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State v. Miller

Court of Appeals of Utah

September 8, 2017

State of Utah, Appellee,
v.
Ernest Robert Miller, Appellant.

         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.

         ¶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." 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 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 ...

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