State v. Butt
| Decision Date | 08 June 2012 |
| Docket Number | No. 20090655.,20090655. |
| Citation | 2012 UT 34,710 Utah Adv. Rep. 44,284 P.3d 605 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Eric Leon BUTT, Jr., Defendant and Appellant. |
| Court | Utah Supreme Court |
OPINION TEXT STARTS HERE
Mark L. Shurtleff, Att'y Gen., Ryan D. Tenney, Asst. Att'y Gen., Salt Lake City, for appellee.
William L. Schultz, Monticello, for appellant.
¶ 1 Defendant Eric Butt was convicted of distributing harmful materials to a minor when he mailed rudimentary nude drawings of himself to his five-year-old daughter. On appeal, he argues that the evidence was insufficient to support his conviction because the State presented nothing more than the drawings themselves. Due to the broad grant of discretion ceded to the jury by the sufficiency of the evidence standard and by the “harmful to minors” statute, we affirm.
¶ 2 Defendant was incarcerated in the San Juan County Jail on theft-related charges. From jail, he mailed two letters to his family. The letters were intercepted by the County Jail, which allowed inmates to mail letters but reserved the right to randomly inspect any outgoing mail.
¶ 3 The first letter was addressed to Defendant's wife. The envelope had a large pink heart drawn on it, and inside the heart were three letters: C, K, and S, presumably standing for his wife Cammy, his eight-year-old son K.B., and his five-year-old daughter S.B. Defendant enclosed individual letters to his wife and children. At the bottom of the letter for S.B., he drew a picture of himself naked with a speech bubble stating, “I love you [S.B.]” coming from his mouth. Next to the nude drawing of himself, he wrote, “Love you, Dad” and Corporal Black, the prison guard on duty, intercepted this letter. After inspecting it, he took it to Deputy Alan Freestone, the deputy sheriff for the San Juan County Jail. That same day, Deputy Freestone met with Defendant to discuss the drawing; Defendant freely admitted that he drew the picture as a joke because his daughter had asked him to do so.
¶ 4 A few days later, Defendant mailed a second letter to his family. This letter was also addressed to his wife and also contained a drawn heart on it, with C, K, and S inside the heart. This envelope also contained three letters: one each to his wife, son, and daughter. On the bottom of the letter for S.B., Defendant drew another picture of himself naked. This drawing depicted him holding his daughter's buttocks up to his mouth. A speech bubble from her mouth said, A speech bubble from his mouth said, “Oh your butt taste so good.” Above the drawing, Defendant wrote, A prison guard also intercepted this letter and turned it over to Deputy Freestone. Deputy Freestone met with Defendant in the booking area of the jail to let him know that he did not think the drawing was appropriate. Defendant explained to Deputy Freestone that the drawing depicted a game that he played with his daughter where he bites and tickles her.
¶ 5 At some point after these letters were intercepted but before any formal charges were filed, Deputy Freestone asked Deputy Martha Johnson to ascertain the ages of Defendant's children. Deputy Freestone never explained why he wanted the ages and did not ask Deputy Johnson to get any other information or conduct any further investigation. Deputy Johnson approached Defendant in his jail cell and asked him how old his children were. He told her that his daughter was five and his son was eight. Deputy Johnson did not read Defendant his Miranda rights during this encounter. Deputy Johnson relayed Defendant's response to Deputy Freestone.
¶ 6 Defendant was charged with two counts of distributing harmful material to a minor under Utah Code section 76–10–1206. At trial, Defendant testified that he wrote both letters and drew both pictures. He acknowledged that although the letter was addressed to his wife, he intended his daughter to see his drawings. In his testimony, he stated that his daughter was five years old. He stated that he did not find the drawings offensive because his daughter had watched a documentary about cave drawings and asked him to draw a picture of himself naked like those in the documentary. With regard to the second letter, Defendant testified that his drawing depicted a game he played with his daughter involving biting and tickling. The jury convicted Defendant on both counts. Defendant appeals. We have jurisdiction pursuant to Utah Code section 78A–3–102(3)(b).
¶ 7 We first consider Defendant's threshold argument that his Fifth Amendment rights were violated when Deputy Johnson asked Defendant how old his children were without issuing him Miranda warnings.1 We review determinations of custodial interrogation for correctness, giving no deference to the trial court's decision.2
¶ 8 Defendant next contends that the evidence was not sufficient to prove the elements of the statute.
The standard of review for a sufficiency claim is highly deferential to a jury verdict. We begin by reviewing the evidence and all inferences which may be reasonably drawn from it in the light most favorable to the verdict. We will reverse a jury verdict for insufficient evidence only if we determine that reasonable minds could not have reached the verdict.3
¶ 9 Finally, Defendant contends that the jury utilized the incorrect community standard. We conclude that Defendant waived this argument and do not address it on the merits.
¶ 10 Defendant asserts that his Fifth Amendment rights were violated when he was not read his Miranda rights before being asked the ages of his children—a piece of information that may have been readily attainable through a variety of sources but was nevertheless an element of the crime that had to be proved in order to convict.
¶ 11 The Fifth Amendment to the United States Constitution provides, “No person shall be ... compelled in any criminal case to be a witness against himself.” 4
The Fifth Amendment right to silence is a comprehensive privilege that can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory. It protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.5
A person is in custody when the person's freedom of action is curtailed to a degree associated with formal arrest. The inquiry is objective and considers how a reasonable man in the suspect's position would have understood his situation. A suspect may understand himself or herself to be in custody based either on physical evidence or on the nature of the officer's instructions and questions. Therefore, we focus on both the evidence of restraint and on objective evidence of the officers' intentions.8
¶ 14 We have identified four considerations to aid us in determining whether an individual is “in custody”: “(1) the site of interrogation; (2) whether the investigation focused on the accused; (3) whether the objective indicia of arrest were present; and (4) the length and form of interrogation.” 9
¶ 15 While we have attempted to define custody, we have not yet had the opportunity to consider the meaning of “custodial interrogation” where the suspect is already incarcerated for a different crime. We have therefore combed the nation for guidance on the applicability of Miranda in this situation.
¶ 16 The traditional analysis is impaired when the suspect is already incarcerated, because the person's “freedom of action” is already curtailed. But a person who is incarcerated is not always “in custody” within the meaning of Miranda.10 On the contrary, it is established that “not all instances of prison questioning fall within the protections of Miranda.” 11 The United States Supreme Court recently explained:
To determine whether a suspect was in Miranda custody we have asked whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. This test, no doubt, is satisfied by all forms of incarceration. Our cases make clear, however, that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody.12
¶ 17 The test is whether a reasonable person would have felt he was free to leave:
As used in our Miranda case law, “custody” is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of the objective circumstances of the interrogation, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. And in order to determine how a suspect would have gauged his freedom of movement, courts must examine all of the circumstances surrounding the interrogation. Relevant factors include the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.
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