influence over the victim. State v. Watkins, 2013 UT 28, so held. Because Avina’s constitutional challenge targeted a version of the statute inapplicable to his case, answering it would have produced only an advisory opinion. His belated attempt in the reply brief to address the 2013 version came too late and was deemed waived.

On the discovery issue, the court held that none of the five items of trial testimony Avina identified — such as the depth of penetration or the victim’s emotional state — triggered disclosure obligations under rule 16. Rule 16(a)(1)(A) applies only to statements by the defendant or codefendants, not complaining witnesses. Rule 16(a)(1)(D) requires disclosure of only written or recorded statements by other witnesses. And none of the identified details qualified as exculpatory or favorable to the defense under rule 16(a)(1)(F). The court emphasized that minor variations in a witness’s trial testimony are an ordinary feature of trial, not a discovery violation.

Practice implications

This decision carries two sharp lessons for Utah appellate practitioners. First, always identify and challenge the version of the statute in effect at the time of the alleged conduct — attacking an amended version risks dismissal of the argument as an impermissible request for an advisory opinion and waiver if raised only in the reply brief. Second, rule 16 discovery obligations are textually bounded: the State’s duty to disclose witness statements does not extend to unrecorded oral statements by non-defendant witnesses, and incremental testimonial detail does not automatically become a disclosure obligation simply because it surprises defense counsel at trial. Practitioners pressing discovery-based dismissal motions must identify specific written or recorded statements or genuinely exculpatory material — not mere differences in a witness’s level of detail.