State v. Powell, 041620 UTCA, 20180109-CA

Docket Nº:20180109-CA
Opinion Judge:POHLMAN, JUDGE
Party Name:State of Utah, Appellee, v. Steven Norman Powell, Appellant.
Attorney:Ronald Fujino, Attorney for Appellant Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee
Judge Panel:Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.
Case Date:April 16, 2020
Court:Court of Appeals of Utah
 
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2020 UT App 63

State of Utah, Appellee,

v.

Steven Norman Powell, Appellant.

No. 20180109-CA

Court of Appeals of Utah

April 16, 2020

Third District Court, Salt Lake Department The Honorable Mark S. Kouris No. 151913515

Ronald Fujino, Attorney for Appellant

Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.

POHLMAN, JUDGE

¶1 In 2017, Steven Norman Powell was convicted of two counts of lewdness, with enhancements for prior convictions. Powell challenges his convictions, arguing that the trial court erred when it denied his motion for a directed verdict and that his trial counsel provided constitutionally ineffective assistance. He also moves this court pursuant to rule 23B of the Utah Rules of Appellate Procedure to remand his case to the trial court for the entry of findings of fact to support a determination that his trial counsel performed ineffectively. We deny Powell's rule 23B motion and affirm his convictions.

BACKGROUND 1

¶2 Powell's lewdness convictions arise from two separate instances at two separate stores where the same two witnesses, a woman (Daughter) and her stepmother (Stepmother), observed, by sheer coincidence, Powell in his wheelchair with his genitals exposed. Daughter testified at trial that, on both occasions, Powell was in a wheelchair wearing jeans where the crotch area was "cut out" and that, although there was some kind of material covering Powell's genital area, it was "[v]ery see-through" with "holes." She stated that in both instances, she was able to see his penis through the material.

¶3 Stepmother testified that, in the first incident, she also observed Powell in his wheelchair wearing jeans where "the crotch was cut out," that there was some black, see-through mesh over his genitals, and that she saw his penis through the material. As to the second incident, Stepmother testified that as she tried to take a picture of Powell to send to law enforcement, he saw her doing so and "grabbed [a] pair of pants" next to him to cover himself.2 Following the second encounter, Stepmother reported the incident on the local police department's social media page.

¶4 Approximately nine months later, a detective (Detective) began investigating the complaint. As part of his investigation, Detective sought surveillance videos from both stores. While the second store still had surveillance footage from the night in question, the first store did not; by that time, it had already recorded over it. Detective viewed the video footage from the second store and was able to identify Powell and to partially track his movements through the store, but Detective "never found any footage of [Powell] exposing himself." Detective took two screenshots that demonstrated only that Powell had been present in the store.

¶5 Detective and another officer went to Powell's residence to talk to him. Powell allowed the officers into his residence and agreed to speak to them. He confirmed that he had been at both stores on the nights in question. When asked by Detective why he exposed himself, Powell explained that he had been paralyzed from the waist down following a car accident when he was twenty-seven, that before the accident he had been a "thrill seeker," and that, since that time, he would "go out into the community" two or three times a month and expose himself to "create excitement in his life" and "for the thrill of it." He also confirmed to Detective that when he exposed himself, he generally wore a "spandex or mesh material" over his genitals that someone "could see through."

¶6 In a later written statement, Powell largely confirmed his statements to Detective about exposing himself "just for the risk factor." As to the second incident, however, he provided an alternative explanation for the exposure, stating that he had a condom catheter attached to his leg that had become kinked and that he had tried to unkink it while in the store, but he did not believe that anyone observed him doing so. In his written statement, Powell also stated that he had been confronted before about exposing himself and felt bad about doing it.

¶7 Powell was charged with two counts of lewdness, with priors. At the one-day trial, Daughter, Stepmother, and Detective testified for the State. At the close of the State's case, defense counsel moved for a directed verdict, which the trial court denied. The jury convicted Powell on both counts.

¶8 Powell appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Powell raises two main arguments on appeal. First, he argues that reversal of his convictions is appropriate because the trial court erred by denying his directed verdict motion. "We review a trial court's ruling on a motion for directed verdict for correctness." State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168. With respect to the sufficiency of the evidence, we "review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict." State v. Ashcraft, 2015 UT 5, ¶ 18, 349 P.3d 664 (cleaned up). "We will uphold a trial court's denial of a motion for directed verdict based on a claim of insufficiency of the evidence if, when viewed in the light most favorable to the State, some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt." Gonzalez, 2015 UT 10, ¶ 27 (cleaned up).

¶10 Second, Powell asks that we reverse his convictions or, alternatively, remand for a new trial due to the ineffective assistance of his trial counsel. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Escobar-Florez, 2019 UT App 135, ¶ 22, 450 P.3d 98 (cleaned up).

¶11 In connection with some of his claims of ineffective assistance of counsel, Powell seeks a remand for an evidentiary hearing under rule 23B of the Utah Rules of Appellate Procedure. Rule 23B allows this court to remand a criminal case "to the trial court for entry of findings of fact, necessary for the appellate court's determination of a claim of ineffective assistance of counsel." Utah R. App. P. 23B(a). This court will grant a rule 23B motion to remand "only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." Id.

ANALYSIS

I. Motion for a Directed Verdict

¶12 Powell contends that the trial court erred in denying his directed verdict motion. While Powell raises several arguments in an effort to demonstrate the court's error, at its core, his challenge is that his actions did not constitute exposure under the lewdness statute. In support, he points to his alternative catheter explanation and to evidence that, at one point, he tried to cover himself and that his genital area was covered by a meshlike material. And, relying on caselaw that seemingly supports his characterization of the evidence, he contends that, while his conduct or clothing might have offended social mores, his actions did not rise to the level of lewdness as a matter of law.

¶13 Powell has not demonstrated that no reasonable jury could conclude that his conduct constituted lewdness under the statute. At the time of Powell's conduct, the lewdness statute provided, 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 buttocks, the anus, or the pubic area; (c) masturbates; or (d) any other act of lewdness.

Utah Code Ann. § 76-9-702(1) (LexisNexis 2012).

¶14 During trial, the State focused solely on the exposure variant of the lewdness statute; indeed, in closing argument, the prosecutor told the jury that "it's pretty clear today that we're just focusing on one of those acts, that [Powell] exposed his genitals," and that the State was not alleging "that he engaged in sexual intercourse, or that he masturbated, or that there was any other act of lewdness."

¶15 To that end, Daughter testified that in both incidents Powell wore jeans that appeared to have the crotch area "cut out"; that even though there was some kind of material covering that area, it was "[v]ery see-through"; and that she saw his penis through that material on both occasions. Stepmother echoed Daughter's testimony with respect to the first incident, explaining that there was only some see-through, "black mesh" covering Powell's genital area and that she could see his penis through it. As to the second incident, Stepmother testified that it was only after Powell noticed her trying to take his picture that he used a pair of pants hanging on a nearby rack to temporarily cover himself. And Detective testified that Powell himself admitted that he had been in both stores on the nights in question and that it was his common practice to go out into the community a few times a month and expose himself for the "thrill of it."

¶16 Powell has not demonstrated that appearing in a public place with only a see-through material covering his genitals does not constitute an act of exposure under our statute. While he suggests, for example, that his conduct was not lewd because there was testimony that he attempted to cover himself during one of the incidents and because his genital area was covered with a mesh-like...

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