State v. Kitches

• Decision Date: 11 March 2021
• Docket Number: No. 20181037-CA,20181037-CA
• Parties: STATE of Utah, Appellee, v. Daniel Chris KITCHES, Appellant.
• Court: Utah Court of Appeals

484 P.3d 415

STATE of Utah, Appellee,

v.Daniel Chris KITCHES, Appellant.

No. 20181037-CA

Court of Appeals of Utah.

Filed March 11, 2021

Debra M. Nelson and Wendy J. Brown, Salt Lake City, Attorneys for Appellant

Sean D. Reyes and Karen A. Klucznik, Salt Lake City, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judge Ryan M. Harris and Senior Judge Kate Appleby concurred.¹

Opinion

MORTENSEN, Judge:

¶1 Daniel Chris Kitches monitored the text messages his ex-wife (Ex-Wife) sent and discovered that she started dating soon after their divorce. When he learned she had spent the night with her new boyfriend, Kitches menaced her over the course of eight days—principally by threatening to distribute a video he previously made of himself and Ex-Wife engaged in an intimate act—until he was eventually arrested. A jury convicted Kitches of numerous offenses, and he now appeals. We affirm.

BACKGROUND²

¶2 Kitches and Ex-Wife were married for eight years and had two children together. But the marriage turned tumultuous in its final years, so they agreed to separate in March 2017. Although Kitches and Ex-Wife occasionally argued about their children, their interactions were somewhat amicable between the time Ex-Wife moved out of the marital home in March 2017 and when their divorce was finalized in August that year. The eventual divorce decree awarded joint physical and legal custody of the children and limited communication between Kitches and Ex-Wife to child-related issues.

¶3 In the decree, Kitches and Ex-Wife agreed to maintain their cell phone plan until they finished paying off their phones. Within a few days of the divorce being finalized, Kitches damaged his phone and asked Ex-Wife (the primary account holder) to activate one of his old phones, which she did. Ex-Wife was unaware that reactivating Kitches's old phone initiated "integrated text messaging," enabling him to see any text messages she sent or received.

¶4 For approximately two weeks, Kitches actively monitored Ex-Wife's text messages without notifying her that he could do so. Among others, he read messages in which Ex-Wife complained to her friends and family about the divorce. He also read the messages Ex-Wife sent and received from her new boyfriend (Boyfriend). Things took a new course when Ex-Wife and Boyfriend sent messages which made apparent that they spent a night together at Boyfriend's house. Kitches quickly messaged Ex-Wife to confront her about the overnight stay and, in the process, admitted to her that because of the integrated messaging, he had been able to—and did—monitor her text messages. Ex-Wife immediately called the phone company and disabled the feature.

¶5 Later that day (September 5), Kitches phoned Ex-Wife and informed her that he had digitally recorded the two of them having sex on a previous occasion, and he threatened to send the video to her family, friends, and Boyfriend. Ex-Wife was "shocked" by Kitches's admission that he had filmed them having sex and she was afraid he would follow through on his threat. Thinking it would impede Kitches's ability to send the video to anyone, Ex-Wife called the phone company and canceled his cell phone service.

¶6 The next day (September 6), Ex-Wife sent Kitches an email asking to meet at their phone company's storefront so that they could separate their phone service. Kitches responded by confronting Ex-Wife about text messages she had sent about the divorce and demanded that she turn on his phone service. Ex-Wife replied, "I want all the videos and messages off your phone first, then I have no problem doing so. You have no right to send a video that I was not nor would I consent to ." (Emphasis added.) Kitches asserted "[t]hey [we]re not on [his] phone" and told her that—in the course of monitoring her text messages—he had saved "half naked pics" that she sent to Boyfriend. When Ex-Wife again asked Kitches to delete all the foregoing and asked whether he was "planning on blackmailing [her]," Kitches responded by stating, "No deal." He also expressed his desire to "warn" Boyfriend that Ex-Wife would "do absolutely anything to harm another person."

¶7 That night, Boyfriend sent Kitches an email stating, "[O]ur mutual friend, [Ex-Wife,] said you have been talking about me and had something you wanted to tell/show me. So here's my contact info." Boyfriend later testified that he reached out to Kitches in an apparent attempt to defuse the situation, as he was also a divorced father and thought he might be able to resolve Kitches's concerns. Kitches emailed back that Ex-Wife was a "sociopath" and one of the most "despicable human beings" he had ever met. Kitches also told Boyfriend that he had a video of himself and Ex-Wife having sex and offered to send it to Boyfriend:

I actually have [a] time ... stamped video, and it was the film sex, it was the film [of] her while she was over here so she couldn't accuse me of anything ever again. My attorney said film and record everything. So if you'd like a copy, which I don't think you do, I have it.

When Boyfriend asked to see the video, Kitches responded that "for half a second [he] thought about sending it to [Boyfriend]," but "there is a law that says you cannot forward nudity."

¶8 The following morning (September 7), Kitches sent Ex-Wife an email asking her to turn his phone service back on, which Ex-Wife again indicated she would do only if he deleted the video. Kitches demanded she turn on his phone and alluded to highly intimate portions of the video. Ex-Wife responded by expressing concern that her "boss [wa]s at [her] desk," to which Kitches sent the ominous reply, "Sending." He sent a follow-up email one minute later, which said only, "Sent." When Ex-Wife explained that sending the video was illegal, Kitches responded, "You have 5 minutes. I will send." Ex-Wife believed that Kitches would follow through on his threat, so she acquiesced to his demand and contacted the phone company, instructing it to turn his cell phone service back on. While Ex-Wife was on the phone with the phone company, Kitches sent her emails complaining that she was not reactivating his phone service quickly enough. He also interrogated her about her sexual involvement with Boyfriend and demanded she not allow their children to be around Boyfriend.

¶9 Later that day, after turning Kitches's phone service back on, Ex-Wife drove to his office to ensure that he would delete the video. When she arrived, Kitches sarcastically "asked if she wanted to watch the video and [said] that he and his coworkers watched it in the mornings while eating donuts." Kitches eventually feigned agreement to delete the video, and while Ex-Wife looked over his shoulder, he appeared to delete several video files from his work computer.

¶10 But the next morning (September 8), Kitches sent Ex-Wife a text message informing her that he still had "five videos" which he threatened to send to her employer—specifically, her supervisor—and Boyfriend. Ex-Wife felt she had lost control of the situation and called the police, but she declined to press charges because they had "just gone through a divorce" and she only wanted the videos deleted. An officer then contacted Kitches and informed him that it would be a crime for him to send the videos. Kitches told the officer he would not send the videos to anyone.

¶11 The next night (September 9), Ex-Wife planned to watch a football game at Boyfriend's house in Orem. Because the game did not start until 8:30 p.m., she arranged for the children to spend the night at her parents’ house in West Valley. Ex-Wife and Boyfriend had dinner, watched the game, and fell asleep in Boyfriend's bedroom.

¶12 Meanwhile, Kitches drove by Ex-Wife's house in Sandy at about 2:00 a.m. (September 10). Apparently, he was looking to see whether she was home. When he saw that Ex-Wife's truck was not parked at her house, he performed an internet search of Boyfriend's name on his phone and found Boyfriend's address.

¶13 Kitches drove to Boyfriend's house, arriving at approximately 4:30 a.m., and aggressively pounded on the front door. In the process, he realized that Boyfriend's doorbell had a camera on it, so he pulled the doorbell out of the wall. He also sent Ex-Wife a text message that said he was "coming in" to take the children. Ex-Wife was frightened by the fact that Kitches had found her in the first place, and Boyfriend immediately contacted the police.

¶14 The police arrived at Boyfriend's house at approximately 4:40 a.m., by which time Kitches had already fled the scene. Ex-Wife spoke with police and was visibly "frantic, especially about the welfare of her children." While she was providing a witness statement to the officer, Kitches called Ex-Wife on her cell phone. The officer answered Ex-Wife's phone and spoke to Kitches. Kitches was aggressive on the phone and expressed his concern that his children were in the house while Ex-Wife was having sex in the next room. He then cursed at the officer before hanging up the phone. Soon after, Kitches messaged Ex-Wife stating,

I know that wasn't a cop. You dumbass mother F'er.... Come outside. Come outside. Come outside now. What, you can't have a conversation? What are you afraid of me you F'ing mother F'er? ... And you call yourself a good mother. Really, a good mother sleeping with a guy after three F'ing weeks with the kids.

¶15 Kitches sent this text message in the course of driving to Ex-Wife's parents’ house, where he arrived at approximately 5:00 a.m. Kitches snuck around to the back of the house and entered through an unlocked door. After getting inside the house, Kitches walked to the room the children were sleeping in, looked in, and then left the house soon thereafter. Ex-Wife's father was awake and observed all the foregoing from a couch in the living room. Ex-Wife's father was "frightened" and "didn't know what to expect," so he did not attempt to stop Kitches from entering or moving about the house...