Salt Lake City v. Howe

2016 UT App 219
THE UTAH COURT OF APPEALS
S ALT LAKE C ITY ,
Appellee,
v.
JOSEPH HOWE,
Appellant.
Memorandum Decision
No. 20141013-CA
Filed November 3, 2016
Third District Court, Salt Lake Department
The Honorable Deno G. Himonas
No. 131911063
Amy N. Fowler, Attorney for Appellant
Simarjit S. Gill, Padma Veeru-Collings, and Richard
Jorgensen, Attorneys for Appellee
JUDGE D AVID N. M ORTENSEN authored this Memorandum
Decision, in which J UDGES GREGORY K. O RME and JILL M.
POHLMAN concurred.
MORTENSEN, Judge:
¶1 	As a dozen children enjoyed a mid-September day at a
playground under the watchful eyes of their parents, Joseph
Howe sat beneath a nearby tree and masturbated under a coat
for ten to twenty minutes. Howe was convicted by a jury of
lewdness 	involving a 	child, 	a class A 	misdemeanor. Howe
appeals, arguing that the trial court erred when it denied his
motion for a directed verdict. We affirm.
¶2 	On an appeal from the denial of a motion for a directed
verdict based on the sufficiency of the evidence, we view the
evidence in the light most favorable to the City. See State v.
McCallie, 2016 UT App 4, ¶ 39, 369 P.3d 103. In September 2014,

Salt Lake City v. Howe
20141013-CA 	2 	2016 UT App 219
Howe sat next to a tree in a park with his jacket placed over him
covering his chest, waist, and legs. Howe sat ten to fifteen feet
away from a children’s playground where roughly a dozen two-
to thirteen-year-olds played. Three adults saw Howe moving
under his jacket and characterized his actions as masturbation.
None of the witnesses could see Howe’s genitals, hands, or legs.
One of the witnesses called the police and Howe was eventually
charged with lewdness involving a child. At trial, each witness
gave similar testimony.
¶3 	The first witness stood twenty-five feet away from Howe
at the park. The witness thought the way Howe’s jacket was
draped over him was “a little bit odd.” Howe moved his arms in
a way that led the witness to believe that “he might be touching
himself.” The first witness described Howe’s movements:
Well, his arms were underneath the drape, what
was draped over him and the way he was moving
his arms it just appeared to me that he was, you
know, touching himself in that manner which was
concerning, so just movement, activity.
The first witness also testified that the park was busy that day,
but that Howe “was just fixated, looking at the children playing
in the play area.” The first witness observed Howe’s movements
continue for about fifteen minutes.
¶4 	The second witness stood twenty to thirty feet away from
Howe and saw “motion in [Howe’s] lap area.” The second
witness testified:
[T]o me it looked like he was facing the children
with something of a fixated expression on his face
and it looked to me as if he was masturbating
underneath some kind of cover because his hands
were invisible and there was a bit of a gyrating
motion that I witnessed.

Salt Lake City v. Howe
20141013-CA 	3 	2016 UT App 219
Although the second witness could not see under the jacket, she
“saw movement like, as if a hand was moving underneath the
cover. . . . It was pretty obvious.” Of Howe’s expression, the
witness stated, “[T]he look on [Howe’s] face to me seemed
uncharacteristic to the day’s activities. It looked as if he was
staring in the children’s direction and it was unnerving.” The
second witness observed Howe’s activity continue for ten to
twenty minutes.
¶5 	The third witness similarly testified:
I saw [Howe] sitting next to a tree right in front of
the playground area and he had like a jacket over
his 	waist 	area 	and 	it 	looked 	like 	he 	was
masturbating. . . . [b]ecause 	there 	was 	pretty
vigorous movement underneath the jacket . . . . It
wasn’t the whole body moving . . . it appeared to
be just the arm moving underneath the jacket in the
crotch area.
The 	third 	witness 	continued, 	“[Howe] 	was 	facing 	the
playground looking at the playground area, [and] appeared to
be looking at the children.” The third witness was at the park for
only a few minutes before the police arrived.
¶6 	One of the officers who responded at the park recounted
at trial his interaction with Howe. The officer informed Howe
that people at the park called the police because they believed he
was masturbating. Howe responded that he is “a very religious
person and that he would never do something like that,” and
that 	he 	“could 	have 	been 	scratching 	himself.” 	Howe 	was
charged with lewdness involving a child.
¶7 	The statute under which Howe was charged reads as
follows:
(1) A person is guilty of lewdness involving a child
if the person . . . intentionally or knowingly does

Salt Lake City v. Howe
20141013-CA 	4 	2016 UT App 219
any of the following to, or in the presence of, a
child who is under 14 years of age:
. . .
(c) masturbates[.]
Utah Code Ann. § 76-9-702.5(1) (LexisNexis Supp. 2016). After
the City rested its case, Howe made a motion for a directed
verdict “upon the ground that the evidence [was] not legally
sufficient to establish the offense charged.” See Utah R. Crim. P.
17(p). The court denied the motion. Ultimately, the jury found
Howe guilty of lewdness involving a child.1
¶8 	In seeking reversal, Howe makes three arguments that
align with the elements of the crime: (1) that a reasonable jury
1. The parties agree that we should only review the evidence up
to the time that the trial court denied the directed verdict
motion. See State v. Kihlstrom, 1999 UT App 289, ¶ 9, 988 P.2d 949
(noting that when reviewing a denied motion to dismiss for
insufficient evidence, “this court’s review . . . is limited to the
evidence adduced by the prosecution in its case-in-chief”). But
see State v. McCallie, 2016 UT App 4, ¶¶ 42, 44, 369 P.3d 103
(suggesting that the Utah Supreme Court adopted the “waiver
rule some years ago” in State v. Stockton, 310 P.2d 398 (Utah
1957)). 	Under 	the 	waiver 	rule, 	“‘if 	the 	defendant 	elects 	to
introduce 	evidence 	following 	the 	denial 	of 	a 	motion 	for 	a
judgment 	of 	acquittal, 	appellate 	review 	of 	the 	defendant’s
conviction encompasses all of the evidence presented to the jury,
irrespective of the sufficiency of the evidence presented during
the state’s case-in-chief.’” Id. ¶ 42 (quoting State v. Perkins, 856
A.2d 917, 929 n.16 (Conn. 2004)). In this case, the evidence
produced 	after 	the 	motion 	for 	a 	directed 	verdict 	neither
substantially undercut the City’s case-in-chief, nor provided
inculpatory 	evidence 	that 	aided 	the 	City. 	Therefore 	this
distinction is immaterial.

Salt Lake City v. Howe
20141013-CA 	5 	2016 UT App 219
could 	not 	infer 	from 	the 	evidence 	that 	Howe 	actually
masturbated; (2) that a reasonable jury could not infer that Howe
acted knowingly or intentionally; and (3) that a jury could not
find that Howe was in the presence of children.2
¶9 	We must now determine whether the evidence presented
in the City’s case, in light of the elements of the offense, was
sufficient to support a guilty verdict. “On appeal from a denial
of a motion for a directed verdict based on the sufficiency of the
evidence, 	the 	applicable 	standard 	of 	review 	is 	. 	. 	. 	highly
deferential.” State v. McCallie, 2016 UT App 4, ¶ 39, 369 P.3d 103
(omission in original) (alteration, citation, and internal quotation
marks omitted). “We will uphold the trial court’s decision if,
upon reviewing the evidence and all inferences that can be
reasonably drawn from it, we conclude that some evidence exists
from which a reasonable jury could find that the elements of the
crime had been proven beyond a reasonable doubt.” State v.
Dibello, 780 P.2d 1221, 1225 (Utah 1989). We hold that the
evidence was sufficient to support a guilty verdict.
¶10 	First, we hold that there was sufficient evidence that a
jury could find beyond a reasonable doubt that Howe was
masturbating. This issue turns on whether a jury could, based on
the evidence, make an inference to support a guilty verdict, or
whether the guilty verdict rests upon mere speculation.
¶11 	“While the jury may draw reasonable inferences from
direct or circumstantial evidence, an inference must be more
than speculation and conjecture to be reasonable.” United States
v. Jones, 44 F.3d 860, 865 (10th Cir. 1995). An inference is defined
as
2. The City claims that Howe’s nonspecific motion for a directed
verdict was insufficiently particular to preserve his arguments
on appeal. Given our resolution of the appeal on its merits, we
need not decide this issue.

Salt Lake City v. Howe
20141013-CA 	6 	2016 UT App 219
a logical and reasonable conclusion of the existence
of a fact in a case, not presented by direct evidence
as to the existence of the fact itself, but inferred
from the establishment of other facts from which
by 	a 	process of 	logic and 	reason, 	based 	upon
common experience, the existence of the assumed
fact may be concluded by the trier of fact.
State v. Brooks, 631 P.2d 878, 881–82 (Utah 1981), overruled on other
grounds 	by 	State 	v. 	Menzies, 	889 	P.2d 	393 	(Utah 	1994).
“Speculation is ‘mere guesswork or surmise,’ a ‘conjecture,’ or a
‘guess.’” State v. Griffin, 2015 UT 18, ¶ 19 (quoting Webster’s
Third New Int’l Dictionary 2189 (2002)); see also Speculation,
Black’s Law Dictionary 1435 (8th ed. 2004) (“The act or practice
of theorizing about 	matters over which 	there is no certain
knowledge.”).
[T]he distinction between reasonable inference and
speculation is intensely fact-based. When evidence
supports only one possible conclusion, the quality
of the inference rests on the reasonable probability
that the conclusion flows from the proven facts.
When 	the 	evidence 	supports 	more 	than 	one
possible 	conclusion, 	none 	more 	likely 	than 	the
other, the choice of one possibility over another can
be no more than speculation; while a reasonable
inference arises when the facts can reasonably be
interpreted 	to 	support 	a 	conclusion 	that 	one
possibility is more probable than another.
State v. Cristobal, 2010 UT App 228, ¶ 16, 238 P.3d 1096 (citation
and internal quotation marks omitted). “‘A guilty verdict is not
legally valid if it is based solely on inferences that give rise to
only remote or speculative possibilities of guilt.’” Id. ¶ 7 (quoting
State v. Workman, 852 P.2d 981, 985 (Utah 1993)).
¶12 	Here, the jury made a reasonable inference to reach its
guilty verdict. The City concedes that none of the witnesses saw

Salt Lake City v. Howe
20141013-CA 	7 	2016 UT App 219
Howe’s hands on his genitals. Therefore, at least some inference
was necessary 	to 	reach 	a 	guilty 	verdict. 	The 	duration 	and
manner of Howe’s actions, as described by the three witnesses,
more than adequately support an inference that Howe was
masturbating. See id. ¶ 16. Three adult witnesses testified that
they saw Howe engaged in behavior that they characterized as
masturbation. The witnesses testified that Howe was making
“vigorous,” “gyrating” movements with his arm “underneath
the jacket in the crotch area.” This activity lasted for ten to
twenty minutes while Howe was staring at children. Howe’s
actions were characteristic of masturbation. See In re A.T., 2001
UT 82, ¶¶ 10–11, 34 P.3d 228 (concluding that clutching clothed
genitals and rubbing them up and down in a sexually suggestive
manner conveyed the appearance of masturbation). Using “logic
and reason, based upon common experience,” see Brooks, 631
P.2d at 881–82, the conclusion that Howe was masturbating
follows “from the proven facts,” see Cristobal, 2010 UT App 228,
¶ 16 (citation and internal quotation marks omitted). Indeed, the
second witness characterized the motions she saw as “pretty
obvious.” Thus, “some evidence exists from which a reasonable
jury could find” that Howe was masturbating. See Dibello, 780
P.2d at 1225.
¶13 	Howe next argues that there was insufficient evidence to
show that he acted “intentionally or knowingly.” See Utah Code
Ann. § 76-9-702.5 (LexisNexis Supp. 2016). This argument fails.
“Knowledge or intent is a state of mind generally to be inferred
from 	the 	person’s 	conduct 	viewed 	in 	light 	of 	all 	the
accompanying circumstances.” State v. Kihlstrom, 1999 UT App
289, ¶ 10, 988 P.2d 949. Three adults observed Howe engage in
what they described as masturbation. The first witness testified
that 	it 	“appeared 	to 	[him] 	that 	[Howe] 	was . . . touching
himself . . . just movement, activity” that lasted about fifteen
minutes. The second witness saw Howe’s arms moving over his
lap, 	making 	a 	“gyrating 	motion,” 	accompanied 	by 	an
“unnerving” facial expression, lasting ten to twenty minutes,
and characterized what she saw as “pretty obvious.” The third

Salt Lake City v. Howe
20141013-CA 	8 	2016 UT App 219
witness saw “pretty vigorous movement underneath the jacket”
“in the crotch area.” Given the testimony about the duration and
vigorous nature of his movements, the jury could infer that
Howe’s actions were knowing and intentional. Therefore, such
evidence was sufficient to support a finding that Howe acted
knowingly or intentionally.
¶14 	Finally, Howe argues that he was not in the presence of
children. Howe concedes that children under age fourteen were
at the playground. But Howe argues that the statute “is lacking
clarity” because it does not define “in the presence of a child.”
Howe argues that we should settle the supposed ambiguity by
using the title of the statute, “Lewdness involving a child,” see
Utah 	Code 	Ann. 	§ 	76-9-702.5 	(emphasis 	added), 	to 	define
“presence” and conclude that a child must somehow be involved
in the lewd act beyond his or her mere proximity to the lewd
behavior. 	This 	argument 	lacks 	merit. 	“When 	interpreting
statutory language, we first examine the statute’s plain language
and resort to other methods of statutory interpretation only if the
language is ambiguous.” State v. Masciantonio, 850 P.2d 492, 493
(Utah Ct. App. 1993). “The title of a statute is not part of the text
of a statute, and absent ambiguity, it is generally not used to
determine a statute’s intent.” Blaisdell v. Dentrix Dental Sys., Inc.,
2012 UT 37, ¶ 10, 284 P.3d 616 (citation and internal quotation
marks omitted).
¶15 	The 	statute 	is 	unambiguous. 	A 	person 	is 	guilty 	of
lewdness 	involving 	a 	child 	if 	the 	person 	does 	any 	of 	the
prohibited acts “to, or in the presence of,” a child. Utah Code Ann.
§ 	76-9-702.5(1) 	(emphasis 	added). 	True 	enough, 	the 	term
“presence” is not defined in the statute. But a statute is not
ambiguous simply because it lacks a definition for a word, as
Howe suggests. A statutory term is ambiguous when “its terms
remain susceptible to two or more reasonable interpretations
after we have conducted a plain language analysis.” Marion
Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 15, 267 P.3d 863. A
plain language analysis of this statute reveals no ambiguity.

Salt Lake City v. Howe
20141013-CA 	9 	2016 UT App 219
“Presence” is defined as “the fact or condition of being present,”
“the state of being in one place and not elsewhere,” “the state of
being in front of or in the same place as someone or something.”
Presence, 	Webster’s 	Third 	New 	Int’l 	Dictionary 	1793 	(1971).
Applying this definition to the statute yields only one reasonable
interpretation—that a child need only be in the same place as a
person committing a lewd act. Because the statute’s use of the
word “presence” is unambiguous, we need not look to the
statute’s title to resolve ambiguity. Therefore, Howe’s argument
fails.
¶16 	Further, adopting Howe’s interpretation—that the statute
requires a child to be involved in the lewd act—would contradict
the ordinary meaning of the statutory language, a result we
typically avoid. See Turner v. Staker & Parson Cos., 2012 UT 30,
¶ 12, 284 P.3d 600 (explaining that “we give effect to every word
of a statute” wherever possible); see also Funk v. Utah State Tax
Comm’n, 839 P.2d 818, 820 (Utah 1992) (declining to interpret a
statute in accordance with its title where the title “is clearly
narrower than the plain language of the statute”). The statute
only 	requires 	that 	a 	child 	be 	present. 	Cf. 	Roosevelt 	City 	v.
Anderson, 2008 UT App 464U, para. 6 (explaining that it “should
seem obvious that exposing one’s genitals . . . would likely cause
affront or alarm when done a few feet from . . . children”). To
interpret the statute as requiring a child’s involvement would
distort the plain meaning of “presence.” All of the evidence at
trial supports that children under the age of fourteen were
present—ten 	to 	fifteen 	feet 	away—at 	the time 	of 	the 	lewd
behavior, and the fact that children were near Howe was neither
contested at trial nor on appeal. Therefore, we reject Howe’s
argument that a jury could not reasonably conclude from the
evidence that he was in the presence of children.
¶17 	In sum, we affirm the denial of Howe’s motion for a
directed verdict. The evidence presented at trial was sufficient
for a jury to conclude, beyond a reasonable doubt, that Howe
was masturbating. Further, it can be inferred from Howe’s

Salt Lake City v. Howe
20141013-CA 	10 	2016 UT App 219
actions that his activity was intentional or knowing. Finally, for
the crime charged a child need only be present during a lewd
act; no more active involvement is necessary. Here, children
were physically present. Making all reasonable inferences in
favor of the City, evidence existed from which a reasonable jury
could find that the elements of the crime were proven beyond a
reasonable doubt. The trial court therefore correctly denied the
directed verdict motion.
¶18 	Affirmed.