Salt Lake City v. Roberts

• Decision Date: 15 March 2002
• Docket Number: No. 20000679.,20000679.
• Citation: 2002 UT 30,44 P.3d 767
• Parties: SALT LAKE CITY, Plaintiff and Appellant, v. Keith ROBERTS, Defendant and Appellee.
• Court: Utah Supreme Court

44 P.3d 767

2002 UT 30

SALT LAKE CITY, Plaintiff and Appellant, v. Keith ROBERTS, Defendant and Appellee.

No. 20000679.

Supreme Court of Utah.

March 15, 2002.

Roger F. Cutler, Boyd A. Ferguson, Richard W. Daynes, Salt Lake City, for plaintiff.

W. Andrew McCullough, Orem, UT, for defendant.

Janelle P. Eurick, Stephen C. Clark, Salt Lake City, for amicus curiae.

On Certiorari to the Utah Court of Appeals.

DURRANT, Justice.

INTRODUCTION

¶ 1 On writ of certiorari, plaintiff Salt Lake City seeks review of Salt Lake City v. Roberts, 2000 UT App. 201, 7 P.3d 789, in which a divided Utah Court of Appeals construed a Salt Lake City ordinance criminalizing sexual conduct in a "place open to public view" as requiring the sexual conduct occur in a place where it "is likely to be observed by a member of the public." The court of appeals adopted this definition from the case law of other jurisdictions. Because the Salt Lake City Code provides a definition establishing the meaning of a "place open to public view," we reverse the court of appeals' interpretation of the ordinance and remand with instructions to apply the codified definition.

BACKGROUND

I. EVENTS SURROUNDING DEFENDANT'S ARREST

¶ 2 At approximately 8:45 p.m. on July 9, 1999, two undercover Salt Lake City police officers saw defendant pick up a woman. Roberts, 2000 UT App. 201 at ¶ 2, 7 P.3d 789. Believing the woman was a prostitute, the officers followed defendant's car to a parking lot behind a bar that was open for business. Id. Defendant parked his car behind two flatbed trucks in the rear of the parking lot. Id. Bordering the parking lot was "a two-story cement wall, a chain-link fence, and a closed business." Id. at ¶ 10. One of the officers later testified that, at the time, numerous patrons of the bar were entering and leaving the parking lot, and that anyone could walk back to the area of the lot where defendant was parked. Id. at ¶ 2.

¶ 3 To avoid detection, the officers parked in front of the bar and proceeded to the parking lot on foot. One officer crawled beneath one of the flatbed trucks and emerged approximately 15 to 20 feet from defendant's car. Id. The officer later testified that this vantage point permitted him to "see into the back window" of defendant's car and observe defendant put his mouth to the woman's exposed breasts. Id. The officer further testified that when he approached the car, he also observed defendant's exposed genitals. Id. at ¶ 6.

¶ 4 The officers arrested defendant for disorderly conduct under Salt Lake City Code § 11.16.100 ("disorderly conduct ordinance"), which, in relevant part, makes it "unlawful for any person, while in a place open to public view, to willfully ... [e]ngage in sexual conduct, alone or with another person[, or] ... [m]ake an intentional exposure of his or her genitals...." Salt Lake City Code § 11.16.100.

II. TRIAL COURT PROCEEDINGS

¶ 5 At defendant's bench trial, the officer who crawled beneath the truck conceded that the trucks somewhat concealed defendant's conduct, and that no member of the public would likely crawl beneath the truck to observe the conduct. Roberts, 2000 UT App. 201 at ¶ 2, 7 P.3d 789. However, the officer repeatedly stated that a person could have approached defendant's car and observed the conduct without crawling under the truck. Id.

¶ 6 The trial court found that defendant willfully engaged in sexual conduct with his companion. The court further found that defendant's conduct occurred in a "place open to public view" under the ordinance because it occurred in a public parking lot. Accordingly, the trial court found defendant guilty of disorderly conduct.

III. DEFENDANT'S APPEAL TO THE UTAH COURT OF APPEALS

¶ 7 On appeal to the Utah Court of Appeals, defendant claimed that (1) differences between the state lewdness statute and Salt Lake City's disorderly conduct ordinance rendered the ordinance invalid under preemption principles, Roberts, 2000 UT App. 201 at ¶ 4, 7 P.3d 789; (2) the facts did not support a finding that he willfully engaged in sexual conduct with another person, id. at ¶ 5; and (3) the trial court misconstrued the ordinance in concluding that his conduct occurred in "a place open to public view." Id. at ¶ 7.

¶ 8 The court of appeals rejected defendant's first two claims. In reviewing his first claim, the court of appeals noted that "ordinances passed by municipalities are valid unless they are inconsistent or conflict with state law." Id. at ¶ 4 (citing, inter alia, Redwood Gym v. Salt Lake County Comm'n, 624 P.2d 1138, 1144 (Utah 1981)). For guidance on what constitutes an inconsistency, the court of appeals relied on Salt Lake City v. Allred, 20 Utah 2d 298, 299, 437 P.2d 434, 435 (1968), in which we held that "[m]unicipal ordinances and state law are not inconsistent when they share a common purpose and are `closely related in subject matter.'" Roberts, 2000 UT App. 201 at ¶ 4, 7 P.3d 789 (quoting Allred, 20 Utah 2d at 302, 437 P.2d at 437). Applying the Allred standard to the disorderly conduct ordinance and the state lewdness statute, Utah Code Ann. § 76-9-702 (1996), the court of appeals concluded that the two provisions share the common purpose of "prohibit[ing] sexual behavior in places where the public may be affronted or offended." Id. at ¶ 4 (applying Allred). Having found no conflict between the state lewdness statute and the disorderly conduct ordinance, the court of appeals upheld the validity of the ordinance. Id.

¶ 9 The court of appeals also rejected defendant's claim that the evidence did not support the trial court's conclusion that he engaged in "sexual conduct" within the meaning of the ordinance. Id. at ¶¶ 5-6. Reviewing this finding for clear error, the court of appeals concluded that the arresting officer's undisputed trial testimony that defendant kissed the exposed breasts of his female companion and exposed his genitals was "sufficient to show beyond a reasonable doubt that defendant `engaged in sexual conduct' within the meaning of the ordinance." Id. at ¶ 6.

¶ 10 As to defendant's third claim, the court of appeals noted that, in concluding defendant's conduct occurred in a "place open to public view," the trial court evidently did not consider the totality of the circumstances, but only the fact that it occurred in a place accessible to the public:

The [trial] court apparently relied [solely] upon the fact that the conduct took place in a public parking lot, stating at [defendant's bench] trial, "I think the problem is that the language [of the ordinance] is tough to deal with but I am not going to struggle with it too much. It was a public parking lot, in my view, it was [therefore] open to public view."

Id. at ¶ 11 (first and second alterations added).

¶ 11 Reviewing the trial court's interpretation for correctness, id. at ¶ 7, the court of appeals first noted that no Utah appellate court has defined "open to public view" as used in the ordinance. Id. at ¶ 8. For guidance, the court turned to case law from other jurisdictions interpreting statutes criminalizing sexual activity in a "public place." Id. at ¶¶ 8-9. In contrast to the trial court's reliance solely on the fact that defendant's conduct occurred in a public parking lot, these jurisdictions have interpreted "public place" as requiring a "fact-intensive" inquiry into "whether the conduct is likely to be observed by the public." Id. at ¶¶ 8-9, 11.

¶ 12 Adopting this interpretation, the court of appeals ruled that the trial court erred in considering only the fact that defendant's conduct occurred in a public parking lot. Id. at ¶ 11. From the record before it, however, the court of appeals could not determine as a matter of law whether or not defendant's conduct occurred in a place likely to be observed by a member of the public. See id. at ¶ 12. Accordingly, the court remanded the case with instructions that the trial court make this determination. Id. at ¶¶ 12, 13.

¶ 13 One judge dissented from the majority's interpretation of a "place open to public view" and its decision to remand. Id. at ¶¶ 15-18 (Bench, J., dissenting in part). Specifically, the dissent contended that, in interpreting this language, instead of relying on "case law from foreign jurisdictions," id. at ¶ 17, the majority should have drawn upon the court's significant experience from the Fourth Amendment search and seizure context "in assessing what is open to public view." Id. at ¶ 16. In the Fourth Amendment context, the dissent noted, Utah courts "have consistently allowed officers to seize evidence when the evidence is in open view from a position that is lawfully accessible to the public." Id. (citations and internal quotations omitted) (emphasis added). This standard, reasoned the dissent, better comports with the plain language of the ordinance than the majority's interpretation, which the dissent believed "import[ed]" into the ordinance the "likely [to be] seen" requirement. Id. at ¶ 17. Applying its interpretation to the facts of the case, the dissent concluded that, as a matter of law, defendant's sexual conduct occurred in a "place open to public view" because "the officer witnessed this sexual conduct from a place lawfully accessible to any member of the general public—as he stood in the public parking lot." Id. Thus, the dissent would have affirmed defendant's conviction without remand. Id. at ¶ 18.

¶ 14 We granted Salt Lake City's petition for certiorari, and now reverse the court of appeals' interpretation of a "place open to public view" and remand.

STANDARD OF REVIEW

¶ 15 "When exercising our certiorari jurisdiction, we review the decision of the court of appeals and not that of the trial court. Inasmuch as the issues before this court are questions of law related to statutory construction, we review the court of appeals' ruling for correctness." Longley v. Leucadia Fin. Corp., 2000 UT 69, ¶ 13, 9 P.3d 762 (citations omitted).

ANALYSIS

I. THE COURT OF...