McHUGH, Associate Presiding Judge:
¶ 1 Martin Ray Jackson appeals his conviction for unlawful sexual conduct with a sixteen- or seventeen-year-old (Unlawful Sexual Conduct), see Utah Code Ann. § 76-5-401.2 (2008), arguing that the trial court erred when it denied his motion to arrest judgment because prosecution of the charge was barred by the expiration of the applicable statute of limitations. Jackson further contends that Unlawful Sexual Conduct is not a lesser included offense of rape and, therefore, the longer statute of limitations for rape could not be used to extend the limitations period. We affirm but on a different ground than that relied upon by the trial court.
¶ 2 In June 2003, Jackson lived at his parents' house and was forty-three years old. The daughter of Jackson's former wife (Stepdaughter) also lived at the residence and was seventeen at the time. According to Stepdaughter, beginning when she was fifteen years old, she and Jackson used drugs together. One night in June 2003, after using methamphetamine in Stepdaughter's bedroom, Jackson and Stepdaughter stayed awake together while Stepdaughter played video games. Stepdaughter testified that she eventually fell asleep and had "really realistic dreams" that Jackson was having sex with her. She then awakened to find Jackson having sexual intercourse with her, "freaked out," and yelled at him to leave. Stepdaughter testified that Jackson apologized and left the room, claiming that he did not realize what was happening. Although Jackson did not testify at trial, he pleaded not guilty to the charges, and defense counsel challenged Stepdaughter's credibility at trial.
¶ 3 In February 2005, Stepdaughter's mother learned about the incident from another daughter and reported it to the police. When questioned by the police, however, Stepdaughter denied having sexual intercourse with Jackson and the authorities took no further action at that time. Then, in February 2008, almost five years after the June 2003 incident, Stepdaughter asked Jackson to watch her baby so that she could go out to dinner. Although the baby was sick, Stepdaughter told Jackson the illness was not serious and directed him not to take the baby to the emergency room. Notwithstanding Stepdaughter's instructions, Jackson became concerned and sought medical care for the baby later that night. When Stepdaughter learned what Jackson had done, she became upset and she and Jackson argued. Stepdaughter reported the June 2003 incident to the police a few days later.
¶ 4 Based on Stepdaughter's allegations, the State filed an information against Jackson on March 27, 2008, charging him with rape, a first degree felony in violation of Utah Code section 76-5-402. See Utah Code Ann. § 76-5-402 (2008). In December of that same year, the State amended the information to add the alternative charge of Unlawful Sexual Conduct, a third degree felony. Jackson waived his right to a preliminary hearing on the alternative charge and did not raise any challenge to the amended information.
¶ 5 The charges of rape and Unlawful Sexual Conduct were tried to a jury during three days in May 2009. At the conclusion of the State's case-in-chief, Jackson moved for a directed verdict on both charges, claiming that the State had failed to meet its burden of establishing that Jackson and Stepdaughter had engaged in sexual intercourse. The trial court denied the motion, and Jackson did not renew it at the close of all evidence. The defense maintained throughout trial that the allegations made by Stepdaughter were false. Therefore, Jackson did not argue for conviction on the lesser charge of Unlawful Sexual Conduct.
¶ 6 During its deliberations, the jury sent a note to the trial court, stating,
With the parties' consent, the trial court answered the jury's questions by indicating, "The differences between the Rape charge and [Unlawful Sexual Conduct] are consent and [the] age of [Stepdaughter] and ... Jackson," and then further instructed the jury that they should reach the Unlawful Sexual Conduct charge "only if you determine that the State of Utah failed to prove one or more elements of rape beyond a reasonable doubt as set forth in Instruction [thirty-five, instructing on the elements of rape]." At that time, defense counsel asked the trial court to instruct the jury on the crime of incest and to reopen the evidence if
¶ 7 The jury acquitted Jackson of rape but convicted him of Unlawful Sexual Conduct. Prior to sentencing, defense counsel moved to arrest judgment, arguing that the prosecution of the Unlawful Sexual Conduct charge was barred by the expiration of the four-year statute of limitations. In response, the State argued that because Unlawful Sexual Conduct is a lesser included offense, it could be prosecuted within the eight-year statute of limitations for rape. The trial court agreed and denied the motion to arrest judgment. Jackson now appeals.
¶ 8 Jackson argues that the trial court erred when it denied his motion to arrest judgment because Unlawful Sexual Conduct is not a lesser included offense of rape and, therefore, the State could not rely on the longer statute of limitations for rape to prosecute Jackson. Because Jackson challenges the trial court's legal conclusion that Unlawful Sexual Conduct is a lesser included offense of rape and does not challenge the trial court's findings of fact, we review the trial court's decision to deny the motion to arrest judgment for correctness. See State v. Green, 2005 UT 9, ¶ 15, 108 P.3d 710 ("Whether the trial court applied the proper statute of limitations is a matter of law that we review for correctness."); State v. Chukes, 2003 UT App 155, ¶ 9, 71 P.3d 624 ("Whether one crime is a lesser included offense of another is a question of law reviewed for correctness." (internal quotation marks omitted)).
¶ 9 The State argues that Jackson forfeited his statute of limitations defense when he did not raise it before or during trial, did not object to the jury considering the Unlawful Sexual Conduct charge, and moved to have the trial court instruct the jury on incest, an offense that is subject to the same statute of limitations as Unlawful Sexual Conduct. Whether and under what circumstances a defendant can lose the benefit of a statute of limitations defense is a question of law, which we review for correctness. See James v. Galetka, 965 P.2d 567, 570 (Utah Ct.App.1998) ("The standard of review for a conclusion of law is one of correctness, giving no particular deference to the trial court's decision."), cert. denied, James v. Warden, 982 P.2d 88 (Utah 1999).
¶ 10 "An offense is a lesser included offense when `[i]t is established by proof of the same or less than all the facts required to establish the commission of [another] offense.'" Chukes, 2003 UT App 155, ¶ 9, 71 P.3d 624 (quoting Utah Code Ann. § 76-1-402(3)(a) (2008)).
¶ 11 Therefore, we begin our analysis by comparing the elements of each crime. See id. at 862. Rape is committed "when the actor has sexual intercourse with another person without the victim's consent." Utah Code Ann. § 76-5-402(1) (2008). In relevant part, Unlawful Sexual Conduct occurs when, "under circumstances not amounting to [rape], an actor who is ten or more years older than the minor at the time of the sexual conduct: (a) has sexual intercourse with the minor." Id. § 76-5-401.2(2). A minor is defined for purposes of this statute as someone "who is [sixteen] years of age or older, but younger than [eighteen] years of age." Id. § 76-5-401.2(1). Having identified the elements of these two offenses, we must compare them to determine whether proof of the elements of rape ever satisfies all of the elements of Unlawful Sexual Conduct. See Brooks, 908 P.2d at 862. We conclude that it does not. Although both crimes may involve sexual intercourse, to prove rape the prosecution must also establish the lack of consent. In contrast, the age of the victim obviates the need to prove lack of consent with respect to Unlawful Sexual Conduct. In addition, a conviction for Unlawful Sexual Conduct always requires proof both that the actor is ten or more years older than the minor and that the minor is sixteen or seventeen years old at the time of the sexual conduct. "Because the unique element of each crime will always require proof beyond that needed for proof of the bare elements of the other crime," id., the first step of the analysis is sufficient to demonstrate that Unlawful Sexual Conduct is not a lesser included offense of rape.
¶ 12 This conclusion is consistent with Utah precedent. In State v. Rohletter, 108 Utah. 452, 160 P.2d 963 (1945), the defendant was found guilty of the crime of carnal knowledge.
¶ 14 Nevertheless, the State argues that this court's decision in State v. Martinez, 2000 UT App 320, 14 P.3d 114, requires a different result. There, the nineteen-year-old defendant had sexual intercourse with a fifteen-year-old and was charged with one count of rape and, in the alternative, one count of unlawful sexual activity with a minor. See id. ¶ 2. The defendant claimed to have been mistaken about the minor's age. See id. On appeal, this court held that the legislature's express preclusion of the defense of mistake of fact regarding the complainant's age did not violate the defendant's due process rights. See id. ¶¶ 23-24. Although not relevant to the issues on appeal in that case, the Martinez court opined in a footnote that "[u]nder the facts of the present case, unlawful sexual activity with a minor is a lesser included offense to rape, the sole distinction being whether the victim consented." Id. ¶ 2 n. 1. We agree with Jackson that this statement in Martinez is nonbinding dicta because it is "not critical to the holding," see State v. Daniels, 2002 UT 2, ¶ 35, 40 P.3d 611; see also Jones v. Barlow, 2007 UT 20, ¶ 28, 154 P.3d 808 (explaining that dicta is not binding on the court). Unlawful Sexual Conduct requires the State to prove that the minor is sixteen or seventeen years old and that the defendant is at least ten years older than the minor. Therefore, the establishment of all of the elements of rape will not also prove Unlawful Sexual Conduct, and it is not a lesser included offense of rape. See State v. Chukes, 2003 UT App 155, ¶ 9, 71 P.3d 624 (explaining that an offense is a lesser included offense when proof of the same or less than all of the facts needed to establish the greater offense also proves the lesser offense).
¶ 15 In sum, proof of some or all of the elements of rape is not sufficient to establish that a defendant has committed the crime of Unlawful Sexual Conduct. Thus, the crimes do not have a greater-lesser relationship and the time for prosecuting Jackson for Unlawful Sexual Conduct cannot be extended by the longer statute of limitations applicable to the prosecution of rape. Consequently, the trial court erred in denying Jackson's motion to vacate the sentence on this ground. Nevertheless, we may affirm the decision of the trial court on any alternative ground apparent from the record. See Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (reaffirming
¶ 16 The State argues that, even if the four-year statute of limitations for prosecuting Unlawful Sexual Conduct had run when the State charged Jackson with that crime, Jackson forfeited this defense by not raising it before or during trial. In response, Jackson contends that a challenge to the State's ability to prosecute a crime based on the expiration of the statute of limitations can be lost only by a knowing and voluntary waiver, which is not present here. Before we begin our analysis of whether a criminal statute of limitations in Utah can be forfeited, we take the opportunity to give context to the issue.
¶ 17 The debate concerning the appropriate treatment of criminal statutes of limitations arises from the view, now held by only a small minority of jurisdictions, that these limitations periods are a jurisdictional prerequisite to the power of the court to act. See, e.g., Hall v. State, 497 So.2d 1145, 1148-49 (Ala.Crim.App.1986); Tucker v. State, 417 So.2d 1006, 1011-13 (Fla.Dist.Ct.App.1982); State v. Muentner, 138 Wis.2d 374, 406 N.W.2d 415, 419 (1987).
¶ 18 In urging that Utah should adopt a rule that requires a knowing and voluntary waiver of a criminal statute of limitations defense, Jackson relies on two decisions from jurisdictions that characterize such limitations as jurisdictional. See Hall, 497 So.2d at 1148-49; Muentner, 406 N.W.2d at 419. Due to this court's decision in James v. Galetka, 965 P.2d 567 (Utah Ct.App.1998), however, we consider these decisions of limited utility.
¶ 19 In James, the defendant's conviction of first degree murder was reversed and remanded for a new trial. See id. at 569. Before the second trial, the defendant entered a guilty plea to two second degree felonies in exchange for the State's dismissal of the murder charge. See id. The plea agreement anticipated that the defendant would enter guilty pleas to manslaughter and perjury. See id. Shortly before the defendant executed the plea agreement, however, the parties substituted an evidence tampering charge for perjury because defense counsel discovered that the perjury charge was barred by the applicable statute of limitations. See id. After sentencing, the defendant sought extraordinary relief on the ground that the evidence tampering charge was also barred. See id. The trial court denied the defendant's petition, concluding that he had entered a knowing and voluntary guilty plea, thereby waiving any defenses he may have had to the crimes, including a defense based on the statute of limitations. See id.
¶ 20 On appeal to this court, the defendant argued that he could not have knowingly waived the statute of limitations defense when he entered his guilty plea because his counsel did not inform him that the limitations period had run on the evidence tampering charge. See id. at 570. The James panel disagreed, concluding that "criminal statutes of limitations are not jurisdictional, but are a bar to prosecution which can be waived by a knowing and voluntary guilty plea." Id. at 573. In reaching that conclusion, the court reasoned that
Id. Next, the court concluded that where the entry of the defendant's guilty plea was knowing and voluntary and complied with the requirements of rule 11 of the Utah Rules of Criminal Procedure, the "defendant waived all nonjurisdictional defects, including the statute of limitations bar." See id. at 573-74. Despite the fact that the defendant was unaware that the statute of limitations period for evidence tampering had expired, the James court held that the defense had been waived. See id.
¶ 21 The State points to the James court's conclusion that the statute of limitations defense was lost, even though the defendant was unaware it had run, as support for the position that Jackson has forfeited the defense based on the statute of limitations here. The State also contends that because the decision relies on the "well-reasoned analysis provided in Conerly v. State, 607 So.2d 1153 (Miss.1992)," see James, 965 P.2d at 572, and Conerly concluded that a criminal statute of limitations is an affirmative defense, see Conerly, 607 So.2d at 1158, James must stand for the proposition that, like other such defenses, a criminal statute of limitations defense is forfeited if not raised at trial. In response, Jackson claims that James holds that a limitations defense to a criminal prosecution can be lost only through a knowing and voluntary waiver, like that required to enter a valid guilty plea.
¶ 22 We conclude that the holding of James is narrow, determining only that a statute of limitations defense is not jurisdictional and that it can be waived by the entry
¶ 23 In support of his position that a limitations defense can be lost only through a knowing and voluntary waiver, Jackson relies on Tucker v. State, 417 So.2d 1006 (Fla.Dist. Ct.App.1982). That decision, however, does not address whether the defendant must raise a statute of limitations defense to a charge brought by the prosecution before the jury returns a verdict. Rather, the issue in Tucker was whether a defendant could insist that the trial court instruct on a time-barred lesser offense in the absence of an express waiver of the limitations defense. See id. at 1012. The Tucker court ruled that the trial court did not err in refusing to give the lesser offense instruction because there had been no "waiver in writing made part of the record or at least an express oral waiver of the statute [of limitations] preventing prosecution and conviction made in open court on the record by the defendant personally or by his counsel in his presence." See id. at 1013. Although Jackson relies on this language to support his claim that a statute of limitations defense cannot be forfeited, the Tucker court's position has been softened by subsequent authority from another appellate district of Florida. In Weber v. State, 602 So.2d 1316 (Fla.Dist.Ct.App.1992), the court held that the defendant's request for an instruction on a time-barred lesser included offense served as a waiver of the limitations defense. See id. at 1318-19.
¶ 24 Indeed, the view that a defendant's request for an instruction on a time-barred offense precludes the defendant from later challenging his conviction of that offense based on the expiration of the statute of limitations is consistent with the view of the overwhelming majority of courts that have considered the issue. See, e.g., People v. Stanfill, 76 Cal.App.4th 1137, 90 Cal.Rptr.2d 885, 895 (1999) ("[A] defendant forfeits the right to complain on appeal of conviction of a time-barred lesser included offense where the charged offense was not time-barred and the defendant either requested or acquiesced in the giving of instructions on the lesser offense."); State v. Timoteo, 87 Haw. 108, 952 P.2d 865, 871-73 (1997) (holding that the defendant waived the statute of limitations by requesting a jury instruction on a time-barred lesser included offense); Commonwealth v. Oliver, 253 S.W.3d 520, 525 (Ky. 2008) ("The request for an instruction [is] generally sufficient to establish waiver."). This is also the prevailing rule in the federal courts. See, e.g., United States v. Williams, 684 F.2d 296, 299-300 (4th Cir.1982) (holding that the expiration of the criminal statute of limitations at issue was an affirmative defense that was waived by the defendant's request that the jury be instructed on the time-barred offense).
¶ 25 Based on this authority, the State contends that we need not consider whether a criminal statute of limitations can be forfeited because Jackson's request for an instruction on incest, a crime with the same limitations period, constituted a knowing and voluntary waiver of the limitations defense for Unlawful Sexual Conduct. However, we are not convinced that, if waiver were required, the request for an instruction not given and for which the defendant was not convicted would satisfy that requirement. Nor has the State pointed us to any decisions that hold otherwise. Therefore, we now consider whether a criminal statute of limitations can be forfeited in Utah.
¶ 26 Here, the issue before us is not whether Jackson could insist that the trial court instruct the jury on Unlawful Sexual
¶ 27 As the James court noted, "[t]he majority of federal circuit courts of appeal have held that, in criminal cases, statutes of limitation do not affect the subject matter jurisdiction of the courts but constitute an affirmative defense that will be considered waived if not raised in the trial court." James v. Galetka, 965 P.2d 567, 572 (Utah Ct.App. 1998) (emphasis added); accord United States v. Soriano-Hernandez, 310 F.3d 1099, 1103-04 (8th Cir.2002). While many decisions use the term "waiver," it is apparent that most federal courts hold that a statute of limitations defense is forfeited if not raised before or during trial, irrespective of whether defense counsel or the defendant was aware of the defense. See, e.g., United States v. Ross, 77 F.3d 1525, 1536-37 (7th Cir.1996) ("[I]t is widely accepted that the statute of limitations defense is forfeited if not raised at the trial itself"); United States v. Gallup, 812 F.2d 1271, 1280 (10th Cir.1987) ("It is well settled that the statute of limitations is an affirmative defense which is waived unless raised at trial."). But see United States v. Crossley, 224 F.3d 847, 858 (6th Cir.2000) ("We must follow the law of the Benes [v. United States, 276 F.2d 99, 108-09 (6th Cir.1960),] decision and hold that, absent an explicit waiver, the statute of limitations presents a bar to prosecution that may be raised for the first time on appeal.").
¶ 28 The State argues that we should adopt a forfeiture rule here to prevent Jackson from "sandbagging" the prosecution by failing to raise the defense until after the jury had acquitted him on the greater offense of rape and convicted him on the time-barred lesser offense of Unlawful Sexual Conduct. However, Jackson correctly notes that this is not a case where the defense asked for an instruction on a time-barred offense in the hopes that it could later raise the defense. Rather, the State amended the information to add the alternative charge of Unlawful Sexual Conduct months after filing the initial information. Under these circumstances, Jackson urges us to adopt the approach of the California Supreme Court announced in People v. Williams, 21 Cal.4th 335, 87 Cal.Rptr.2d 412,
¶ 29 In Williams, the defendant was charged with perjury, pleaded not guilty, waived a jury trial, and was found guilty as charged by the trial court. See id. at 43. For the first time on appeal, the defendant argued that the statute of limitations for perjury had expired before he was charged. See id. The Williams majority rejected the notion that a defendant can forfeit a statute of limitations defense inadvertently, instead holding that "when the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time." Id. at 43-45. In response to concerns about a defendant's ability to "game the system," the Williams court noted that because its holding is limited to cases where the charging document, over which the prosecutor has full control, indicates "on its face" that the offense is time-barred, the defendant would not be in a position to manipulate the proceedings. See id. at 47-48. As an additional rational for its position, the Williams court explained that "[w]hen defendants are represented by counsel, as most are, a forfeiture rule in this situation would be an exercise in futility. Were we to adopt that rule here, for example, this defendant undoubtedly would simply claim counsel was ineffective for not raising the statute of limitations at trial." Id. at 45;
¶ 30 We reject Jackson's invitation to adopt the approach of the California Supreme Court for several reasons.
¶ 31 Second, there is nothing about a criminal statute of limitations that convinces us that the legislature intended that it could be waived only by a knowing and voluntary waiver. While a criminal statute of limitations can serve as a protection against the burden of defending against a crime that allegedly occurred so long in the past that memories have faded and evidence is difficult to obtain, statutory limitations on criminal prosecutions do not always benefit the defendant. Indeed, the limitations period may actually work against the defendant by encouraging the prosecution to charge, and forcing the accused to defend against, a greater crime. Here, the same witnesses and evidence were needed to defend against the rape charge as against the Unlawful Sexual Conduct charge, yet the penalty for rape is greater. Nevertheless, the Utah Legislature has determined that a longer time should be available to prosecute rape. Obviously, the various factors that the legislature considers in determining an appropriate limitations period are not singly focused on protection of the defendant and instead include the public interest in prosecuting serious criminal acts. "Thus, the underlying purpose of statutes of limitations is to best determine the facts of a particular case, and not to erect an insurmountable wall to prosecution." James, 965 P.2d at 572. Indeed, the Utah Legislature has recognized some flexibility in those statutory limits by allowing the time in which a lesser included offense may be prosecuted to be expanded to the limitations period available for the greater offense. See Utah Code Ann. § 76-1-305 (2008). Consequently, we can discern no indication that the legislature intended that a criminal statute of limitations defense be treated differently than other important rights and defenses that can be lost if not timely raised, even in the absence of a knowing waiver. See, e.g., State v. Rosa-Re, 2008 UT 53, ¶¶ 13-14, 190 P.3d 1259 (challenge to the State's use of peremptory challenges); State v. Rhinehart, 2007 UT 61, ¶ 21, 167 P.3d 1046 (constitutional challenge to sentence of life without parole); State v. King, 2010 UT App 396, ¶¶ 49, 51 & n. 13, 248 P.3d 984 (right of confrontation); State v. Johnson, 2008 UT App 5, ¶ 22, 178 P.3d 915 (attorney-client privilege); see also Utah R.Crim. P. 12(f) ("Failure of the defendant to timely raise defenses or objections or to make requests which must be made prior to trial ... shall constitute waiver thereof.").
¶ 32 Third, we are not convinced that Jackson will undoubtedly succeed on an ineffective assistance of counsel claim, thereby making the forfeiture rule "an exercise in futility." See Williams, 87 Cal.Rptr.2d 412, 981 P.2d at 45. Typically, the defendant bears a heavy burden to establish counsel's ineffectiveness, see State v. Lenkart, 2011 UT 27, ¶ 25. To prove that trial counsel's performance fell below that required by the Sixth Amendment, the defendant must establish both "`that counsel's performance was deficient'" and "`that the deficient performance prejudiced the [outcome of his case].'" Id. (alteration in original) (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Further, the defendant must overcome the presumption that counsel's actions are part of a sound trial strategy or tactical decision to establish deficient performance as required by the first prong of the ineffectiveness test. See State v. C.D.L., 2011 UT App 55, ¶ 13, 250 P.3d 69, cert. denied, 255 P.3d 684 (Utah 2011). Where the defendant has been charged and convicted of only time-barred claims, satisfaction of the two-prong ineffectiveness test is almost automatic because prejudice is obvious and a sound strategic reason not to raise the defense is difficult to imagine. However, where some charges are time-barred and some are not, as in this case,
¶ 33 Fourth, treating the failure to raise the statute of limitations defense before or at trial as a forfeiture employs our already-existing jurisprudence under the theories of plain error, exceptional circumstances, and ineffective assistance of counsel. See State v. Weaver, 2005 UT 49, ¶ 18, 122 P.3d 566; State v. McCloud, 2005 UT App 466, ¶ 5, 126 P.3d 775. These existing procedures provide a fair and appropriate framework for considering when a defendant should be relieved of the failure to raise a criminal statute of limitations. See, e.g., Adams v. State, 2005 UT 62, ¶¶ 13, 17, 123 P.3d 400 (recognizing the defendant's right to pursue post-conviction relief for ineffective assistance of counsel based on the failure of trial counsel to assert the affirmative defense of voluntary intoxication). In addition, these traditional methods of addressing the failure to preserve a defense in the trial court provide a more flexible approach than that advocated by the defense and adopted by the Williams court.
¶ 34 For all of these reasons, we conclude that Jackson forfeited his statute of limitations defense by not raising it before the jury convicted him of Unlawful Sexual Conduct.
¶ 35 Unlawful Sexual Conduct is not a lesser included offense of rape because the State must establish the age of the victim and the age of the defendant to prove Unlawful Sexual Conduct, elements that are not required to obtain a conviction of rape. Therefore, the longer statute of limitations for rape was not applicable to Jackson's prosecution for Unlawful Sexual Conduct. A criminal statute of limitations is an affirmative defense that can be forfeited if not raised before or during trial. Jackson has forfeited his right to challenge his conviction of Unlawful
¶ 36 Affirmed.
¶ 37 WE CONCUR: JAMES Z. DAVIS, Presiding Judge and MICHELE M. CHRISTIANSEN, Judge.