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Butt v. State

Supreme Court of Utah

June 19, 2017

Eric Leon Butt, Jr., Appellant,
State of Utah, Respondent.

         On Direct Appeal

         Seventh District, San Juan The Honorable Judge Lyle R. Anderson No. 130700030

          Troy L. Booher, Beth E. Kennedy, Salt Lake City, and Eugene Volokh, Los Angeles (pro hac vice), for petitioner

          Sean 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.


          Lee, Associate Chief Justice

         ¶1 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).


         ¶3 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.

         ¶4 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.

         ¶5 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."

         ¶6 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."

         ¶7 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 drawings.

         ¶8 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.

         ¶9 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.

         ¶10 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 communication.

         ¶11 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 ...

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