State v. Titus ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20110012‐CA
)
v. ) FILED
) (August 16, 2012)
Mark Scott Titus, )
) 2012 UT App 231Defendant and Appellant. )
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Third District, Salt Lake Department, 081905856
The Honorable Vernice Trease
Attorneys: Joan C. Watt and Peter A. Daines, Salt Lake City, for Appellant
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee
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Before Judges Voros, Orme, and Thorne.
VOROS, Associate Presiding Judge:
¶1 Defendant Mark Scott Titus was convicted in a bench trial of two counts of
lewdness involving a child, a class A misdemeanor offense under Utah Code section 76‐
9‐702.5. See Utah Code Ann. § 76‐9‐702.5 (2008). On appeal, he contends that the
evidence was insufficient to support the trial court’s judgment. In addition, he
challenges the trial court’s findings as inadequate. We affirm.
I. Sufficiency of Evidence
¶2 Titus first contends that the evidence was insufficient to support his convictions.
“Because we are asked to review the results of a bench trial for sufficiency of evidence,
we will only reverse if the trial court’s findings were clearly erroneous.” State v. Briggs,
2008 UT 75, ¶ 10, 197 P.3d 628. “When reviewing a bench trial for sufficiency of the
evidence, we must sustain the trial court’s judgment unless it is ‘against the clear
weight of the evidence, or if [we] otherwise reach[] a definite and firm conviction that a
mistake has been made.’” State v. Gordon, 2004 UT 2, ¶ 5, 84 P.3d 1167 (quoting State v.
Goodman, 763 P.2d 786, 786–87 (Utah 1988) (alterations in original)). “Additionally, ‘in
those instances in which the trial court’s findings include inferences drawn from the
evidence, we will not take issue with those inferences unless the logic upon which their
extrapolation from the evidence is based is so flawed as to render the inference clearly
erroneous.’” Briggs, 2008 UT 75, ¶ 11 (quoting Glew v. Ohio Sav. Bank, 2007 UT 56, ¶ 18,
181 P.3d 791).
¶3 Titus was convicted of two counts of lewdness involving a child in a private
place.
A person is guilty of lewdness involving a child if the person
. . . does any of the following to, or in the presence of a child
who is under 14 years of age:
...
(b) exposes his or her genitals, the female breast
below the top of the areola, the buttocks, the anus, or the
pubic area:
(i) in a public place; or
(ii) in a private place:
(A) under circumstances the person should
know will likely cause affront or alarm; or
(B) with the intent to arouse or gratify the
sexual desire of the actor or the child . . . .
Utah Code Ann. § 76‐9‐702.5(1). Here, the undisputed evidence shows that Titus
exposed his genitals in the presence of boys under fourteen years of age in a private
place, his own home. The State does not contend that he did so with the intent to
arouse or gratify anyone’s sexual desire. The point of contention is whether he did so
under circumstances that he should have known would likely cause affront or alarm.
20110012‐CA 2
¶4 Two friends of Titus’s son testified at trial.1 They were eight or nine years old at
the time of the offense. The first boy testified that he would hang out at Titus’s house
and that Titus “would walk around the house naked, and tell [him] to take [his] clothes
off.” One time Titus was on the couch watching a TV program showing naked men and
women having sex.2 Titus said, “If you want to watch this you have to take your clothes
off.” The boy testified, “I went behind the couch and got naked, and then I went and sat
on the couch and put a pillow on me.” The boy was “kind of” scared, “not too much,”
just “mostly uncomfortable”; but, he testified, “I didn’t want [Titus] to come over and
take my clothes off or come touch me.”3
¶5 The other friend testified that he lived down the street from Titus. Asked
whether anything happened at Titus’s house to make him feel uncomfortable, the boy
responded, “They would turn on porn and we would watch it every time.”4 Asked to
explain what he meant by “porn,” the boy responded that men and women were
“making love” on TV. “Mostly every time” this happened, Titus would be sitting on
the couch naked. The boy was also undressed. He could not recall Titus saying
anything to him before he undressed; “it just happened, I guess,” he testified.
¶6 Titus contends that “[t]he trial court’s findings and the evidence fail to support
that Mr. Titus was nude under circumstances that he should have known would likely
cause affront or alarm.” Titus argues that he “did not sexualize his nudity,” but that
“he dealt with it as a matter of fact.” For example, he did not touch himself. One boy,
he notes, “did not even claim to be uncomfortable” with the nudity. The other did not
convey his discomfort to Titus. Titus argues that he consequently “had no reason to
know that his nudity in the home would likely cause affront or alarm . . . .” Thus, he
asserts, his conviction “is based solely on inferences that give rise to only remote or
speculative possibilities of guilt.” State v. Brown, 948 P.2d 337, 344 (Utah 1997).
¶7 Titus’s argument is not without force: the State agrees “that people are entitled
to be nude in the privacy of their own homes and that there may even be occasions
1. Titus’s minor son also testified.
2. Titus’s son testified that he saw “Like the boy’s private area.”
3. The State did not allege that any touching occurred.
4. Although Titus was originally charged with contributing to the delinquency of a
minor based on this allegation, that count was later dropped.
20110012‐CA 3
when adults can be nude in the presence of children without committing a crime.” In
addition, the facts of this case are markedly less egregious than, for example, those in
Roosevelt City v. Anderson, 2008 UT App 464U (mem.), another case involving exposure
in front of children. In Roosevelt we wrote, “It should seem obvious that exposing one’s
genitals” and touching women’s exposed breasts “would likely cause affront or alarm
when done a few feet from three children ages six through eleven.” Id. at para. 6
(omissions in original).
¶8 Nevertheless, we cannot agree with Titus that he “did not sexualize his nudity.”
He exposed himself while viewing sexually‐oriented material on television and while
the boys were themselves undressed. One of the boys had no explanation for his
nakedness; the other testified that Titus insisted upon it as a condition of the boy’s
watching the TV program. These troubling details distinguish this case from the more
innocuous situations to which Titus compares it, such as male nudity in locker room
showers, see Jenkins v. Commonwealth, 308 S.W.3d 704, 713–14 (Ky. 2010) (reversing an
indecent exposure conviction where defendant showered in the same locker room
shower stall with two small boys after swimming, absent “evidence that the removal of
Jenkins’ swimming trunks had any effect on either of them”).
¶9 Furthermore, the trial court found that the boys’ testimony “was credible” and
that “there was sufficient consistency between the testimony of the witnesses,
specifically the three children, in terms of the elements or the evidence that satisfies the
elements of the crime to find that Mr. Titus is guilty” of lewdness involving a child. We
defer to the trial court’s assessment of witness credibility. See In re S.T., 928 P.2d 393,
399 (Utah Ct. App. 1996) (“[A] trial court is . . . not required to explain why it found
certain witnesses less credible or why some testimony was given less weight or
considered irrelevant.”).
¶10 Thus, on balance, we do not agree with Titus that the trial court’s judgment that
he should have known his conduct would likely cause affront or alarm was “against the
clear weight of the evidence,” nor have we reached “a definite and firm conviction that
a mistake has been made.” State v. Briggs, 2008 UT 75, ¶ 10, 197 P.3d 628 (citations and
internal quotation marks omitted). We therefore reject the sufficiency challenge.
II. Adequacy of Findings
¶11 Titus also contends that the trial court’s findings were inadequate to support the
judgment, and he urges this court to remand the case to the trial court for further
20110012‐CA 4
findings.5 However, “to preserve an issue for appeal[,] the issue must be presented to
the trial court in such a way that the trial court has an opportunity to rule on that issue.”
438 Main Street v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (alteration in original)
(citations and internal quotations marks omitted). Titus did not object to the trial
court’s oral findings below, even when the trial judge queried whether either party
wanted “more specific information regarding [the findings].” He thus failed to preserve
this claim in the trial court.
¶12 Anticipating this obstacle to his appellate claim, Titus suggests two reasons why
the claim is properly before us. First, he contends that “a defendant does not waive his
right to adequate trial court findings unless he affirmatively and expressly relieves the
trial court of its duty . . . .” In support, he relies on rule 52(a) of the Utah Rules of Civil
Procedure and a 1993 decision from this court. See Utah R. Civ. P. 52(a) (2009)
(“Requests for findings are not necessary for purposes of review.”); Potter v. Potter, 845
P.2d 272, 274 (Utah Ct. App. 1993) (rejecting wife’s argument that husband “should not
be allowed to complain about the property distribution because his trial counsel failed
to request further findings when the trial court asked if any were desired”(citing Utah
R. Civ. P. 52(a))).
¶13 Titus’s point is not well taken. The Utah Supreme Court addressed this very
issue in In re K.F., 2009 UT 4, 201 P.3d 985. The court explained, “Clearly, rule 52
addresses sufficiency of the evidence challenges. In 438 Main Street [v. Easy Heat, Inc., 2004
UT 72, ¶ 51, 99 P.3d 801], however, we addressed challenges to the adequacy of the detail
in the findings of fact.” K.F., 2009 UT 4, ¶ 60. In 438 Main Street, the supreme court held
that an appellant who, like Titus, failed to specifically object to findings in the trial court
“waived any argument regarding whether the district courtʹs findings of fact were
sufficiently detailed.” See 438 Main Street, 2004 UT 72, ¶ 56.
¶14 Titus also claims plain error. He contends that the trial court committed plain
error by not making findings addressing whether Titus “should have known that
nudity would likely cause affront or alarm” to his son’s two friends. To demonstrate
plain error, an appellant must establish that “(i) [a]n error exists; (ii) the error should
have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error,
5. We address the merits of this claim notwithstanding the State’s failure to brief it. But
see Broderick v. Apartment Mgmt Consultants, LLC, 2012 UT 17, 279 P.3d 391 (reversing
without reaching the merits where appellee failed to directly address appellants’
arguments).
20110012‐CA 5
there is a reasonable likelihood of a more favorable outcome for the appellant, or
phrased differently, our confidence in the verdict is undermined.” State v. Dunn, 850
P.2d 1201, 1208–09 (Utah 1993).
¶15 Assuming for purposes of argument only that the trial court committed error and
that the error was prejudicial, we do not agree that the claimed error was obvious. The
trial court twice offered to elucidate its reasoning “if either party wish[ed] [the court] to
explain [it].” Defense counsel did not request more detail, and appellate counsel does
not challenge that omission as ineffective assistance of counsel. On this record, we
cannot say that any error in this regard “should have been obvious to the trial court.”
See id. at 1208.
¶16 Moreover, “in cases in which factual issues are presented to and must be
resolved by the trial court but no findings of fact appear in the record, we ‘assume that
the trier of facts found them in accord with its decision, and we affirm the decision if
from the evidence it would be reasonable to find facts to support it.’” State v. Ramirez,
817 P.2d 774, 787–88 (Utah 1991) (quoting Mower v. McCarthy, 122 Utah 1, 245 P.2d 224,
226 (1952)). This is such a case. Given the trial evidence summarized above, we are
confident we can trace “the steps by which the judge reached . . . her conclusions.” See
438 Main Street, 2004 UT 72, ¶ 54.
¶17 Affirmed.
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
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¶18 WE CONCUR:
____________________________________
Gregory K. Orme, Judge
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William A. Thorne Jr., Judge
20110012‐CA 6