State v. Charles , 2020 UT App 154 ( 2020 )

2020 UT App 154THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ORLSON GENE CHARLES,
Appellant.
Opinion
No. 20190963-CA
Filed November 13, 2020
Seventh District Court, Monticello Department
The Honorable Don Torgerson
No. 191700081
K. Andrew Fitzgerald, Attorney for Appellant
Kendall G. Laws, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 Orlson Gene Charles faced two misdemeanor charges—
lewdness involving a child and general lewdness—stemming
from his actions involving a mother and her daughter. After a
bench trial, the district court found that Charles, in the presence
of a child under age fourteen, had committed an “other act of
lewdness” under the relevant statute, and entered a judgment of
conviction against Charles for lewdness involving a child, but
determined that any conviction for general lewdness was
merged into the conviction for lewdness involving a child.
Charles appeals his conviction. We reject Charles’s two main
arguments—that his actions did not constitute an “other act of
lewdness” and that his conviction was unconstitutional—but we
nevertheless reverse Charles’s conviction for lewdness involving
State v. Charles
a child, because the State presented insufficient evidence of the
daughter’s age. We remand the case to the district court for
judgment of acquittal on that count, and for further proceedings
regarding the general lewdness count.
BACKGROUND
¶2 One afternoon, a woman (Mother) was driving with her
daughter (Daughter) and Daughter’s friend (Friend), whom
Mother described, several times, as “two little kids” and “little
girls.” Daughter was riding in the front passenger seat, and
Friend was in the back seat. As Mother pulled into Friend’s
driveway to drop Friend off, she saw Charles—a man she did
not know—walking in the street. As the girls got out of the car
and began to walk toward the house, Mother noticed that
Charles had stopped and was standing behind Mother’s vehicle,
attempting to make eye contact with her through the window.
Charles then began making two gestures toward Mother. With
one hand, he placed two of his “fingers to his mouth in a V
[shape] and [stuck] his tongue through it,” which Mother
interpreted as a simulation of oral sex and an “[o]ral sex invite.”
At the same time, Charles had his other hand “over his crotch,”
but she could not tell “if he was rubbing himself.”
¶3 Mother testified that she was “instantly alarmed.” She
remained in the car, looked back at Charles, and found him “still
there doing that.” Over the course of the next few minutes,
“every time” Mother looked in her rearview mirror she saw
Charles “still standing back there doing that.” By Mother’s
estimate, Charles continued to “star[e] at” her and make the
same gestures for about five to seven minutes. Mother testified
that she felt “scared” and was wondering why Charles was
lingering there, making the gestures. She became concerned that
Charles was potentially “out to hurt somebody” or “mess with
little girls.” Eventually, Daughter returned to the car, and asked
20190963-CA 2 2020 UT App 154State v. Charles
Mother why “the man standing back there” was making the
gestures and what the gestures meant. Based on this exchange
and their subsequent conversation, Mother concluded that
Daughter saw Charles and that he saw her, and observed that
the events made Daughter “very nervous.”
¶4 Mother contacted police after leaving the scene, and an
officer soon located Charles. After investigating, the State
charged Charles with lewdness involving a child, a class A
misdemeanor (count 1), and lewdness, a class B misdemeanor
(count 2). The basis for count 2 was the gestures made toward
Mother, and the basis for count 1 was Charles “knowing that a
child was present” when he made the gestures.
¶5 The case proceeded to trial, and at Charles’s request the
matter was tried to the bench. Only two witnesses testified at
trial: Mother and the responding officer. Neither witness was
asked about Daughter’s age, and neither witness offered any
evidence of Daughter’s exact age, although, as noted, Mother
stated on several occasions that Daughter and Friend were “little
kids” and “little girls.”
¶6 During closing argument, Charles made no assertion that
his actions had been a form of speech, or that conviction was
barred on constitutional grounds; instead Charles argued that,
although his conduct was “an act of impropriety,” it did not
“rise[] to the level of . . . criminal lewdness” under the governing
statute. The district court found Charles’s arguments unavailing,
and determined “beyond a reasonable doubt” that Charles
committed an “other act of lewdness,” and that he committed
that act “in the presence of a child under the age of 14 years old.”
The court stated that “there’s simply no interpretation of his
conduct that is anything other than . . . misconduct of a sexual
nature which makes it an other act of lewdness under the
statute.” Under the facts, then, the court found that Charles had
committed both class B misdemeanor lewdness (under count 2)
20190963-CA 3 2020 UT App 154State v. Charles
and class A misdemeanor lewdness involving a child (under
count 1), but concluded that the two convictions merged,
reasoning that, since Charles’s behavior “was one act in the
presence of a child and also in the presence of an adult,” it did
not “warrant[] a separate charge.” The court therefore declined
to enter a judgment of conviction on count 2, and entered a
judgment of conviction only on count 1.
ISSUES AND STANDARDS OF REVIEW
¶7 Charles now appeals his conviction for lewdness
involving a child, raising two main issues. First, he mounts a
constitutional challenge, arguing that the district court violated
his right to free speech by entering a conviction that criminalized
“gestures that are protected by the First Amendment.” But
Charles raises this issue for the first time on appeal and, as we
explain below, the issue is therefore unpreserved. Charles makes
mention of the plain error exception to our preservation rules,
but he fails to adequately brief the applicability of that exception.
¶8 Second, Charles asserts that the State failed to present
evidence sufficient to satisfy two of the required elements of
lewdness involving a child: that his conduct qualified as “any
other act of lewdness” under the relevant statutes, and that his
actions occurred “in the presence of a child who is under 14
years of age.” The first issue—whether Charles’s actions, the
facts of which are essentially undisputed, meet the statutory
definition of “other act[s] of lewdness”—presents a question of
statutory interpretation. On such questions, “our review is for
correctness.” See Biesele v. Mattena, 2019 UT 30, ¶ 31, 449 P.3d 1.
The second issue—whether the State’s evidence of Daughter’s
age was sufficient—presents a question of evidentiary
sufficiency. “When reviewing a bench trial for sufficiency of the
evidence, we must sustain the district court’s judgment unless it
is against the clear weight of the evidence, or if we otherwise
20190963-CA 4 2020 UT App 154State v. Charles
reach a definite and firm conviction that a mistake has been
made.” State v. Holland, 2018 UT App 203, ¶ 9, 437 P.3d 501(quotation simplified); see also State v. Miller, 2017 UT App 171,
¶ 7, 405 P.3d 860 (“We may reverse only when it is apparent that
there is not sufficient competent evidence as to each element of
the crime charged.” (quotation simplified)).
¶9 Finally, because we reverse Charles’s conviction for
lewdness involving a child on the basis that the State failed to
present sufficient evidence of Daughter’s age, but reject
Charles’s remaining arguments, we briefly mention the district
court’s decision that any conviction on count 2 (for lewdness)
was merged into Charles’s conviction on count 1 (for lewdness
involving a child).
ANALYSIS
I
¶10 Charles’s first challenge is constitutional: he asserts that
his gestures were protected by the First Amendment to the
United States Constitution, and that therefore his conviction in
this case cannot stand. Charles acknowledges that he did not
present this argument to the district court, and that the issue is
therefore unpreserved. “A failure to preserve an issue in the
[district] court generally precludes a party from arguing that
issue in an appellate court, absent a valid exception,” of which
there are three: “plain error, ineffective assistance of counsel,
and exceptional circumstances.” State v. Johnson, 2017 UT 76,
¶¶ 18–19, 416 P.3d 443. Thus, we may only reach the
unpreserved constitutional issue if Charles “establish[es] the
applicability of one of these exceptions.” See id. ¶ 19.
¶11 In the “statement of issues” section of his opening brief,
Charles briefly references the plain error exception to our
20190963-CA 5 2020 UT App 154State v. Charles
preservation rules. But in the remainder of his opening brief,
Charles fails to make any argument regarding the plain error
exception, and makes no attempt to persuade us that this
exception should apply on the facts of this case. 1
¶12 “To prevail on a plain error claim, an appellant must
show that (i) an error exists; (ii) the error should have been
obvious to the [district] court; and (iii) the error is harmful, i.e.,
absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant.” State v. Almaguer, 2020 UT
App 117, ¶ 11, 472 P.3d 326 (quotation simplified). “For an error
to be obvious to the [district] court, the party . . . must show that
the law governing the error was clear, or plainly settled, at the
time the alleged error was made.” Johnson, 2017 UT 76, ¶ 21
(quotation simplified). In his opening brief, Charles makes no
effort to discuss these standards, and therefore fails to carry his
burden of demonstrating that the district court committed
obvious error in failing to step in, without being asked to do so,
and halt the State’s prosecution of him on constitutional
grounds. On this basis, we reject Charles’s claim that his
conviction was unconstitutional.
1. After the State pointed out Charles’s failure to brief the plain
error issue in his opening brief, Charles made some effort to
address the issue in his reply brief. However, “[w]hen a party
fails to raise and argue an issue on appeal, or raises it for the first
time in a reply brief, that issue is waived and will typically not
be addressed by the appellate court.” State v. Johnson, 2017 UT
76, ¶ 16, 416 P.3d 443; see also Kendall v. Olsen, 2017 UT 38, ¶ 13,
424 P.3d 12 (stating that it was “too late” for an appellant to
address an issue “in his reply brief,” because it “deprives the
appellee of the chance to respond”).
20190963-CA 6 2020 UT App 154State v. Charles
II
¶13 Next, Charles asserts that the State’s evidence failed to
satisfy two of the statutory elements of the crime of which he
was convicted. The relevant statute provides as follows:
A person is guilty of lewdness involving a child if
the person . . . intentionally or knowingly:
(a) does any of the following in the presence of a
child who is under 14 years of age:
(i) performs an act of sexual intercourse or
sodomy;
(ii) exposes his or her genitals, the female breast
below the top of the areola, the buttocks, the
anus, or the pubic area:
(A) in a public place; or
(B) in a private place under circumstances
the person should know will likely cause
affront or alarm or with the intent to arouse
or gratify the sexual desire of the actor or
the child;
(iii) masturbates; or
(iv) performs any other act of lewdness . . . .
Utah Code Ann. § 76-9-702.5(2) (LexisNexis Supp. 2019). 2
Because there is no evidence that Charles performed an actual
2. In charging documents, the State referenced the 2018 version
of section 76-9-702.5. However, the statute was amended during
the 2019 legislative session, and took effect on May 14, 2019, one
day before the events at issue in this case. See Lewdness Statute
(continued…)
20190963-CA 7 2020 UT App 154State v. Charles
sexual act, exposed himself, or masturbated, the State relied on
subsection (2)(a)(iv) and asserted that Charles’s actions
constituted an “other act of lewdness.” The district court agreed,
and also found that Charles had committed that act in the
presence of a child under the age of fourteen.
¶14 Charles’s first statutory argument is that his actions
did not constitute an “other act of lewdness.” His second
statutory argument is that the State failed to present sufficient
evidence of Daughter’s age, and therefore failed to satisfy one of
the statutory elements of lewdness involving a child. We address
each of Charles’s elements-based arguments, in turn. 3
(…continued)
Modification Act, ch. 394, § 1, 2019 Utah Laws 2724, 2724.
Because we apply the law as it exists at the time of the criminal
offense, see State v. Clark, 2011 UT 23, ¶ 11, 251 P.3d 829(“[C]ourts must apply the law in effect at the time of the
occurrence regulated by that law.” (quotation simplified)), we
cite to the 2019 version of the statute. In any event, the 2019
amendments are not relevant here, and neither party suggests
that application of the 2019 version—as opposed to the 2018
version—of the statute would change the outcome of this appeal.
3. The phrase “other act of lewdness” appears identically in both
the “lewdness” statute, Utah Code Ann. § 76-9-702(1)(d)
(LexisNexis Supp. 2019), and the “lewdness involving a child”
statute, id. § 76-9-702.5(2)(a)(iv) (LexisNexis Supp. 2019). Thus,
on the facts of this case, if Charles’s first elements-based
argument is correct, he can be guilty of neither count 1 (lewdness
involving a child) nor count 2 (lewdness). His second elements-
based argument, however, goes only to count 1.
20190963-CA 8 2020 UT App 154State v. Charles
A
¶15 Our supreme court has discussed, at some length, the
meaning of the “other act of lewdness” language found in Utah’s
lewdness statutes. In State v. Bagnes, 2014 UT 4, 322 P.3d 719, the
court began its analysis by noting that “[t]he term ‘lewdness’ is
not defined by statute,” and concluded that the term should be
given its ordinary meaning. Id. ¶¶ 13–14. After reviewing several
dictionary definitions of “lewdness,” the court determined that
the statutory language was meant to convey the notion of
“lascivious lewdness,” a term the court described as “lewdness
involving misconduct of a sexual nature.” Id. ¶¶ 15–16. In
particular, the court invoked the interpretive canon ejusdem
generis, which provides that “general catchall terms appearing at
the beginning or end of an exemplary statutory list are
understood to be informed by the content of the terms of the
list.” Id. ¶ 18. The court concluded that an “other act of
lewdness” must be of “the same kind, class, character, or nature
as those” acts that were “specifically enumerated” in the statute,
such as a sex act, exposure, or masturbation. Id. ¶ 19 (quotation
simplified). The court summed up its analysis as follows:
In other words, “other act[s] of lewdness”
encompasses conduct similar to, but not falling
precisely within, the enumerated acts. The
similarity, moreover, must be in terms of
lasciviousness or indulgence of lust. So the catchall
term applies to conduct that does not precisely
amount to one of the enumerated lewd acts but
that dramatizes, gesticulates, imitates, or simulates
such acts. Thus, simulated masturbation qualifies
as an “other act of lewdness.” And a parallel
principle would extend to the other lewd acts
enumerated by statute: A simulated sex act could
amount to an “other act of lewdness,” as could an
act of virtual exposure of private parts . . . .
20190963-CA 9 2020 UT App 154State v. Charles
Id. ¶ 23 (quotation simplified); see also In re A.T., 2001 UT 82,
¶¶ 11–13, 34 P.3d 228 (holding that “the simulation of
masturbation in a public place with the intent to offend” would
constitute an “other act of lewdness” under the statute).
¶16 In reaching its conclusion that Charles performed an
“other act of lewdness,” the court cited and analyzed Bagnes and,
with that case in mind, found that Charles’s actions constituted
“misconduct of a sexual nature.” The court characterized
Charles’s actions as “simulating oral sex” and an “invitation to
oral sex.” The court then stated that “there’s simply no
interpretation of [Charles’s] conduct that is anything other than
. . . misconduct of a sexual nature,” and concluded that the
actions constituted an “other act of lewdness under the statute.”
¶17 Charles assails this conclusion, claiming that the district
court erred by characterizing his actions as sexual misconduct.
Charles asserts that his gestures did not “rise[] to the level of . . .
criminal lewdness” of a sexual nature, and instead compares
them to “use of the middle finger.” We certainly acknowledge
Charles’s point that, even though raising one’s middle finger
toward another is a gesture that historically carried a sexual
connotation, it is not always used or intended that way, and in
modern times it is often used merely as a general insult or
even an attempt at humor. See The Finger, Wikipedia,
https://en.wikipedia.org/wiki/The_finger [https://perma.cc/
TU6H-PC89]; see also Brockway v. Shepherd, 942 F. Supp. 1012,
1016 (M.D. Pa. 1996) (determining, in that case, that the act of
raising one’s middle finger toward another was “not sexual in
nature” and instead was “intended to express disrespect for and
to offend” the person at whom it was directed). If all Charles had
done here was raise his middle finger toward Mother and
Daughter, we would certainly be presented with a different case.
But Charles’s actions were significantly more sexually
suggestive than merely raising one’s middle finger. Here,
Charles simulated oral sex with his fingers and tongue while
20190963-CA 10 2020 UT App 154State v. Charles
staring at Mother, a person he did not know, and did so for five
to seven minutes continuously, while placing his other hand on
his crotch. These actions—unlike raising one’s middle finger—
are unambiguously sexual in nature, and would be alarming and
offensive to any reasonable person under the circumstances. See
In re A.T., 2001 UT 82, ¶¶ 10–13 (stating that a simulated sex act
can qualify as an “other act of lewdness” when performed “with
the intent to offend” and alarm the victim, assessed from the
perspective of “an objective viewer”).
¶18 Given our supreme court’s instruction that a “simulated
sex act” can “amount to an ‘other act of lewdness’” under the
lewdness statute, see Bagnes, 2014 UT 4, ¶ 23, and given the
particulars of Charles’s actions, we conclude that the district
court’s analysis of Bagnes and the relevant statute was sound,
and that it did not err in its interpretation of the statute or in its
application of the statute to Charles’s conduct. Charles
committed an “other act of lewdness” that was “similar to, but
not falling precisely within,” the specific acts enumerated in the
lewdness statutes. See id. Accordingly, the State presented
sufficient evidence at trial to satisfy that element of the statute.
B
¶19 Charles next asserts that the State failed to present
sufficient evidence of Daughter’s age, and therefore failed to
establish an essential element of the crime of “lewdness
involving a child.” See Utah Code Ann. § 76-9-702.5. That crime
requires that the lewdness occur “in the presence of a child who
is under 14 years of age.” See id. § 76-9-702.5(2)(a).
¶20 The State responds by pointing out that Charles did not
raise this issue before the district court, and made no objection at
trial that the State had failed to satisfy the age element. In the
State’s view, Charles’s challenge to the district court’s finding on
this point is unpreserved. The State’s preservation argument
20190963-CA 11 2020 UT App 154State v. Charles
would be well-taken if this were an appeal from a jury trial; our
supreme court has long held that a defendant who wishes to
challenge the sufficiency of the evidence following a jury trial
must raise the issue to the district court first. See State v. Holgate,
2000 UT 74, ¶ 14, 10 P.3d 346. However, because Charles’s guilt
was adjudicated via a bench trial, the State’s argument is
without merit. “Unlike challenges to a jury verdict, a defendant
need not file a separate motion or make a separate objection to
challenge the sufficiency of the evidence supporting the court’s
factual findings in a bench trial.” State v. Holland, 2018 UT App
203, ¶ 9, 437 P.3d 501; see also State v. Larsen, 2000 UT App 106,
¶ 9 n.4, 999 P.2d 1252 (citing Utah R. Civ. P. 52(a)(3), Utah R.
Crim. P. 81(e)). Therefore, Charles was not required to take any
action to preserve a challenge to the sufficiency of the evidence
with regard to the statutory elements of the crime, and we
accordingly proceed to review his challenge to the sufficiency of
the State’s evidence on the age element. 4
4. We note that this principle applies only to sufficiency
challenges that go to an element of the crime, which the State
bears the burden of proving beyond any reasonable doubt.
Charles’s constitutional argument, by contrast, is an affirmative
defense, see 22 C.J.S. Criminal Law: Substantive Principles § 46
(2020), to which standard preservation rules apply even in bench
trials; a defendant who fails to raise an affirmative defense to the
district court in a bench trial cannot raise that defense for the
first time on appeal, unless one of the exceptions to our
preservation doctrine applies. See State v. Bond, 2015 UT 88,
¶¶ 14–15, 36, 361 P.3d 104 (holding, in the context of an
unpreserved federal constitutional claim, that the defendant has
the “high burden” on appeal to show that plain error or another
exception applies); see also State v. Sagal, 2019 UT App 95, ¶ 25,
444 P.3d 572 (applying Bond’s holding—that “unpreserved
federal constitutional claims are not subject to a heightened
(continued…)
20190963-CA 12 2020 UT App 154State v. Charles
¶21 Turning to the merits of that challenge, Charles correctly
points out that the State elicited no testimony regarding
Daughter’s age. Indeed, the State concedes that “there is no
evidence of [Daughter’s] exact age.” 5 The State points only to
Mother’s references to Daughter and Friend as “little kids” and
“little girls,” and asserts that these references constitute
sufficient evidence upon which the district court could have
grounded its finding that Charles’s actions occurred “in the
presence of a child who is under 14 years of age.” See Utah Code
Ann. § 76-9-702.5(2)(a). We acknowledge that district courts,
sitting as factfinders in bench trials, are permitted to draw
(…continued)
review standard”—in an appeal from a bench trial). For this
reason, we may consider Charles’s challenge to the sufficiency of
the evidence with regard to Daughter’s age, because that is an
element of the offense on which the State bore the burden of
proof and the district court had to make a finding, but we may
not consider—absent a preservation exception—Charles’s
unpreserved constitutional arguments, which constitute
affirmative defenses on which the district court was neither
required to nor given an opportunity to rule. See supra ¶¶ 10–12.
5. In a footnote in its brief, the State asserts—without citation to
the record—that Daughter “was present in the courtroom . . .
throughout the proceedings.” The State’s appellate counsel was
also the State’s trial counsel, and we have no reason to doubt the
veracity of counsel’s representation. But there is no evidence in
the record to indicate Daughter’s presence in the courtroom: she
did not testify as a witness, and there is no mention of her
presence—let alone any description of her age or appearance—in
the transcript of the trial. Accordingly, we cannot consider this
bare assertion by the State in our analysis of the evidence
available to the district court. See Utah R. App. P. 11(a).
20190963-CA 13 2020 UT App 154State v. Charles
reasonable inferences from the evidence presented. See State v.
Briggs, 2008 UT 75, ¶ 11, 197 P.3d 628 (noting that a district
court’s findings in a criminal bench trial may “include inferences
drawn from the evidence”). But in criminal cases, proof must be
beyond a reasonable doubt, and any inferences drawn from the
evidence must comport with this stringent burden of proof. See
State v. Workman, 852 P.2d 981, 987 (Utah 1993) (stating that
“[c]riminal convictions cannot rest on conjecture or supposition;
they must be established beyond a reasonable doubt,” and that
“speculative inferences” cannot satisfy that standard); see also
State v. Whitaker, 2016 UT App 104, ¶¶ 12, 17, 374 P.3d 56 (stating
that a defendant’s intent could be inferred from circumstantial
evidence, but that such evidence needed to satisfy the
“reasonable doubt” standard, and determining that it did not).
¶22 Utah appellate courts have not had occasion to address
whether such vague references to a victim’s age as “little kid” or
“little girl,” without more, could be enough to sustain a finding,
beyond a reasonable doubt, that the victim was under the age of
fourteen. But other authority suggests that such statements are
not enough on their own. At least one appellate court has faced
precisely this issue; that court overturned a conviction of lewd
and lascivious acts in the presence of a child under the age of
fourteen, explaining that “mere reference to a witness as a ‘little
child’ or a ‘little girl’ does not alone justify the conclusion that
she was a child under the age of fourteen years.” See People v.
Levoy, 194 P. 524, 525 (Cal. Ct. App. 1920). And more recently,
one Utah district court reached the same conclusion, refusing to
admit prior bad acts evidence under rule 404(c) of the Utah
Rules of Evidence—which allows propensity evidence if the
prior bad acts concern “child molestation,” a term requiring the
victim to be under fourteen—when the only evidence of the
victims’ age was a statement that they were “little girls.” See
State v. Ferguson, 2011 UT App 77, ¶ 6, 250 P.3d 89 (describing
the district court as having ruled that “little girls” was too
“nondescript” a characterization to support an inference that the
20190963-CA 14 2020 UT App 154State v. Charles
victims were under fourteen; that part of the district court’s
ruling was not at issue on appeal); see also Utah R. Evid. 404(c).
¶23 Moreover, in Washington v. State, 645 So. 2d 915 (Miss.
1994), the court overturned a conviction for “sexual battery” of
“a child under the age of fourteen,” even though the victim had
testified during the trial, because “there was no direct oral
testimony concerning the age of the youthful victim.” Id. at 917.
In that case, the State argued that, even though it had forgotten
to ask the victim how old she was, the factfinder could infer that
the victim was younger than fourteen through “ocular
perception” of her while she was testifying, and from testimony
that “she had teenage babysitters.” Id. at 916, 919. The court
found these arguments unavailing, noting that “[t]here was no
direct oral testimony presented to the jury from which a
reasonable, hypothetical juror could find that [the victim] was
under fourteen years of age,” and that “the State . . . failed to
place anything in the record to enable [the appellate court] to
review the ocular and auditory aspect of the proof.” Id. at 916,
919; accord State v. Day, 735 So. 2d 56, 60 (La. Ct. App. 1999)
(holding that circumstantial evidence, including the factfinder’s
ability to view witnesses at trial, was sufficient to support a
finding that one victim was under eighteen, because that victim
was described as being in “elementary school,” but was
insufficient to support that same finding with regard to two
other victims who were described as being in high school).
¶24 We agree with Charles that the evidence contained in the
record in this case is insufficient to support a finding, beyond a
reasonable doubt, that Daughter was under the age of fourteen.
Daughter did not testify, and there is no record evidence that the
district court actually saw Daughter, and even if there were, that
may not have sufficed as proof of her age in any event. See
Washington, 645 So. 2d at 919. The State did not ask either of its
witnesses—Mother or the responding officer—any questions
about Daughter’s age. There was no evidence—as there was in
20190963-CA 15 2020 UT App 154State v. Charles
Day—that Daughter was in any particular grade at school, or
even that she attended elementary school. See Day, 735 So. 2d at
60. The only evidence of Daughter’s age to which the State can
point is Mother’s references to Daughter and Friend as “little
kids” and “little girls.” But this is not enough. On occasion,
people refer to fourteen-year-olds as “little girls,” including in
court cases. See, e.g., State v. Grider, No. 75720, 2000 WL 146544,
at *2, *3 (Ohio Ct. App. Feb. 10, 2000) (in rape case, defendant
referred to a fourteen-year-old victim as a “little girl”); Martin v.
Horton, No. 344875, 2019 WL 2145710, at *3 (Mich. Ct. App. May
16, 2019) (in negligence action, fourteen-year-old accident victim
referred to herself as a “little girl”). Indeed, as evidenced by the
citations in the margin, 6 we note that interested observers,
including the victim herself, often referred to Elizabeth Smart—
6. See, e.g., United States v. Mitchell, 706 F. Supp. 2d 1148,
1160, 1173, 1203, 1214–15, 1216 (D. Utah 2010) (referring
to fourteen-year-old Elizabeth Smart and other similarly
aged targets of the defendant as “young girls”); see also Pat
Reavy et al., Elizabeth Smart Describes Rapes, Sex Abuse,
Imprisonment, Threats, Deseret News (Nov. 8, 2010),
https://www.deseret.com/2010/11/8/20151342/elizabeth-smart-
describes-rapes-sex-abuse-imprisonment-threats#courtroom-
drawing-of-elizabeth-smart-on-the-stand [https://perma.cc/2BQL-
KGZ4] (quoting Elizabeth Smart describing herself, from the
witness stand at trial, as a “little girl” at the time she was
kidnapped); Dean E. Murphy, Utah Girl, 15, Is Found Alive 9
Months After Kidnapping, N.Y. Times (Mar. 13, 2003),
https://www.nytimes.com/2003/03/13/us/utah-girl-15-is-found-
alive-9-months-after-kidnapping.html [https://perma.cc/9LQ3-
HMDD] (quoting Elizabeth Smart’s relatives as stating, upon
learning that she had been found alive in 2003 at the age of
fifteen, that “I don’t think any little girl was prayed for more in
the history of the world”).
20190963-CA 16 2020 UT App 154State v. Charles
who was fourteen when she was abducted from her Salt Lake
City home in 2002—as a “little girl” or a “young girl.”
¶25 It would have been easy enough for the State to have
asked Mother to state Daughter’s age while Mother was on the
witness stand. The State did not do so, and the remainder of the
record does not contain sufficient circumstantial evidence to
support a finding, beyond a reasonable doubt, that Daughter
was under the age of fourteen at the time of the offense.
Ultimately, we agree with the sentiments of the Mississippi
Supreme Court in Washington, when it stated as follows:
The fact that establishing a victim’s age is rarely a
problem for the prosecutor suggests that as a
matter of policy, this Court should not routinely
approve convictions where the State fails to put on
reviewable proof of age, when age is an essential
element of the crime. In fact, proof of age in the
case at bar only would have required asking [the
witness] one simple question: “How old [is the
victim]?” It is rather apparent to this Court that the
State simply left out this essential element of proof.
645 So. 2d at 920. We therefore conclude that insufficient
evidence exists in the record before us to support one of the
essential elements of the crime of lewdness involving a child,
and that Charles’s conviction on that count cannot stand.
III
¶26 Although we determine that the evidence was insufficient
to sustain Charles’s conviction on count 1, the State’s failure of
proof on that count concerns an element that is only part of
count 1, and not count 2. A defendant can, of course, be
convicted of general lewdness, a class B misdemeanor, even if
the victim is “14 years of age or older.” See Utah Code Ann. § 76-
20190963-CA 17 2020 UT App 154State v. Charles
9-702(1) (LexisNexis Supp. 2019). After trial in this matter, the
district court appeared to conclude that all of the elements of
count 2 were met as well, but determined that any conviction on
count 2 for general lewdness would merge into Charles’s
conviction on count 1 for lewdness involving a child.
Accordingly, the district court declined to enter a judgment of
conviction on count 2.
¶27 Nothing in our decision today precludes a conviction of
Charles on count 2. We have rejected his constitutional
argument, as well as his argument that his actions did not
constitute an “other act of lewdness.” But neither side briefed the
issue of what should happen with count 2 in the event that we
reversed Charles’s conviction on count 1 due to lack of proof of
Daughter’s age. Under these circumstances, we think it best to
remand the case to the district court for further proceedings
regarding count 2.
CONCLUSION
¶28 We reject Charles’s constitutional arguments, as well as
his assertion that his actions did not constitute an “other act of
lewdness” under the lewdness statutes. However, we agree with
Charles that the State failed to present sufficient evidence of
Daughter’s age, and that Charles’s conviction on count 1 for
lewdness involving a child must be reversed. We remand the
case for entry of a judgment of acquittal on that count, as well as
for further proceedings regarding the disposition of count 2.
20190963-CA 18 2020 UT App 154