State v. Bagnes

• Decision Date: 14 February 2014
• Docket Number: No. 20100882.,20100882.
• Citation: 322 P.3d 719
• Parties: STATE of Utah, Plaintiff and Appellee, v. Barton Jason BAGNES, Defendant and Appellant.
• Court: Utah Supreme Court

322 P.3d 719

STATE of Utah, Plaintiff and Appellee,

v.Barton Jason BAGNES, Defendant and Appellant.

No. 20100882.

Supreme Court of Utah.

Feb. 14, 2014.

Sean D. Reyes, Att'y Gen., Ryan D. Tenney, Michelle I. Young, Asst. Att'ys Gen., Salt Lake City, for plaintiff.

Joanna E. Landau, Kimberly A. Clark, Neal G. Hamilton, Noella A. Sudbury, Salt Lake City, for defendant.

Justice LEE authored the opinion of the Court, in which Chief Justice DURRANT, Associate Chief Justice NEHRING, Justice DURHAM, and Justice PARRISH joined.

Justice LEE, opinion of the Court:

¶ 1 Barton Bagnes challenges the sufficiency of the evidence to support his convictions for lewdness involving a child and sexual exploitation of a minor by distribution of child pornography. Bagnes's offense was in dropping his pants in front of two young girls, exposing a toddler-sized diaper he wore underneath, and in distributing a flyer depicting images of diaper-clad children and adolescents. We reverse. Bagnes's conduct was strange, and socially inappropriate. But it did not fall to the level of criminal lewdness or sexual exploitation under the criminal definition of those terms as clarified below.

I

¶ 2 The charges against Bagnes arose out of an encounter he had with two nine-year-old girls, T. and K., in May 2009. T. and K. were riding their bikes in the neighborhood of their homes when they saw Bagnes, who was sucking on a candy binky, and greeted him. When Bagnes approached, the girls noticed that his shorts were too low, exposing part of a diaper he was wearing underneath. T. asked Bagnes about the diaper, and Bagnes indicated that he wore it “for fun.” He also went on to suggest that he wore the diaper because his “parents never potty trained him” and he would “pee his pants” without one.

¶ 3 Bagnes then dropped his shorts to his knees, exposing the diaper in full. It was a diaper made for 40+ pound toddlers with a cartoon image of the Sesame Street character Elmo on the front. Although Bagnes is a small man, the diaper was still too small, leaving a “large gap” between “the front and back” of the diaper. The diaper was held together by clear plastic tape. It did not completely cover his buttocks, but it did cover his pubic area and apparently the girls “couldn't see the back” of his diaper or his buttocks

¶ 4 Bagnes had a fanny pack with diapers and flyers inside. The flyers contained images of children and adolescents wearing diapers. In some of the images the children were shown in arguably suggestive poses or lying on beds, but in none of them were they engaged in sexual conduct or exposing their private parts. On the back of the flyer the URLs of two websites were written in colored crayon, and identified as “cool kids sites” or “best kids sites.”

¶ 5 One of the URLs was for a site that displayed suggestive images of children in sheer underwear, with blinking stars covering their private parts. A click on those images would, in turn, lead to pornographic images of children and adults. The other URL was connected to a Russian search engine that then led to a number of pornographic websites.

¶ 6 There is no indication in the record that the girls ever saw or became aware of the contents of the websites in question. But they did find one of the flyers, which Bagnes had folded into a paper airplane, and they also asked him for another copy after their encounter with him.

¶ 7 Bagnes gave K. another copy of the flyer, while suggesting that she shouldn't tell her parents about it because they would think it was a joke and laugh at her. T. and K. left the flyers at T.'s house, and T.'s mother later discovered them. She then called the police. And she called once more a few days later when T. and K. saw Bagnes in the neighborhood again.

¶ 8 Bagnes was arrested and ultimately charged with two counts of lewdness involving a child under Utah Code section 76–9–702.5 and one count of sexual exploitation of a minor under Utah Code section 76–5a–3(1)(a). ¹ At trial, Bagnes asserted that he showed children his diaper in order to help those who might be struggling with incontinence or similar problems. He also admitted to having shown his diaper to children “a lot,” while denying that he did so for sexual gratification. As to his encounter with T. and K., Bagnes acknowledged displaying his diaper, but denied fully pulling down his shorts. Defense counsel also argued that Bagnes's shorts may have accidentally fallen off because of their poor fit.

¶ 9 The jury found Bagnes guilty on all three counts. Bagnes filed this appeal, asserting three principal grounds for reversal: (a) that the evidence was insufficient to sustain convictions for lewdness or sexual exploitation of a minor; (b) that the district court erred in declining to give a lesser-included offense instruction on a charge of disorderly conduct; and (c) that the district court erred in admitting testimony of five other children regarding similar incidents involving Bagnes.

¶ 10 We reach only the first of these three grounds, because we deem it sufficient to sustain a judgment of reversal. In addressing a sufficiency of the evidence claim, 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 (internal quotation marks omitted). Our review of the evidence itself is deferential. See State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993). We may reverse a verdict “only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt that defendant committed the crime for which he or she was convicted.” Id. At the same time, a review of a sufficiency of the evidence argument may also present a threshold question of law—of the elements of the underlying offense. And on that question, of course, our review is non-deferential, as our interpretation of the terms of the criminal law is ours to make de novo. State v. Parduhn, 2011 UT 57, ¶ 16, 266 P.3d 765.

II

¶ 11 The two counts of lewdness involving a child arose under Utah Code section 76–9–702.5. That provision criminalizes certain forbidden conduct intentionally or knowingly done “in the presence of a child who is under 14 years of age.” Utah Code § 76–9–702.5(1). The forbidden acts include “sexual intercourse or sodomy”; exposure of the “genitals, the female breast ... the buttocks, the anus, or the pubic area”; masturbation; causing a child to expose herself; and “any other act of lewdness.” ²Id. ¶ 12 Bagnes was charged under this latter provision—with an “other act of lewdness.” Thus, the threshold question for us concerns the definition of this term. We then consider the sufficiency of the evidence to sustain a conviction under this definition.

A

¶ 13 The term “lewdness” is not defined by statute. We must accordingly look elsewhere to derive its meaning—to either the ordinary meaning of the word,³ or to its technical sense as a legal term of art.⁴

¶ 14 A starting point for our assessment of ordinary meaning is the dictionary. See Hi–Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 19, 304 P.3d 851. The dictionary is “useful in cataloging a range of possible meanings that a statutory term may bear.” Id. “It provides ‘an historical record, not necessarily all-inclusive, of the meanings which words in fact have borne.’ ” Id. Yet the dictionary alone is often inadequate to the task of interpretation, as the range of possible meanings it identifies may encompass both parties' positions.

¶ 15 That is the case here. A lewd act is sometimes defined in general terms of impropriety—as something vulgar, base, or vile. SeeThe Random House Dictionary of the English Language 1106 (2d ed.1987) (defining lewd as “base, vile, or wicked, esp. of a person”); Webster's Third New International Dictionary 1301 (2002) (defining the term as “base, evil, wicked—used of persons and their conduct”). Alternatively, the term is also defined more narrowly to be limited to matters of a sexual, lascivious nature. SeeThe Random House Dictionary of the English Language 1106 (2d ed.1987) (“[i]nclined to, characterized by, or inciting to lust or lechery; lascivious”); Webster's Third New International Dictionary 1301 (2002) (“[s]exually unchaste or licentious: dissolute, lascivious”). The distinction may be significant here (as developed more below), as Bagnes's conduct is more easily characterized as generally improper than as lascivious.

¶ 16 We read the statute to incorporate the narrower notion of lascivious lewdness—of lewdness involving misconduct of a sexual nature. First, the more general notion of lewdness as mere general baseness or vulgarity is identified in the cited dictionaries as obsolete. SeeThe Random House Dictionary of the English Language 1106 (2d ed.1987) (identifying general definitions of lewd as obsolete); Webster's Third New International Dictionary 1301 (2002) (same). Thus, because our role in interpreting the statute is to give its words the meaning they would have had in the minds of the general public at the time of enactment, see Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465, we can discard mere obsolete notions of the statutory text as beyond its reach.

¶ 17 Second, a statutory standard turning on subjective assessments of general impropriety would implicate constitutional concerns. The specific problem here is one of vagueness. See In re L.G.W., 641 P.2d 127, 131 (Utah 1982) (plurality opinion of Oaks, J.) (noting that “[u]ncertainties about the perimeters of the common-law definition of lewdness have ... resulted in some lewdness statutes being held void for vagueness”). If the criminality of a defendant's act depends on each judge's—or each jury's—private sense of the bounds of social propriety, the due process guarantee of notice will be jeopardized. The more limited, contemporary notion of lewdness avoids that...