State v. Bilek , 437 P.3d 544 ( 2018 )

2018 UT App 208THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
VRATISLAV ROGER BILEK,
Appellant.
Opinion
No. 20160991-CA
Filed November 1, 2018
Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 161400438
Nathalie S. Skibine and Heather J. Chesnut,
Attorneys for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 Probation officers discovered Vratislav Roger Bilek in a
motel room with drugs, drug paraphernalia, and a disoriented
woman (E.C.). A search of Bilek’s cell phone revealed numerous
nude photographs and video recordings of E.C. in which she
appeared to be unconscious. Subsequently, Bilek was convicted
of two counts of voyeurism, one count of distribution of a
controlled substance, and one count of possession of drug
paraphernalia.
¶2 With respect to his voyeurism convictions, Bilek argues
that the State presented insufficient evidence to prove that he
used a “concealed or disguised” electronic device to secretly or
State v. Bilek
surreptitiously record or view E.C. Specifically, Bilek argues that
the “concealed or disguised” element of class A misdemeanor
voyeurism cannot be satisfied by proving only that he provided
E.C. with drugs to render her unconscious. We hold that
evidence that E.C. was unconscious is sufficient to prove that
Bilek secretly or surreptitiously made the recordings, but it does
not satisfy the separate element that requires the use of a
concealed or disguised electronic device. Accordingly, we vacate
his voyeurism convictions.
¶3 Bilek also argues for reversal of his other convictions
because the State wrongfully admitted evidence that he was on
probation at the time of the offenses and because the district
court denied his right to self-representation. We reject these
challenges and affirm Bilek’s convictions for distribution of a
controlled substance and possession of drug paraphernalia.
BACKGROUND 1
¶4 In December 2015, Bilek was sentenced to sixty months of
probation after pleading guilty to felony kidnapping. 2 As a
condition of probation, Bilek agreed that no women would stay
overnight with him without his probation officer’s approval and
that he would abstain from illegal use or possession of drugs or
drug paraphernalia.
1. “On review of a jury verdict, we recite the evidence, and all
the reasonable inferences that flow from the evidence, in the
light most favorable to the verdict.” State v. Wilder, 2018 UT 17,
¶ 4 n.1, 420 P.3d 1064.
2. In that case, the State alleged that Bilek “lured women to his
apartment, detained them for several days, and assaulted them.”
State v. Bilek, 2017 UT App 37, ¶ 3, 392 P.3d 990 (per curiam).
20160991-CA 2 2018 UT App 208State v. Bilek
¶5 Less than two months later, two probation officers
conducted a routine check and discovered Bilek in a motel room
with E.C. When they entered Bilek’s room, the officers saw that
E.C. was wearing a tank top, sweatpants, and no shoes.
According to the officers, it “appeared like she had just woke[n]
up” and she “seemed a little bit out of it.” They also observed
heroin, crystal methamphetamine, crack cocaine, syringes, a
spoon, a metal pipe, and plastic paper next to the bed. After
speaking with Bilek and E.C., the officers searched the contents
of Bilek’s cell phone and discovered 179 photographs and 9
videos of E.C. in Bilek’s motel room. In most of the photographs
and videos, E.C. was nude, either alone or in compromising
positions with Bilek, and appeared to be unconscious or asleep.
After reviewing the photographs and speaking with E.C., the
officers allowed her to leave, but they placed Bilek under arrest
for violating his probation.
¶6 Based on E.C.’s statements and the drugs, drug
paraphernalia, photographs, and videos discovered in the motel
room, the State charged Bilek with one count of forcible sexual
abuse, a second degree felony, see Utah Code Ann. § 76-5-404(LexisNexis 2014); one count of distribution of or arranging to
distribute a controlled substance, a second degree felony, see id.§ 58-37-8(1)(a)(ii) (2016); two counts of voyeurism, class A
misdemeanors, see id. § 76-9-702.7(2) (2014); 3 and one count of
possession of drug paraphernalia, a class B misdemeanor, see id.
§ 58-37a-5(1) (2016). 4
3. Utah Code section 76-9-702.7(1) has been amended since
Bilek’s arrest, eliminating the language at issue in this case. See
Utah Code Ann. § 76-9-702.7 (LexisNexis 2017).
4. In addition to the charges the State filed in this case, Adult
Probation and Parole filed violations in Bilek’s 2015 case. The
(continued…)
20160991-CA 3 2018 UT App 208State v. Bilek
¶7 The district court appointed counsel to represent Bilek.
On five occasions before trial, Bilek requested to substitute
counsel. Bilek complained that his attorney refused to provide
him with the discovery he requested, to file the motions he asked
be filed, to subpoena witnesses he identified, and to “excuse
herself as ineffective counsel.” After addressing the matter with
Bilek and his attorney, the district court denied Bilek’s requests,
finding that there was no conflict that necessitated a change in
counsel.
¶8 Before trial, Bilek filed a motion in limine to exclude
evidence of his prior convictions and probation status. The
district court granted the motion with respect to Bilek’s prior
convictions, but it declined to exclude evidence that Bilek was on
probation. The court explained that excluding evidence that the
officers were conducting a probation check “would subject the
jury to wondering and speculating in improper areas” and that it
would be “a better result, a less prejudicial result by actually just
saying who [the officers] are and why they [were in Bilek’s motel
room].”
¶9 At trial, E.C. testified that she met Bilek in December 2015.
Since then, they had many sexual encounters in which Bilek
agreed to pay her money or drugs in exchange for oral sex.
(…continued)
district court found by a preponderance of the evidence that
Bilek violated the terms of his probation by purchasing and
using illegal drugs, possessing drugs and drug paraphernalia,
and allowing a woman to stay overnight in his motel room
without permission. Bilek challenged the district court’s findings
on appeal and this court affirmed. See Bilek, 2017 UT App 37,
¶ 12.
20160991-CA 4 2018 UT App 208State v. Bilek
¶10 Two days before Bilek was arrested in this case, he had
paid to bail E.C. out of jail. When Bilek met her at the police
station, E.C. told him she was feeling sick from withdrawal, so
Bilek offered her methamphetamine and “a place to shower and
sleep.” E.C. went to Bilek’s motel room, “injected [the] meth”
that he provided, and then drove with him to another location
where he purchased heroin and crack cocaine. E.C. also went
with Bilek to purchase supplies to assemble a crack pipe.
¶11 After purchasing the supplies, the two returned to Bilek’s
motel room where E.C. injected methamphetamine and heroin
and smoked crack cocaine. E.C. testified that the
methamphetamine Bilek provided that night made her feel “cold
and sick and tired” when “[m]eth usually makes [her] feel the
opposite.” E.C. also testified that she witnessed Bilek inject
methamphetamine, but that the drugs he used appeared to come
from a separate stash.
¶12 During the time she remained in Bilek’s motel room, E.C.
was “mostly asleep.” On the first night, E.C. performed oral sex
on Bilek as payment for the drugs. The only other sexual activity
she recalled occurred when she awoke to Bilek rubbing lotion
near her genitals and when Bilek requested she inject his penis
with methamphetamine. E.C. testified that she removed her
clothes only twice in Bilek’s motel room, on the first night when
she performed oral sex on Bilek and the single time she took a
shower. In both instances, she recalled re-dressing immediately
afterward.
¶13 E.C. also testified that she had not consented to being
photographed or video recorded. E.C. acknowledged that she
had allowed Bilek to photograph her nude in exchange for
money during a prior sexual encounter, but she maintained that
she had not consented to additional nude photographs and
never agreed to allow Bilek to photograph or film her while she
was unconscious.
20160991-CA 5 2018 UT App 208State v. Bilek
¶14 In addition to E.C.’s testimony, the State presented the
photographs and videos found on Bilek’s cell phone and
introduced expert testimony about the physical effects of the
drugs E.C. ingested. The probation officers also testified about
their observations. The officers explained that they went to
Bilek’s motel room to conduct a routine probation check, but
they did not disclose that Bilek was on probation for a
kidnapping conviction or that Bilek was on felony probation.
During one officer’s testimony, the jury submitted two questions
asking for more information about why Bilek was on probation.
In response, the district court instructed the jurors that it could
not provide an answer to their question and that they were not
to consider “any thoughts [they] might have about that or about
the subject of that question in [their] deliberations.”
¶15 When the State rested, Bilek moved for a directed verdict
as to the forcible sexual abuse, distribution of a controlled
substance, and voyeurism charges. Before the district court could
rule, Bilek objected to the statements his attorney made in her
argument in support of the motion. The district court explained
that it had already instructed Bilek that it was not going to
recognize objections unless they came from his attorney but
would construe Bilek’s objection as a request for “an opportunity
for [him] to speak with counsel.” Bilek’s attorney explained to
the court that Bilek was “agitated about what’s happening” and
would like to “argue about the facts,” despite counsel’s
assessment that those facts “would be harmful to his case.” Bilek
again objected and stated that he was “firing” his attorney. The
district court asked whether Bilek was requesting to represent
himself, and Bilek confirmed that he was. The court ruled that it
was “not going to allow that to happen at this point.” Bilek’s
defense counsel continued to represent him through the
duration of the trial.
¶16 After denying Bilek’s request for self-representation, the
district court denied the motion for a directed verdict. As to the
20160991-CA 6 2018 UT App 208State v. Bilek
voyeurism charges, the court ruled that providing “a controlled
substance that would render a person unaware as to what’s
going on” was sufficient evidence of “concealment or disguise to
secretly or surreptitiously videotape, film, photograph or
record.” The district court also found that E.C.’s testimony along
with the drugs and paraphernalia discovered in Bilek’s motel
room provided sufficient evidence of forcible sexual abuse and
distribution of a controlled substance.
¶17 The jury convicted Bilek of two counts of voyeurism, one
count of distribution of a controlled substance, and one count of
possession of drug paraphernalia. The jury acquitted him of
forcible sexual abuse. Bilek appeals.
ISSUES AND STANDARDS OF REVIEW
¶18 Bilek raises three issues on appeal. First, he contends that
the State presented insufficient evidence to support his
convictions for class A misdemeanor voyeurism. Specifically,
Bilek contends that the State’s evidence that E.C. was
unconscious when he used his phone to take photographs and
videos of her was insufficient to prove that he “concealed or
disguised” his phone while doing so. To assess claims of
insufficient evidence, “we review the evidence and all inferences
which may reasonably be drawn from it in the light most
favorable to the verdict.” State v. Robertson, 2018 UT App 91,
¶ 20, 427 P.3d 361 (quotation simplified). “We will reverse the
jury’s verdict only when the evidence, so viewed, is sufficiently
inconclusive or inherently improbable that reasonable minds
must have entertained a reasonable doubt that the defendant
committed the crime of which he or she was convicted.” Mackin
v. State, 2016 UT 47, ¶ 20, 387 P.3d 986 (quotation simplified).
¶19 Second, Bilek contends that the district court erred when
it allowed the officers to testify that he was on probation. We
20160991-CA 7 2018 UT App 208State v. Bilek
recognize that “[t]he trial judge is in a better position than we are
to assess the avowed basis for evidence of prior misconduct.”
State v. Thornton, 2017 UT 9, ¶ 56, 391 P.3d 1016. As such, we
review the question of “whether the prior misconduct evidence
at issue was properly admitted at trial” for an abuse of
discretion. Id. Even if the evidence was improperly admitted, we
will not overturn a conviction unless a “reasonable likelihood
exists that the error affected the outcome of the proceedings.”
State v. Calvert, 2017 UT App 212, ¶ 38, 407 P.3d 1098 (quotation
simplified).
¶20 Finally, Bilek contends that the district court erred when it
denied his request for self-representation after the State rested.
“When [a] defendant does not assert [the right to
self-representation] before trial, we review the district court’s
decision whether to allow defendant to proceed pro se for an
abuse of discretion.” United States v. Beers, 189 F.3d 1297, 1303
(10th Cir. 1999).
ANALYSIS
I. Sufficiency of the Evidence Supporting Class A
Misdemeanor Voyeurism
¶21 Bilek contends that we should reverse his conviction for
voyeurism because the “State never proved that [he] used a
‘concealed or disguised’ camera, a requirement under the
[voyeurism] statute.” The State disagrees but argues in the
alternative that, if we determine that the evidence was
insufficient to support Bilek’s class A misdemeanor voyeurism
convictions, we should order the district court to enter
convictions for class B misdemeanor voyeurism. We first address
whether the State presented sufficient evidence to satisfy the
elements of class A misdemeanor voyeurism. We conclude that
it did not and then turn to the appropriate remedy.
20160991-CA 8 2018 UT App 208State v. Bilek
A. Evidence Supporting the “Concealed or Disguised”
Element
¶22 When Bilek committed the acts charged, a person
committed class A misdemeanor voyeurism by
(1) intentionally us[ing] a camcorder, motion
picture camera, photographic camera of any type,
or other equipment that is concealed or disguised to
secretly or surreptitiously videotape, film,
photograph, record, or view by electronic means
an individual:
(a) for the purpose of viewing any portion of
the individual’s body regarding which the
individual has a reasonable expectation of
privacy, whether or not that portion of the
body is covered with clothing;
(b) without the knowledge or consent of the
individual; and
(c) under circumstances in which the
individual has a reasonable expectation of
privacy.
Utah Code Ann. § 76-9-702.7(1), (2) (LexisNexis 2014) (emphasis
added). The State contends, as it argued at trial, that Bilek’s
actions met the “concealed or disguised” element of the
voyeurism statute because he “concealed his phone when he
used it to take nude photographs and videos of his victim after
the drugs he gave her left her unconscious or otherwise
unaware.” The State’s argument relies on the photographs and
videos the officers discovered on Bilek’s phone, including a
video that seems to depict Bilek hiding his phone when E.C.
begins to stir from her unconscious state. The State also relies on
20160991-CA 9 2018 UT App 208State v. Bilek
E.C.’s testimony that she had not consented to being
photographed or recorded nude, that she had been rendered
unconscious by the narcotics Bilek provided, and that she was
unaware that Bilek had photographed and recorded her nude
while she was unconscious.
¶23 Assuming that E.C. was unconscious and did not consent
to being photographed and recorded nude, Bilek argues that her
unconscious state cannot support a finding that he concealed or
disguised his phone camera. Rather, Bilek contends that all of
the photographs and videos of E.C. were taken while he “was
using the phone openly” and that “concealment should focus on
‘ordinary observation,’ not the subjective observation of the
person being photographed.” Because the State relied solely on
E.C. being unconscious to prove the device was concealed or
disguised, Bilek contends there was insufficient evidence to
support that element.
¶24 Ultimately, whether photographing an unconscious
person qualifies as using “concealed or disguised” equipment is
a question of statutory interpretation. “When interpreting a
statute, we rely first on the statute’s plain language as the best
evidence of the legislature’s intent.” State v. Liti, 2015 UT App
186, ¶ 14, 355 P.3d 1078. “We interpret statutes to give meaning
to all parts, and avoid rendering portions of the statute
superfluous.” LeBeau v. State, 2014 UT 39, ¶ 20, 337 P.3d 254(quotation simplified). “To do so, we read the plain language of
the statute as a whole[.]” Id. (quotation simplified). “We
presume that the Legislature used each word advisedly and give
effect to each term according to its ordinary and accepted
meaning.” Id. (quotation simplified).
¶25 The voyeurism statute in effect at the time of Bilek’s
offense made it a class A misdemeanor to violate subsection (1).
See Utah Code Ann. § 76-9-702.7(1). That subsection prohibits
using “a camcorder, motion picture camera, photographic
20160991-CA 10 2018 UT App 208State v. Bilek
camera of any type, or other equipment that is concealed or
disguised to secretly or surreptitiously videotape, film,
photograph, record, or view by electronic means an individual.”
Id. The adjectives “concealed or disguised” and the adverbs
“secretly or surreptitiously” modify separate elements of the
statute. While “concealed or disguised” is a postpositive
modifier that applies to the noun sequence “camcorder, motion
picture camera, photographic camera of any type, or other
equipment,” “secretly or surreptitiously” is a prepositive
modifier that applies to the verb sequence “videotape, film,
photograph, record, or view.” See Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 147 (2012)
(explaining the series-qualifier cannon of statutory construction).
Although both sequences and their modifiers require that the
perpetrator act generally to prevent the victim from recognizing
that he or she is being recorded or viewed with electronic
equipment, the requirement that the perpetrator conceal or
disguise the equipment is separate and in addition to the
requirement that the perpetrator secretly or surreptitiously
record or view the victim. Here, evidence that E.C. was
unconscious at the time is sufficient to prove that the
photographs and videos were “secretly or surreptitiously” taken.
But it does not prove that Bilek’s phone camera was “concealed
or disguised” under the ordinary and accepted meaning of those
words.
¶26 Adopting the State’s position—that Bilek concealed or
disguised his phone camera by waiting to take illicit
photographs and video recordings of E.C. until she was
unconscious—would render superfluous the “secretly or
surreptitiously” element of the statute. Because we must
interpret the statute “to give meaning to all parts,” both the noun
and verb sequences and their modifiers must be given
individual meaning. LeBeau, 2014 UT 39, ¶ 20 (quotation
simplified).
20160991-CA 11 2018 UT App 208State v. Bilek
¶27 Such an interpretation does not produce unintended
absurd results. See Bagley v. Bagley, 2016 UT 48, ¶ 28, 387 P.3d
1000 (explaining that the absurdity doctrine allows a court to
read a statute contrary to its plain language only if the
legislature could not have reasonably intended the statute to
operate in such a manner). Voyeuristic conduct that fails to meet
the elements set forth in subsection (1) may still be subject to
criminal penalty under subsection (4), which proscribes viewing
or attempting “to view an individual, with or without the use of
any instrumentality . . . under circumstances not amounting to a
violation of Subsection (1).” Utah Code Ann. § 76-9-702.7(4).
Under this statutory scheme, perpetrators who do not use
concealed or disguised equipment do not necessarily escape
criminal liability, but are subject to a lesser penalty under
subsection (4). The legislature could have reasonably intended
the statute to operate in this manner, punishing the use of
concealed or disguised equipment more severely than other
voyeuristic conduct.
¶28 Accordingly, the evidence the State presented at trial was
insufficient to prove beyond a reasonable doubt that Bilek
concealed or disguised his phone camera to photograph and
record E.C. as Utah Code section 76-9-702.7(1) requires.
B. The Remedy
¶29 Because we have determined that the State’s evidence was
insufficient to sustain a conviction under subsection (1) of Utah
Code section 76-9-702.7, we address the State’s contention that
we should direct the district court to enter convictions for class B
misdemeanor voyeurism pursuant to subsection (4) of that
statute. At the time of Bilek’s conviction, subsection (4)
provided:
(4) A person is guilty of voyeurism who, under
circumstances not amounting to a violation of
20160991-CA 12 2018 UT App 208State v. Bilek
Subsection (1), views or attempts to view an
individual, with or without the use of any
instrumentality:
(a) with the intent of viewing any portion of
the individual’s body regarding which the
individual has a reasonable expectation of
privacy, whether or not that portion of the
body is covered with clothing;
(b) without the knowledge or consent of the
individual; and
(c) under circumstances in which the
individual has a reasonable expectation of
privacy.
Utah Code Ann. § 76-9-702.7(4) (LexisNexis 2014).
¶30 If a defendant’s conviction must be vacated because of an
error that occurred in the district court, “we have the power to
enter judgment for a lesser included offense if (i) the trier of fact
necessarily found facts sufficient to constitute the lesser offense,
and (ii) the error did not affect these findings.” State v. Bair, 2012
UT App 106, ¶ 65, 275 P.3d 1050 (quotation simplified); see also
State v. Dunn, 850 P.2d 1201, 1209–10 (Utah 1993) (“Numerous
state and federal courts have concluded that . . . a court has the
power to enter judgment for a lesser included offense [and] . . .
[w]e conclude that we have the same power.”). To determine
whether it is appropriate to enter convictions for a lesser
included offense, we “compar[e] the elements” of the crime of
conviction and the lesser included offense. Dunn, 850 P.2d at
1211. We may direct the district court to enter judgment for a
lesser offense only if we determine that the jury necessarily
found each element of the lesser included offense and “the
record shows [that the defendant] would not be unfairly
20160991-CA 13 2018 UT App 208State v. Bilek
prejudiced” by entering a conviction for that lesser offense. State
v. Carruth, 947 P.2d 690, 694 (Utah Ct. App. 1997).
¶31 Although subsections (1) and (4) have similar elements,
the difference in the proscribed conduct is important under the
facts of this case. Specifically, when read as a whole, subsection
(1) requires, in relevant part, that the perpetrator intentionally
use some form of equipment that is “concealed or disguised to
secretly or surreptitiously . . . view by electronic means an
individual . . . under circumstances in which the individual has a
reasonable expectation of privacy.” See Utah Code Ann.
§ 76-9-702.7(1)(c) (emphasis added). In contrast, subsection (4)
applies when the perpetrator “views or attempts to view an
individual . . . under circumstances in which the individual has a
reasonable expectation of privacy.” See id. § 76-9-702.7(4)(c)
(emphasis added). In other words, subsection (1) requires proof
that E.C.—under the circumstances of this case—had a
reasonable expectation of privacy in not having portions of her
body viewed with some form of electronic equipment, whereas
subsection (4) requires proof that E.C. had a reasonable
expectation of privacy in not having portions of her body viewed
at all.
¶32 Here, the distinction is significant. The jury could have
credited E.C.’s testimony that she never consented to Bilek using
his phone to photograph or videotape her, while at the same
time believing that she consented to Bilek viewing her body
without the use of equipment based on her testimony that she
voluntarily disrobed before performing oral sex on Bilek.
Moreover, because subsection (4) was not charged, Bilek’s
defense strategy focused on disproving only the elements of
subsection (1), specifically whether he used “concealed or
disguised” equipment to commit the offense. And, because the
jury was not instructed on a lesser included offense under
subsection (4), Bilek was not on notice that he needed to address
whether E.C. consented to him viewing her body without the
20160991-CA 14 2018 UT App 208State v. Bilek
assistance of equipment. See State v. Baker, 671 P.2d 152, 156
(Utah 1983) (holding that a defendant has a “constitutional right
to protection from instructions to the jury which might subject
him to a conviction of a crime against which he has had no
opportunity to defend” (quotation simplified)).
¶33 Under the facts of this case, Bilek would be unfairly
prejudiced by entry of class B misdemeanor convictions. We
therefore vacate Bilek’s convictions for class A misdemeanor
voyeurism and remand to the district court for further
proceedings.
II. Bilek’s Other Claims of Error
¶34 Although we have already determined that we must
vacate Bilek’s voyeurism convictions for lack of sufficient
evidence, we now address Bilek’s additional claims of error
because they potentially affect the validity of his convictions for
distribution of a controlled substance and possession of drug
paraphernalia.
A. Admissibility of the Rule 404(b) Evidence
¶35 First, Bilek contends the district court erred when it
allowed the State to admit testimony that Bilek was on probation
when he committed the offenses. 5 Rule 404(b)(1) of the Utah
5. In response to this argument, the State contends that Bilek
invited error at trial when defense counsel responded to the
district court’s request for argument on Bilek’s motion in limine
to exclude evidence of his probation status by stating: “I
certainly sympathize with the State’s conundrum if nothing is
admitted about the role of the probation officer, so with that in
mind I would submit on the brief.” Recognizing that application
of the doctrine of “invited error precludes appellate review of an
(continued…)
20160991-CA 15 2018 UT App 208State v. Bilek
Rules of Evidence prohibits the admission of “a crime, wrong, or
other act” committed by an individual to show “that on a
particular occasion the person acted in conformity with the
character.” On the other hand, “when past misconduct evidence
is offered for any other purpose—other than to suggest action in
conformity with the bad character suggested by his prior bad
acts—such evidence is admissible so long as it satisfies” the
relevance and prejudice requirements of rules 402 and 403. State
v. Thornton, 2017 UT 9, ¶ 36, 391 P.3d 1016 (quotation simplified).
In addition, “[e]ven if the admission of rule 404(b) evidence by
the [district] court was in error, reversal on appeal is not
appropriate unless [the defendant] demonstrates that the error
materially affected the fairness or outcome of the trial.” State v.
Calvert, 2017 UT App 212, ¶ 38, 407 P.3d 1098 (quotation
simplified). We will overturn a conviction based on the improper
admission of evidence only if a “reasonable likelihood exists that
the error affected the outcome of the proceedings.” Id. (quotation
simplified).
¶36 Here, we do not determine whether Bilek’s probation
status was properly admitted because there is no reasonable
probability that the admission of this evidence affected the jury’s
verdict on the distribution and paraphernalia charges. The
challenged rule 404(b) evidence was limited to the officers’
testimony that they were conducting a routine probation check
(…continued)
issue,” we decline to apply the doctrine here. State v. Oliver, 2018
UT App 101, ¶ 27, 427 P.3d 495 (quotation simplified). Far from
inviting error, defense counsel’s statement at the hearing on
Bilek’s motion in limine reinforced the position advocated for in
his briefing on the motion, which in itself was a properly made
objection to the evidence at issue. Furthermore, after the district
court ruled on the motion, it noted that Bilek objected to the
ruling and stated that his objection had been preserved.
20160991-CA 16 2018 UT App 208State v. Bilek
when they found E.C. in Bilek’s motel room. During his opening
statement and closing argument, the prosecutor also briefly
mentioned that Bilek was on probation. The district court did not
admit evidence that Bilek was on probation for the crime of
felony kidnapping or evidence of the facts giving rise to his prior
conviction. And when the jury asked about Bilek’s probation, the
district court properly instructed the jurors that they were not to
consider his probation status in their deliberations. We presume
the jury followed such instructions and did not consider Bilek’s
probation status in reaching its verdict. See State v. Beckering,
2015 UT App 53, ¶ 24, 346 P.3d 672.
¶37 Moreover, the evidence of guilt as to the drug charges
was overwhelming. The State’s evidence included testimony
from E.C. that she had no money to purchase drugs for herself
when Bilek bailed her out of jail, that he supplied narcotics for
her use, and that she spent days in his motel room using drugs
with him. The State also introduced testimony of the probation
officers and photographs of the drug paraphernalia and drugs
they recovered from Bilek’s motel room. And, to support the
defense theory that E.C. consented to being photographed and
video recorded, Bilek argued that his relationship with E.C.
involved providing drugs in exchange for sexual acts and
explicit photographs. In closing argument, Bilek’s defense
counsel expressly argued that E.C. “had consented to injecting
[Bilek] in the penis with this drug,” that Bilek and E.C. “had a
prostitute-client relationship,” and that E.C. and Bilek were “in
[the hotel room] doing drugs.” In fact, defense counsel made no
argument at closing for acquittal on the drug charges.
¶38 In sum, the evidence admitted at trial supporting Bilek’s
drug distribution and possession of drug paraphernalia
convictions was overwhelming. Bilek’s own defense counsel
acknowledged and argued that he had used narcotics with E.C.
over the course of their stay in his motel room. Thus, without
deciding whether the rule 404(b) evidence was properly
20160991-CA 17 2018 UT App 208State v. Bilek
admitted, “we agree with the State that any error in admitting
the evidence was harmless under the facts of this case.” See
Calvert, 2017 UT App 212, ¶ 36.
B. Self-Representation
¶39 Finally, Bilek contends that the district court violated his
right to self-representation when it denied his midtrial request to
“fire” his attorney and represent himself. The United States
Constitution, the Utah Constitution, and Utah statutory law
guarantee criminal defendants the right to self-representation.
See U.S. Const. amend. VI; Utah Const. art. 1, § 12; Utah Code
Ann. § 77-1-6(1)(a) (LexisNexis 2017). Because “the right to
defend oneself is a personal, constitutional right,” the district
court must ordinarily honor the defendant’s choice unless it
“appropriately finds that a defendant has not knowingly and
intelligently chosen self-representation.” State v. Bakalov, 849
P.2d 629, 634 (Utah Ct. App. 1993).
¶40 However, the right to self-representation “is not
absolute.” United States v. Akers, 215 F.3d 1089, 1097 (10th Cir.
2000). The defendant must “clearly and unequivocally” invoke
the right of self-representation “in a timely manner.” State v.
Bakalov, 1999 UT 45, ¶ 16, 979 P.2d 799 (quotation simplified). “A
motion for self-representation is timely if it is made before the
jury is impaneled[.]” United States v. Simpson, 845 F.3d 1039, 1053
(10th Cir. 2017) (quotation simplified).
¶41 Here, Bilek’s only clear and unequivocal request for self-
representation occurred mid-trial, after the State rested. 6 During
6. Bilek contends that his motion was timely because he filed two
pro se letters with the district court before his mid-trial request
in which he claimed that defense counsel was “ineffective” and
requested “substitution of ineffective counsel.” We are not
(continued…)
20160991-CA 18 2018 UT App 208State v. Bilek
defense counsel’s argument on Bilek’s motion for a directed
verdict, Bilek interjected that he was “firing [defense counsel]
right now.” The district court clarified that Bilek was requesting
to represent himself and Bilek confirmed that he was. The court
ruled it was “not going to allow that to happen at [that] point.”
¶42 The constitutional “right to self-representation is
unqualified only if demanded before trial.” United States v. Beers,
189 F.3d 1297, 1303 (10th Cir. 1999) (quotation simplified). When
a defendant fails to assert this right in a timely manner, the
district court has discretion to deny his or her request. See id.Because Bilek waited until midtrial to invoke his right to
self-representation, the court acted within its discretion in
denying his request at that time.
¶43 Having determined that Bilek was not prejudiced by the
admission of evidence of his probation status at trial and that the
district court did not err in denying Bilek’s mid-trial request to
proceed pro se, we affirm his convictions for possession of drug
paraphernalia and distribution of a controlled substance.
CONCLUSION
¶44 We conclude that the State presented insufficient evidence
to prove beyond a reasonable doubt that Bilek concealed or
disguised his phone when he photographed and recorded E.C.
nude, and we therefore vacate Bilek’s convictions for class A
misdemeanor voyeurism and remand for further proceedings.
(…continued)
persuaded by this argument, because an invocation of the right
to self-representation must be clear and unequivocal. See State v.
Bakalov, 1999 UT 45, ¶ 16, 979 P.2d 799. None of the letters Bilek
filed with the court contain such an invocation.
20160991-CA 19 2018 UT App 208State v. Bilek
With respect to the remaining counts, we conclude that Bilek
was not prejudiced by the admission of testimony regarding his
probation status and that the district court acted within its
discretion by denying Bilek’s untimely request for self-
representation. Accordingly, we affirm Bilek’s convictions for
distribution of a controlled substance and possession of drug
paraphernalia.
20160991-CA 20 2018 UT App 208