State v. Thomas

474 P.3d 470

STATE of Utah, Appellee,

v.Jeremy David THOMAS, Appellant.

No. 20180644-CA

Court of Appeals of Utah.

Filed November 7, 2019

Petition for Rehearing Denied November 20, 2019

Nathalie S. Skibine and Steffen Soller, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, and Tera J. Peterson, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.

Opinion

POHLMAN, Judge:

¶1 During a trip to Salt Lake City, a woman (Victim) and her husband decided to take their six-year-old son to a local park to play soccer. While there, Jeremy David Thomas yelled at Victim, pulled down his pants, and exposed his pubic area to her. The State charged Thomas with lewdness, lewdness involving a child, and intoxication. Following trial, the jury convicted Thomas on all counts. On appeal, Thomas argues that his convictions should be reversed due to jury instruction errors. We disagree and affirm.

BACKGROUND¹

¶2 Victim and her husband, along with their son, traveled to Salt Lake City for business. The couple took their son to a local park, which was "very close" to their hotel, to play soccer. While they were playing, a man, later identified as Thomas, began yelling at the family from a distance of approximately twenty yards, asking if Victim wanted to "touch" or "see" his "dick." At that time, Victim's son was "right next to [her]."

¶3 Alarmed, the family began walking back to their car, and Thomas continued yelling at them. While walking, Victim looked back several times to "make sure nobody was following." When she looked back, Victim observed that Thomas had pulled his pants down "below his pelvic region" such that "everything was exposed." At that point, Victim was focused on diverting her son's attention away from Thomas and getting the family into the car. Therefore, she was not focused on the details of Thomas's exposure. Nevertheless, Victim testified at trial that she was "absolutely sure" that she saw Thomas's penis and pubic area when she looked back. She also testified that, although he was looking Thomas's way, her son did not see the exposure.

¶4 Once the family reached their car, they called the police, who responded quickly. Victim, having kept "an eye" on Thomas while walking to the car, pointed him out to the police once they arrived. Upon making contact with Thomas, the officers smelled "a very strong odor of alcoholic beverage coming from his person" and noticed that he exhibited characteristics consistent with intoxication. Thomas was also "acting very aggressive ..., yelling, screaming." Victim was "ultimately able to tell [the police] that [they] had stopped the right person."

¶5 Based on these events, the State charged Thomas with lewdness (with priors), lewdness involving a child, and intoxication. Following a one-day trial, the jury convicted Thomas on all counts.²

¶6 Before trial, Thomas stipulated to the elements instructions for the lewdness and lewdness involving a child charges. The lewdness statute provides,

A person is guilty of lewdness if the person ... performs any of the following acts in a public place or under circumstances which the person should know will likely cause affront or alarm to, on, or in the presence of another who is 14 years of age or older: (a) an act of sexual intercourse or sodomy; (b) exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area; (c) masturbates; or (d) any other act of lewdness.

Utah Code Ann. § 76-9-702(1) (LexisNexis Supp. 2019). Similarly, the lewdness involving a child statute provides,

A person is guilty of lewdness involving a child if the person ... intentionally or knowingly: (a) does any of the following in the presence of a child who is under 14 years of age: (i) performs an act of sexual intercourse or sodomy; (ii) exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area: (A) in a public place; or (B) in a private place under circumstances the person should know will likely cause affront or alarm or with the intent to arouse or gratify the sexual desire of the actor or the child; (iii) masturbates; or (iv) performs any other act of lewdness ....

Id. § 76-9-702.5(2).³ Both elements instructions tracked the required statutory elements for the respective offenses and, in addition to the enumerated acts of lewdness prohibited by the statutes (such as exposing one's pubic area), both instructions included the statutory catchall element—"any other act of lewdness" (the Catchall Variant)—as a potential variant of both offenses.

¶7 On the day of trial, the district court suggested that the "[r]eference to female body parts" included in the stipulated lewdness elements instructions did not pertain to the case and that the State, in revising the jury instructions, could take that language out. Thomas did not object and did not suggest to the court that other language in the elements instructions was inapplicable and should be similarly excised.

¶8 Both parties also submitted additional proposed instructions. For example, the State proposed instructing the jury that the Catchall Variant "includes acts of the same general kind, class, character, or nature as the enumerated conduct of public intercourse, sodomy, exposure of the genitals or buttocks, or masturbation." Thomas did not object to this definition. Instead, drawing from State v. Bagnes , 2014 UT 4, 322 P.3d 719, Thomas requested two additional, general definitional instructions for lewdness: (1) "Lewdness involves conduct of a sexual, lascivious nature and an irregular indulgence of lust" (the Sexual Nature Instruction) and (2) "Conduct may be strange and socially inappropriate without the conduct being lewd" (the Strange Conduct Instruction). Id. ¶¶ 1, 13–29 (defining lewdness as involving conduct "marked by lasciviousness" and an "irregular indulgence of lust," and explaining that conduct may be "strange" and "socially inappropriate" without being lewd).

¶9 After some discussion with the parties, and with the assistance and assent of Thomas, the court combined the Sexual Nature Instruction with the State's Catchall Variant definition. Rather than limit the definition to the "other acts of lewdness" variant, the revised instruction broadly provided,

Lewdness includes the act of the same general kind of sexual misconduct class, character, or nature as the enumerated conduct of public intercourse, sodomy, exposure of genitals or buttocks, or masturbation.

¶10 However, the court declined to give the Strange Conduct Instruction. The court explained why it did not think the instruction was necessary—that, while "certainly accurate," the issue addressed in the instruction "comes up through argument that the elements aren't met," which "goes back to the State's burden of establishing the elements to get there."

¶11 The State, citing Salt Lake City v. Howe , 2016 UT App 219, 387 P.3d 562, also proposed that for purposes of the lewdness involving a child charge the jury be instructed that "[i]n the presence of a child" "means that a child need only be in the same place as the person committing the act" (the Presence Instruction). See generally id. ¶¶ 14–16 (defining "in the presence of a child" under the lewdness involving a child statute as meaning that "a child need only be in the same place as a person committing a lewd act").

¶12 Thomas objected. He explained that while Howe "does discuss" what the State's instruction proposed, another case— Bagnes —was more on point, as it addressed "this very issue of lewdness." By Thomas's reading, Bagnes imposed a requirement of "some sort of visual contact or a showing of that particular part of the body" for the conduct to fall within the ambit of the statute—one not incorporated into the State's proposed instruction. In this respect, he stated that Howe 's discussion on the presence issue appeared to be inconsistent with Bagnes . The State responded by distinguishing Bagnes , explaining that it was "very clearly ... dealing with some other acts of lewdness and not presence of another," while, in contrast, Howe is "directly on point" with respect to the presence issue.

¶13 The court agreed with the State. It explained that, in its view, Howe is "closer to the situation here and to the issue at hand" than Bagnes . It also noted that the language in the State's proposed instruction appeared to have been "pulled directly from that [ Howe ] case." The court therefore instructed the jury that "in the presence of a child," for purposes of the lewdness involving a child charge, meant that "a child need only be in the same place as the person committing the act."

ISSUES AND STANDARDS OF REVIEW

¶14 On appeal, Thomas argues that the court erred by giving the Presence Instruction. He also argues that the court erred by failing to define the Catchall Variant more narrowly for the jury. Thomas's challenges to the jury instructions present questions of law, which we review for correctness. State v. Walker , 2017 UT App 2, ¶ 19, 391 P.3d 380. However, even if "an error is found in jury instructions, reversal is warranted only if there is a reasonable probability that the error affected the outcome of the case." State v. Carrell , 2018 UT App 21, ¶ 19, 414 P.3d 1030 ; see also State v. Horvath , 2018 UT App 165, ¶ 22, 436 P.3d 191 (explaining that an appellant challenging the failure to give an instruction must demonstrate that, had the instruction been given, "there is a reasonable likelihood that she would have enjoyed a more favorable trial result" (cleaned up)).

¶15 In the alternative, Thomas argues that the district court plainly erred by failing to sua sponte excise the Catchall Variant from the elements instructions for both lewdness and lewdness involving a child. To prevail on a plain error review, Thomas must establish the existence of an obvious, prejudicial error. State v. Roberts , 2019...