District Court, Cedar City Department The Honorable John J.
Walton No. 151500169
Matthew D. Carling, Attorney for Appellant.
F. Garrett and Chad E. Dotson, Attorneys for Appellee.
Kate A. Toomey authored this Opinion, in which Judges Gregory
K. Orme and David N. Mortensen concurred.
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.
Victim worked for a newspaper company delivering newspapers
to various customers in Cedar City, including
Miller. 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.
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.
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
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
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,  and this appeal ensued.
"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).
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 ...