State v. Miller

2017 UT App 171THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ERNEST ROBERT MILLER,
Appellant.
Opinion
No. 20160316-CA
Filed September 8, 2017
Fifth District Court, Cedar City Department
The Honorable John J. Walton
No. 151500169
Matthew D. Carling, Attorney for Appellant
Scott F. Garrett and Chad E. Dotson, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
GREGORY K. ORME and DAVID N. MORTENSEN concurred.
TOOMEY, Judge:
¶1 At the conclusion of a bench trial, Ernest Robert Miller
was convicted of lewdness involving a child, a class A
misdemeanor, for stepping out of his front door naked from the
waist down, with his genitals partially exposed, to receive a
newspaper from a twelve-year-old boy (Victim). Miller appeals,
arguing that the evidence was insufficient to establish that his
actions occurred in a public place or under circumstances such
that Miller should have known his actions were likely to cause
affront or alarm. We affirm.
State v. Miller
¶2 Victim worked for a newspaper company delivering
newspapers to various customers in Cedar City, including
Miller.1 Miller had previously requested that Victim place
Miller’s newspaper on his front porch. One morning, as Victim
approached the front door to deliver the newspaper, Miller
emerged and walked out onto the porch. Victim was startled to
see that, although Miller was wearing a shirt, he was not
wearing pants or underwear, partially exposing his genitals.
Miller did not appear to have an erection. Victim “tried to look
him in the face,” handed Miller the newspaper, and left. He
reported the incident to his parents, and his father contacted the
police.
¶3 A police detective interviewed Miller, and Miller told the
detective that he was out of town at the time. He “[d]enied any
knowledge of the incident, saying that it never happened.”
Nevertheless, Miller was charged with lewdness involving a
child, a class A misdemeanor, see Utah Code Ann. § 76-9-702.5(1)
(LexisNexis Supp. 2016), and the case proceeded to a bench trial.
¶4 At trial, Miller testified he pays one dollar to each person
who delivers his newspaper and asks that it be placed on his
porch. He further testified that on the day in question, Victim
“knocked on my door, rang the doorbell, knocked on the door,
rang the doorbell.” Miller went to answer the door. He
acknowledged that he was not wearing pants when he
encountered Victim but disputed that he exited the house. He
added, “Why would I step outside naked? That’s ridiculous.”
1. We recite the facts in the light most favorable to the trial
court’s findings and verdict. See State v. Larsen, 2000 UT App 106,
¶ 2, 999 P.2d 1252; State v. Harper, 761 P.2d 570, 570 (Utah Ct.
App. 1988). “We present conflicting evidence only as necessary
to understand issues raised on appeal.” State v. Holgate, 2000 UT
74, ¶ 2, 10 P.3d 346.
20160316-CA 2 2017 UT App 171State v. Miller
Instead, he testified, he concealed himself behind his front door
and only reached his arm outside to take the paper from Victim.
According to Miller, his body was not exposed at all, and Victim
“never saw a thing.”2
¶5 At the close of the State’s evidence, Miller moved to
dismiss the case on the basis that the State had not met its
burden of proof. Miller’s counsel argued that Miller’s front
porch “is a private place and . . . he was just quickly going to the
door and this would not meet the elements, here.” The trial court
denied the motion, determining that Miller’s porch was “either a
public place, or . . . in the alternative, . . . that there [was]
sufficient evidence that the circumstances were such that a
person would know that they were likely to cause affront or
alarm.”
¶6 At the conclusion of trial, Miller renewed the motion to
dismiss, which the trial court again denied. It found Victim’s
testimony credible and Miller’s testimony “wholly incredible on
many fronts”: “Mr. Miller’s statement, or his testimony, makes
no sense and . . . it’s something that’s made up after the fact to
try and cover up something that Mr. Miller did.” The court
found Victim “was alarmed by [the incident]” and “did the right
thing by reporting it.” The court convicted Miller and sentenced
him to 364 days in jail, suspending 274 days of the sentence,3 and
this appeal ensued.
¶7 “When reviewing a bench trial for sufficiency of evidence,
we must sustain the trial court’s judgment unless it is against the
2. Miller did not explain how, if Victim “never saw a thing,”
Victim knew Miller was not wearing pants or underwear.
3. Judge John Walton conducted the trial. Judge Keith Barnes
sentenced Miller.
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clear weight of the evidence, or if the appellate court otherwise
reaches a definite and firm conviction that a mistake has been
made.” State v. Larsen, 2000 UT App 106, ¶ 10, 999 P.2d 1252(citation and internal quotation marks omitted). We may reverse
only “when it is apparent that there is not sufficient competent
evidence as to each element of the crime charged.” State v. Boyd,
2001 UT 30, ¶ 13, 25 P.3d 985 (citation and internal quotation
marks omitted).
¶8 Utah Code section 76-9-702.5 criminalizes certain conduct
in the presence of a child, and it provides in relevant part:
(1) A person is guilty of lewdness involving a child
if the person . . . intentionally or knowingly does
any of the following to, or in the presence of, a
child who is under 14 years of age: . . .
(b) exposes his or her genitals . . . or the
pubic area:
(i) in a public place; or
(ii) in a private place:
(A) under circumstances the person
should know will likely cause affront
or alarm; or
(B) with intent to arouse or gratify the
sexual desire of the actor or the child.
Utah Code Ann. § 76-9-702.5(1) (LexisNexis Supp. 2016).
¶9 Miller contends his front porch is not a public place
within the meaning of the lewdness statute and that the
circumstances involving Victim were such that he “would not
know that his state of undress would likely cause the victim
20160316-CA 4 2017 UT App 171State v. Miller
affront or alarm.” We assume without deciding that Miller’s
front porch was a private place and address only the trial court’s
alternative ruling that, under the circumstances, Miller should
have known that exposing his genitals in a private place would
“likely cause affront or alarm.” See id. § 76-9-702.5(1)(b)(ii)(A).
¶10 Victim testified that when he saw Miller’s exposed
genitals, it “startled” him. In addition, Miller’s own testimony
supports the inference that he was aware that exposure of his
genitals to visitors would not be well received: He explained, “I
just don’t step outside with no pants on. . . . Why would I step
outside naked? That’s ridiculous.”4 Miller further testified that
when his “lady friends . . . come by,” he always checks to see
who is at the door before he lets them in and always closes the
door while he puts on his pants. Thus, Miller’s testimony
suggests that he actually knew his conduct would cause alarm.
¶11 Miller never argued during his motion to dismiss, nor
does he argue on appeal, that exposing one’s genitals to a child
would not cause the child to be alarmed. Rather, Miller argues
that because he did not have an erection when he came onto the
porch and because there was no evidence presented at trial that
he exposed himself for sexual gratification, his conduct did not
meet the statutory standard. But the statute does not require this.
In fact, section 702.5 provides two scenarios in which a person
may be convicted of lewdness involving a child in a private
4. Miller’s primary argument at trial was that he answered the
door after Victim knocked and that he opened the door just
enough to extend his head out and take the newspaper.
According to Miller, Victim could not have known he was
naked, because he concealed himself behind the door. But the
court did not find Miller’s testimony credible. On appeal, Miller
does not challenge the sufficiency of the evidence as it relates to
whether he exposed his genitals.
20160316-CA 5 2017 UT App 171State v. Miller
place, only one of which contemplates “intent to arouse or
gratify the sexual desires of the actor.” See Utah Code Ann. § 76-
9-702.5(1)(b)(ii)(B). Miller was not convicted under this
provision. Miller was convicted under a separate provision,
which required the court to find that Miller exposed his genitals
“under circumstances the person should know will likely cause
affront or alarm.” See id. § 76-9-702.5(1)(b)(ii)(A). Under this
provision, whether the defendant intended to cause affront or
alarm is immaterial; the evidence is sufficient “if it established
that, under the circumstances, [the defendant] should have
known his actions would likely cause affront or alarm.” Roosevelt
City v. Anderson, 2008 UT App 464U, para. 5.
¶12 Even if Miller did not actually know that his conduct
would likely cause affront or alarm, Miller should have known
that an adult man exposing his genitals to a twelve-year-old
delivering a newspaper to his front porch would likely cause
affront or alarm. This was not a situation in which nudity would
be expected, such as at a gym locker room; the nudity occurred
on Miller’s front porch, a place where adult nudity is
unexpected. See Jenkins v. Commonwealth, 308 S.W.3d 704, 714
(Ky. 2010) (“Male nudity in a men’s locker room with showers is
certainly not unusual, and standing alone, it is not likely to cause
affront or alarm . . . .”); State v. Jeffrey, 400 S.W.3d 303, 306, 315
(Mo. 2013) (holding that a man standing naked in his front
doorway or front window is “a situation in which one would not
ordinarily expect to be confronted by nudity” and a situation
which would cause a child affront or alarm).
¶13 We conclude there was sufficient evidence to prove Miller
should have known that exposing his genitals on his front porch
in the presence of a child would likely cause affront or alarm. We
therefore affirm his conviction.
20160316-CA 6 2017 UT App 171