author: BILLINGS, Associate Presiding Judge:

text:
    2003 UT App 191
    STATE of Utah, in the interest of T.M., K.M., and N.M., persons under eighteen years of age. T.M. and S.M., Appellants, v. State of Utah, Appellee.
    No. 20020570-CA.
    Court of Appeals of Utah.
    June 12, 2003.

      Gary L. Bell, Salt Lake City, for Appellants.
    Mark L. Shurtleff, Attorney General, Carol L. Verdoia, and John M. Peterson, Assistant Attorneys General, Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City, Guardian Ad Litem.
    Before BILLINGS, Associate P.J., and DAVIS and ORME, JJ.
   OPINION

BILLINGS, Associate Presiding Judge:

1 TM. (Father) and S.M. (Mother) (collectively, Parents) appeal the juvenile court's order terminating Parents' parental rights to T.M., NM., and KM. (Children). We affirm in part, reverse in part, and remand.

BACKGROUND

12 Parents are the natural parents of T.M., KM., and N.M. In October 1997, Parents voluntarily submitted to protective supervision services through the Division of Child and Family Services (DCFS) after allegations that Children were living in unsanitary conditions at home. On February 26, 1998, DCFS filed a Petition for Protective Supervision Services based upon further allegations of physical neglect and because Parents had failed to respond to voluntary services. Parents requested appointed counsel, and due to their indigence the juvenile court appointed counsel to represent them. On June 4, 1998, Children were adjudicated abused or neglected. The juvenile court allowed Children to remain in the home, but ordered DCFS to provide protective supervision services.

3 On September 15, 1998, Parents stipulated to an amended custody petition and for the second time, the juvenile court adjudicated Children neglected. The juvenile court ordered T.M. remain with the great-grandmother and placed KM. and NM. with DCFS. The juvenile court ordered DCFS to prepare a service plan and ordered Parents to comply with the service plan. The juvenile court also appointed conflict counsel to represent Father. On October 22, 1998, the juvenile court ordered DCFS to provide reunification services.

{4 On July 21, 1999, the State filed a Petition for Termination of Parental Rights and on August 5, 1999, the juvenile court terminated - reunification - services - and changed Children's permanency goal to adoption. Trial was set on the termination petition for February 17, 2000. That same day, the parties indicated that a stipulation agreement had been reached. The agreement stated,

[I]f the parents are in full compliance with the service plan and this agreement, at the conclusion of 4 months, the state will dismiss its petition to terminate parental rights. If the parents are not in full compliance, at the end of 4 months, or any time in between, it shall be presumptive proof of unfitness on the part of the parents, and the court shall set the matter for a hearing on the best interests of the children.

The juvenile court converted the agreement into an order and allowed T.M. to return home in April 2000, pursuant to the terms of the agreement.

15 At an evidentiary hearing on June 29, 2000, Judge Valdez found Parents were not in compliance with the agreement because Parents had failed to participate in domestic violence counseling, provide proof of employment, and become self-sufficient. Accordingly, Judge Valdez entered findings of fact and conclusions of law on July 7, 2000, adjudicating Parents "unfit" pursuant to statute and ordering trial to proceed on the best interests of the children.

T6 On September 27, 2000, Parents filed a Motion to Reconsider, which was denied on October 6, 2000. On October 6, 2000, Parents filed a motion seeking to recuse Judge Valdez and to have the case reassigned. Judge Valdez certified the recusal motion to the presiding judge for determination and on October 19, 2000, Judge Behrens entered the juvenile court's Order of Recusal and Reassignment. The matter was reassigned to Judge Hornak.

T7 On March 26, 2001, a trial was held on the best interests of the children. At the onset of trial, appointed counsel for Parents indicated to the juvenile court that after consulting with other attorneys, Parents wished to discharge court-appointed counsel and proceed with a private attorney. In addition, Mother stated on the record her reasons for wanting new counsel and why Parents waited until the onset of trial to move for substitution of counsel. The juvenile court ruled that the trial would proceed and that Parents could either proceed pro se or with their presently-appointed counsel. The juvenile court made no further inquiry as to Parents' dissatisfaction with appointed counsel. Parents opted to keep their court-appointed counsel rather than proceed pro se.

18 On June 5, 2002, the juvenile court entered its findings of fact, conclusions of law, and order terminating Parents' parental rights. Parents now appeal.

ISSUES AND STANDARDS OF REVIEW

¶ 9 First, Parents argue the juvenile court erred in terminating their parental rights without first making findings required by the amended version of Utah Code Ann. § 78-3a-407 (2002) (termination statute), effective May 6, 2002. Determining "which version of the termination statute applie[s] is a matter of statutory interpretation, which presents a 'question[ ] of law which we review for correctness, according no particular deference to the [juvenile] court's interpretation."" In re S.Y., 2003 UT App 66,¶ 10, 66 P.3d 601 (second and third alterations in original) (quoting State v. Coleman, 2001 UT App 281,¶ 5, 34 P.3d 790). However, when "'a party ... fails to bring an issue to the [juvenile] court's attention," that party is 'barred from asserting it on appeal' absent a showing of 'exceptional cireumstances or plain error'" Id. (alterations in original) (quoting Brigham City v. Stuart, 2002 UT App 317,¶ 14, 57 P.3d 1111).

110 Second, Parents assert the juvenile court erred when it failed to inquire into their complaints regarding court-appointed counsel before denying their request to be represented by private counsel. We review " '[a juvenile] court's failure to investigate a ... timely substitution request [made by an indigent party with appointed counsel] " under a correction of error standard. In re C.C., 2002 UT App 149,¶ 13, 48 P.3d 244 (second and third alteration in original) (quoting State v. Vessey, 967 P.2d 960, 962 (Utah Ct.App.1998)).

¶ 11 Third, Parents contend the juvenile court erred in relying on a stipulation agreement to adjudicate Parents "unfit" under subsection 408(2) of the termination statute. See Utah Code Ann. § 78-8a-408(@2) (2002). "Given that the facts were stipulated, we review the conclusions drawn by the juvenile court for correctness." In re N.K.C., 1999 UT App 345,¶ 7, 995 P.2d 1. However, when a party "fails to bring an issue to the [Juvenile] court's attention, that party is barred from asserting it on appeal absent a showing of exceptional cireum-stances or plain error." In re S.Y., 2003 UT App 66 at ¶ 10, 66 P.3d 601 (alterations in original) (quotations and citation omitted).

¶ 12 Fourth, Parents maintain that the juvenile court committed plain error by not declaring a mistrial following the recusal of Judge Valdez and reassignment of the case. To prevail on a claim of plain error, Parents must establish that "G) [aln error exists; (i) the error should have been obvious to the ... court; and (iif) the error is harmful." State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993).

ANALYSIS

I. Application of the Amended Termination Statute

1 13 Parents argue the juvenile court erred in terminating their parental rights without making findings required by an amendment to the termination statute. See Utah Code Ann. § 78-82-407 (2002). The amendment at issue, effective May 6, 2002, see id. (Amendment Notes), provides that "[in any case in which the [Juvenile] court has directed [DCFS] to provide reunification services to a parent, the court must find that [DCFS] made reasonable efforts to provide those services before the court may terminate the parent's rights." Id. § 78-8a-407(B)(a).

{14 On October 22, 1998, the juvenile court entered an order requiring DCFS to provide Parents with reunification services. Later, on June 5, 2002, the juvenile court terminated Parents' parental rights pursuant to section 78-8a-407. The juvenile court did not include in the termination order a finding that DCFS made reasonable efforts to provide reunification services. "However, [Parents] did not make this argument to the juvenile court. Thus, [Parents] can only obtain relief from this court by demonstrating plain error by the juvenile court or exceptional circumstances." In re S.Y., 2003 UT App 66,¶ 14, 66 P.3d 601.

115 In other cases presenting this same retroactivity argument we have "decline[d] to address" the issue on the merits because it was not addressed by the juvenile courts and "[on appeal, [the parties have] not argue[d] plain error or exceptional cireumstances." Id.

¶ 16 However, Parents here argue exceptional cireumstances on appeal. We agree with Parents that the exceptional circumstances exception applies. "[The 'exceep-tional cireumstances' rubric [may be employed] where a change in law or the settled interpretation of law color[s] the failure to have raised an issue at trial." State v. Irwin, 924 P.2d 5, 10 (Utah Ct.App.1996). In the instant case, an amendment to the termination statute now requires juvenile courts to make findings that DCFS provided reasonable reunification efforts prior to terminating parental rights. See Utah Code Aun. § 78-Sa-407(8)(a). We conclude the amendment was "a change in law or the settled interpretation of law [that] colored the failure to have raised [the retroactivity] issue at trial" in this case. Irwin, 924 P.2d at 10. Accordingly, we proceed to the merits.

¶ 17 It is a "well-established rule that statutory enactments which affect substantive or vested rights generally operate only prospectively," and "the substantive law to be applied throughout an action is the law in effect at the date the action was initiated." State v. Higgs, 656 P.2d 998, 1000 (Utah 1982) (emphasis added). This action to terminate Parents' parental rights was filed on July 21, 1999, before the effective date of the amendment. "[A] statute may be applied retroactively 'if it affects only procedural and not substantive rights," Wilde v. Wilde, 969 P.2d 438, 442 (Utah Ct.App.1998) (quoting Washington Nat'l Ins. Co. v. Sherwood Assoc., 795 P.2d 665, 667 (Utah Ct.App. 1990)), but we " narrowly draw[ ] the boundaries of what constitutes a procedural statute." Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257, 261 (Utah 1998) (quoting Salt Lake Child & Family Therapy Clinic v. Frederick, 890 P.2d 1017, 1020 n. 3 (Utah 1995)). "[A] procedural law prescribes the practice and procedure or the legal machinery by which the substantive law is determined or made effective, ... or simply clari-fie[s] the legislature's previous intentions." Wilde, 969 P.2d at 442 (second alteration in original) (quotations and citation omitted). By contrast, "[al substantive law creates, defines and regulates the rights and duties of the parties which may give rise to a cause of action." Id. (quotations and citation omitted).

¶ 18 We conclude the relevant portion of the amendment to the termination statute is substantive because it changes the rights and duties of the parties. Previously, a juvenile court could order reunification services and later terminate parental rights even if it found DCFS failed to make reasonable reunification efforts. In In re M.E.C., decided under the previous termination statute, the juvenile court ordered DCFS to implement a reunification service plan and translate it into Spanish. See 942 P.2d 955, 958 (Utah Ct.App.1997). At the termination hearing, the juvenile court found DCFS disobeyed the court's order and "failed to make diligent efforts to provide appropriate services in light of [appellant's] language barrier." Id. (quotations omitted). Nevertheless, both the juvenile court and this court concluded "[the] juvenile court hald] the statutory authority [under the previous termination statute] to order the termination of a parent's rights based on finding abandonment, neglect, unfitness, [or] token efforts, regardless of whether [DCFS] provided any services, reasonable or not." Id. at 960.

¶ 19 In contrast, under the plain language of the amended termination statute, if a juvenile court orders reunification services, it "must find [DCFS] made reasonable efforts" to provide those services before the juvenile court can terminate parental rights based on, among other things, neglect, unfitness, or token efforts. Utah Code Ann. § 78-82-407(8)(a) (emphasis added). Thus, the amendment substantively requires a finding of reasonable reunification efforts before a juvenile court can terminate parental rights.

$20 Also, because the statutory change affects substantive rights, we do not apply the change retroactively "unless the legislature has clearly expressed that intention." Olsen, 956 P.2d at 261. The Utah Legislature did not express an intention to apply the termination statute's relevant amendment retroactively. Therefore, because DCFS filed its petition to terminate Parents' parental rights on July 21, 1999, well before the amendment's May 6, 2002 effective date, the juvenile court did not err in applying the 2001 version of the termination statute.

II. Juvenile Court's Duty to Inquire as to Parents' Dissatisfaction with Appointed Counsel

¶ 21 Second, Parents contend the juvenile court abused its discretion by failing to inquire into Parents' complaints regarding court-appointed counsel before denying Parents' requests to be represented by private counsel. The right to counsel in parental termination proceedings is granted pursuant to Utah Code Ann. § 78-8a-913(1)(a) (2002), which provides that

parents, guardian[s], custodian{s], and the minor, if competent, shall be informed that they have the right to be represented by counsel at every stage of the proceedings. They have the right to employ counsel of their own choice and if any of them requests an attorney and is found by the court to be indigent, counsel shall be appointed by the court.

Id. Interpreting this statute, we held that "indigent parents facing the permanent deprivation of their parental rights are entitled not only to an appointed attorney, but to the effective assistance of counsel." In re C.C., 2002 UT App 149,¶ 7, 48 P.3d 244. Furthermore, "(aln integral part of the right to the effective assistance of counsel is the opportunity ... to have the court explore a party's complaints regarding the assistance [the appointed attorney] provide[s] to determine if substitute counsel is ... necessary." Id. at 19. A juvenile court that "faillsl to fully investigate a parent's expressed discontent . risks denying that parent{'s]l right to adequate representation." Id. Hence, "for the statutorily-provided right to counsel in termination proceedings to be meaningful, juvenile courts ... must explore whether there is any validity to an indigent parent's expressed complaints and determine whether the parent's relationship with [the] appointed attorney has deteriorated to the point that sound discretion requires substitution." Id. at « 10 (quotations and citation omitted). Notably, such an inquiry must be conducted "even when the [Juvenile court] judge suspects that the [parent's] requests are disingenuous and designed solely to manipulate the judicial process and delay the trial." Id. (first alteration in original) (quotations and citations omitted).

{22 Here, Parents were indigent and the juvenile court appointed counsel to represent them. On March 26, 2001, the juvenile court held a trial to determine the best interests of the children. At the onset of trial, counsel for Father told the juvenile court; "Your Honor, this morning my client informed me that after conferring with two other attorneys, he feels that my counsel has been ineffective and that I'm not vigorously representing his case and would like to discharge me from this case and [be] given an opportunity to retain different counsel. Counsel for Mother then said, "My client also indicated the same thing, your Honor." The juvenile court then noted,

[This case was set two months ago. Now if [Parents] walked in today with private-privately retained counsel and that attorney said I just received the case last week, I need a continuance. But at this point, I don't even know if they know who they're going to retain, and why did they wait two months?

As counsel and Parents attempted to answer this query from the bench, Mother offered the following explanation on the record for wanting new counsel and also for the delay in notifying the juvenile court of this desire:

It was-it was admitted to us in-in a conference that we were talked into signing treatment plans and things like that in situations where it was admitted that they knew that we were advised that we couldn't complete these plans. That was by our counsel ... a previous counsel and my husband's counsel.
And the reason we hadn't had a chance to seek other counsel up till now is because of [DCFS] asking us to do things to our home which took up lots of time and we have been talking to people and there are people who are willing to take our case right now.

We can find nothing in the record to indicate the juvenile court, upon hearing Parents' express dissatisfaction with appointed counsel, undertook "some reasonable non-suggestive efforts to determine the nature of [Parents'] complaints," as required by In re C.C., 2002 UT App 149 at ¶ 6, 48 P.3d 244 (quotations and citation omitted).

¶ 23 By failing to inquire into the substance of Parents' complaints and requests to substitute counsel, the juvenile court failed to adequately apprize itself of the facts necessary to determine whether substitution of counsel was necessary as a matter of sound discretion. Such " 'failure to investigate a timely substitution request [made by an indigent parent with appointed counsel] is per se error'" Id. at T 18 (alterations in original) (quoting State v. Vessey, 967 P.2d 960, 962 (Utah Ct.App.1998)). Under In re C.C., we conclude the juvenile court erred. Thus, we remand to the juvenile court for an evidentiary hearing to determine whether Parents' complaints concerning court-appointed counsel justified granting Parents' requests to substitute privately-retained counsel of Parents' choosing in place of court-appointed counsel. See id. at T 14. "If so, the [Juvenile] court should grant [Parents] a new trial. However, if the juvenile court determines [Parents'] request for substitution of counsel was unfounded, the judgment ... would stand as entered." Id.

III. Reliance Upon the Stipulation Agreement

¶ 24 Third, Parents assert the juvenile court erred in relying upon a stipulation agreement in adjudicating Parents "unfit" under subsection 407(8) of the termination statute. See Utah Code Ann. § 78-8a-407(8) (2002). However, our review of the record reveals that this argument was not preserved below. "[Where 'a party ... fails to bring an issue to the [juvenile] court's attention,' that party is 'barred from asserting it on appeal' absent a showing of 'exeeptional circumstances or plain error' " In re S.Y., 2003 UT App 66,¶ 10, 66 P.3d 601 (second and third alterations in original) (citation omitted). Because Parents "do[ ] not argue plain error or exceptional cireumstances" on appeal, we "decline to address [Parents'] claim." - Id. at T 14 (citation omitted).

IV. Mistrial

¶ 25 Fourth, Parents maintain that the juvenile court committed plain error by not declaring a mistrial after Judge Valdez was recused and the case reassigned, and where Judge Valdez had already entered an order finding Parents unfit, upon which the juvenile court relied in terminating Parents' parental rights.

¶ 26 To prevail on appeal on a claim of "'plain error, [Parents] must establish that (G) [aln error exists; (i) the error should have been obvious to the [juvenile] court; and (ii) the error is harmful" State v. Irwin, 924 P.2d 5, 7 (Utah Ct.App.1996) (second alteration in original) (quoting State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993)). "If any one of these requirements is not met, plain error is not established." Dunn, 850 P.2d at 1209. Under the cireumstances of this case-where the order was based on the parties' stipulation-Judge Hornak did not err in relying on the order entered by Judge Valdez. Furthermore, even if it was error, it was not obvious error. On October 19, 2000, Judge Behrens entered an order recusing Judge Valdez and reassigning the case to Judge Hornak. Judge Behreng's order contained no findings of fact or conclusions of law and hence did not directly address the alleged bias. Thus, it would not have been obvious to Judge Hornak that Judge Valdez was removed from the case as a result of bias. As such, Parents' plain error argument fails.

CONCLUSION

¶ 27 The juvenile court did not err in failing to enter a finding that DCFS failed to make reasonable efforts in providing reunification services prior to terminating Parents' parental rights because the amendment to the termination statute was a substantive change that did not apply retroactively to Parents' termination proceeding. Because Parents failed at trial to argue that the juvenile court erred in relying upon a stipulation agreement in adjudicating Parents unfit, and because Parents do not argue plain error or exceptional cirenmstances on appeal, we decline to reach the merits of Parents' claim on this issue. Also, the juvenile court did not commit plain error in not declaring a mistrial. Hence, on these issues we affirm. However, the juvenile court committed legal error by not inquiring into Parents' complaints regarding - their - court-appointed - counsel. Therefore, we remand for an evidentiary hearing to determine whether Parents' express dissatisfaction with court-appointed counsel justified substitution of counsel.

€ 28 WE CONCUR: JAMES Z. DAVIS and GREGORY K. ORME, Judges.

      . Parents point to the amendment's legislative history in arguing the amendment is procedural. The amendment's plain language, however, is unambiguous and we therefore decline to consider Parents' arguments. See State v. Lusk, 2001 UT 102,¶ 19, 37 P.3d 1103. Nevertheless, much of the legislative history provided by Parents suggests the amendment is substantive rather than procedural. For instance, Senator Eastman explained that the amendment "softens, somewhat, the power to terminate rights."

      . To clarify, Parents were not requesting other appointed counsel. Parents' request was that a substitution be allowed so that private counsel could represent them. The record indicates that on March 29, 2001, a private attorney entered an appearance in the juvenile court on behalf of Parents. The appearance was signed on March 26, 2001, the date of the first day of the best interests trial. It seems, to us, unusual to deny Parents the right to proceed with private counsel they had already obtained.

      . We recently decided the case of In re R.H., 2003 UT App 154, 474 Utah Adv. Rep. 38, 71 P.3d 616, 2003 WL 21195474. In that case, we held that "[the record on appeal clearly estab-lishe{[d] that good cause did not exist for substitute counsel. Thus, the juvenile court's error in failing to adequately inquire into {appellant's] dissatisfaction with counsel was harmless." Id. at T 17 (emphasis added). However, unlike in In re R.H., the voluminous and convoluted record in the present appeal does not allow us to conclude that the juvenile court's error was harmless as a matter of law.

      . The record reveals that Parents raised several issues before the juvenile court concerning whether the agreement was reasonable, how compliance with the agreement would be determined, and whether non-compliance would create a rebuttable presumption of unfitness. However, we are unable to locate in the record any mention by Parents that the stipulation agreement might be invalid as a matter of law, as Parents now assert on appeal.
      Furthermore, during the best interests hearing, the following exchange ensued on the record: On direct examination of Mother, the State asked questions that Parents' counsel construed as going to the question of unfitness, Accordingly, he objected:
      Your Honor, ... I have not been involved in this case so I don't know whether we are going into duplicative evidence or not. There has been an unfit finding against my client. Apparently we are here on best interest. I suppose we could go through the gambit of everything once again but it seems to me that's going to be, if we've already done the unfitness finding I don't think it benefits anybody to go through that again except to be somewhat prejudicial to my clients in terms of having to rehash the same things over again that there has already been an unfitness finding for and I don't mean to be too particular but we're going to be here for quite some time going over the things that lead up to the unfitness finding and if there's already unfitness finding why do we need to do that?

      . - Parents also contend the juvenile court erred in determining Parents were not in compliance with the terms of the stipulation agreement. To challenge a factual finding, Parents "must mar-shall [sic] the evidence in support of the findings and then demonstrate that despite this evidence, the [juvenile] court's findings are so lacking in support as to be against the clear weight of the evidence." In re D.G., 938 P.2d 298, 301 (Utah Ct.App.1997) (alterations in original) (quotations and citations omitted). Here, Parents have failed the marshaling requirement and we need not further examine their claims on this issue.

      . Parents' final argument on appeal is that the juvenile court committed plain error in overruling their objection to Dr. Wanlass's rebuttal testimony. We disagree. The juvenile court has discretion to allow or disallow rebuttal testimony. See Turner v. Nelson, 872 P.2d 1021, 1023 (Utah 1994). "Generally, 'testimony presented for the purpose of rebuttal should be admitted....'" Green v. Louder, 2001 UT 62,¶ 23, 29 P.3d 638. Because we determine the juvenile court did not abuse its discretion in allowing Dr. Wanlass to testify, we do not further analyze Parents' claim of plain error on this issue.


source: Caselaw Access Project

license: Public Domain

text:
    2003 UT App 203
    STATE of Utah, Plaintiff and Appellee, v. Tomas G. ROJAS-MARTINEZ, Defendant and Appellant.
    No. 20020706-CA.
    Court of Appeals of Utah.
    June 19, 2003.

      Hakeem Ishola, Ishola & Associates PC, Katy, Texas, for Appellant.
    Craig T. Peterson, Deputy Davis County Attorney, and Melvin C. Wilson, Davis County Attorney, Farmington, for Appellee.
    Before BILLINGS, Associate P.J., and BENCH and THORNE, JJ.
   OPINION

BILLINGS, Associate Presiding Judge:

T1 Defendant Tomas Rojas-Martinez appeals the trial court's order denying his motion to withdraw his guilty plea of sexual battery, a class A misdemeanor under Utah Code Ann. § 76-9702 (Supp.2002). We reverse and remand.

BACKGROUND

12 In May 2002, Defendant was charged with one count of sexual battery, a class A misdemeanor, in violation of Utah Code Ann. § 76-9-702 (Supp.2002). Defendant, a Mexican citizen, has three children with United States citizenship who could qualify Defendant for permanent resident alien status. Defendant allegedly touched the breast of a sixteen-year-old juvenile, over her clothing and without her consent. Prior to entering Defendant's guilty plea, Defendant's counsel advised Defendant on the issue of deportation. The trial court later found that counsel "informed [Defendant] that his guilty plea and conviction could lead to deportation, but it might or might not."

T3 At the plea hearing, which was conducted in English, the trial court asked Defendant, "Do you read, write, and understand English?" Defendant responded, "Yes." The court advised Defendant of his various rights under rule 11 of the Utah Rules of Criminal Procedure, after which Defendant affirmatively responded, at the appropriate times, that he understood those rights. Defendant pleaded guilty to the offense and was sentenced on July 30, 2002, to 365 days in jail.

¶ 4 On August 20, 2002, Defendant timely moved to withdraw his guilty plea." The trial court denied this motion in November 2002, finding Defendant's counsel "did not affirmatively misrepresent the [deportation] consequences of [Djefendant's guilty plea. This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶ 5 Defendant argues the trial court erred in ruling that Defendant was afforded effective assistance of counsel and therefore erred in denying his motion to withdraw his guilty plea "We review this claim as a matter of law." State v. Smith, 2003 UT App 52,¶ 12, 65 P.3d 648.

ANALYSIS

¶ 6 Defendant contends he was denied his Sixth Amendment right to effective assistance of counsel because his counsel misstated the law regarding the deportation consequences of Defendant's guilty plea See U.S. Const. amend. VIL. In deciding a claim for ineffective assistance of counsel, we apply the test set out in Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984). See, eg., State v. Martines, 2001 UT 12,¶ 16, 26 P.3d 203. "Under the Strickland test, an individual has been denied the effective assistance of counsel if: (1) counsel's performance was deficient below an objective standard of reasonable professional judgment, and (2) counsel's performance prejudiced the defendant." Id.

¶ 7 We have held that deportation is a "collateral consequence" of conviction. State v. McFadden, 884 P.2d 1303, 1304-05 (Utah Ct.App.1994). Thus, "an attorney's failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness." United States v. Couto, 311 F.3d 179, 187 (2nd Cir.2002) (emphasis added); see McFadden, 884 P.2d at 1305.

¶ 8 However, a commonly recognized exception to this rule exists when an attorney affirmatively misrepresents deportation consequences to his or her client. See McFadden, 884 P.2d at 1305 n. 3 (noting exception exists but finding it inapplicable where attorney entirely failed to advise client on the subject of deportation); see also, e.g., Couto, 311 F.3d at 187-88; El-Nobani v. United States, 287 F.3d 417, 422 (6th Cir.2002) (finding plea legitimate "[blecause the government did not misrepresent to petitioner the consequences of his plea"); People v. Correa, 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, 311 (1985); People v. Soriano, 194 Cal.App.3d 1470, 240 Cal.Rptr. 328, 336 (1987) (finding counsel ineffective where counsel merely warned defendant there "might be immigration consequences to his guilty plea" (emphasis added)); Roberti v. State, 782 So.2d 919, 920 (Fla.Ct.App.2001) ("Affirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea."). Under this exception, we conclude that "an affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is today objectively unreasonable." Couto, 311 F.3d at 188.

{ 9 Here, the trial court found that counsel told Defendant "that his guilty plea and conviction could lead to deportation, but it might or might not." (Emphasis added.) Defendant was convicted by guilty plea of sexual battery, a class A misdemeanor in Utah, see Utah Code Ann. § 76-9-702(8) (Supp.2002), and the alleged victim was a minor. This crime is considered an "aggravated felony" under 8 U.S.C.A. § 1101(a)(d48)(A) (2002). See Guerrero-Perez v. INS, 242 F.3d 727, 737 (7th Cir.2001) (concluding aggravated felonies can apply to state misdemeanor offenses); United States v. Padilla-Reyes, 247 F.3d 1158, 1162-63 (11th Cir.2001) (concluding "sexual abuse of a minor," which is an "aggravated. felony," "includes acts that involve physical contact between the perpetrator and the victim as well as acts that do not"). Further, "because the 1996 amendments to the Immigration and Nationality Act eliminated all discretion as to deportation of non-citizens convicted of aggravated felonies, [Defendant's] plea of guilty mean[s] virtually automatic, unavoidable deportation." Couto, 8311 F.3d at 183-84; see United States v. Amador-Leal, 276 F.3d 511, 516 (9th Cir.2002) ("[It is now virtually certain that an aggravated felon will be [deported].").

10 Therefore, by advising Defendant he "might or might not" be deported, Defendant's counsel affirmatively misrepresented the deportation consequences of Defendant's plea, and thus counsel's "performance was deficient below an objective standard of reasonable professional judgment." Martinez, 2001 UT 12 at ¶ 16, 26 P.3d 203.

¶ 11 Defendant must also meet the prejudice prong of the Strickland test, which requires a showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at T 17 (quotations and citation omitted). In Defendant's affidavit supporting his motion to withdraw his guilty plea, he stated that he "would not have pleaded guilty" had he known he would be deported. Instead, he "would have gone to trial [to] prove [his] innocence." The ree-ord does not conflict with this testimony, and the State does not challenge it. Thus, we conclude counsel's representation prejudiced Defendant. We conclude the trial court erred in ruling that Defendant was afforded effective assistance of counsel and therefore erred in denying his motion to withdraw his guilty plea. We reverse and remand for proceedings consistent with this opinion.

{12 WE CONCUR: RUSSELL W. BENCH, Judge and WILLIAM A. THORNE JR., Judge.

      . We note our disappointment in receiving no brief from the State of Utah or Davis County in this case involving an issue of first impression in Utah's state courts.

      . Under Utah Code Ann. § 77-13-6(2)(b) (1999), a defendant must file a motion to withdraw a guilty plea "within 30 days after the entry of the plea." The Utah Supreme Court has concluded the phrase "entry of the plea" refers to the date of conviction, which generally occurs at sentencing. See State v. Ostler, 2001 UT 68,¶¶ 8-11, 31 P.3d 528. Thus, the thirty-day time limit runs from the time of sentencing, and not from the date of the plea colloquy. See id. at 111. Here, Defendant filed his motion within thirty days of his sentencing.

      . This makes particular sense in light of the Supreme Court's recent analysis in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Citing the amicus brief for the National Association of Criminal Defense Lawyers, the Court noted that "[elven if the defendant were not initially aware of [possible waiver of deportation under the Immigration and Nationality Act's prior] § 212(c), competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the provision's importance." Id., 533 U.S. at 323 n. 50, 121 S.Ct. at 2291 n. 50 (emphasis added). The Court also noted that "the American Bar Association's Standards for Criminal Justice provide that, if a defendant will face deportation as a result of conviction, defense counsel 'should fully advise the defendant of these consequences.'" Id., 533 U.S. at 323 n. 48, 121 S.Ct. at 2291 n. 48 (citation omitted). Further, "[djeportation, although collateral, is, nonetheless, a drastic consequence. In most cases this collateral consequence is more severe than the penalty imposed by the court in response to the plea." People v. Correa, 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, 311 (1985). Because of this, an attorney's affirmative misstatement on the matter presents an objectively unreasonable deficiency.

      . Under section 1101(a)(43), "aggravated felony" includes "sexual abuse of a minor." 8 U.S.C.A. § 1101(a)(43)(A) (2002). Here, the INS has initiated deportation proceedings against Defendant, and the State does not challenge the conviction's classification as an "aggravated felony."

      . Defendant also argues his guilty plea entered pursuant to incompetent advice of counsel is "involuntary" and therefore invalid. We need not address this issue, for [aln 'accused who has not received reasonably effective assistance from counsel in deciding to plead guilty cannot be bound by that plea because a plea of guilty is valid only if made intelligently and voluntarily.' " United States v. Couto, 311 F.3d 179, 187 (2nd Cir.2002) (quoting United States v. George, 869 F.2d 333, 335-36 (7th Cir.1989)) (additional citation omitted).

      . Because we find in favor of Defendant on the ineffective assistance of counsel issue, we do not reach Defendant's second argument that the trial court failed to comply with rule 11 of the Utah Rules of Criminal Procedure by not providing an interpreter during plea proceedings.


author: DAVIS, Judge:

text:
    2003 UT App 215
    N.D., Petitioner and Appellee, v. A.B., Respondent and Appellant.
    No. 20010880-CA.
    Court of Appeals of Utah.
    June 26, 2003.

      Andrew B. Berry Jr., Moroni, for Appellant.
    Katherine Smith and Amy L. Clayton, Abbott, Spencer & Smith, LLC, Provo, for Ap-pellee.
    Martha Pierce, Salt Lake City, and D. Michael Jorgensen, Salina, Guardians Ad Li-tem.
    Before BILLINGS, Associate P.J., DAVIS, and ORME, JJ.
   OPINION

DAVIS, Judge:

T1 A.B. (Stepfather) appeals from a protective order issued by the trial court against him pursuant to Utah Code Ann. § 30-6-2(1) (1998). We reverse.

BACKGROUND

T2 "We recite only those facts pertinent to disposition of this appeal." Maxfield v. Rushton, T9 P.2d 287, 238 (Utah Ct.App. 1989).

T8 N.D. (Father) and L.B. (Mother) were married on November 29, 1991, and K.D. (the Child) was born as issue of their marriage on April 6, 1994. Father and Mother divorced on April 30, 1996 and, as part of the divorce decree, Mother was awarded sole custody of the Child and Father was given reasonable rights of visitation.

1 4 Thereafter, Father married A.D. (Stepmother) and Mother married Stepfather. In accordance with the April 30, 1996 divorce decree between Father and Mother, Mother retained sole custody of the Child and, as a result, the Child resided with Mother and Stepfather. Father continued to exercise his reasonable rights of visitation with the Child.

T5 On June 25, 2001, Father petitioned for a protective order on behalf of the Child against Mother and Stepfather, In the petition, Father asserted that the Child had "disclosed to her [FJather, [Stepmother,] and [the Division of Child and Family Services] that [Stepfather] is masturbating in front of her." Father also asserted that on a prior occasion, which allegedly occurred in March 1997 (the March 1997 incident), Father and Stepmother "observed [Stepfather] through a window in the home masturbating when they arrived to pick up [the Child]." During the period between the March 1997 incident and Father's filing of the petition for the protective order on June 25, 2001, Father continued to exercise his reasonable rights of visitation with the Child, which included returning the Child after visitation to reside with Mother and Stepfather in the home where the March 1997 incident occurred.

T 6 On July 10, 2001, an initial hearing was held on the petition for the protective order. At this hearing, the trial court dismissed Mother from the petition and appointed a guardian ad litem for the Child. A four-day bench trial was then held on the petition for the protective order on August 8, 27, 28, and 29, 2001.

T7 Throughout the trial, conflicting evidence was received regarding the March 1997 incident. Father presented evidence that he and Stepmother personally observed the March 1997 incident. Stepfather presented evidence indicating that the March 1997 incident never occurred.

8 On the third day of the trial, the guardian ad litem for the Child sought to introduce a videotaped interview performed by the Division of Child and Family Services (DCFS) with the Child (Exhibit # 20) into evidence. Stepfather objected to admission of the Child's out-of-court statements contained in Exhibit #20 on the basis that they were inadmissible hearsay. The court ruled that the statements contained in Exhibit #20 were admissible under rule 803(24) of the Utah Rules of Evidence. There was no other direct, admissible evidence presented at trial that supported the alleged events involving Stepfather described by the Child in Exhibit # 20.

T9 The trial court entered a signed ruling on the petition for the protective order and issued a protective order against Stepfather on October 8, 2001, pursuant to Utah Code Ann. § 80-6-2(1) (1998). Stepfather now appeals.

ISSUES AND STANDARDS OF REVIEW

110 Although Stepfather identifies many issues in his brief, this case turns on the first two issues.

111 First, Stepfather contends that the trial court erred by concluding that the Child's hearsay statements contained in Exhibit #20 were admissible, despite Stepfather's objections, under rule 808(24) of the Utah Rules of Evidence. Our determination of whether the Child's out-of-court statements contained in Exhibit # 20 are admissible under rule 803(24) involves applying the legal requirements of the rule to the out-of-court statements. Cf. State v. Webster, 2001 UT App 238, 19, 82 P.3d 976 (articulating same required determination for review of "fact sensitive" hearsay admissibility decision under statement against interest exception contained in rule 804(b)(8) of the Utah Rules of Evidence).

"In the abstract, the effect of a given set of facts is a question of law and, therefore, one on which an appellate court owes no deference to a trial court's determination." In applying some legal rules, however, we nonetheless allow trial courts a measure of discretion in applying given facts to the articulated legal standard.

Id. (quoting State v. Pena, 869 P.2d 982, 936 (Utah 1994)). Because an admissibility decision under rule 808(24) requires the application of facts to the legal requirements of the rule, we recognize that the trial court has some discretion in making this determination. Cf id. (granting trial court "corresponding measure of discretion" in making its "fact sensitive" hearsay admissibility determination under statement against interest exception contained in rule 804(b)(8) of the Utah Rules of Evidence).

112 Second, Stepfather argues that there was insufficient evidence to support the trial court's issuance of the protective order against him pursuant to Utah Code Ann. § 30-6-2(1) (1998).

The legal sufficiency of the evidence is determined by the standard set out in civil rule 52(a), which provides: "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."

Reid v. Mutual of Omaha Ins. Co., TIG P.2d 896, 899 (Utah 1989) (quoting Utah R. Civ. P. 52(a)). We will determine that a trial court's finding of fact is clearly erroneous and "re-versel[ ] only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made." ProMax Dev. Corp. v. Mattson, 948 P.2d 247, 255 (Utah Ct.App. 1997).

ANALYSIS

I. Admissibility of Exhibit # 20

T 13 Stepfather asserts that the trial court erred by concluding that the Child's out-of-court statements contained in Exhibit #20 were admissible into evidence pursuant to rule 808(24) of the Utah Rules of Evidence. Rule 808(24) provides that the following type of out-of-court statement is "not excluded by the hearsay rule, even though the declarant is available as a witness":

A statement not specifically covered by any of the foregoing exceptions but having equivalent cireumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence.

Utah R. Evid. 808(24). The Utah Supreme Court has stated that rule 803(24) "was intended for use in those rare cases where, although the out-of-court statement does not fit into a recognized exception, its admission is justified by the inherent reliability of the statement and the need for its admission." State v. Nelson, TTI P.2d 479, 482 (Utah 1989).

T 14 The bulk of the trial court's findings entered in support of its rule 803(24) admissibility decision purport to determine that the Child's statements in Exhibit #20 are "reliable and trustworthy," presumably to satisfy the rule 808(24) requirement of "equivalent cireumstantial guarantees of trustworthiness." Utah R. Evid. 808(24). However, most of these findings have very little, if anything, to do with the requirements of rule 803(24). Moreover, the amount of support that these findings lend to the trial court's decision to admit Exhibit # 20 is ambiguous, at best, because many of them cut both against and in favor of admissibility. For example, the trial court entered the following findings: (1) that the Child's mistake of four days regarding the date of the interview was "not such an aberration as to in itself affect [the Child's] credibility and [ ] maturity"; (2) that the Child knew "the difference between the truth and a lis," and that the Child's "answers were spontaneous for the most part and only on several questions did [the Child] need to take time to think or reflect on an answer"; (8) the answers of the Child "did not appear to be rehearsed or memorized" and "were consistent over the 57 minute interview only with several exceptions that the [clourt noted"; (4) the inconsistencies in the Child's answers did "not constitute a substantial inconsistency, and the [clourt finds that they do not materially detract from the [CJhild's credibility"; (5) "(allthough [the interviewer] may have on a number of occasions responded to [the Child]'s answers by restating the answer, which ... could have the psychological effect of reinforcing the correctness of the answer in the [CJhild's mind, the [clourt finds that ... [the interviewer] did not suggest what the answers should be even though [the interviewer] may have restated the answer given by the [CJhild, and [the interviewer] did not suggest that the answer was incorrect or incomplete"; (6) "(allthough [the interviewer] may have used several leading questions they were not sufficient to suggest to the [Clhild what the answer should be"; (7) the leading questions used by the interviewer were "on the borderline of being [ ] suggestive answer[s], but the [clourt finds that the [CJhild was independent in [giving] answers and gave answers which were not reflective of having been coached nor giving answers which were suggested to her"; and (8) "even though on previous occasions [the Child] had been told derogatory things" about Stepfather and Mother by Father and Stepmother, "[these] statements did not materially influence the [CJhild to make the statements and the answers that [the Child] gave."

115 The trial court also found that the Child's out-of-court statements in Exhibit # 20 were "offered as evidence of a material fact," thereby satisfying the requirement of rule 808(24)(A). Utah R. Evid. 808(24)(A). Because the Child's statements in Exhibit # 20 were the basis for the petition for the protective order, we agree with the trial court's determination that they were "offered as evidence of a material fact" and that the requirement of rule 808(24)(A) was satisfied in this case. Id.

[ 16 In addition, the trial court determined that the Child's out-of-court statements in Exhibit #20 satisfied the requirements of rule 803(24)(B) and rule 8038(24)(C). "While we recognize the trial court's discretion in making such a determination," Nelson, 777 P.2d at 482, we conclude that the trial record and the trial court's findings are inadequate to support the trial court's determination that the Child's hearsay statements contained in Exhibit # 20 satisfied the requirements of rule 808(24)(B) and rule 808(24)(C).

A. Rule 808(24)(B)

T17 In support of its conclusion under rule 808(24)(B) of the Utah Rules of Evidence, the trial court entered the following "findings":

The [clourt also finds that the statement on the tape is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. It appears that the [CJhild is one of the witnesses to the event, although there were other witnesses. There is no reason why this child would be any less credible than others and the [cJourt finds that [the Child's] statement is more probative on this point than any other evidence that could be obtained at the present time.

1 18 Neither these so-called "findings," nor the trial record support the conclusion the trial court reached under rule 808(24)(B) because they both fail to show whether the trial court considered if the Child's in-court testimony would have been more probative than the Child's out-of-court statements contained in Exhibit # 20. Although rule 808(24) does not require a showing of unavailability for a hearsay statement to be admissible under its requirements, rule 808(24)(B) does require a showing that the hearsay statement be "more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts." Utah R. Evid. 808(24)(B) (emphasis added). Because we are not presented with any information from the parties' briefs, the trial ree-ord, or the trial court's findings about why the Child was not called to testify, "[wle do not agree that the out-of-court statements offered at trial were more probative on the point for which they were offered than the [in-court] testimony of [the Child]." State v. Nelson, TTI P2d 479, 482 (Utah 1989). Therefore, we conclude that the trial court erred by determining that the requirement of rule 808(24)(B) was satisfied in this case.

B. Rule 808(24)(C)

119 In support of its conclusion under rule 808(24)(C) of the Utah Rules of Evidence, the trial court entered the following "findings":

[TThe [elourt also finds that the purpose of the [Utah Rules of Evidence] and the interest of justice will best be served by admission of the statement into evidence. The [clourt finds that the statement of the [Clhild is perhaps the best evidence that can be obtained as to whether or not these events did or did not occur and, therefore, the [court finds that the interests of justice would be served by receiving this into evidence.

120 These conclusory "findings" do not support the trial court's conclusion under rule 808(24)(C) because they do not show how "the general purpose of [the Utah Rules of Evidence] and the interests of justice will best be served by admission of the statement[s] into evidence." Utah R. Evid. 803(24)(C). The general purpose of the Utah Rules of Evidence provides that they "shall be construed to secure ... promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined." Utah R. Evid. 102. Neither the trial court's findings nor the trial record show how the trial court's decision to admit the Child's out-of-court statements in Exhibit #20, in lieu of the Child's live testimony, best serves the general purpose of ensuring that "the truth [is] ascertained and [the] proceedings [are] justly determined." Id. Again, because we are not presented with any information from the parties' briefs, the trial record, or the trial court's findings about why the Child was not called to testify, we do not agree that "the general purpose of [the Utah Rules of Evidence] and the interests of justice [would] best be served" by admitting the Child's out-of-court statements in Exhibit # 20 into evidence. Utah R. Evid. 808(24)(C). Therefore, we conclude that the trial court erred by determining that the requirement of rule 808(24)(C) was satisfied in this case.

21 Because the trial court's findings and the trial record do not support the trial court's determination that the requirements of rule 808(24)(B) and rule 803(24)(C) were satisfied in this case, we conclude that the trial court erred by admitting the Child's out-of-court statements contained in Exhibit # 20 under rule 808(24).

IIL. Sufficiency of the Evidence

{$22 Stepfather argues that there was insufficient evidence to support the trial court's issuance of the protective order against him pursuant to Utah Code Ann. § 30-6-2(1) (1998). [Wie review the trial court's findings of fact for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made." ProMax Dev. Corp. v. Mattson, 948 P.2d 247, 255 (Utah Ct.App. 1997).

{23 In the relevant portion of its written ruling on the protective order, the trial court concluded that there was "a substantial likelihood of immediate danger of abuse or domestic violence" to the Child and, as a result, issued the protective order pursuant to seetion 830-6-2(1). In support of this conclusion, the trial court entered written findings in its ruling, most of which rely exclusively on the Child's hearsay statements contained in Exhibit #20. Because we conclude that the trial court erred by admitting the Child's out-of-court statements contained in Exhibit # 20 into evidence, we do not consider the trial court's findings based upon Exhibit #20 in our review of its decision to issue the protective order. As a result, we are left with the remainder of the trial court's findings from the relevant portion of its ruling as the basis for its decision to issue the protective order.

T24 Notwithstanding the fact that Father's counsel conceded at trial that the March 1997 incident was a "minor allegation that [Father] made" and that "it's not [Fa-thert's allegations, it's [the Child]'s disclosure that brings us all here," the remainder of the trial court's written findings from the relevant portion of its ruling rely upon the March 1997 incident. Specifically, the trial court found (1) that Father's credibility in his testimony regarding the March 1997 incident was not "compromised," and (2) that the March 1997 incident was one of the bases for its conclusion that there was "a substantial likelihood of immediate danger of abuse or domestic violence" to the Child.

1 25 The March 1997 incident, presumably observable by anyone in the vicinity, was not reported in the petition for the protective order for over four years. Moreover, during this period of time, Father continued to exercise his reasonable rights of visitation with the Child, which included returning the Child after visitation to reside with Mother and Stepfather in the home where the March 1997 incident occurred. We conclude that the March 1997 incident, even if proven to have occurred, was too remote in time to Father's filing of the petition for the protective order to be a sufficient basis for the trial court's conclusion under section 30-6-2(1).

{26 For the foregoing reasons, we conclude that the trial court's findings supporting its determination that there was "a substantial likelihood of immediate danger of abuse or domestic violence" to the Child are "against the clear weight of the evidence" and, therefore, are clearly erroneous. Pro-Max Dev. Corp., 948 P.2d at 255. As a result, we conclude that there was insufficient evidence to support the trial court's issuance of the protective order against Stepfather pursuant to section 30-6-2(1).

CONCLUSION

T 27 We conclude that the trial court erred by admitting the Child's hearsay statements contained in Exhibit # 20 into evidence. We also conclude that there was insufficient evidence to support the trial court's issuance of the protective order against Stepfather pursuant to Utah Code Ann. § 80-6-2(1) (1998). Therefore, we reverse the trial court's issuance of the protective order.

128 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and GREGORY K. ORME, Judge.

      . The Child was interviewed by DCFS on three separate occasions. Although the first interview was not videotaped, both the second and third interviews were videotaped. The guardian ad litem only offered the videotape of the third interview (Exhibit #20) into evidence at trial. The videotape of the second interview was never offered into evidence at trial by either of the parties or the guardian ad litem. Although references were made to the videotape of the second interview during the trial, Stepfather never formally requested, nor was he provided with, a copy of that videotape or a transcript of the interview.

      . In his brief, Stepfather presents twelve separate issues in the "Statement Of Issues Presented For Review" section, yet only has headings for six separate issues in the "Argument" section.

      . - Stepfather argues that the trial court erred by failing to dismiss the petition for the protective order because the petitioner was not "sworn upon his oath" to the truth of the allegations in the petition at the time petitioner signed it before a notary public. Because the first two issues are dispositive of this case, we decline to address this issue.
      Stepfather also makes constitutional claims that his right of due process and his right of confrontation were violated by the admission of the Child's hearsay statements contained in Exhibit # 20. "[It is fundamental that constitutional issues should be avoided if the case can be properly decided on non-constitutional grounds." Bailey v. Bayles, 2002 UT 58,126, 52 P.3d 1158 (quotations and citation omitted). Because we decide this case on the basis of the first two issues, we do not address Stepfather's constitutional claims.

      . Rule 803(24) also contains a notice component, which requires the proponent of the hearsay statement to provide notice to the adverse party "sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declar-ant." Utah R. Evid. 803(24). Because we resolve the rule 803(24) admissibility issue on other grounds, we do not address this notice requirement.

      . The trial court's reference to "the event" refers to the alleged events involving Stepfather that are the substance of the Child's out-of-court statements contained in Exhibit # 20.

      . The trial court's reference to "other witnesses" refers to the other people who the Child indicated, during the interview contained in Exhibit #20, were present when the alleged events involving Stepfather occurred. Mother, Stepfather, and C.B. (Stepfather's child) were the only three of these "other witnesses" who testified at trial. All three were called to testify by Stepfather and gave testimony in support of Stepfather.

      . - Section 30-6-2(1) provides:
      Any cohbabitant or any child residing with a cohabitant who has been subjected to abuse or domestic violence, or to whom there is a substantial likelihood of immediate danger of abuse or domestic violence, may seek an ex parte protective order or a protective order in accordance with this chapter, whether or not that person has left the residence or the prem:-ises in an effort to avoid further abuse.
      Utah Code Ann. § 30-6-2(1) (1998).

      . In this portion of its ruling, the trial court entered seven separate written findings. Five of these, and part of one other, either rely upon or make reference to the Child's statements contained in Exhibit # 20.


author: JACKSON, Presiding Judge: THORNE, Judge

text:
    2003 UT App 217
    STATE of Utah, Plaintiff and Appellee, v. Frederick GERMONTO, Defendant and Appellant.
    No. 20020304-CA.
    Court of Appeals of Utah.
    June 26, 2003.

      Joan C. Watt, Salt Lake City, for Appellant.
    Mark L. Shurtleff and J. Frederic Voros Jr., Asst.Atty. Gen., Salt Lake City, for Ap-pellee.
    Before JACKSON, P.J., DAVIS, and THORNE, JJ.
   OPINION

JACKSON, Presiding Judge:

T1 Frederick Germonto appeals from a conviction for escape from official custody, a second degree felony, in violation of Utah Code Annotated Section 76-8-809 (1999) (escape statute). We reverse.

BACKGROUND

12 On February 5, 2000, Germonto, an inmate at the Utah State Prison, attended chapel with a group of other inmates. While walking from the prison chapel back to his housing unit, Germonto broke rank and sealed a ten-foot chain link fence that separated the inmate housing yard from the outer perimeter area of the prison. He then proceeded to scale the perimeter fence, which had razor wire at the top. Prison guards arrived and ordered Germonto off the fence. Germonto dropped from the fence back onto the prison grounds, ran parallel to the perimeter fence, then stopped and was taken back into custody.

T8 On March 9, 2000, the State filed an Information charging Germonto with violating the escape statute. A preliminary hearing was held before the Third District Court on August 17, 2000, at which Germonto argued that he could not be bound over on the crime of escape because he had not left the confines of the prison and therefore had not actually completed an escape.

T4 The district court judge, acting as a magistrate, rejected Germonto's arguments and bound Germonto over for trial on the charge of escape. Germonto filed a pro se motion to quash the bindover, which was denied. His case was then transferred to a judge in West Valley City, and Germonto renewed his motion to dismiss. Germonto also challenged the State's ability to request a lesser included offense instruction of attempted escape when it was proceeding on the escape charge based on an incomplete escape.

T5 On March 19, 2002, Germonto entered a conditional plea of no contest, expressly reserving his right to appeal the adverse rulings regarding the propriety of the bind-over. This appeal followed.

ISSUE AND STANDARD OF REVIEW

16 Germonto challenges the sufficiency of the evidence to support a bindover on the charge of eseape. To support a bind-over, the State must introduce "sufficient evidence to support a reasonable belief that an offense has been committed and that the defendant committed it." State v. Clark, 2001 UT 9,1 16, 20 P.3d 300. This requires the State to present believable evidence as to each of elements of the crime. See id. at $13. To determine the elements of the crime, the court must interpret the statute under which the defendant is charged. Statutory interpretation is a matter of law, which we review for correctness. See State v. Maestas, 2000 UT App 22,1 11, 997 P.2d 314.

ANALYSIS

T7 In interpreting statutes, we first look to the plain language of the statute. See Travelers/Aetna Ins. Co. v. Wilson, 2002 UT App 221," 12, 51 P.3d 1288. In considering the plain language of a statute, courts " 'presume that the legislature used each word advisedly and give effect to each term according to its ordinary and accepted meaning." " Arredondo v. Avis Rent A Car Sys., Inc., 2001 UT 29,§ 12, 24 P.3d 928 (citations omitted). We consider other methods of statutory construction only when a statute is ambiguous.

T8 The plain language of Utah's escape statute requires that an inmate leave the confines of the prison to be guilty of escape. The escape statute plainly states that "[al prisoner is guilty of escape if he leaves official custody without authorization." Utah Code Ann. § 76-8-809(1). Subsection (7)(b) defines "official custody" as "confinement in the state prison" for purposes of this case. Subsection (7)(a) further defines "confinement" as "housed in a state prison." Id. § 76-8-309(7)(a)). Thus, to be guilty of escape, an inmate must leave his confinement or housing in the prison.

T9 The term "housing" is not defined in Utah's escape statute. The State argues, and the trial court agreed, that we should construe the term to include only the authorized areas of the prison. According to this definition, Germonto completed an escape because he stepped out of the queue of inmates without authorization. Germonto argues that we should construe the term to include the "confines of the prison," or the perimeter fence and all areas of the prison within the fence. We are persuaded that Germonto's construction of the term "housing" better accords with the legislative intent of the statute.

110 Although decisions from other jurisdictions interpreting statutes with distinct language provide little guidance in interpreting the language of Utah's escape statute, the decision in State v. Gaines, 872 So.2d 552 (La.1979) is worth noting because the statute at issue in that case is similar to Utah's escape statute. The statute at issue in Gaines defined escape as "the intentional departure ... of a person imprisoned, committed, detained, or otherwise in the lawful custody of any law enforcement officer ... from any place where such person is lawfulty confined." Id. at 554 (quoting La. RS. 14;110(A)) (emphasis added). The court concluded that "any place where [a person is] legally confined" must necessarily be a place with physical barriers where the person is actually confined. Id. at 555. In reaching that determination, the court recognized that "[alny less definitive or more ambiguous definition of place of confinement would render the statute unconstitutionally vague." Id. In addition, the court recognized that even if the language were ambiguous, any ambiguity must be resolved in favor of the defendant. See id. at 554. Because Gaines departed from an okra patch on prison grounds where he was on work detail but did not otherwise leave the confinement or boundaries of the prison, the court held that he did not commit an escape when he ran from the line where he was working and continued running even after a guard told him to stop and fired warning shots. See id. at 558-54.

T11 Like the statute in Gaines, if Utah's escape statute were interpreted to allow a conviction for escape when an inmate has not left the confines of the prison, the statute would be void for vagueness. A statute is unconstitutionally vague if it: (1) fails to provide a "person of ordinary intelligence a reasonable opportunity to know what is prohibited."; (2) "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoe and subjective basis, with the attendant dangers of arbitrary and discriminatory application"; or (3) inhibits the exercise of First Amendment freedoms. Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). If we interpreted the statute so that an escape occurs even though the inmate has not left the official custody or confinement of the prison, the statute would violate the first two of these prohibitions.

1 12 First, a person of ordinary intelligence would not have notice as to what conduct is prohibited. The statute itself defines "official custody" as confinement in the state prison, and defines "confinement" as "housed in the state prison." While the statute defines the term "confinement," that term also has an ordinary and commonly understood meaning that is consistent with the statutory definition. - "Confinement" means imprisonment or being confined, i.e., being held within a boundary or bounded region. Webster's New World College Dictionary 806 (4th ed.1999). A person of ordinary intelligence could not read the escape statute and be given notice that he would be guilty of a completed escape even if he did not leave the confines of the prison.

{ 13 Second, if we interpreted the statute to allow a completed escape even though Germonto did not leave the prison grounds, we would leave prison guards, judges, and juries to decide whether an escape occurred any time an inmate entered a restricted area or even left his cell when he was not supposed to do so. The escape statute would be enforced arbitrarily to convict some inmates who venture out of their cells while subjecting others only to administrative sanctions based on the whim of the guards and not on legislative mandate.

T 14 In order to "save [the statute] from constitutional conflicts or infirmities," Intermountain Slurry Seal v. Labor Commission, 2002 UT App 164,116, 48 P.3d 252, the trial court's interpretation must be rejected. Instead, we must uphold the plain language of the statute, which requires an inmate to leave the confinement of the prison in order to commit an escape.

1 15 Our decision is bolstered by the portion of the code that outlines the elements for attempt crimes. See Utah Code Ann. § 76-4-101 (1999). "[A] person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the offense, he engages in conduct constituting a substantial step toward the commission of the offense." Id. The attempt statute further requires that any conduct be "strongly corroborative of the actor's intent to commit the offense" to constitute a "substantial step." Id.

T 16 We would eviscerate the crime of attempted escape if we considered any conduct by an inmate who moves to an area on prison grounds that is restricted or in which he is not supposed to be a completed escape. Any time an inmate is out of his cell when he is not supposed to be, fails to awake and vacate his cell when he is supposed to do so, is in the cell of another inmate, disregards the order of a guard, or otherwise moves out of bounds, the state could charge the inmate with a completed escape. Such an approach would run contrary to the legislative intent that an inmate leave official custody by leaving the confinement of the prison in order to commit a completed escape, and would do away with the crime of attempted escape.

{17 The trial court's interpretation also disregards the purposes and principles set forth in Utah Code Ann. § 76-1-104 (1999), which requires that the provisions of the code be interpreted so that the elements of a crime are clearly defined, the penalties are proportionate to the seriousness of the offense, and arbitrary or oppressive treatment is prevented. The trial court's interpretation would allow for a punishment that is disproportionate to the crime because an inmate who did not leave the confinement of the prison would receive the same second degree felony punishment as an inmate who did leave the prison.

18 Finally, the prison has administrative rules for internally punishing inmates who move into restricted areas. When an inmate leaves his or her assigned area, the prison has the ability to impose sanctions. Léaving the assigned area is not the same as "leaving official custody" and is appropriately punished internally by restricting the inmate's privileges, transferring the inmate to a more secure location, requiring that the inmate be locked down for a significant portion of the day, or imposing other appropriate internal sanctions. See, eg., People v. Lavaie, 70 Cal.App Ath 456, 462, 82 Cal.Rptr2d 719 (1999) (determining that an inmate was subject to disciplinary rules but was not guilty of escape where guards saw two men walking toward the gate at 1:00 a.m., and where the defendant was missing from bed count but was later found within a restricted area of the prison); State v. Liggett, 368 So.2d 1184, 1186 (La.1978) (concluding that an inmate who did not report for work and who was later found in another section of the prison was subject to prison disciplinary rules but did not commit the crime of escape).

CONCLUSION

T19 In this case, there was not probable cause to believe Germonto completed the crime of escape because there is no evidence that he left the confines of the prison. While the evidence demonstrated that Germonto climbed over the inner fence, there is no evidence that he made it over the outer boundary fence and left the prison. Although the State presented sufficient evidence to bind Germonto over on the charge of attempted escape, it failed to establish probable cause to bind Germonto over on the crime of escape. Accordingly, the trial court erred in refusing to quash the bindover on that charge. We now reverse and remand for withdrawal of the conditional plea.

120 I CONCUR: JAMES Z. DAVIS, Judge.

THORNE, Judge

(dissenting):

21 Because I believe the majority interpretation of Utah Code Annotated section 76-8-309 (1999) is flawed, I respectfully dissent.

1 22 The majority concludes that under the plain language of our escape statute, an escape is not accomplished absent a prisoner successfully leaving the prison. The majority relies upon State v. Gaines, 372 So.2d 552 (La.1979), to support this position. However, because the Louisiana escape statute is materially different from our own, the majority's reliance on Gaines is misplaced. In Gaines, the Louisiana Supreme Court examined whether a prisoner who fled from his assigned area within the prison, with the intent to leave the prison, had violated Louisiana's escape statute. See id. at 558-54. The court examined the plain language of the Louisiana statute and determined that the legislature had amended the escape statute to require specific proof of two distinct elements: (1) The prisoner must escape from official custody; and (2) the prisoner must escape from a place of legal confinement. See id. at 554. Having so interpreted the statute, the Louisiana Supreme Court reversed Gaines's convietion, because while he escaped from official custody, at no point did he actually leave prison grounds. See id. at 555.

123 In contrast, our escape statute, seetion 76-8-809, states that "[a] prisoner is guilty of escape if he leaves official custody without authorization." Utah Code Ann. § 76-8-309(1). Thus, unlike the statute at issue in Gaines, in Utah, an escape is complete onee a prisoner "leaves official custody [making no reference to geographic boundaries] without authorization." Id. § 76-8-809(1). Accordingly, it is clear that our legislature has not seen fit to require the state to prove two conjunctive elements to establish that the crime of escape has been committed. I therefore cannot join in the majority view that the analysis offered in Gaines provides constructive assistance in the present case.

124 Instead, I believe that 79 AL.R.4th 1060, Annotation Convictions For Escape Where Prisoner Fails to Leave Confines of Prison or Institution (1990 & Supp.2002), is much more helpful in analyzing this situation. Specifically, 79 A.L.RAth 1060 presents a myriad of case law that directly supports my interpretation of section 76-8-809. Among these cases, I find Huffman v. State, 659 N.E.2d 214 (Ind.Ct.App.1995), to be particularly instructive. In Huffman, the defendant was a prisoner who had left his dormitory without authorization and hid on prison grounds until he was later discovered. See id. at 215. Subsequently, the defendant was convicted of escape. See id. On appeal, the defendant argued that "he could not properly be convicted of Escape because he had not made it off" prison grounds. Id. In denying his claim, the Indiana Court of Appeals noted

that our sister states have almost universally upheld Escape convictions where the prisoner did not make it outside the prison or detention facility where the states' statutes involved proscribed "escape from 'custody,' 'confinement, or the like" (as opposed to statutes which proseribed "escape from 'prison, 'detention facility, or the like") and the prisoner exhibited an intention to leave the confines of the prison or institution.

Id. (citations omitted).

125 Similarly, in Urbauer v. State, 744 P.2d 1274 (Okla.Crim.App.1987), the defendant was convicted of escape after scaling two of three fences surrounding the prison where he was incarcerated. See id. at 1275. (On appeal the defendant argued that the evidence was insufficient to prove escape because he had not succeeded in leaving the prison grounds. See id. The court, in denying his claim, noted that "[wle think that for purposes of escape from a penal institution, 'custody' may be restraint by either physical means or by a superior force acting as a moral restraint. But there must be actual or constructive custody in order to escape from that custody." Id. The court further stated that "[alny departure from such restraint or control, with or without force, whether from custody of an officer or from any place where one is lawfully confined may be adjudged an escape." Id.

1 26 Finally, in State v. Sugden, 148 Wis.2d 728, 422 NW.2d 624 (1988), the defendant was convicted of escape after highjacking a prison vehicle and driving it through the inner wall only to be stopped before reaching the outer wall. See id. at 625-26. At trial, and on appeal, the state argued that the defendant's escape was complete when he broke out of the housing facility within the prison and that the defendant's point of capture was immaterial. See id. at 626. The Wisconsin Supreme Court agreed, stating that within the meaning of the Wisconsin escape statute, "custody of an institution may exist within the perimeters of an institution because of special treatment that is given to particular inmates." Id. at 627. Thus, the court concluded, "[tlhere may be custody without the walls and custody of various kinds, without limitation, within the walls." Id. at 627; see also Annotation Conviction For Escape Where Prisoner Fails to Leave Confines of Prison of Institution, T9 A.L.R.4th 1060 (1990 & Supp.2002) ("As a general matter, it has been held that the crime of escape may be complete, notwithstanding the fact that the prisoner does not depart from the enclosure of the prison, if he succeeds in leaving his cell, where the statute penalizes an escape from 'any place whatsoever' in which the prisoner is placed.").

€27 Much like the statutes at issue in Sugden and Urbaquer, Utah's escape statute criminalizes "leaving] official custody without authorization." Utah Code Ann. § 76-8-309(1). Thus, because "[tJhere may be custody without walls and custody of various kinds, without limitation, within the walls," Sugden, 422 NW.2d at 627; see also Utah Code Ann. § 76-8-809(7)(b) (defining the broad meaning of "official custody" under the statute), I would conclude that Germonto left official custody when he left his authorized area of confinement. It is clear from the record that Germonto's authorized area of confinement at the time of his escape was comprised of the yard through which he was traveling, following a church service, to return to his cell, and that when he scaled the fence into the "no-man's-land" area between the fences he had left official custody without authorization. See State v. Descoteaux, 94 Wash.2d 31, 614 P.2d 179, 181 (1980) ("[DJe-fendant could be convicted of escape if he knew his actions would result in leaving confinement without permission."), modified by State v. Danforth, 97 Wash.2d 255, 643 P.2d 882 (1982).

T 28 Moreover, inserting the definitions for "official custody" and "confinement" supplied in section 76-8-309(7)(a), (b), does not require a different result in this case. The application of the provided definitions changes the statute to read that Germonto is guilty of escape if he leaves "confinement in a state prison," where he is housed, without authorization. Utah Code Ann. § 76-8-309(TM)(a)-(b) At the time of his escape, Germonto was "confined" to an area within the prison, bounded by a substantial fence, through which the guards transported the prisoners to and from the chapel. It was from this area of confinement within the prison that Germonto left without authorization when he successfully scaled the inner fence, knowing that if left unchecked he would reach "freedom." Thus, even considering the definitions provided for within the statute, Germonto's actions violated section 76-8-309. See also Fitzgerald v. State, 782 S.W.2d 876, 879 (Tex.Crim.App.1990) (concluding that defendant had escaped from custody when he left specific housing unit within the prison to which he was confined).

1 29 While it is possible to read into section 76-8-809 the implied requirement that to be convicted of the erime of escape a prisoner must successfully escape all boundaries of the prison in which he finds himself, I believe that had the legislature intended that effect it could have, and would have, clearly communicated that intent in the statutory language. Instead, the legislature chose to criminalize the act of leaving official custody without authorization, an act that is accomplished not by escaping from the geographic boundaries of an institution, but by escaping from the authorized presence and immediate control of the institution or an arresting officer. See Sugden, 422 NW.2d at 627-28. Because the act of escaping official custody carries with it an inherent danger to the prisoner, police and correctional officers, and the public at large, the legislature is well within the bounds of reason in criminalizing the behavior as early in the process as is feasible. See Kinney v. Indiana Youth Cir., 950 F.2d 462, 465 (7th Cir.1991) ("[A] prisoner in the act of escaping may pose a serious threat to members of the community."); see also United States v. Dickerson, T7 F.8d T74, TT (4th Cir.1996) ("[Nlo one could credibly dispute the contention that an overt escape, especially an overt escape from a maximum security prison, inherently presents a serious potential risk of physical injury to another.").

1 30 Finally, I am also unpersuaded by the majority's arguments concerning attempted escape. First and foremost, it is clear from the statutory language, and the cases interpreting similar statutory language, that a prisoner must enjoy some level of suceess, albeit incomplete success, to be liable for the crime of escape. See Sugden, 422 NW .2d at 627-28. It is the success of leaving an area of authorized confinement that defines the crime of escape. Thus, had Germonto failed to scale the inner fence-the limits of his authorized confinement area at the time of his eseape-his crime would have been attempted escape. But, in the face of his success in scaling the fence, Germonto escaped from official custody.

31 Moreover, I see little difference between this interpretation and our interpretation of the robbery or burglary statutes, where our focus is not on the success of the criminal act as a whole; rather, we focus our analysis on the completion of certain acts to determine whether the statute has been violated. See Utah Code Ann. § 76-6-801 (1999) ("A person commits robbery if: (a) the person unlawfully and intentionally takes or attempts to take personal property in the possession of another from his person."); id. § 76-6-202 (1999) ("A person is guilty of burglary if he enters or remains unlawfully in a building or any portion of a building with intent to commit a felony or theft or commit an assault on any person."). In the instant case, Germonto climbed over the inner fence with the knowledge that his actions would result in his leaving confinement without authorization. While he was not ultimately successful in leaving the prison grounds, much like burglary or robbery, by taking the material step of scaling the inner fence with the required intent, his actions satisfied the statutory elements of an unauthorized leaving a place of confinement, and thus, the trial court properly bound him over for trial.

1 832 Accordingly, I dissent from the majority opinion and would instead affirm the trial court's decision to bind Germonto over on the escape charge.

      . Even in construing ambiguous statutes, our focus remains on effectuating the legislative intent. See Intermountain Slurry Seal v. Labor Comm'n, 2002 UT App 164,%6, 48 P.3d 252 ("When doubt or uncertainty exists as to the meaning or application of an act's provisions, an analysis of the act in its entirety should be undertaken and its provisions harmonized in accordance with the legislative intent and purpose.").

      . Subsection (7)(b) reads in full:
      "Official custody" means arrest, whether with or without warrant, or confinement in a state prison, jail, institution for secure confinement of juvenile offenders, or any confinement pursuant to an order of the court or sentenced and committed and the sentence has not been terminated or voided or the prisoner is not on parole. A person is considered confined in the state prison if he:
      (i) without authority fails to return to his place of confinement from work release or home visit by the time designated for return;
      (i) is in prehearing custody after arrest for parole violation;
      (Hii) is being housed in a county jail, after felony commitment, pursuant to a contract with the Department of Corrections; or
      (iv) is being transported as a prisoner in the state prison by correctional officers.
      Utah Code Ann. § 76~8-309(7)(b) (emphasis added). The last sentence of subsection (7)(b) clarifies that a person can be in "official custody" and therefore can be charged with escape even if he is not actually being held in the prison on a felony commitment. Id. Instead, a person is in "official custody" if he is on work release, being held on a parole violation, being held at a county jail on a prison commitment, or being transported to court, the hospital or elsewhere. Id. § 76-8-309(7)(i)-(iif). None of these circumstances, however, apply to Germonto. Germonto was in "official custody" due to his "confinement in the state prison." Id. § 76-8-309(7)(b).

      . During the relevant period, Louisiana's escape statute read as follows:
      Simple escape is: .... The intentional departure, under circumstances wherein human life is not endangered, of a person imprisoned, committed, detained, or otherwise in the lawful custody of any law enforcement officer or officer of the Department of Corrections, from any place where such person is legally confined.
      State v. Gaines, 372 So.2d 552, 554 (La.1978) (quotations and citation omitted).

      . Admittedly, Utah Code Annotated section 76-8-309 (1999) offers a number of definitions for the term "official custody." I believe, however, that the broad range provided supports, rather than undermines, my conclusion. The definitions offered range from simple arrest, which can occur on the street and which is technically complete once a person is informed of the fact, with or without handcuffs or other restraining devices, to "confinement in a state prison, jail" or other area of secure confinement, Id. § 76-8-309(7)(b). Thus, unlike the majority, I do not believe the definitions offered create additional elements that must be proved by the state. Rather, I believe the definitions merely highlight those individuals who are subject to prosecution under section 76-8-309 should they "leave[ ] official custody without authorization." - Id. § 76-8-309(1).

      . The Indiana escape statute in effect at the time of Huffman's action defined escape as follows: "A person who intentionally flees from lawful detention commits escape ...." Huffman v. State, 659 N.E.2d 214, 215 (Ind.Ct.App.1995) (quoting Ind.Code § 35-44-3-5(a)).

      . The Wisconsin court also noted that " 'escape from prison' means something different from 'escape from custody of such institution [or prison].' " State v. Sugden, 143 Wis.2d 728, 422 N.W.2d 624, 628 (1988) (alterations in original) (citations omitted).

      . - Nor do I believe that this interpretation creates the sort of equal protection problem envisioned by the majority. Utah Code Annotated section 76-8-309(7) (1999) offers a broad definition for "official custody" that ranges from fleeing from an arrest, or from the custody of a transport officer, to leaving confinement in a jail or prison. Utah Code Ann. § 76-8-309(7)(b). From this language it is clear that the legislature intended the act of leaving official custody to be the defining moment in the crime of escape. See Maynard v. State, 652 P.2d 489, 493 n. 7 (Alaska Ct.App.1982) ("[Any voluntary departure from the arresting officers' immediate presence without their consent was an escape; this would be true even if he had been recaptured almost immediately."). Thus, leaving the area of confinement, not the entire institutional grounds, with the goal of securing an illegal freedom, is the action prohibited by section 76-8-309.

      . Escape is defined variously to mean: "an act or instance of escaping: as [a] flight from confinement{, or the] evasion of something undesirable." Merriam-Webster's Collegiate Dictionary 395 (10th ed.1999). Accordingly, escape refers not to a successful act, but rather to the "flight" or "evasion" involved. Id.

      . Compare the present circumstance of escaping from official custody within a prison to escaping from the custody of an arresting officer. In the context of arrest, an escape occurs with the first step taken by a prisoner who is in the custody of an arresting officer. See Utah Code Ann. § 76-8-309(7)(b); see also State v. Descoteaux, 94 Wash.2d 31, 614 P.2d 179, 181 (1980) ("[Defendant could be convicted of escape if he knew his actions would result in leaving confinement without permission."), modified by State v. Danforth, 97 Wash.2d 255, 643 P.2d 882 (1982).