State v. Thomas

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                          Appellee,
                              v.
                    JEREMY DAVID THOMAS,
                          Appellant.

                            Opinion
                        No. 20180644-CA
                    Filed November 7, 2019

           Third District Court, Salt Lake Department
            The Honorable Elizabeth A. Hruby-Mills
                          No. 161912645

         Nathalie S. Skibine and Steffen Soller, Attorneys
                           for Appellant
          Sean D. Reyes and Tera J. Peterson, Attorneys
                          for Appellee

    JUDGE JILL M. POHLMAN authored this Opinion, in which
  JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

POHLMAN, Judge:

¶1     During a trip to Salt Lake City, a woman (Victim) and her
husband decided to take their six-year-old son to a local park to
play soccer. While there, Jeremy David Thomas yelled at Victim,
pulled down his pants, and exposed his pubic area to her. The
State charged Thomas with lewdness, lewdness involving a
child, and intoxication. Following trial, the jury convicted
Thomas on all counts. On appeal, Thomas argues that his
convictions should be reversed due to jury instruction errors. We
disagree and affirm.
                         State v. Thomas


                        BACKGROUND 1

¶2     Victim and her husband, along with their son, traveled to
Salt Lake City for business. The couple took their son to a local
park, which was “very close” to their hotel, to play soccer. While
they were playing, a man, later identified as Thomas, began
yelling at the family from a distance of approximately twenty
yards, asking if Victim wanted to “touch” or “see” his “dick.” At
that time, Victim’s son was “right next to [her].”

¶3     Alarmed, the family began walking back to their car, and
Thomas continued yelling at them. While walking, Victim
looked back several times to “make sure nobody was following.”
When she looked back, Victim observed that Thomas had pulled
his pants down “below his pelvic region” such that “everything
was exposed.” At that point, Victim was focused on diverting
her son’s attention away from Thomas and getting the family
into the car. Therefore, she was not focused on the details of
Thomas’s exposure. Nevertheless, Victim testified at trial that
she was “absolutely sure” that she saw Thomas’s penis and
pubic area when she looked back. She also testified that,
although he was looking Thomas’s way, her son did not see the
exposure.

¶4     Once the family reached their car, they called the police,
who responded quickly. Victim, having kept “an eye” on
Thomas while walking to the car, pointed him out to the police
once they arrived. Upon making contact with Thomas, the
officers smelled “a very strong odor of alcoholic beverage
coming from his person” and noticed that he exhibited
characteristics consistent with intoxication. Thomas was also

1. “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 as necessary to understand
issues raised on appeal.” State v. Reigelsperger, 

,
¶ 2 n.1, 

 (cleaned up).




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                         State v. Thomas


“acting very aggressive . . . , yelling, screaming.” Victim was
“ultimately able to tell [the police] that [they] had stopped the
right person.”

¶5     Based on these events, the State charged Thomas with
lewdness (with priors), lewdness involving a child, and
intoxication. Following a one-day trial, the jury convicted
Thomas on all counts. 2

¶6     Before trial, Thomas stipulated to the elements
instructions for the lewdness and lewdness involving a child
charges. The lewdness statute provides,

      A person is guilty of lewdness if the person . . .
      performs any of the following acts in a public place
      or under circumstances which the person should
      know will likely cause affront or alarm to, on, or in
      the presence of another who is 14 years of age or
      older: (a) an act of sexual intercourse or sodomy;
      (b) exposes his or her genitals, the female breast
      below the top of the areola, the buttocks, the anus,
      or the pubic area; (c) masturbates; or (d) any other
      act of lewdness.

(1) (LexisNexis Supp. 2019). Similarly,
the lewdness involving a child statute provides,

      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


2. Thomas does not challenge his intoxication conviction on
appeal.




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                         State v. Thomas


      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 . . . .

 § 76-9-702.5(2). 3 Both elements instructions tracked the
required statutory elements for the respective offenses and, in
addition to the enumerated acts of lewdness prohibited by the
statutes (such as exposing one’s pubic area), both instructions
included the statutory catchall element—“any other act of
lewdness” (the Catchall Variant)—as a potential variant of both
offenses.

¶7     On the day of trial, the district court suggested that the
“[r]eference to female body parts” included in the stipulated
lewdness elements instructions did not pertain to the case and
that the State, in revising the jury instructions, could take that
language out. Thomas did not object and did not suggest to the
court that other language in the elements instructions was
inapplicable and should be similarly excised.

¶8      Both parties also submitted additional proposed
instructions. For example, the State proposed instructing the jury
that the Catchall Variant “includes acts of the same general kind,
class, character, or nature as the enumerated conduct of public
intercourse, sodomy, exposure of the genitals or buttocks, or
masturbation.” Thomas did not object to this definition. Instead,
drawing from State v. Bagnes, 

, 

, Thomas


3. The lewdness and the lewdness involving a child statutes have
recently been amended. However, the amendments are not
material to this appeal, and we therefore cite the most recent
version of both statutes.




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                         State v. Thomas


requested two additional, general definitional instructions for
lewdness: (1) “Lewdness involves conduct of a sexual, lascivious
nature and an irregular indulgence of lust” (the Sexual Nature
Instruction) and (2) “Conduct may be strange and socially
inappropriate without the conduct being lewd” (the Strange
Conduct Instruction). Id. ¶¶ 1, 13–29 (defining lewdness as
involving conduct “marked by lasciviousness” and an “irregular
indulgence of lust,” and explaining that conduct may be
“strange” and “socially inappropriate” without being lewd).

¶9     After some discussion with the parties, and with the
assistance and assent of Thomas, the court combined the Sexual
Nature Instruction with the State’s Catchall Variant definition.
Rather than limit the definition to the “other acts of lewdness”
variant, the revised instruction broadly provided,

      Lewdness includes the act of the same general kind
      of sexual misconduct class, character, or nature as
      the enumerated conduct of public intercourse,
      sodomy, exposure of genitals or buttocks, or
      masturbation.

¶10 However, the court declined to give the Strange Conduct
Instruction. The court explained why it did not think the
instruction was necessary—that, while “certainly accurate,” the
issue addressed in the instruction “comes up through argument
that the elements aren’t met,” which “goes back to the State’s
burden of establishing the elements to get there.”

¶11 The State, citing Salt Lake City v. Howe, 

,

, also proposed that for purposes of the lewdness
involving a child charge the jury be instructed that “[i]n the
presence of a child” “means that a child need only be in the same
place as the person committing the act” (the Presence
Instruction). See generally 

 ¶¶ 14–16 (defining “in the presence
of a child” under the lewdness involving a child statute as
meaning that “a child need only be in the same place as a person
committing a lewd act”).



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                         State v. Thomas


¶12 Thomas objected. He explained that while Howe “does
discuss” what the State’s instruction proposed, another case—
Bagnes—was more on point, as it addressed “this very issue of
lewdness.” By Thomas’s reading, Bagnes imposed a requirement
of “some sort of visual contact or a showing of that particular
part of the body” for the conduct to fall within the ambit of the
statute—one not incorporated into the State’s proposed
instruction. In this respect, he stated that Howe’s discussion on
the presence issue appeared to be inconsistent with Bagnes. The
State responded by distinguishing Bagnes, explaining that it was
“very clearly . . . dealing with some other acts of lewdness and
not presence of another,” while, in contrast, Howe is “directly on
point” with respect to the presence issue.

¶13 The court agreed with the State. It explained that, in its
view, Howe is “closer to the situation here and to the issue at
hand” than Bagnes. It also noted that the language in the State’s
proposed instruction appeared to have been “pulled directly
from that [Howe] case.” The court therefore instructed the jury
that “in the presence of a child,” for purposes of the lewdness
involving a child charge, meant that “a child need only be in the
same place as the person committing the act.”


            ISSUES AND STANDARDS OF REVIEW

¶14 On appeal, Thomas argues that the court erred by giving
the Presence Instruction. He also argues that the court erred by
failing to define the Catchall Variant more narrowly for the jury.
Thomas’s challenges to the jury instructions present questions of
law, which we review for correctness. State v. Walker, 

, 

. However, even if “an error is found in
jury instructions, reversal is warranted only if there is a
reasonable probability that the error affected the outcome of the
case.” State v. Carrell, 

, 

; see
also State v. Horvath, 

, 

(explaining that an appellant challenging the failure to give an
instruction must demonstrate that, had the instruction been



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                          State v. Thomas


given, “there is a reasonable likelihood that she would have
enjoyed a more favorable trial result” (cleaned up)).

¶15 In the alternative, Thomas argues that the district court
plainly erred by failing to sua sponte excise the Catchall Variant
from the elements instructions for both lewdness and lewdness
involving a child. To prevail on a plain error review, Thomas
must establish the existence of an obvious, prejudicial error. State
v. Roberts, 

, 

.


                            ANALYSIS

                    I. The Presence Instruction

¶16 Thomas first argues that the district court erred in
instructing the jury with respect to the statutory element of “in
the presence of a child” (the Presence Element), as provided in
Utah Code section 76-9-702.5(2), lewdness involving a child. As
discussed above, the court agreed, over Thomas’s objection, to
give the Presence Instruction and thus instructed the jury that
“in the presence of a child,” for purposes of the lewdness
involving a child charge, meant that “a child need only be in the
same place as the person committing the act.” See Salt Lake City v.
Howe, 

, 

.

¶17 Thomas also challenges the court’s decision to instruct the
jury on the Presence Element by claiming that the instruction
was “overly broad.” Central to Thomas’s challenge is his
argument that the court erred by using Howe as the basis of the
instruction. He contends that Howe was a sufficiency of the
evidence case, not a jury instruction case, and that it addressed
only what evidence was “minimally sufficient” to meet the
Presence Element. In this respect, he argues that the resolution of
this issue should be guided by State v. Walker, 

,

, in which this court vacated a defendant’s
conviction for aggravated assault based on jury instruction
errors. Walker, Thomas contends, instructs that appellate cases



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                         State v. Thomas


“holding that the evidence is minimally sufficient” do “not
hold—or even address—whether juries in subsequent cases
should be instructed using the language the court used to reject a
sufficiency argument.” (Cleaned up.) As a result, he asserts, the
court erred by giving the State’s proposed instruction because
Howe merely addressed the sufficiency of the evidence in that
case and rendered no conclusive holding for jury instruction
purposes on the Presence Element. And he contends that this
error violated his rights by effectively establishing this element
as a matter of law and removing it from the jury’s consideration.

¶18 In response, the State argues that there was no
instructional error because the Presence Instruction was “simply
a statement of the law,” as it was drawn directly from Howe’s
statutory interpretation of the Presence Element. (Cleaned up.)
The State contends that this issue should be guided by State v.
Lambdin, 

, 

, not Walker. In Lambdin, our
supreme court stated that “there is no error when a district court
includes [an appellate court’s] interpretation of a statutory term
in instructions for the jury, because that interpretation is simply
a statement of the law.” 

 ¶¶ 17–19 (rejecting the argument that
an appellate court should not define statutory terms that have an
“ordinary, dictionary meaning,” as that proposition “is
completely at odds with our implied constitutional authority to
interpret the law in order to address the merits of cases before
us”). We agree with the State and conclude that there was no
error in the court’s decision to give the Presence Instruction.

¶19 It is the “role of the [district court] judge to instruct the
jury on the law,” State v. Palmer, 

, 

(cleaned up), and “jury instructions are intended to inform
jurors of the applicable law,” Lambdin, 

; see also
Utah R. Crim. P. 19(a) (“The court may instruct the jury
concerning . . . the elements and burden of proof for the alleged
crime, and the definition of terms.”). However, while district
courts are entitled to determine, instruct, and resolve “pure
questions of law,” they must nevertheless “take care not to step
into the jury’s fact-finding shoes” by giving instructions that



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                          State v. Thomas


ultimately invade the jury’s role by effectively “removing an
element of an offense from the jury’s consideration.” Walker,

, ¶¶ 20–36 (cleaned up).

¶20 For example, in Walker, this court determined that the
district court improperly invaded the jury’s province when it
instructed that “strangulation to the point of unconsciousness
constitutes serious bodily injury.” 

 (cleaned up). One of the
elements of the offense for which the defendant was ultimately
convicted—aggravated assault—was whether the defendant had
“used means or force likely to produce death or serious bodily
injury.” Id. ¶¶ 14, 18. This court explained that the question of
whether strangulation constituted serious bodily injury was “not
a pure legal question,” but was instead “a question for the jury
to decide based on the facts presented in the case before it.” Id.
¶¶ 24–26 (“[A] fact question, or a mixed question of law and fact,
does not morph into a pure legal question . . . merely because the
evidence is overwhelming and might be characterized as
supporting only one reasonable conclusion as a matter of law.”).
And by instructing the jury that “strangulation to the point of
unconsciousness” constituted, as a matter of law, means or force
likely to produce serious bodily injury, we concluded that the
district court effectively took that factual question from the jury’s
consideration. Id. ¶¶ 20–36 (cleaned up).

¶21 In reaching this conclusion, we rejected the State’s
argument that the instruction was proper because its language
was drawn from two supreme court cases that held
“strangulation to unconsciousness constitutes serious bodily
injury as a matter of law.” Id. ¶¶ 28–36 (cleaned up). We
distinguished the cases identified by the State—State v. Fisher,

 (Utah 1984), and State v. Speer, 

 (Utah
1988)—by explaining that both cases reached their holdings as to
whether strangulation constituted serious bodily injury by
applying the statutory definition of “serious bodily injury” to the
precise factual circumstances of the case at hand. See Walker, 

, ¶¶ 28–36; see also Fisher, 

 (reaching the
holding while addressing a sufficiency of the evidence



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                         State v. Thomas


challenge); Speer, 

 (reaching the holding on a
lesser included offense instruction challenge). The strangulation
issue in each case was thus decided on the set of facts in play,
and neither case purported to interpret the statutory terms as a
matter of law or hold that strangulation to the point of
unconsciousness will always constitute serious bodily injury. See
Walker, 

, ¶¶ 28–36; see also Fisher, 

;
Speer, 

. Similarly, neither case held or addressed
“whether juries in subsequent cases would be required to find
that strangulation or attempted strangulation constituted serious
bodily injury or force likely to cause such injury.” Walker, 

. Put simply, neither case purported to interpret
the meaning of the term “serious bodily injury” as a matter of
law. 

 ¶¶ 28–36.

¶22 However, a district court’s creation of a Walker-like
problem—by using factually based sufficiency conclusions as
jury instructions—is distinguishable from circumstances when a
district court instructs a jury using an appellate court’s purely
legal interpretation of a statute. As our supreme court observed
in Lambdin, before an appellate court can apply a statute to the
facts of a particular case, “it is often necessary to interpret the
statute to determine the proper outcome.” 

, ¶¶ 17–18
(observing that appellate courts have “implied constitutional
authority to interpret the law in order to address the merits of
cases”). Interpreting a statute requires the appellate court to
determine the “intent of the legislature” in the abstract, apart
from the facts of any particular case. Id. ¶ 18. “When interpreting
statutes, we look to the ordinary meaning of the words, using
the dictionary as our starting point,” after which “we then must
look to the context of the language in question.” Id. ¶ 22 (cleaned
up); see also State v. Bagnes, 

, ¶¶ 13–23, 

;
Marion Energy, Inc. v. KFJ Ranch P’ship, 

, ¶¶ 14–15, 

. Importantly, such an interpretation of a statute (or a
term in a statute) “does not create new law, it says what the law
is.” Lambdin, 

. For this reason, because “jury
instructions are intended to inform jurors of the applicable
law, . . . there is no error when a district court includes [an


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                          State v. Thomas


appellate court’s] interpretation of a statutory term in
instructions for the jury, because that interpretation is simply a
statement of the law.” 

¶23 Significantly, statements of the law derived from statutory
interpretation can occur and be required in sufficiency of the
evidence cases, such as when “a review of a sufficiency of the
evidence argument . . . present[s] a threshold question of law—
of the elements of the underlying offense.” Bagnes, 

. For example, in Bagnes, the appellant challenged the
evidence sustaining his conviction for lewdness involving a
child. Id. ¶ 9. To make a determination of whether the evidence
was sufficient, our supreme court noted that the appellant was
charged with an “other act of lewdness” under Utah Code
section 76-9-702.5, and it determined that before it could render
any conclusion about the sufficiency of the evidence, it first had
to define that term as a matter of law. Id. ¶¶ 10–12. Thus, the
court proceeded to interpret that term by looking to dictionary
definitions, interpretive canons, and the overall context in which
the term appeared. Id. ¶¶ 13–23. And the court reached the
merits of the evidentiary challenge only after resolving the
threshold interpretive question. Id. ¶¶ 13–29; see also Walker, 

, ¶¶ 23–24 (explaining that “pure questions of law . . .
are not within the province of the jury” but rather are the
province of the court itself (cleaned up)). The court’s purely legal
interpretation of the term “other act of lewdness,” apart from its
application to the facts in play, therefore constituted a
“statement of the law”—one that could be used without error by
a district court in the future to instruct a jury on that particular
element, should the need for it arise. See Lambdin, 

.

¶24 Applying these principles to the case at hand, we
conclude that, contrary to Thomas’s arguments, Lambdin is on
point, not Walker. This court’s statements about the Presence
Element in Howe resulted from our statutory interpretation of
the term “in the presence of a child” as a threshold question of
law, not from our determination that the evidence in Howe was



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                         State v. Thomas


minimally sufficient. 

, ¶¶ 14–16. As a result,
this court’s interpretation of the Presence Element constituted a
“statement of the law.” See Lambdin, 

. Thus, in
instructing the jury according to the interpretation of that
element in Howe, the district court in the present case simply
provided the jury a statement of the law, not a fact-intensive
conclusion improvidently fashioned as one. Compare Lambdin,

, ¶¶ 15–24, with Walker, 

, ¶¶ 20–36.

¶25 In Howe, the defendant was convicted of lewdness
involving a child. 

. After the City had
rested its case, Howe made a motion for a directed verdict,
arguing that the evidence was not “legally sufficient” to
establish all the elements of the offense. 

 (cleaned up). The
motion was denied. 

 On appeal, Howe argued, among other
things, that the evidence was not sufficient for the jury to “find
that Howe was in the presence of children.” 

 ¶¶ 8–9. Rather
than simply challenging the evidentiary sufficiency with respect
to the Presence Element, however, Howe placed the
interpretation of that element directly at issue. He conceded that
“children under age fourteen were at the playground” where his
offense took place. Id. ¶ 14. He nevertheless argued that the
statute was ambiguous with respect to the Presence Element,
and he suggested, based on the statute’s title, that a child “must
somehow be involved in the lewd act beyond his or her mere
proximity to the lewd behavior.” Id. Interpreting the Presence
Element in this way, he contended, the evidence was not
sufficient to sustain his conviction. Id. ¶¶ 8, 14.

¶26 This court rejected both Howe’s assertion that the statute
was ambiguous and his proffered interpretation. Id. ¶¶ 15–16.
We concluded that the statute was not ambiguous by
undertaking a plain language analysis of the Presence Element.
Id. ¶ 15. Specifically, we looked to, and recited, the ordinary
dictionary meaning of “presence.” Id.; see also Lambdin, 

, ¶¶ 22–23 (looking first to the “ordinary meaning” of the term
at issue as set forth in the dictionary); Bagnes, 

, ¶¶ 13–
16 (same, in the context of resolving a threshold question of law



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                         State v. Thomas


to a sufficiency challenge). We then applied that ordinary
meaning to the context in which the term appeared, concluding
that “[a]pplying this definition to the statute yields only one
reasonable interpretation [of the Presence Element]—that a child
need only be in the same place as a person committing a lewd
act.” Howe, 

; see also Bagnes, 

,
¶¶ 13–23 (applying the ordinary meaning to the statute to
determine that “other act of lewdness” incorporates the
“narrower notion” of lewdness set forth in the dictionary). On
this basis, we rejected Howe’s proffered interpretation,
concluding that it would “contradict the ordinary meaning of
the statutory language.” Howe, 

. Only then
did we apply our interpretation of the Presence Element to the
facts in play, concluding that evidence of children in a
playground “ten to fifteen feet away” from Howe at the time of
the lewd behavior was sufficient to establish presence and to
sustain Howe’s conviction. 

¶27 Thus, while the overarching question in Howe centered on
the sufficiency of the evidence supporting Howe’s conviction,
resolving Howe’s challenge required that we first interpret the
Presence Element as a threshold legal question before applying it
to the facts in play. Our interpretation of the Presence Element
thereby constituted “simply a statement of the law”—one that
therefore could be employed by a district court in a jury
instruction without error. See Lambdin, 

. And,
indeed, there is no language in Howe suggesting that our
statutory interpretation of the Presence Element was cabined
solely as an assessment of the minimal sufficiency of the
evidence in that case alone. Compare Howe, 

,
¶¶ 15–16, with Walker, 

, ¶¶ 25–36.

¶28 Here, the district court’s jury instruction on the Presence
Element was nearly identical to the interpretation set forth in
Howe. It thus represented a statement of the law, not an
improperly imported factual conclusion. Accordingly, there was
no error in the district court’s decision to instruct the jury with




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                         State v. Thomas


respect to the interpretation of the Presence Element set forth in
Howe. 4 See Lambdin, 

.

¶29 Thomas also raises several related and additional
arguments suggesting that the instruction was overly broad.
But given our conclusion that Howe interpreted the Presence
Element as a purely legal question, none are ultimately
persuasive.

¶30 First, Thomas contends that Bagnes “rejected the
suggestion that a child need only be in the same place in every
instance.” (Cleaned up.) But as described above, Bagnes did not
deal with, or purport to interpret, the Presence Element; it
interpreted and resolved a sufficiency challenge surrounding the

4. Our conclusion on this point effectively resolves Thomas’s
additional argument on appeal that the instruction violated his
right to have the jury consider whether the facts established all
the elements of the offense, including the Presence Element.
Central to this argument is Thomas’s contention that the
instruction created a Walker-like problem by impermissibly
morphing a factually driven conclusion from Howe, a sufficiency
case, into a purely legal conclusion—one that effectively
instructed the jury that it had to find the Presence Element
established as a matter of law. But we have concluded that this
case is better considered under the principles set forth in
Lambdin, not Walker, because our interpretation of the Presence
Element in Howe represented a pure statement of law. As a
result, the Presence Instruction did not take from the jury the
consideration of the Presence Element. Indeed, as the State
points out, the jury still had to apply the facts to find whether
Thomas committed the lewd act in the child’s presence. And the
fact that the evidence might have been undisputed on this point
does not mean that the jury was effectively stripped of its
fact-finding duty with respect to that element; it simply meant
that the jury might not have had to resolve conflicting evidence
on this issue in reaching its verdict.




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                         State v. Thomas


Catchall Variant in the lewdness involving a child statute. 

, ¶¶ 11–29. Bagnes therefore cannot plausibly be read to
limit or contravene the interpretation of the Presence Element set
forth in Howe. Compare Bagnes, 

, ¶¶ 10–29, with Howe,

, ¶¶ 14–17.

¶31 Next, Thomas contends that the “language in the jury
instruction is broader than the definitions this Court provided in
Howe” and that the instruction was “misleading” in the context
of his case. He supports these contentions by citing definitions of
his own finding for the word “present”—definitions not
addressed or included in Howe’s interpretation of the Presence
Element—and generally arguing that the Presence Instruction
was incorrect. But we have concluded that Howe interpreted the
Presence Element as a matter of law, and the instruction the
district court provided was nearly identical to the interpretation
established in Howe. Thus, we cannot conclude that giving the
jury instruction was error based simply on Thomas’s proffer of
other potential definitions of the word “present.”

¶32 Thomas finally asserts that the jury instruction was overly
broad because section 76-3-203.10 of our criminal code—which
addresses violent offenses committed in the presence of a
child—defines the element of “in the presence of a child” more
narrowly than Howe. But as the State points out, the legislature
did not include the same definition in the lewdness involving a
child statute, see generally 

(LexisNexis Supp. 2019), and we must presume that the
legislature’s omission was intentional, see Marion Energy, 

 (“[Appellate courts] presume that the expression of
one term should be interpreted as the exclusion of another.
We therefore seek to give effect to omissions in statutory
language by presuming all omissions to be purposeful.” (cleaned
up)).

¶33 In short, we discern no error in the district court’s
decision to provide the jury the Presence Instruction.




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                          State v. Thomas


     II. The Sexual Nature and Strange Conduct Instructions

¶34 Thomas next argues that the district court erred when it
declined to “narrow the statutory definition” of the Catchall
Variant. Drawing on the supreme court’s statutory interpretation
of the Catchall Variant in Bagnes, both the State and Thomas
proposed instructions related to the definition of lewdness. The
State initially proposed that the Catchall Variant be defined as
“includ[ing] acts of the same general kind, class, character, or
nature as the enumerated conduct of public intercourse, sodomy,
exposure of the genitals or buttocks, or masturbation.” Thomas,
on the other hand, proposed two instructions defining lewd
conduct more generally: (1) the Sexual Nature Instruction,
stating, “Lewdness involves conduct of a sexual, lascivious
nature and an irregular indulgence of lust,” and (2) the Strange
Conduct Instruction, stating, “Conduct may be strange and
socially inappropriate without the conduct being lewd.”

¶35 The court ultimately combined the State’s proposed
instruction for “other acts of lewdness” with Thomas’s Sexual
Nature Instruction, arriving at an overall definition for lewdness
itself, not simply a definition for the Catchall Variant: “Lewdness
includes the act of the same general kind of sexual misconduct
class, character, or nature as the enumerated conduct of public
intercourse, sodomy, exposure of genitals or buttocks, or
masturbation.”

¶36 On appeal, Thomas challenges the district court’s decision
with respect to the Sexual Nature Instruction, but does so with a
broad brush, focusing on the Catchall Variant and chiefly
arguing that the instruction given by the court “did not
sufficiently narrow the statutory definition of lewdness.” He
faults the court for giving the instruction because, in his view,
“the instruction’s use of the word ‘includes’ does not make clear
that the instruction is limiting,” and the instruction “does not
specify that it applies to the ‘any other act of lewdness’ catchall.”
The State responds that the court did not err in giving the




20180644-CA                     16               

                          State v. Thomas


instruction but, even if it did, the alleged error was not
prejudicial.

¶37 We agree with the State that the alleged error was not
prejudicial. Even assuming the instruction was erroneous—a
conclusion we do not reach here—Thomas suffered no prejudice
from it. See generally State v. Carrell, 

, 

 (stating that even if “an error is found in jury
instructions, reversal is warranted only if there is a reasonable
probability that the error affected the outcome of the case”).

¶38 Thomas suggests that the alleged error was prejudicial
because he made a remark to Victim that he suggests might have
led the jury to convict him under the Catchall Variant, not the
exposure variant, based on the jury’s “common understanding”
of lewdness. Thomas also suggests that the evidence
surrounding the remark was stronger than that of the exposure
itself.

¶39 However, as the State points out, the evidence
surrounding the exposure act was overwhelming and far from
equivocal. The only witnesses who testified at trial were Victim
and one of the police officers who responded to Victim’s call,
and, among other things, Victim consistently and repeatedly
testified that Thomas exposed his pubic area, stating that
Thomas had pulled down his pants such that “everything was
exposed” and that she was “absolutely sure” that Thomas
exposed his pubic area.

¶40 Further, the prosecution focused on the exposure variant
of the lewdness offenses, not the Catchall Variant, in establishing
Thomas’s guilt. The State told the jury that it had the burden to
prove beyond a reasonable doubt that Thomas “exposed his
genitals or his pubic area in a public place, the park.” The State
then argued to the jury that it could convict Thomas if it found
that “he exposed his genitals or . . . his pubic area,” and that the
jury should convict Thomas because he “did expose his genitals,
he did expose his pubic area” in the presence of Victim’s child.



20180644-CA                     17               

                         State v. Thomas


And while the State referenced the remark, it did so in setting
forth the context of the events and the exposure and establishing
that the exposure act was sexual in nature; at no point did the
State suggest that the lewdness elements were met or that the
jury should find Thomas guilty based solely on the remark.
Moreover, even defense counsel at times conceded that exposure
had occurred but argued that Thomas was not guilty of the
offenses because the exposure was not sexual misconduct or
“sexual in nature” and was instead “just [Thomas] being a
knucklehead because he was drunk.”

¶41 In short, both the evidence presented to the jury about the
charged offenses and the parties’ arguments at trial centered on
proving or disproving Thomas’s guilt under the exposure
variant, not the Catchall Variant. In these circumstances, it was
not reasonably likely that, even if the jury had received a more
limiting instruction about the meaning of the Catchall Variant,
the narrowed instruction would have affected the outcome of the
case. See Carrell, 

; see also State v. Hummel,

, ¶ 83 n.30, 

 (stating that there is “no need
to reverse a conviction even if there were erroneous instructions
on one variation of a crime submitted to the jury where the
evidence overwhelmingly supports a conviction under [another]
variation,” and listing jury instruction cases where no reversal
was necessary because the appellant had not shown that the
challenged instructions were harmful (cleaned up)); State v. Reid,

, ¶¶ 33–36, 

 (concluding that there
was no prejudice on alleged instructional errors related to two
variants where there was “ample evidence” supporting the other
three variants instructed). 5 Accordingly, we reject Thomas’s
contention that the alleged instructional errors merit reversal.



5. Thomas also challenges the district court’s failure to give the
Strange Conduct Instruction. Below, Thomas argued that it
would be appropriate to give the instruction because he
“anticipated . . . that the conduct that [the jury] will hear about
                                                     (continued…)


20180644-CA                    18               

                          State v. Thomas


               III. Inclusion of the Catchall Variant

¶42 In the alternative, Thomas argues that it was plain error
for the district court to allow the elements instructions for the
lewdness offenses to include the Catchall Variant. Conceding
that this issue was not preserved, Thomas argues that we should
review this challenge under the plain error doctrine. See State v.
Roberts, 

, 

 (“A trial court plainly
errs when it commits obvious, prejudicial error.”). Relying on
two ineffective assistance of counsel cases addressing jury
instructions for the offense of forcible sexual abuse, State v. Ray,

, 

, cert. granted, 

 (Utah
2017), and the offense of sexual abuse of a child, State v. Lewis,

, 

, Thomas argues that failing to
excise the Catchall Variant was obvious error. And he contends
the error was prejudicial because there was “testimony that
Thomas made a lewd remark that, while not on par with” the
enumerated acts described in the lewdness statutes, “might well
be viewed as lewdness by jurors applying their common
understanding of the term,” and because the exposure evidence
was comparatively weak.

(…continued)
may seem strange,” and it would be helpful for the jury to
understand “that just because it’s not appropriate and people
usually don’t do it . . . doesn’t necessarily mean that it’s lewd
and that [the jury has] to look at the actual elements.” The court
disagreed. It explained that, while the instruction was “certainly
accurate,” it thought that the issue was one that “comes up
through argument that the elements aren’t met,” which “goes
back to the State’s burden of establishing the elements to get
there.” On that basis, it declined to give the instruction. Thomas
has not engaged with this reasoning on appeal. As a result, we
reject this challenge. See iDrive Logistics LLC v. IntegraCore LLC,

, 

 (“Where an appellant fails to
address the basis of the district court’s ruling, we reject the
challenge.”).




20180644-CA                     19               

                           State v. Thomas


¶43 We disagree that the court committed obvious error by
not sua sponte excising the Catchall Variant from the lewdness
elements instructions. “For an error to be obvious to the trial
court, the party arguing for the exception to preservation must
show that the law governing the error was clear, or plainly
settled, at the time the alleged error was made.” State v. Johnson,

, 

 (cleaned up); see also State v.
Roman, 

, 

 (stating that
“[w]ithout clear guidance in the law, any error would not have
been obvious to the district court,” and concluding that the party
seeking reversal on plain error review was unable to “avail
himself of the plain error exception” where he failed to direct
this court to settled law to support his argument for error).

¶44 Thomas has not demonstrated on appeal that the law
governing the inclusion or excision of the Catchall Variant was
“clear, or plainly settled, at the time the alleged error was
made.” See Johnson, 

 (cleaned up). To begin with,
neither Ray nor Lewis establishes the proposition that a variant
not relied on must be excised from the jury instructions and that
a district court errs if it fails to do so. Further, neither case dealt
with or addressed the failure to specifically excise the Catchall
Variant from jury instructions setting out the lewdness elements
under the applicable lewdness statutes. See 

 (LexisNexis Supp. 2019) (lewdness); 

 § 76-9-702.5
(lewdness involving a child). Rather, both Ray and Lewis
addressed jury instruction errors with respect to the “indecent
liberties” variant in our forcible sexual abuse statute and sexual
abuse of a child statute—different statutes involving distinct
elements compared to the lewdness statutes at issue here. Ray,

, ¶¶ 16–20; Lewis, 

, ¶¶ 10–13; see
also 

(1) (LexisNexis Supp. 2019)
(setting forth the elements of forcible sexual abuse); 

§ 76-5-404.1(2) (stating the elements of sexual abuse of a child).
As a result, neither Ray nor Lewis constituted settled law with
respect to the propriety of instructing on the Catchall Variant at
the time of the alleged error. And Thomas points to no authority
otherwise suggesting that the law regarding including or


20180644-CA                      20                

                          State v. Thomas


excising the Catchall Variant was sufficiently settled at the time
of the alleged error. Accordingly, Thomas has not demonstrated
that the court plainly erred by failing to sua sponte excise the
Catchall Variant. See Johnson, 

.

¶45 To be sure, given the State’s admission that it was not
pursuing charges under the Catchall Variant, it might have been
prudent for the district court to excise the Catchall Variant (as it
did with the language in the statutes related to “female body
parts”). Nevertheless, Thomas has not established that it was
obvious error not to do so. 6 Thus, we are unable to conclude that
the district court plainly erred in failing to sua sponte excise the
Catchall Variant from the elements instructions.


                         CONCLUSION

¶46 Thomas has not demonstrated that the district court erred
with respect to its decisions surrounding the challenged jury
instructions. Accordingly, we affirm Thomas’s convictions.




6. For the reasons discussed above, supra ¶¶ 36–41, we also
cannot conclude that any potential error in including the
Catchall Variant was harmful. See State v. Hummel, 

,
¶¶ 81–85 & n.30, 

 (“Under our established case law,
we may reverse on the basis of an unnecessary jury instruction
only if the instruction is shown to be prejudicial (or in other
words not harmless).”).




20180644-CA                     21