District, San Juan The Honorable Judge Lyle R. Anderson No.
L. Booher, Beth E. Kennedy, Salt Lake City, and Eugene
Volokh, Los Angeles (pro hac vice), for petitioner
D. Reyes, Att'y Gen., John J. Nielsen, Asst. Att'y
Gen., Salt Lake City, for respondent
Associate Chief Justice Lee authored the opinion of the
Court, in which Chief Justice Durrant, Justice Durham,
Justice Himonas, and Justice Pearce joined.
Associate Chief Justice
This case comes to us on appeal from the district court's
denial of Eric Leon Butt, Jr.'s, petition for
post-conviction relief. Petitioner challenges his conviction
for dealing materials harmful to minors, alleging ineffective
assistance of trial counsel. The basis for this claim is
trial counsel's failure to assert certain defenses under
the state and federal constitutions-a free speech defense and
a "parent-child communication" defense. The
district court denied Butt's petition.
¶2 We reverse. We conclude that counsel was ineffective
in failing to assert a First Amendment defense and that such
a defense would have succeeded if it had been raised. We
vacate Butt's conviction on this basis (and decline to
reach the merits of his other claims).
Petitioner was convicted of two counts of dealing harmful
materials to a minor. See Utah Code §§
76-10-1201(5)(a), -1206(1)(a). The counts relate to two
letters Petitioner sent to his family from jail while
awaiting sentencing for theft. While processing
Petitioner's first letter for mailing, a jail guard
noticed a drawing that concerned him. And he held the letter
for review by his jail commander.
The letter included handwritten notes to Petitioner's
wife and five-year-old daughter. Petitioner wrote to his
daughter: "Well I know you want me to draw my whole
body, but I can't draw very good, so this will have to
work." The drawing was an unskilled, hand drawn picture
portraying Petitioner naked. While the drawing was rough, it
depicted Petitioner's nipples, chest hair, pubic hair,
penis, and testicles.
Three days later, without knowledge that his first letter had
been intercepted, Petitioner wrote a second letter. This
letter was also intercepted. In this letter, Petitioner again
wrote a short note to his daughter: "Hi beautiful girl.
I miss you so much. I can't wait to bite your butt cheek.
This is what it will look like. I love you."
Below this note, Petitioner had again roughly sketched a
picture of himself naked. This picture was even more
rudimentary than the initial drawing. But it portrayed
Petitioner's nipples, penis, and testicles. This time,
however, he was holding his daughter up with her bottom next
to his mouth. A speech bubble from his mouth read: "Oh
your butt taste [sic] so good." And a second speech
bubble from his daughter's mouth read: "Oouch! Daddy
don't Bite so hard Giggle giggle."
At trial, Petitioner attempted to justify the contents of the
first drawing. He testified that prior to his incarceration
he had watched a documentary about cave dwellings with his
daughter, with cave drawings depicting naked people.
Petitioner testified that his daughter had laughed and asked
him to draw a picture of himself naked like the cave
With respect to the second drawing, Petitioner testified that
his daughter likes being tickled. So as part of her bedtime
routine he holds his daughter's hands up in the air and
nibbles all over her stomach, while she laughs. To escape the
tickling, his daughter rolls over from her back to her
stomach. At this point, Petitioner teases her, saying
"roll back over or I'm going to bite your butt
cheek, " to which his daughter responds by rolling back
over. Petitioner testified that he does not remember ever
actually biting his daughter during the routine. Rather, he
makes an empty threat so that his daughter will roll back
over. Despite Petitioner's explanation, the jury returned
a guilty verdict on both counts.
Petitioner appealed both convictions. His appeal challenged
only the sufficiency of the evidence-he did not raise an
independent First Amendment defense at trial or on appeal. We
affirmed, noting the substantial deference owed to the
jury's verdict on a sufficiency of the evidence
challenge. Butt then filed a petition for certiorari with the
United States Supreme Court. That petition was denied.
Petitioner next filed a timely petition for post-conviction
relief in the district court, alleging ineffective assistance
of counsel on two principal grounds. First, Butt asserted
that counsel failed to raise an independent free speech
defense under the federal or state constitutions. Second,
Butt claimed that counsel failed to assert a defense based on
federal and state constitutional protections of parent-child
In response to this petition, the State stipulated to the
vacatur of Petitioner's conviction relating to his
initial nude drawing. The State also conceded that trial
counsel's performance was deficient in failing to raise
an independent First Amendment defense. But the State moved
for summary judgment with respect to the conviction on the
second drawing, arguing that Petitioner suffered no prejudice
because the First Amendment defense lacked merit. The State
also asserted that trial counsel's failure to ...