District Court, Salt Lake Department The Honorable Elizabeth
A. Hruby-Mills No. 161912645
Nathalie S. Skibine and Steffen Soller, Attorneys for
D. Reyes and Tera J. Peterson, Attorneys for Appellee.
Jill M. Pohlman authored this Opinion, in which Judges David
N. Mortensen and Diana Hagen concurred.
During a trip to Salt Lake City, a woman (Victim) and her
husband decided to take their six-year-old son to a local
park to play soccer. While there, Jeremy David Thomas yelled
at Victim, pulled down his pants, and exposed his pubic area
to her. The State charged Thomas with lewdness, lewdness
involving a child, and intoxication. Following trial, the
jury convicted Thomas on all counts. On appeal, Thomas argues
that his convictions should be reversed due to jury
instruction errors. We disagree and affirm.
Victim and her husband, along with their son, traveled to
Salt Lake City for business. The couple took their son to a
local park, which was "very close" to their hotel,
to play soccer. While they were playing, a man, later
identified as Thomas, began yelling at the family from a
distance of approximately twenty yards, asking if Victim
wanted to "touch" or "see" his
"dick." At that time, Victim's son was
"right next to [her]."
Alarmed, the family began walking back to their car, and
Thomas continued yelling at them. While walking, Victim
looked back several times to "make sure nobody was
following." When she looked back, Victim observed that
Thomas had pulled his pants down "below his pelvic
region" such that "everything was exposed." At
that point, Victim was focused on diverting her son's
attention away from Thomas and getting the family into the
car. Therefore, she was not focused on the details of
Thomas's exposure. Nevertheless, Victim testified at
trial that she was "absolutely sure" that she saw
Thomas's penis and pubic area when she looked back. She
also testified that, although he was looking Thomas's
way, her son did not see the exposure.
Once the family reached their car, they called the police,
who responded quickly. Victim, having kept "an eye"
on Thomas while walking to the car, pointed him out to the
police once they arrived. Upon making contact with Thomas,
the officers smelled "a very strong odor of alcoholic
beverage coming from his person" and noticed that he
exhibited characteristics consistent with intoxication.
Thomas was also "acting very aggressive . . ., yelling,
screaming." Victim was "ultimately able to tell
[the police] that [they] had stopped the right person."
Based on these events, the State charged Thomas with lewdness
(with priors), lewdness involving a child, and intoxication.
Following a one-day trial, the jury convicted Thomas on all
Before trial, Thomas stipulated to the elements instructions
for the lewdness and lewdness involving a child charges. The
lewdness statute provides,
A person is guilty of lewdness if the person . . . performs
any of the following acts in a public place or under
circumstances which the person should know will likely cause
affront or alarm to, on, or in the presence of another who is
14 years of age or older: (a) an act of sexual intercourse or
sodomy; (b) exposes his or her genitals, the female breast
below the top of the areola, the buttocks, the anus, or the
pubic area; (c) masturbates; or (d) any other act of
Utah Code Ann. § 76-9-702(1) (LexisNexis Supp. 2019).
Similarly, the lewdness involving a child statute provides,
A person is guilty of lewdness involving a child if the
person . . . intentionally or knowingly: (a) does any of the
following in the presence of a child who is under 14 years of
age: (i) performs an act of sexual intercourse or sodomy;
(ii) exposes his or her genitals, the female breast below the
top of the areola, the buttocks, the anus, or the pubic area:
(A) in a public place; or (B) in a private place under
circumstances the person should know will likely cause
affront or alarm or with the intent to arouse or gratify the
sexual desire of the actor or the child; (iii) masturbates;
or (iv) performs any other act of lewdness . . . .
Id. § 76-9-702.5(2). Both elements instructions
tracked the required statutory elements for the respective
offenses and, in addition to the enumerated acts of lewdness
prohibited by the statutes (such as exposing one's pubic
area), both instructions included the statutory catchall
element-"any other act of lewdness" (the Catchall
Variant)-as a potential variant of both offenses.
On the day of trial, the district court suggested that the
"[r]eference to female body parts" included in the
stipulated lewdness elements instructions did not pertain to
the case and that the State, in revising the jury
instructions, could take that language out. Thomas did not
object and did not suggest to the court that other language
in the elements instructions was inapplicable and should be
Both parties also submitted additional proposed instructions.
For example, the State proposed instructing the jury that the
Catchall Variant "includes acts of the same general
kind, class, character, or nature as the enumerated conduct
of public intercourse, sodomy, exposure of the genitals or
buttocks, or masturbation." Thomas did not object to
this definition. Instead, drawing from State v.
Bagnes, 2014 UT 4, 322 P.3d 719, Thomas requested two
additional, general definitional instructions for lewdness:
(1) "Lewdness involves conduct of a sexual, lascivious
nature and an irregular indulgence of lust" (the Sexual
Nature Instruction) and (2) "Conduct may be strange and
socially inappropriate without the conduct being lewd"
(the Strange Conduct Instruction). Id. ¶¶
1, 13-29 (defining lewdness as involving conduct "marked
by lasciviousness" and an "irregular indulgence of
lust," and explaining that conduct may be
"strange" and "socially inappropriate"
without being lewd).
After some discussion with the parties, and with the
assistance and assent of Thomas, the court combined the
Sexual Nature Instruction with the State's Catchall
Variant definition. Rather than limit the definition to the
"other acts of lewdness" variant, the revised
instruction broadly provided,
Lewdness includes the act of the same general kind of sexual
misconduct class, character, or nature as the enumerated
conduct of public intercourse, sodomy, exposure of genitals
or buttocks, or masturbation.
However, the court declined to give the Strange Conduct
Instruction. The court explained why it did not think the
instruction was necessary-that, while "certainly
accurate," the issue addressed in the instruction
"comes up through argument that the elements aren't
met," which "goes back to the ...