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State v. Bilek

Court of Appeals of Utah

November 1, 2018

State of Utah, Appellee,
v.
Vratislav Roger Bilek, Appellant.

          Third District Court, West Jordan Department The Honorable L. Douglas Hogan No. 161400438

          Nathalie S. Skibine and Heather J. Chesnut, Attorneys for Appellant

          Sean D. Reyes and Marian Decker, Attorneys for Appellee

          Judge Diana Hagen authored this Opinion, in which Judges Kate A. Toomey and Jill M. Pohlman concurred.

          OPINION

          HAGEN, JUDGE.

         ¶1 Probation officers discovered Vratislav Roger Bilek in a motel room with drugs, drug paraphernalia, and a disoriented woman (E.C.). A search of Bilek's cell phone revealed numerous nude photographs and video recordings of E.C. in which she appeared to be unconscious. Subsequently, Bilek was convicted of two counts of voyeurism, one count of distribution of a controlled substance, and one count of possession of drug paraphernalia.

         ¶2 With respect to his voyeurism convictions, Bilek argues that the State presented insufficient evidence to prove that he used a "concealed or disguised" electronic device to secretly or surreptitiously record or view E.C. Specifically, Bilek argues that the "concealed or disguised" element of class A misdemeanor voyeurism cannot be satisfied by proving only that he provided E.C. with drugs to render her unconscious. We hold that evidence that E.C. was unconscious is sufficient to prove that Bilek secretly or surreptitiously made the recordings, but it does not satisfy the separate element that requires the use of a concealed or disguised electronic device. Accordingly, we vacate his voyeurism convictions.

         ¶3 Bilek also argues for reversal of his other convictions because the State wrongfully admitted evidence that he was on probation at the time of the offenses and because the district court denied his right to self-representation. We reject these challenges and affirm Bilek's convictions for distribution of a controlled substance and possession of drug paraphernalia.

         BACKGROUND[1]

         ¶4 In December 2015, Bilek was sentenced to sixty months of probation after pleading guilty to felony kidnapping.[2] As a condition of probation, Bilek agreed that no women would stay overnight with him without his probation officer's approval and that he would abstain from illegal use or possession of drugs or drug paraphernalia.

         ¶5 Less than two months later, two probation officers conducted a routine check and discovered Bilek in a motel room with E.C. When they entered Bilek's room, the officers saw that E.C. was wearing a tank top, sweatpants, and no shoes. According to the officers, it "appeared like she had just woke[n] up" and she "seemed a little bit out of it." They also observed heroin, crystal methamphetamine, crack cocaine, syringes, a spoon, a metal pipe, and plastic paper next to the bed. After speaking with Bilek and E.C., the officers searched the contents of Bilek's cell phone and discovered 179 photographs and 9 videos of E.C. in Bilek's motel room. In most of the photographs and videos, E.C. was nude, either alone or in compromising positions with Bilek, and appeared to be unconscious or asleep. After reviewing the photographs and speaking with E.C., the officers allowed her to leave, but they placed Bilek under arrest for violating his probation.

         ¶6 Based on E.C.'s statements and the drugs, drug paraphernalia, photographs, and videos discovered in the motel room, the State charged Bilek with one count of forcible sexual abuse, a second degree felony, see Utah Code Ann. § 76-5-404 (LexisNexis 2014); one count of distribution of or arranging to distribute a controlled substance, a second degree felony, see id. § 58-37-8(1)(a)(ii) (2016); two counts of voyeurism, class A misdemeanors, see id. § 76-9-702.7(2) (2014);[3] and one count of possession of drug paraphernalia, a class B misdemeanor, see id. § 58-37a-5(1) (2016).[4]

         ¶7 The district court appointed counsel to represent Bilek. On five occasions before trial, Bilek requested to substitute counsel. Bilek complained that his attorney refused to provide him with the discovery he requested, to file the motions he asked be filed, to subpoena witnesses he identified, and to "excuse herself as ineffective counsel." After addressing the matter with Bilek and his attorney, the district court denied Bilek's requests, finding that there was no conflict that necessitated a change in counsel.

         ¶8 Before trial, Bilek filed a motion in limine to exclude evidence of his prior convictions and probation status. The district court granted the motion with respect to Bilek's prior convictions, but it declined to exclude evidence that Bilek was on probation. The court explained that excluding evidence that the officers were conducting a probation check "would subject the jury to wondering and speculating in improper areas" and that it would be "a better result, a less prejudicial result by actually just saying who [the officers] are and why they [were in Bilek's motel room]."

         ¶9 At trial, E.C. testified that she met Bilek in December 2015. Since then, they had many sexual encounters in which Bilek agreed to pay her money or drugs in exchange for oral sex.

         ¶10 Two days before Bilek was arrested in this case, he had paid to bail E.C. out of jail. When Bilek met her at the police station, E.C. told him she was feeling sick from withdrawal, so Bilek offered her methamphetamine and "a place to shower and sleep." E.C. went to Bilek's motel room, "injected [the] meth" that he provided, and then drove with him to another location where he purchased heroin and crack cocaine. E.C. also went with Bilek to purchase supplies to assemble a crack pipe.

         ¶11 After purchasing the supplies, the two returned to Bilek's motel room where E.C. injected methamphetamine and heroin and smoked crack cocaine. E.C. testified that the methamphetamine Bilek provided that night made her feel "cold and sick and tired" when "[m]eth usually makes [her] feel the opposite." E.C. also testified that she witnessed Bilek inject methamphetamine, but that the drugs he used appeared to come from a separate stash.

         ¶12 During the time she remained in Bilek's motel room, E.C. was "mostly asleep." On the first night, E.C. performed oral sex on Bilek as payment for the drugs. The only other sexual activity she recalled occurred when she awoke to Bilek rubbing lotion near her genitals and when Bilek requested she inject his penis with methamphetamine. E.C. testified that she removed her clothes only twice in Bilek's motel room, on the first night when she performed oral sex on Bilek and the single time she took a shower. In both instances, she recalled re-dressing immediately afterward.

         ¶13 E.C. also testified that she had not consented to being photographed or video recorded. E.C. acknowledged that she had allowed Bilek to photograph her nude in exchange for money during a prior sexual encounter, but she maintained that she had not consented to additional nude photographs and never agreed to allow Bilek to photograph or film her while she was unconscious.

         ¶14 In addition to E.C.'s testimony, the State presented the photographs and videos found on Bilek's cell phone and introduced expert testimony about the physical effects of the drugs E.C. ingested. The probation officers also testified about their observations. The officers explained that they went to Bilek's motel room to conduct a routine probation check, but they did not disclose that Bilek was on probation for a kidnapping conviction or that Bilek was on felony probation. During one officer's testimony, the jury submitted two questions asking for more information about why Bilek was on probation. In response, the district court instructed the jurors that it could not provide an answer to their question and that they were not to consider "any thoughts [they] might have about that or about the subject of that question in [their] deliberations."

         ¶15 When the State rested, Bilek moved for a directed verdict as to the forcible sexual abuse, distribution of a controlled substance, and voyeurism charges. Before the district court could rule, Bilek objected to the statements his attorney made in her argument in support of the motion. The district court explained that it had already instructed Bilek that it was not going to recognize objections unless they came from his attorney but would construe Bilek's objection as a request for "an opportunity for [him] to speak with counsel." Bilek's attorney explained to the court that Bilek was "agitated about what's happening" and would like to "argue about the facts," despite counsel's assessment that those facts "would be harmful to his case." Bilek again objected and stated that he was "firing" his attorney. The district court asked whether Bilek was requesting to represent himself, and Bilek confirmed that he was. The court ruled that it was "not going to allow that to happen at this point." Bilek's defense counsel continued to represent him through the duration of the trial.

         ¶16 After denying Bilek's request for self-representation, the district court denied the motion for a directed verdict. As to the voyeurism charges, the court ruled that providing "a controlled substance that would render a person unaware as to what's going on" was sufficient evidence of "concealment or disguise to secretly or surreptitiously videotape, film, photograph or record." The district court also found that E.C.'s testimony along with the drugs and paraphernalia discovered in Bilek's motel room provided sufficient evidence of forcible sexual abuse and distribution of a controlled substance.

         ¶17 The jury convicted Bilek of two counts of voyeurism, one count of distribution of a controlled substance, and one count of possession of drug paraphernalia. The jury ...


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