State v. Close

CROCKETT, Justice:

Defendant appeals from a conviction by jury of the crime of indecent assault upon a child under 14 in violation of Section 76-7-9, U.C.A.1953. The error complained of which we have found to be of controlling importance is the failure to instruct the jury on the lesser offense of simple assault.

On the afternoon of August 16, 1970, the defendant was in swimming at Rainbow Gardens public swimming pool in Ogden, Utah. He was playing with a number of children in the pool and performing various “gymnastics” by tossing them about or flipping them over in the water. He did this with…