State v. Powell
State v. Powell, 2020 UT App 63 (Pohlman, J.)
A wheelchair-bound defendant went to two stores and wore jeans with the crotch cut out and sheer mesh fabric on top of his genitals. Customers saw the defendant and his exposed genitals. The police investigated the case nine months later, but the police could not get surveillance video from one store because the store had already destroyed that video. The State charged the defendant with two counts of lewdness. The jury convicted him, he moved for a directed verdict, and the court denied that motion. The Utah Court of Appeals affirmed the convictions, holding:
- The defendant did not demonstrate that appearing in a public place with only a see-through material covering his genitals does not constitute an act of exposure under the lewdness statute, Utah Code § 76-9-702(1). Even though the defendant had see-through fabric over his penis, the customers did see the defendant’s penis through the fabric.
- Counsel was not ineffective in the crafting of the lewdness jury instructions: alarming a person 14-years-or-older is an alternative basis for conviction; the prefatory attempt clause in the lewdness statute is not an element of the crime; recklessness was a proper mental state for the lewdness statute; and it was reasonable for counsel to not request a lesser-included offense instruction to lewdness.
- Counsel was not ineffective when he did not move to dismiss the case under State v. Tiedemann, 2007 UT 49, 162 P.3d 1106, because the police did not retrieve the store’s surveillance video before the store destroyed it. The defendant did not show that Tiedemann applies to situations where a private party, not the State, controls and preserves the evidence. And Tiedemann does not impose on police an obligation to immediately investigate the case to preserve potential evidence.
- In State v. Mohamud, 2017 UT 23, 395 P.3d 133, the Utah Supreme Court did not suggest that a defendant can testify in front of a jury to establish his view of the lost evidence without waiving his right against self-incrimination.