State v. Kitches ( 2021 )

2021 UT App 24THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DANIEL CHRIS KITCHES,
Appellant.
Opinion
No. 20181037-CA
Filed March 11, 2021
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 171910265
Debra M. Nelson and Wendy J. Brown, Attorneys
for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion,
in which JUDGE RYAN M. HARRIS and
SENIOR JUDGE KATE APPLEBY concurred. 1
MORTENSEN, Judge:
¶1 Daniel Chris Kitches monitored the text messages his ex-
wife (Ex-Wife) sent and discovered that she started dating soon
after their divorce. When he learned she had spent the night
with her new boyfriend, Kitches menaced her over the course of
eight days—principally by threatening to distribute a video he
previously made of himself and Ex-Wife engaged in an intimate
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Kitches
act—until he was eventually arrested. A jury convicted Kitches
of numerous offenses, and he now appeals. We affirm.
BACKGROUND 2
¶2 Kitches and Ex-Wife were married for eight years and had
two children together. But the marriage turned tumultuous in its
final years, so they agreed to separate in March 2017. Although
Kitches and Ex-Wife occasionally argued about their children,
their interactions were somewhat amicable between the time Ex-
Wife moved out of the marital home in March 2017 and when
their divorce was finalized in August that year. The eventual
divorce decree awarded joint physical and legal custody of the
children and limited communication between Kitches and Ex-
Wife to child-related issues.
¶3 In the decree, Kitches and Ex-Wife agreed to maintain
their cell phone plan until they finished paying off their phones.
Within a few days of the divorce being finalized, Kitches
damaged his phone and asked Ex-Wife (the primary account
holder) to activate one of his old phones, which she did. Ex-Wife
was unaware that reactivating Kitches’s old phone initiated
“integrated text messaging,” enabling him to see any text
messages she sent or received.
¶4 For approximately two weeks, Kitches actively monitored
Ex-Wife’s text messages without notifying her that he could do
so. Among others, he read messages in which Ex-Wife
2. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only when necessary to
understand issues raised on appeal.” State v. Cruz, 2020 UT App
157, n.1, 478 P.3d 631 (cleaned up).
20181037-CA 2 2021 UT App 24State v. Kitches
complained to her friends and family about the divorce. He also
read the messages Ex-Wife sent and received from her new
boyfriend (Boyfriend). Things took a new course when Ex-Wife
and Boyfriend sent messages which made apparent that they
spent a night together at Boyfriend’s house. Kitches quickly
messaged Ex-Wife to confront her about the overnight stay and,
in the process, admitted to her that because of the integrated
messaging, he had been able to—and did—monitor her text
messages. Ex-Wife immediately called the phone company and
disabled the feature.
¶5 Later that day (September 5), Kitches phoned Ex-Wife and
informed her that he had digitally recorded the two of them
having sex on a previous occasion, and he threatened to send the
video to her family, friends, and Boyfriend. Ex-Wife was
“shocked” by Kitches’s admission that he had filmed them
having sex and she was afraid he would follow through on his
threat. Thinking it would impede Kitches’s ability to send the
video to anyone, Ex-Wife called the phone company and
canceled his cell phone service.
¶6 The next day (September 6), Ex-Wife sent Kitches an
email asking to meet at their phone company’s storefront so that
they could separate their phone service. Kitches responded by
confronting Ex-Wife about text messages she had sent about the
divorce and demanded that she turn on his phone service. Ex-
Wife replied, “I want all the videos and messages off your phone
first, then I have no problem doing so. You have no right to send
a video that I was not nor would I consent to.” (Emphasis added.)
Kitches asserted “[t]hey [we]re not on [his] phone” and told her
that—in the course of monitoring her text messages—he had
saved “half naked pics” that she sent to Boyfriend. When Ex-
Wife again asked Kitches to delete all the foregoing and asked
whether he was “planning on blackmailing [her],” Kitches
responded by stating, “No deal.” He also expressed his desire to
20181037-CA 3 2021 UT App 24State v. Kitches
“warn” Boyfriend that Ex-Wife would “do absolutely anything
to harm another person.”
¶7 That night, Boyfriend sent Kitches an email stating,
“[O]ur mutual friend, [Ex-Wife,] said you have been talking
about me and had something you wanted to tell/show me. So
here’s my contact info.” Boyfriend later testified that he reached
out to Kitches in an apparent attempt to defuse the situation, as
he was also a divorced father and thought he might be able to
resolve Kitches’s concerns. Kitches emailed back that Ex-Wife
was a “sociopath” and one of the most “despicable human
beings” he had ever met. Kitches also told Boyfriend that he had
a video of himself and Ex-Wife having sex and offered to send it
to Boyfriend:
I actually have [a] time . . . stamped video, and it
was the film sex, it was the film [of] her while she
was over here so she couldn’t accuse me of
anything ever again. My attorney said film and
record everything. So if you’d like a copy, which I
don’t think you do, I have it.
When Boyfriend asked to see the video, Kitches responded that
“for half a second [he] thought about sending it to [Boyfriend],”
but “there is a law that says you cannot forward nudity.”
¶8 The following morning (September 7), Kitches sent Ex-
Wife an email asking her to turn his phone service back on,
which Ex-Wife again indicated she would do only if he deleted
the video. Kitches demanded she turn on his phone and alluded
to highly intimate portions of the video. Ex-Wife responded by
expressing concern that her “boss [wa]s at [her] desk,” to which
Kitches sent the ominous reply, “Sending.” He sent a follow-up
email one minute later, which said only, “Sent.” When Ex-Wife
explained that sending the video was illegal, Kitches responded,
“You have 5 minutes. I will send.” Ex-Wife believed that Kitches
20181037-CA 4 2021 UT App 24State v. Kitches
would follow through on his threat, so she acquiesced to his
demand and contacted the phone company, instructing it to turn
his cell phone service back on. While Ex-Wife was on the phone
with the phone company, Kitches sent her emails complaining
that she was not reactivating his phone service quickly enough.
He also interrogated her about her sexual involvement with
Boyfriend and demanded she not allow their children to be
around Boyfriend.
¶9 Later that day, after turning Kitches’s phone service back
on, Ex-Wife drove to his office to ensure that he would delete the
video. When she arrived, Kitches sarcastically “asked if she
wanted to watch the video and [said] that he and his coworkers
watched it in the mornings while eating donuts.” Kitches
eventually feigned agreement to delete the video, and while Ex-
Wife looked over his shoulder, he appeared to delete several
video files from his work computer.
¶10 But the next morning (September 8), Kitches sent Ex-Wife
a text message informing her that he still had “five videos”
which he threatened to send to her employer—specifically, her
supervisor—and Boyfriend. Ex-Wife felt she had lost control of
the situation and called the police, but she declined to press
charges because they had “just gone through a divorce” and she
only wanted the videos deleted. An officer then contacted
Kitches and informed him that it would be a crime for him to
send the videos. Kitches told the officer he would not send the
videos to anyone.
¶11 The next night (September 9), Ex-Wife planned to watch a
football game at Boyfriend’s house in Orem. Because the game
did not start until 8:30 p.m., she arranged for the children to
spend the night at her parents’ house in West Valley. Ex-Wife
and Boyfriend had dinner, watched the game, and fell asleep in
Boyfriend’s bedroom.
20181037-CA 5 2021 UT App 24State v. Kitches
¶12 Meanwhile, Kitches drove by Ex-Wife’s house in Sandy at
about 2:00 a.m. (September 10). Apparently, he was looking to
see whether she was home. When he saw that Ex-Wife’s truck
was not parked at her house, he performed an internet search of
Boyfriend’s name on his phone and found Boyfriend’s address.
¶13 Kitches drove to Boyfriend’s house, arriving at
approximately 4:30 a.m., and aggressively pounded on the front
door. In the process, he realized that Boyfriend’s doorbell had a
camera on it, so he pulled the doorbell out of the wall. He also
sent Ex-Wife a text message that said he was “coming in” to take
the children. Ex-Wife was frightened by the fact that Kitches had
found her in the first place, and Boyfriend immediately
contacted the police.
¶14 The police arrived at Boyfriend’s house at approximately
4:40 a.m., by which time Kitches had already fled the scene. Ex-
Wife spoke with police and was visibly “frantic, especially about
the welfare of her children.” While she was providing a witness
statement to the officer, Kitches called Ex-Wife on her cell phone.
The officer answered Ex-Wife’s phone and spoke to Kitches.
Kitches was aggressive on the phone and expressed his concern
that his children were in the house while Ex-Wife was having
sex in the next room. He then cursed at the officer before
hanging up the phone. Soon after, Kitches messaged Ex-Wife
stating,
I know that wasn’t a cop. You dumbass mother
F’er. . . . Come outside. Come outside. Come
outside now. What, you can’t have a conversation?
What are you afraid of me you F’ing mother F’er? .
. . And you call yourself a good mother. Really, a
good mother sleeping with a guy after three F’ing
weeks with the kids.
20181037-CA 6 2021 UT App 24State v. Kitches
¶15 Kitches sent this text message in the course of driving to
Ex-Wife’s parents’ house, where he arrived at approximately
5:00 a.m. Kitches snuck around to the back of the house and
entered through an unlocked door. After getting inside the
house, Kitches walked to the room the children were sleeping in,
looked in, and then left the house soon thereafter. Ex-Wife’s
father was awake and observed all the foregoing from a couch in
the living room. Ex-Wife’s father was “frightened” and “didn’t
know what to expect,” so he did not attempt to stop Kitches
from entering or moving about the house because he “didn’t
want to confront” an intruder.
¶16 Ex-Wife went to get her children from her parents’
house as soon as she finished speaking with police and
arrived there at approximately 6:00 a.m. Ex-Wife’s father
informed her that he had observed Kitches enter the house about
an hour earlier, and she immediately called the police again.
While Ex-Wife was speaking to police, Kitches continued to send
her text messages calling her a “slut” and threatening to seek
sanctions in their divorce case because she spent the night at
Boyfriend’s house. He also denied that he went to Ex-Wife’s
parents’ house that morning, claiming he “was with [his]
girlfriend.”
¶17 Two days later (September 12), Ex-Wife sent Kitches an
email telling him to stop emailing Boyfriend. Kitches implied
that Boyfriend invited the ongoing emails, and the two sent a
few emails back and forth arguing about this issue. Ex-Wife
again turned Kitches’s phone plan off because she was
frustrated and felt as though Kitches’s conduct was taking over
her life: he was emailing her at work about the video (after
claiming that he deleted it), he was communicating with
Boyfriend and potentially ruining that relationship, and her
parents had suddenly become involved. Kitches signed up for
his own phone service that day and sent the following message
to Ex-Wife:
20181037-CA 7 2021 UT App 24State v. Kitches
Every Friday for two months, Sunday night and
others, you leave around noon and I can’t get [the
children] until 5, Saturday, Sunday and all the
other times I don’t know. Great mom. Great mom
out sleep around. Um, great mom out sleep
around. Class. We’re all proud of you two weeks
and F’g with a troll. Sorry making love. At least
when you get prego I don’t have to pay. You are a
B telling the kids on me. Wow, I’m so angry. Your
fault. . . . Oh, sorry your legs are probably above
your head.
¶18 The following morning (September 13), Kitches sent Ex-
Wife a text message containing clips of the video he made of the
two of them having sex. He followed up by sending the video to
both her personal and work email addresses. The emails
consisted only of the video attachments. Ex-Wife called the
police and finally decided to pursue charges about the video
because,
He’s now taunting me with—he’s now physically
sent me a video that I never consented to, but he’s
been threatening to do it for the past five days.
That I have not gone to any law enforcement. I just
have asked him to delete them. And . . . at some
point I had to do something because I—what this
was doing to me emotionally, I had to—I had to
fight back. I had to do something.
¶19 The next day (September 14), Kitches spoke with two
detectives at the police station. He claimed the video was made
approximately nine months earlier, around December 2016 or
January 2017, and that Ex-Wife was aware she was being
recorded at the time. But Kitches allowed the detectives to
download the contents of his phone, and the files showed that
the video was created on July 18, 2017, only two months earlier.
20181037-CA 8 2021 UT App 24State v. Kitches
When the officer pointed out this discrepancy, Kitches claimed
he misinterpreted the prior question about the date the video
was made. Kitches also initially denied he sent the video to
anyone, but he later admitted that he sent it to Ex-Wife as “an
implied threat.”
¶20 As part of the investigation, a detective specializing in
burglary also questioned Kitches about the morning of
September 10. Kitches claimed he went to Boyfriend’s house to
“make sure the kids were okay,” but he also admitted that he
wanted to “send[] a message” and make Boyfriend fear him.
Kitches also denied that he went to Ex-Wife’s parents’ house that
morning, accusing Ex-Wife and her father of concocting the
story and filing a false police report in retaliation for Kitches
not agreeing to switch weekends for parent-time with the
children.
¶21 Police arrested Kitches that afternoon. They later executed
a search warrant for his work computer and found six different
files depicting the sexual encounter from July 18, 2017. They also
found a separate video which depicted Ex-Wife showering in the
marital home. Kitches was subsequently charged with two
voyeurism counts for making both recordings, one count of
voyeurism-distribution for sending the recording of the
sexual encounter to Ex-Wife, one count of criminal stalking
based on various instances described above, and one count of
criminal trespassing for entering Ex-Wife’s parents’ house on
September 10.
¶22 At trial, Ex-Wife testified about the content of both
videos—the recording of the sexual encounter and the recording
of her taking a shower—and stated that she did not consent to
being filmed on either occasion. She explained that the video of
the sexual encounter depicted events on July 18, 2017, and she
had no idea she was being recorded. That day, Ex-Wife visited
the marital home to pick up some of her belongings and Kitches
20181037-CA 9 2021 UT App 24State v. Kitches
talked about reconciling in a very “heartfelt” manner, and
this conversation led to physical intimacy in the guest
bedroom. Kitches’s phone—the recording device—evidently was
placed on a dresser in the guest bedroom, and the video
depicts the room as being empty before Kitches led Ex-Wife
into the room with him, lay down on the bed, and requested
to have sex with her. In the video, Ex-Wife expressed
concerns about getting intimate in the guest room because she
thought a neighbor might be able to see them through the
window, but Kitches insisted that it was “okay” and the
neighbor could not see them. She eventually consented to the
sexual encounter.
¶23 Regarding the shower recording, Ex-Wife testified that it
too was recorded in the marital home, but it must have been
recorded before March 15, 2017—the date she moved out of the
marital home. She testified that, based on her observation of the
video, “it looks from the angle that it was kind of tucked in the
corner, and it almost looks like it was hidden or covered
somewhat by, like, a towel, to where I wouldn’t even . . . look to
see if there was a phone or filming device in there.” Ex-Wife
testified that she never recorded herself taking a shower in the
bathroom nor had she ever agreed to be recorded in the shower
on any occasion.
¶24 Kitches moved for a directed verdict generally on all
counts. But in arguing his motion, Kitches specifically took issue
with two counts. First, he argued that he could not be convicted
for voyeurism-distribution for sending the recording of the
sexual encounter to Ex-Wife. Second, he argued that he could
not be convicted for trespassing because he reasonably believed
he had permission to enter Ex-Wife’s parents’ house. The trial
court denied Kitches’s motion in its entirety. Subsequently, the
jury convicted Kitches on all counts. He now appeals each of his
convictions.
20181037-CA 10 2021 UT App 24State v. Kitches
PRESERVATION
¶25 Kitches asks for reversal, arguing that the State failed to
present sufficient evidence to support any of the charges and,
accordingly, the trial court should have granted his motion for a
directed verdict. He also raises alternative challenges urging us
to vacate and remand his voyeurism-distribution and stalking
convictions, asserting that the jury was improperly instructed on
the elements of these charges. Kitches maintains that he
preserved all but one of his claims. He concedes that trial
counsel did not object to the allegedly erroneous stalking
instruction, and he asks us to review that issue for ineffective
assistance of counsel.
¶26 The State argues that almost none of Kitches’s claims
were preserved and asserts that we should only review the
unpreserved ones for ineffective assistance of counsel. But as we
discuss below, in our view all the allegedly unpreserved claims
fail on their merits anyway.
¶27 We recognize that “[o]ur rules of preservation are critical
to the appellate process and are themselves an important
mechanism for promoting fairness.” State v. Larrabee, 2013 UT 70,
¶ 32, 321 P.3d 1136. And because of this, “we should not dilute
[our preservation rules] by stretching their standards to justify
our consideration of a question we find interesting or
important.” In re Baby Girl T., 2012 UT 78, ¶ 56, 298 P.3d 1251(Lee, J., dissenting). Thus, we generally will not review issues
unless they were presented “in such a way that the court ha[d]
an opportunity to rule on [them].” State v. Argueta, 2018 UT App
142, ¶ 44, 429 P.3d 764 (cleaned up). But these rules are “self-
imposed,” and we retain “wide discretion when deciding
whether to entertain . . . matters that are first raised on appeal.”
State v. Houston, 2015 UT 40, ¶ 19, 353 P.3d 55 (cleaned up); see
also Frito-Lay v. Utah Labor Comm’n, 2009 UT 71, ¶ 30, 222 P.3d 55(“There are times when a reviewing court may exercise its
20181037-CA 11 2021 UT App 24State v. Kitches
discretion in addressing an unpreserved issue . . . .”). And in
exercising our discretion, we should remember that our
preservation rules exist “to serve judicial economy and to
prevent a defendant from failing to object to an issue in the
hopes of reversal of a conviction on appeal.” Houston, 2015 UT
40, ¶ 19; see also Salt Lake City v. Josephson, 2019 UT 6, ¶ 10, 435
P.3d 255 (“When parties fail to preserve issues, we do not receive
the benefit of a trial judge’s reasoning and analysis on the issue
at hand.” (cleaned up)).
¶28 With these principles in mind, if the merits of a claim
can easily be resolved in favor of the party asserting that the claim
was not preserved, we readily may opt to do so without
addressing preservation. This approach accords with the
purpose of our preservation rules, as it prioritizes judicial
economy without altering the incentive to object at trial. See, e.g.,
United States v. Weed, 873 F.3d 68, 72 (1st Cir. 2017) (“Because
[the defendant’s] claims are easily disposed of on the merits, we
decline to decide this preliminary question [of preservation]
. . . .”); United States v. Navarro, 800 F.3d 1104, 1113 (9th Cir. 2015)
(choosing to exercise its discretion to reach the merits of the
defendant’s unpreserved constitutional claim because the court
had “little doubt” that the defendant “failed to demonstrate a
constitutional violation”); Wilson v. Ozmint, 352 F.3d 847, 868
(4th Cir. 2003) (choosing to reach the merits of the defendant’s
unpreserved claim in part because the claim was “patently
without merit and therefore easily disposed of” and addressing
the merits thus served the interest of judicial economy (cleaned
up)); State v. Webster, 865 N.W.2d 223, 232 (Iowa 2015) (noting
that courts may dispatch cases on the “underlying merits”
without deciding the question of preservation). In this case,
because we can easily dispose of Kitches’s claims on their merits,
we choose to exercise our prerogative to simply assume that
Kitches’s claims were preserved and proceed to consideration of
the merits.
20181037-CA 12 2021 UT App 24State v. Kitches
ISSUES AND STANDARDS OF REVIEW
¶29 As noted above, Kitches asserts that all his insufficiency of
the evidence claims were preserved by his directed verdict
motion. “We review a trial court’s ruling on a motion for
directed verdict for correctness.” State v. Doyle, 2018 UT App 239,
¶ 11, 437 P.3d 1266 (cleaned up). “We will uphold the trial
court’s decision if, upon reviewing the evidence and all
inferences that can be reasonably drawn from it, we conclude
that some evidence exists from which a reasonable jury could
find that the elements of the crime had been proven beyond a
reasonable doubt.” Id. (cleaned up).
¶30 We review the allegedly preserved voyeurism-
distribution jury instruction error for correctness. See State v.
Cegers, 2019 UT App 54, ¶ 19, 440 P.3d 924. And we review the
concededly unpreserved stalking instruction error for ineffective
assistance of counsel, which presents a matter of law. See State v.
Cruz, 2020 UT App 157, ¶ 15, 478 P.3d 63.
ANALYSIS
I. Voyeurism
¶31 Kitches contends that the State failed to present sufficient
evidence to support either voyeurism conviction. He principally
argues that the evidence presented at trial was insufficient to
show that Ex-Wife did not consent to being recorded in either
instance.
¶32 Utah’s voyeurism statute provides,
A person is guilty of voyeurism who intentionally
uses any type of technology to secretly or
surreptitiously record video of a person:
20181037-CA 13 2021 UT App 24State v. Kitches
(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) (LexisNexis 2017). 3
¶33 Kitches first contends the evidence was insufficient to
show that the recording of the sexual encounter on July 18, 2017,
3. We note that section 76-9-702.7(1) was amended in May 2017.
For the shower recording, which happened prior to May 2017,
the jury was properly instructed on the previous version of the
offense. The earlier version is substantively identical to the
current version, save for the previous additional requirement
that the defendant “concealed or disguised” the device used to
“secretly or surreptitiously” record a person. See Utah Code
Ann. § 76-9-702.7(1) (LexisNexis 2014) (emphasis added); see also
State v. Bilek, 2018 UT App 208, ¶¶ 24–27, 437 P.3d 544(discussing the distinction between the “concealed or disguised”
and the “secretly or surreptitiously” elements). With that said,
Kitches’s arguments on appeal are not based specifically on this
language or any other differences in the previous version of the
code. But even if they were, sufficient evidence was introduced
to show that the device used to record Ex-Wife in the shower
was concealed or disguised: Ex-Wife testified that she did not
see the device, and the video itself appeared to depict a towel
covering the device. Thus, in addressing Kitches’s arguments,
we make no further mention of the previous version of section
76-9-702.7(1).
20181037-CA 14 2021 UT App 24State v. Kitches
amounted to voyeurism. He argues that the evidence introduced
at trial demonstrated that Ex-Wife was “relatively unconcerned”
about the existence of the video and was instead concerned only
about it being disseminated—which we infer is meant to suggest
that if Ex-Wife had not consented to making the video, she
would have emphasized this particular point of concern more
forcefully. He also points to other evidence that may suggest Ex-
Wife consented to or otherwise knew she was being recorded,
such as a moment of the video which appears to show Ex-Wife
looking in the direction of the recording device.
¶34 Kitches’s arguments are unavailing. The State introduced
ample evidence to show that Ex-Wife did not consent to being
recorded during the sexual encounter. For one thing, as
correctly pointed out by the State during closing arguments,
what the video depicts was itself circumstantial evidence
tending to show “a calculated effort on [Kitches’s] part to lure
[Ex-Wife] into th[e] bedroom [and] persuade her to have sex,
because he knew that there was a camera running.” Moreover,
Ex-Wife later explicitly stated to Kitches that she did not and
would not consent to being recorded in such a video. And
notably, Kitches never responded to Ex-Wife by suggesting that
she did consent to being filmed. The jury reasonably could infer
that Kitches’s silence in response to Wife’s direct assertion of
non-consent was a tacit admission that Ex-Wife’s version of
events was correct. Relatedly, Kitches’s own statement to
Boyfriend that he filmed Ex-Wife on the purported advice of his
lawyer so that Ex-Wife could not “accuse [him] of anything”
further supports that Kitches filmed the encounter without Ex-
Wife’s knowledge or consent. Regardless, Ex-Wife directly
testified at trial that she never consented to being filmed. And
given the particular facts of the case and the nature of the charge
at issue, this testimony in and of itself was “some evidence” of
Ex-Wife’s lack of consent that would justify submitting the issue
to the jury. See supra ¶ 29.
20181037-CA 15 2021 UT App 24State v. Kitches
¶35 As the foregoing demonstrates, Kitches’s arguments
amount to nothing more than assertions that conflicting evidence
was introduced on this element. “But the existence of conflicting
evidence alone cannot justify taking the case away from the jury.
To the contrary, when the evidence presented is conflicting or
disputed, the jury serves as the exclusive judge of both the
credibility of witnesses and the weight to be given particular
evidence.” State v. Cruz, 2020 UT App 157, ¶ 23, 478 P.3d 631(cleaned up). Here, the jury could permissibly resolve that the
substantial evidence demonstrating Ex-Wife’s lack of consent to
being recorded outweighed the comparably minimal evidence
that may have allowed a different finding.
¶36 Kitches next contends that the evidence introduced in
support of his voyeurism conviction for the shower recording
was insufficient in several regards. He argues that “the State
failed to provide evidence that the recording of [Ex-Wife]
showering was nonconsensual, who recorded it, or even when
the recording occurred.” With regard to the argument about the
timing of the offense, Kitches essentially assails the fact that,
because Ex-Wife was not sure exactly when she was recorded in
the shower other than testifying that it had to have happened
before she moved out of the marital home, the jury was
instructed that the offense took place sometime between January
1, 2017, and March 31, 2017.
¶37 Kitches’s arguments again are unpersuasive. As before,
what the video depicted was circumstantial evidence that Ex-
Wife was unaware she was being recorded, and Ex-Wife also
directly testified that she never was aware of or consented to
being recorded in the shower. The State thus introduced
sufficient evidence that Kitches filmed Ex-Wife in the shower
without her consent. Second, it was never in any genuine
dispute that the video was both recorded in the master bathroom
of the marital home and recovered from Kitches’s computer.
These facts permitted a reasonable inference that Kitches was the
20181037-CA 16 2021 UT App 24State v. Kitches
individual who recorded Ex-Wife in the shower. And Kitches’s
final argument about the date is irrelevant to whether the
evidence introduced at trial was sufficient because “the specific
date of the act is not an element of the crime.” State v. Gulbransen,
2005 UT 7, ¶ 31, 106 P.3d 734, abrogated on other grounds by Met v.
State, 2016 UT 51, 388 P.3d 447; see generally Utah Code Ann.
§ 76-9-702.7. Moreover, because the offense of voyeurism
requires that the victim not be aware that they were being
recorded in the first place, requiring the date of the offense to be
presented with razor-like precision would defeat the goal of the
statute, as it would effectively bar prosecution in the run of cases
absent an admission by the offender as to the date that they
“secretly or surreptitiously” recorded their victim.
¶38 Based on the foregoing, the State presented sufficient
evidence to support both of Kitches’s voyeurism convictions.
Accordingly, we reject his contention that we should reverse
these convictions.
II. Voyeurism-Distribution
¶39 Along with his voyeurism convictions stemming from
recording Ex-Wife in the sexual encounter and in the shower,
Kitches also was convicted for distribution under the voyeurism
statute—a separately defined offense that carries a higher
penalty for distributing the voyeuristic material. See Utah Code
Ann. § 76-9-702.7(3) (LexisNexis 2017). Both of Kitches’s
challenges to this conviction—regarding the sufficiency of the
evidence and the allegedly erroneous jury instruction—are
premised on the same two assumptions: (1) the evidence
demonstrated that Kitches sent the video only to Ex-Wife and (2)
sending the voyeuristic material to the victim does not count as
“distribution” under the statute, which instead requires that the
voyeuristic material be sent to “uninvolved third parties.” He
thus argues that the evidence was necessarily insufficient to
support his voyeurism-distribution conviction and likewise
20181037-CA 17 2021 UT App 24State v. Kitches
argues the jury was erroneously instructed that it could convict
him if it found that he sent the voyeuristic material only to Ex-
Wife. 4
¶40 Subsection (3) of the voyeurism statute 5 outlines the
offense of voyeurism-distribution. As is relevant, it provides that
“[d]istribution or sale of any images, including in print,
electronic, magnetic, or digital format, obtained under [the
subsection of the statute that outlines the base offense of
voyeurism] by transmission, display, or dissemination” is a
separate offense under the voyeurism statute and “is a third
degree felony.” Id. Although subsection (3) outlines the offense
of voyeurism-distribution, the term “distribution” is not
defined anywhere in the voyeurism statute. See generally id. § 76-
9-702.7.
¶41 Kitches argues that the ordinary and accepted meaning of
distribution “necessarily means broadening access to an item,
spreading out or dispersing,” and thus requires the defendant to
4. At oral argument, Kitches asserted that the trial court should
not have defined the term “distribution” at all in the jury
instructions. But Kitches failed to meaningfully develop this
argument in his opening brief. See State v. Sloan, 2003 UT App
170, ¶ 13, 72 P.3d 138 (“An issue is inadequately briefed when
the overall analysis of the issue is so lacking as to shift the
burden of research and argument to the reviewing court.”
(cleaned up)). As a result, we will not address this argument. See
Utah Physicians for a Healthy Env’t v. Executive Dir. of the Utah
Dep’t of Env’t Quality, 2016 UT 49, ¶¶ 28–38, 391 P.3d 148 (noting
that it would “turn the briefing process on its head” if the court
were to consider arguments not developed in the opening brief).
5. Any future references to “subsection (3),” if not otherwise
specified, refer to Utah Code section 76-9-702.7(3).
20181037-CA 18 2021 UT App 24State v. Kitches
have sent the voyeuristic material to “an individual who is not a
party to the intimate act depicted.” And he asserts that such an
interpretation is necessary to read subsection (3) in harmony
with Utah Code section 76-5b-203—colloquially referred to as
Utah’s revenge-porn statute—which outlines the offense of
“[d]istribution of an intimate image.” See id. § 76-5b-203(2)
(2020). The revenge-porn statute provides that it is a class A
misdemeanor “if the actor knowingly or intentionally distributes
to any third party any intimate image” if, among other things,
“the actor knows that the depicted individual has not given
consent to the actor to distribute the intimate image” and “the
intimate image was created by or provided to the actor under
circumstances in which the individual has a reasonable
expectation of privacy.” See id. (emphasis added). Kitches seizes
on the fact that the revenge-porn statute explicitly requires the
actor to send the intimate image to a “third party” and asserts
that it would be “nonsensical” to interpret “distribution” under
subsection (3) in any way that does not embrace this same
requirement.
¶42 Whether “distribution” under subsection (3) requires the
defendant to distribute the offending material to a third party 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. Bilek, 2018 UT App
208, ¶ 24, 437 P.3d 544 (cleaned up). “In so doing, we read each
term according to its ordinary and accepted meaning.” State v.
Davis, 2011 UT 57, ¶ 21, 266 P.3d 765 (cleaned up). “We also
presume that the expression of one term should be interpreted as
the exclusion of another, thereby presuming all omissions to be
purposeful.” Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000(cleaned up). And “we read the language of the statute as a
whole and also in its relation to other statutes.” Davis, 2011 UT
57, ¶ 21 (cleaned up). This is to say that we interpret the
language of the statute at issue “in harmony with other statutes
20181037-CA 19 2021 UT App 24State v. Kitches
in the same chapter and related chapters.” State v. Rushton, 2017
UT 21, ¶ 18, 395 P.3d 92 (cleaned up).
¶43 We disagree that the ordinary meaning of distribution
“necessarily means broadening access to an item.” (Emphasis
added.) While distribution can denote a broadening of access, it
also is defined more generally as “to deliver.” See Distribute,
Black’s Law Dictionary (11th ed. 2019). And the simple act of
“delivery” is clearly met when the defendant sends the
voyeuristic recording to any person, including the person
depicted. 6 But the same would be true even if we were to accept
Kitches’s preferred definition that distribution requires
“broadening access to an item.” Under subsection (3), the “item”
of concern is the recording that was “obtained under
[s]ubsection (1)”—i.e., the voyeuristic recording. See Utah Code
Ann. § 76-9-702.7(3). Whether the defendant sends that
recording to a third party, or instead sends it to the individual
who, “without the[ir] knowledge or consent,” was “secretly or
surreptitiously” recorded, access to the recording has been
broadened. See generally id. § 76-9-702.7.
¶44 And although we agree that the revenge-porn statute is a
related statute that should be harmonized with subsection (3),
that statute further elucidates that “distribution” occurs under
6. At oral argument, the parties raised the issue of whether
“distribution” occurs, within the meaning of subsection (3), if the
victim were to ask the defendant to send the victim the video. In
our view, the statute as currently worded criminalizes any
distribution of the material and makes no room for an exception
which would, in effect, absolve the defendant of distribution
merely because a concerned victim seeks to determine whether
they were secretly or surreptitiously recorded. If this was not the
legislature’s intent, it is of course able to amend the statute to
provide for a different result.
20181037-CA 20 2021 UT App 24State v. Kitches
subsection (3) whether the defendant sends the voyeuristic
recording to the victim or to another person. Kitches’s argument
to the contrary fixates on the fact that, in setting forth the
elements of the offense, the revenge-porn statute specifies that
distribution must be “to any third party.” Id. § 76-5b-203(2). But
he overlooks the fact that the statute separately defines the term
“distribute” and does so in a way that omits any requirement
that the actor send the intimate image to a third party:
“Distribute” means selling, exhibiting, displaying,
wholesaling, retailing, providing, giving, granting
admission to, providing access to, or otherwise
transferring or presenting an image to another
individual, with or without consideration.
Id. § 76-5b-203(1)(a) (emphasis added); see also Phillips v.
Department of Com., 2017 UT App 84, ¶ 27, 397 P.3d 863 (“We
seek to give effect to omissions in statutory language by
presuming all omissions to be purposeful.” (cleaned up)). And
applying this definition to the term “distribution” in subsection
(3) leads to one result: a defendant commits the offense at the
moment they send the voyeuristic material to “another
individual,” which necessarily includes the person depicted. See
Utah Code Ann. § 76-5b-203(1)(a). Moreover, the fact that the
legislature narrowly circumscribed the offense in the revenge-
porn statute to include distribution only to a “third party,” but
did not include any such requirement in subsection (3), further
evinces that the legislature intended for distribution under
subsection (3) to embrace the broader definition. The legislature
apparently knew how to narrow subsection (3)’s applicability
but chose not to.
¶45 Such an interpretation also harmonizes the statutes’
respective purposes. As a general matter, the revenge-porn
statute is intended to prevent a situation in which the victim is
willingly recorded and willingly provides that recording to the
20181037-CA 21 2021 UT App 24State v. Kitches
defendant (either by sending it to the defendant or by consenting
to the defendant recording the act depicted), and the defendant
then turns around and distributes that recording to a “third
party,” i.e., someone to whom the defendant “knows that the
depicted individual has not given consent to the [defendant] to
distribute the intimate image.” See id. § 76-5b-203(2). The
revenge-porn statute thus recognizes that the defendant’s
culpability stems from the non-consensual nature of the second
transfer. That offense thus inherently requires that the recording
have been sent to someone other than the person who both
willingly participated in and provided the recording to the
defendant. 7
¶46 In contrast, the voyeurism statute applies to situations in
which the victim never consented to being recorded in the first
instance but was instead “secretly or surreptitiously” recorded.
There is thus nothing inherent in the base offense which then
necessarily requires that subsection (3) apply only to instances in
which the defendant sends the recording to a third party. And
the particular facts of this case illustrate one reason why the
voyeurism statute specifically omits any mention of a “third
party” requirement. Kitches all but admitted he sent the video to
Ex-Wife to cause her emotional distress when he acknowledged
that he sent it as “an implied threat.” And Ex-Wife testified that
watching the video indeed caused her emotional distress:
It was probably one of the most emotionally
draining things. I—I did not want to watch it. I—
7. Or in the parlance of Kitches’s preferred definition of
“distribution,” the individual depicted in the recording always
had “access” to it by consenting to being recorded and willingly
providing the recording to the defendant. Therefore, sending the
recording back to the individual depicted would not achieve the
requisite broadening of access.
20181037-CA 22 2021 UT App 24State v. Kitches
that was a moment between . . . felt like that was a
private moment between the two of us, and it
made me feel dirty, and it shouldn’t. It made me
feel an inch tall. It was embarrassing, humiliating.
It was—I should not have had to have watched
that or seen that . . . .
¶47 Based on the foregoing, we reject Kitches’s statutory
arguments and hold that the undisputed evidence that he sent
the video to Ex-Wife constitutes “distribution” under subsection
(3). We thus reject Kitches’s contention that the evidence was
insufficient to support his conviction. We likewise reject his
related contention that the trial court improperly instructed the
jury that it could convict him under subsection (3) if it found that
he indeed sent the video to Ex-Wife as described above.
III. Stalking
¶48 Kitches also assails his stalking conviction on two
separate grounds, but both are premised on the notion that the
State failed to present sufficient evidence that he engaged in
“two or more acts” as are needed to commit the offense. See Utah
Code Ann. § 76-5-106.5(1)(a) (LexisNexis Supp. 2020). 8 Kitches’s
first contention is that the trial court should have granted his
motion for a directed verdict based on this alleged evidentiary
deficiency. Kitches’s second contention is that counsel should
have objected to a jury instruction—which Kitches asserts did
not make sufficiently clear to the jury that it had to find that he
engaged in more than one act—and argues that the jury would
have acquitted him if the instruction had been clarified because
of the same alleged evidentiary deficiency.
8. The statutory provisions in effect at the relevant time do not
differ from the current provisions in any way material to this
case. We thus cite the current Utah Code for convenience.
20181037-CA 23 2021 UT App 24State v. Kitches
¶49 Utah Code section 76-5-106.5(2) provides,
A person is guilty of stalking who intentionally or
knowingly engages in a course of conduct directed
at a specific person and knows or should know that
the course of conduct would cause a reasonable
person:
(a) to fear for the person’s own safety or the
safety of a third person; or
(b) to suffer other emotional distress.
Id. A crucial element of the offense is thus that the defendant
must have engaged in a “course of conduct” directed at the
victim. See id. Course of conduct is separately defined in the
statute as requiring the defendant to have engaged in “two or
more acts” proscribed by the statute. Id. § 76-5-106.5(1)(a). And
the statute provides a broadly inclusive list as to what those
proscribed acts are, including,
(i) acts in which the actor follows, monitors,
observes, photographs, surveils, threatens, or
communicates to or about a person, or interferes
with a person’s property:
(A) directly, indirectly, or through any third
party; and
(B) by any action, method, device, or means; or
(ii) when the actor engages in any of the following
acts or causes someone else to engage in any of
these acts:
(A) approaches or confronts a person; [or]
...
(D) sends material by any means to the person.
20181037-CA 24 2021 UT App 24State v. Kitches
Id.
¶50 We have thus characterized stalking as “inherently an
offense of repetition,” given the requirement that the actor
engage in two or more acts directed at the victim. Hardy v. Hardy,
2020 UT App 88, ¶ 6, 467 P.3d 931 (cleaned up). But in
determining whether an act counts toward the course of
conduct, we have also made clear that the acts must be viewed
“cumulatively in light of all the facts and circumstances.” Butters
v. Herbert, 2012 UT App 329, ¶ 12, 291 P.3d 826 (cleaned up). So,
although a single incident may not appear to be a qualifying act
directed at the victim, an objective evaluation of all the
circumstances—particularly the nature and timing of the acts—
may indeed show that the incident was part and parcel of a
broader course of conduct directed at the victim. See Ragsdale v.
Fishler, 2020 UT 56, ¶ 37; Butters, 2012 UT App 329, ¶ 15; Ellison
v. Stam, 2006 UT App 150, ¶ 38, 136 P.3d 1242.
¶51 To be frank, the State introduced an arsenal of evidence to
show that Kitches engaged in “two or more acts” directed at Ex-
Wife. First, the evidence demonstrated that he “monitor[ed]” Ex-
Wife’s text messages for approximately two weeks. See Utah
Code Ann. § 76-5-106.5(1)(a)(i). Next, the evidence demonstrated
that Kitches “confront[ed]” her about the content of her text
messages on several occasions—in one specific example, he
confronted her about sending “half naked pics” which he
admitted to intercepting and saving. See id. § 76-5-
106.5(1)(a)(ii)(A). Moreover, Kitches explicitly “threaten[ed]” Ex-
Wife on no fewer than three occasions that he had a video of
them having sex and would send it to her family, friends,
employer, and Boyfriend. 9 See id. § 76-5-106.5(1)(a)(i). Each of
9. We need not parse the record for each and every time Kitches
threatened Ex-Wife. Instead, we simply note that explicit threats
were made on September 5, 7, and 8. And because these threats
(continued…)
20181037-CA 25 2021 UT App 24State v. Kitches
these explicit threats counts as a separate act toward the course
of conduct, and thus the course of conduct element is met by this
undisputed evidence alone. Kitches also “communicat[ed]” to
Ex-Wife that he had shared the video with his co-workers, 10 and
later “sen[t]” the video to Ex-Wife as an “implied threat.” See id.§ 76-5-106.5(1)(a)(i), (ii)(D). He also “monitor[ed]” Ex-Wife on
the morning of September 10 when he drove by her house at 2:00
a.m. to ascertain her whereabouts and then “follow[ed]” her to
Boyfriend’s house, where he then “confront[ed]” her about being
there. See id. § 76-5-106.5(1)(a)(i), (ii)(A). So as to not belabor the
point, we end our recitation of the supporting evidence here.
¶52 Kitches specifically takes issue with only two of the
above-recited acts. As a result, we need not engage with
Kitches’s arguments because, even if correct, he still fails to
challenge the bevy of other distinct acts in which he engaged
that establish the course of conduct element. 11 We thus reject
(…continued)
were made on different dates, in tandem with other factual
circumstances surrounding them, there is no question that they
constitute “distinct acts.” See Hardy v. Hardy, 2020 UT App 88,
¶ 8, 467 P.3d 931 (explaining that to be “distinct,” acts “must be
distinct in time or purpose”).
10. That this statement apparently was untrue does not negate
that this was a qualifying act. Indeed, the fact that Kitches lied
about showing his co-workers the video suggests that he
intended to cause Ex-Wife emotional distress by relaying the
false information.
11. We note that, throughout his brief, Kitches repeatedly
attempts to excuse his conduct by suggesting that nothing he did
was “directed at” Ex-Wife, and that he was instead motivated
only out of concern for the well-being of his children. This
(continued…)
20181037-CA 26 2021 UT App 24State v. Kitches
Kitches’s contention that the evidence was insufficient to
support his conviction for stalking.
¶53 And we reject Kitches’s ineffective assistance claim
regarding the allegedly erroneous jury instruction for largely the
same reason. To prevail on this claim, Kitches must show that
counsel’s failure to object to the alleged error “prejudiced the
defense.” State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871 (cleaned
up). And even assuming the jury was erroneously instructed
that it could convict Kitches of stalking if it found that he
engaged in fewer than two acts and that counsel should have
objected to the instruction, “[t]he burden is on [Kitches] to
demonstrate a reasonable probability that the outcome of his . . .
case would have been different absent counsel’s error.” State v.
Scott, 2020 UT 13, ¶ 43, 462 P.3d 350; see also State v. Grunwald,
2020 UT 40, ¶ 22, 478 P.3d 1 (“When applying [the] prejudice
analysis in the context of erroneous jury instructions, we must
(…continued)
argument misses the mark. See Ragsdale v. Fishler, 2020 UT 56,
¶ 32 (“[R]egardless of whether a petitioner is a respondent’s
ultimate target, the fact that the respondent engaged in any act
proscribed by the statute two or more times makes his or her
conduct ‘directed at’ the petitioner.”). And even if his subjective
motivations were dispositive, the record before the jury firmly
belies the notion that his conduct was motivated solely out of
concern for his children. The mere acts themselves (especially
when viewed in totality) would allow the jury to reasonably
infer that all of Kitches’s conduct was directed at Ex-Wife for the
subjective purpose of causing her emotional distress. And
Kitches’s own statements bear this out. For example, his
admission that he followed Ex-Wife to Boyfriend’s house at 4:00
a.m. to “make a point” and instill fear allowed the jury to reject
Kitches’s overtures about any purported concern for his
children.
20181037-CA 27 2021 UT App 24State v. Kitches
determine whether there is a reasonable probability the jury
would not have convicted the defendant if the jury instructions
had been correct.”). Given that the evidence demonstrated that
Kitches engaged in numerous acts directed at Ex-Wife—most of
which he does not even dispute—he cannot demonstrate a
reasonable probability that the jury would have acquitted him if
the instruction had been perfectly accurate. 12
12. Although not strictly necessary, we also note that counsel did
not perform deficiently. As initially constructed, the jury
instruction was legally incorrect. The written instruction moved
the “two or more acts” requirement from Utah Code section 76-
5-106.5(1)(a) into subsection (1)(a)(i)—i.e., the instruction implied
that the jury could convict Kitches of stalking if it found that he
engaged in one solitary act proscribed under subsection (1)(a)(ii).
But counsel objected to this error as the court read the
instruction aloud to the jury. The court held a brief sidebar and
agreed that the instruction was in error. It then orally instructed
the jury that the two or more acts requirement applied to both
subsections. The court also instructed the jurors to make
alterations to their respective written instructions, such that the
jurors each had legally correct written instructions. On appeal,
Kitches tacitly acknowledges that the corrected instruction
“tracked the statutory definition” but asserts that counsel
nevertheless should have objected again because “[t]he altered
written instruction [was] messy and confusing . . . [and] [t]he
court’s verbal explanation of what should be corrected [was]
similarly perplexing.” But Kitches fails to offer any explanation
as to how the corrected instruction was “messy,” “confusing,” or
“perplexing.” Kitches has thus failed to demonstrate deficient
performance. The court’s corrected instruction properly
instructed the jury on the elements of the offense, and thus
counsel had no reason to further object to it. See State v. Powell,
(continued…)
20181037-CA 28 2021 UT App 24State v. Kitches
IV. Trespassing
¶54 Finally, Kitches contends that the State failed to present
sufficient evidence to support his conviction for criminal
trespass. As he did at trial, Kitches concedes that he did enter Ex-
Wife’s parents’ house on the morning of September 10 but
primarily argues that he reasonably believed he had permission
to enter the house that morning. He essentially argues that the
testimony of Ex-Wife’s father conclusively established this fact.
As is relevant, Ex-Wife’s father testified that, during Kitches’s
marriage to Ex-Wife, Kitches had “permission to enter [his]
home, especially for the children,” but after the divorce, his
contact with the household was limited to dropping the children
off on Wednesday and Friday mornings.
¶55 A defendant is guilty of criminal trespass if the defendant
(1) knowingly 13 “enter[ed] or remain[ed] unlawfully” on
(…continued)
2020 UT App 63, ¶ 24, 463 P.3d 705 (“If the instruction was
correct, [the defendant] cannot establish deficient performance
for failing to object to it.”).
13. The jury was instructed that Kitches must have knowingly
entered or remained on the property. The State argues that
“[b]ecause the trespass statute does not include a mental state for
the entering element, the State only had to prove that [Kitches]
acted at least recklessly as to that element” but asserts that the
mental state is essentially irrelevant here, arguing that the
evidence was nevertheless sufficient to demonstrate that Kitches
knowingly entered the house unlawfully. We agree that the
evidence was sufficient to show that Kitches knowingly entered
the house unlawfully, and thus we simply couch the elements
and our resultant conclusions as such, without need to decide
the issue.
20181037-CA 29 2021 UT App 24State v. Kitches
property, and (2) was “reckless as to whether [their] . . . presence
[would] cause fear for the safety of another.” Utah Code Ann.
§ 76-6-206(2)(a); see also id. § 76-2-103(2) (“A person engages in
conduct . . . [k]nowingly, or with knowledge, with respect to his
conduct or to circumstances surrounding his conduct when he is
aware of the nature of his conduct or the existing
circumstances.”); id. § 76-2-103(3) (“A person engages in conduct
. . . [r]ecklessly with respect to circumstances surrounding his
conduct or the result of his conduct when he is aware of but
consciously disregards a substantial and unjustifiable risk that
the circumstances exist or the result will occur.”). So long as the
foregoing elements are met, the defendant is guilty of the offense
even if entry onto the property was brief. See State v. Powell, 2013
UT App 64, ¶ 4, 298 P.3d 1289 (per curiam) (“This testimony is
sufficient for the jury to find that [the defendant] was inside the
apartment, even if only briefly. Accordingly, the evidence was
sufficient to support the conviction for criminal trespass.”).
¶56 Kitches argues that the State failed to introduce sufficient
evidence to show that he either knowingly entered the house
unlawfully or was reckless as to whether his presence in the
house would cause fear for the safety of another. In so arguing,
he characterizes Ex-Wife’s father’s testimony as establishing that,
during the marriage, he had permission to enter the house
provided that his entry “related to the children,” and because no
one told him that these privileges of entry had been revoked or
narrowed, he reasonably believed he had permission to enter the
house on September 10 to check on his children. Based on this
premise, he argues that the evidence necessarily was insufficient
to show that he had the requisite mental state to unlawfully
enter the home. He likewise argues that because he reasonably
believed he had permission to enter the house, the State
necessarily failed to show he was reckless as to whether his
presence would cause fear for the safety of another, especially
since he did not “disguise himself or sneak around [the] house.”
20181037-CA 30 2021 UT App 24State v. Kitches
¶57 We disagree. First, the bare factual circumstances—which
were not in dispute at trial or on appeal—permitted a reasonable
inference that Kitches knowingly entered the house unlawfully.
Kitches entered the house at an unusually early morning hour
(5:00 a.m. on a Sunday), did so by sneaking around the back of
the house, silently entered through an unlocked door, and failed
to announce his presence to anyone in the house. From these
facts alone, the jury could infer that Kitches silently entered and
moved throughout the house because he knew his entry was
unlawful and thus intentionally tried to conceal his presence.
And to this point, Kitches initially lied both to Ex-Wife and the
police about entering the house, categorically denying that he
did so. This further suggested that he knew he did not have
permission to enter the house. One would expect that an
individual who honestly believed they had permission to enter
the house would simply advance that understanding—especially
to the police—rather than denying entry altogether. Kitches’s
discussion about his purportedly reasonable belief that he had
permission to enter the house that morning is, at most,
conflicting evidence of his mental state that was solely within the
jury’s province to weigh and reject. See supra ¶ 35.
¶58 With the foregoing in mind, the State also presented
sufficient evidence that Kitches was reckless as to whether his
entry would cause fear for the safety of another. Kitches snuck
into an occupied residence through the back door at 5:00 a.m. In
other words, his entry occurred in a manner and at a time that
would suggest to reasonable occupants that the house was being
burglarized. See, e.g., State v. Sisneros, 631 P.2d 856, 859 (Utah
1981) (noting that “[w]hen one breaks and enters a building in
the nighttime, without consent, an inference may be drawn” that
the defendant committed burglary). Based on this, the jury could
permissibly conclude that a reasonable person would know that
such an entry would create a substantial and unjustifiable risk
that an occupant would fear for personal safety on seeing a
20181037-CA 31 2021 UT App 24State v. Kitches
potential intruder—which, as Ex-Wife’s father testified, is exactly
what happened here. Correspondingly, the jury could
reasonably infer that Kitches was subjectively aware of and
disregarded this risk. And again, the fact that he did not disguise
himself before breaking into the home is only conflicting
evidence of his mental state which the jury was free to disregard.
See supra ¶ 35.
¶59 Based on the foregoing, we reject Kitches’s contention that
the State did not present sufficient evidence to support his
conviction for trespassing.
CONCLUSION
¶60 We reject each of Kitches’s contentions in which he seeks
reversal of his convictions on the basis that the evidence was
insufficient to support them. And for related reasons, we reject
his contentions in which he seeks remand of his voyeurism-
distribution and stalking convictions.
¶61 Affirmed.
20181037-CA 32 2021 UT App 24