District Court, West Jordan Department The Honorable L.
Douglas Hogan No. 161400438
Nathalie S. Skibine and Heather J. Chesnut, Attorneys for
D. Reyes and Marian Decker, Attorneys for Appellee
Diana Hagen authored this Opinion, in which Judges Kate A.
Toomey and Jill M. Pohlman concurred.
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.
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.
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
In December 2015, Bilek was sentenced to sixty months of
probation after pleading guilty to felony
kidnapping. 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
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.
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); and one count of possession of drug
paraphernalia, a class B misdemeanor, see id. §
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
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
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.
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.
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.
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
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.
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."
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
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.
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 ...