State v. Thomas

2019 UT App 177
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JEREMY DAVID THOMAS ,
Appellant.
Opinion
No. 20180644-CA
Filed November 7, 2019
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 161912645
Nathalie S. Skibine and Steffen Soller, Attorneys
for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and DIANA H AGEN concurred.
POHLMAN, Judge:
¶1 	During a trip to Salt Lake City, a woman (Victim) and her
husband decided to take their six-year-old son to a local park to
play soccer. While there, Jeremy David Thomas yelled at Victim,
pulled down his pants, and exposed his pubic area to her. The
State charged Thomas with lewdness, lewdness involving a
child, 	and 	intoxication. 	Following 	trial, 	the 	jury 	convicted
Thomas on 	all 	counts. 	On 	appeal, 	Thomas argues that 	his
convictions should be reversed due to jury instruction errors. We
disagree and affirm.

State v. Thomas
20180644-CA 	2 	2019 UT App 177
BACKGROUND1
¶2 	Victim and her husband, along with their son, traveled to
Salt Lake City for business. The couple took their son to a local
park, which was “very close” to their hotel, to play soccer. While
they were playing, a man, later identified as Thomas, began
yelling at the family from a distance of approximately twenty
yards, asking if Victim wanted to “touch” or “see” his “dick.” At
that time, Victim’s son was “right next to [her].”
¶3 	Alarmed, the family began walking back to their car, and
Thomas 	continued 	yelling 	at 	them. 	While 	walking, 	Victim
looked back several times to “make sure nobody was following.”
When she looked back, Victim observed that Thomas had pulled
his pants down “below his pelvic region” such that “everything
was exposed.” At that point, Victim was focused on diverting
her son’s attention away from Thomas and getting the family
into the car. Therefore, she was not focused on the details of
Thomas’s exposure. Nevertheless, Victim testified at trial that
she was “absolutely sure” that she saw Thomas’s penis and
pubic 	area 	when 	she 	looked 	back. 	She 	also 	testified 	that,
although he was looking Thomas’s way, her son did not see the
exposure.
¶4 	Once the family reached their car, they called the police,
who 	responded 	quickly. 	Victim, 	having 	kept 	“an 	eye” 	on
Thomas while walking to the car, pointed him out to the police
once they arrived. Upon making 	contact with Thomas, 	the
officers 	smelled 	“a 	very 	strong 	odor 	of 	alcoholic 	beverage
coming 	from 	his 	person” 	and 	noticed 	that 	he 	exhibited
characteristics consistent with intoxication. Thomas was also
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Reigelsperger, 2017 UT App 101,
¶ 2 n.1, 400 P.3d 1127 (cleaned up).

State v. Thomas
20180644-CA 	3 	2019 UT App 177
“acting very aggressive . . . , yelling, screaming.” Victim was
“ultimately able to tell [the police] that [they] had stopped the
right person.”
¶5 	Based on these events, the State charged Thomas with
lewdness 	(with 	priors), 	lewdness 	involving 	a 	child, 	and
intoxication. 	Following 	a 	one-day 	trial, 	the 	jury 	convicted
Thomas on all counts.2
¶6 	Before 	trial, 	Thomas 	stipulated 	to 	the 	elements
instructions for the lewdness and lewdness involving a child
charges. The lewdness statute provides,
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 female breast
below the top of the areola, 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 Supp. 2019). Similarly,
the lewdness involving a child statute provides,
A person is guilty of lewdness involving a child if
the person . . . intentionally or knowingly: (a) does
any of the following in the presence of a child who
is under 14 years of age: (i) performs an act of
sexual intercourse or sodomy; (ii) exposes his or
her genitals, the female breast below the top of the
2. Thomas does not challenge his intoxication conviction on
appeal.

State v. Thomas
20180644-CA 	4 	2019 UT App 177
areola, the buttocks, the anus, or the pubic area:
(A) in a public place; or (B) in a private place under
circumstances the person should know will likely
cause affront or alarm or with the intent to arouse
or gratify the sexual desire of the actor or the child;
(iii) masturbates; or (iv) performs any other act of
lewdness . . . .
Id. 	§ 	76-9-702.5(2).3 	Both 	elements 	instructions 	tracked 	the
required statutory elements for the respective offenses and, in
addition to the enumerated acts of lewdness prohibited by the
statutes (such as exposing one’s pubic area), both instructions
included 	the 	statutory 	catchall 	element—“any 	other 	act 	of
lewdness” (the Catchall Variant)—as a potential variant of both
offenses.
¶7 	On the day of trial, the district court suggested that the
“[r]eference to female body parts” included in the stipulated
lewdness elements instructions did not pertain to the case and
that the State, in revising the jury instructions, could take that
language out. Thomas did not object and did not suggest to the
court 	that 	other 	language 	in 	the 	elements 	instructions 	was
inapplicable and should be similarly excised.
¶8 	Both 	parties 	also 	submitted 	additional 	proposed
instructions. For example, the State proposed instructing the jury
that the Catchall Variant “includes acts of the same general kind,
class, character, or nature as the enumerated conduct of public
intercourse, sodomy, exposure of the genitals or buttocks, or
masturbation.” Thomas did not object to this definition. Instead,
drawing from State v. Bagnes, 2014 UT 4, 322 P.3d 719, Thomas
3. The lewdness and the lewdness involving a child statutes have
recently been amended. However, the amendments are not
material to this appeal, and we therefore cite the most recent
version of both statutes.

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20180644-CA 	5 	2019 UT App 177
requested two additional, general definitional instructions for
lewdness: (1) “Lewdness involves conduct of a sexual, lascivious
nature and an irregular indulgence of lust” (the Sexual Nature
Instruction) 	and 	(2) 	“Conduct 	may 	be 	strange 	and 	socially
inappropriate without the conduct being lewd” (the Strange
Conduct Instruction). Id. ¶¶ 1, 13–29 (defining lewdness as
involving conduct “marked by lasciviousness” and an “irregular
indulgence 	of 	lust,” 	and 	explaining 	that 	conduct 	may 	be
“strange” and “socially inappropriate” without being lewd).
¶9 	After some discussion with the parties, and with the
assistance and assent of Thomas, the court combined the Sexual
Nature Instruction with the State’s Catchall Variant definition.
Rather than limit the definition to the “other acts of lewdness”
variant, the revised instruction broadly provided,
Lewdness includes the act of the same general kind
of sexual misconduct class, character, or nature as
the 	enumerated 	conduct 	of 	public 	intercourse,
sodomy, 	exposure 	of 	genitals 	or 	buttocks, 	or
masturbation.
¶10 	However, the court declined to give the Strange Conduct
Instruction. 	The 	court 	explained 	why 	it 	did 	not 	think 	the
instruction was necessary—that, while “certainly accurate,” the
issue addressed in the instruction “comes up through argument
that the elements aren’t met,” which “goes back to the State’s
burden of establishing the elements to get there.”
¶11 	The State, citing Salt Lake City v. Howe, 2016 UT App 219,
387 P.3d 562, also proposed that for purposes of the lewdness
involving a child charge the jury be instructed that “[i]n the
presence of a child” “means that a child need only be in the same
place 	as 	the 	person 	committing 	the 	act” 	(the 	Presence
Instruction). See generally id. ¶¶ 14–16 (defining “in the presence
of a child” under the lewdness involving a child statute as
meaning that “a child need only be in the same place as a person
committing a lewd act”).

State v. Thomas
20180644-CA 	6 	2019 UT App 177
¶12 	Thomas objected. He explained that while Howe “does
discuss” what the State’s instruction proposed, another case—
Bagnes—was more on point, as it addressed “this very issue of
lewdness.” By Thomas’s reading, Bagnes imposed a requirement
of “some sort of visual contact or a showing of that particular
part of the body” for the conduct to fall within the ambit of the
statute—one 	not 	incorporated 	into 	the 	State’s 	proposed
instruction. In this respect, he stated that Howe’s discussion on
the presence issue appeared to be inconsistent with Bagnes. The
State responded by distinguishing Bagnes, explaining that it was
“very clearly . . . dealing with some other acts of lewdness and
not presence of another,” while, in contrast, Howe is “directly on
point” with respect to the presence issue.
¶13 	The court agreed with the State. It explained that, in its
view, Howe is “closer to the situation here and to the issue at
hand” than Bagnes. It also noted that the language in the State’s
proposed instruction appeared to have been “pulled directly
from that [Howe] case.” The court therefore instructed the jury
that “in the presence of a child,” for purposes of the lewdness
involving a child charge, meant that “a child need only be in the
same place as the person committing the act.”
ISSUES AND STANDARDS OF REVIEW
¶14 	On appeal, Thomas argues that the court erred by giving
the Presence Instruction. He also argues that the court erred by
failing to define the Catchall Variant more narrowly for the jury.
Thomas’s challenges to the jury instructions present questions of
law, which we review for correctness. State v. Walker, 2017 UT
App 2, ¶ 19, 391 P.3d 380. However, even if “an error is found in
jury 	instructions, 	reversal 	is 	warranted 	only 	if 	there 	is 	a
reasonable probability that the error affected the outcome of the
case.” State v. Carrell, 2018 UT App 21, ¶ 19, 414 P.3d 1030; see
also State v. Horvath, 2018 UT App 165, ¶ 22, 436 P.3d 191
(explaining that an appellant challenging the failure to give an
instruction must demonstrate that, had the instruction been

State v. Thomas
20180644-CA 	7 	2019 UT App 177
given, “there is a reasonable likelihood that she would have
enjoyed a more favorable trial result” (cleaned up)).
¶15 	In the alternative, Thomas argues that the district court
plainly erred by failing to sua sponte excise the Catchall Variant
from the elements instructions for both lewdness and lewdness
involving a child. To prevail on a plain error review, Thomas
must establish the existence of an obvious, prejudicial error. State
v. Roberts, 2019 UT App 9, ¶ 10, 438 P.3d 885.
ANALYSIS
I. The Presence Instruction
¶16 	Thomas 	first 	argues 	that 	the 	district 	court 	erred 	in
instructing the jury with respect to the statutory element of “in
the presence of a child” (the Presence Element), as provided in
Utah Code section 76-9-702.5(2), lewdness involving a child. As
discussed above, the court agreed, over Thomas’s objection, to
give the Presence Instruction and thus instructed the jury that
“in the presence of a child,” for purposes of the lewdness
involving a child charge, meant that “a child need only be in the
same place as the person committing the act.” See Salt Lake City v.
Howe, 2016 UT App 219, ¶ 15, 387 P.3d 562.
¶17 	Thomas also challenges the court’s decision to instruct the
jury on the Presence Element by claiming that the instruction
was 	“overly 	broad.” 	Central 	to 	Thomas’s 	challenge 	is 	his
argument that the court erred by using Howe as the basis of the
instruction. He contends that Howe was a sufficiency of the
evidence case, not a jury instruction case, and that it addressed
only what evidence was “minimally sufficient” to meet the
Presence Element. In this respect, he argues that the resolution of
this issue should be guided by State v. Walker, 2017 UT App 2,
391 	P.3d 	380, 	in 	which 	this 	court 	vacated 	a 	defendant’s
conviction 	for 	aggravated 	assault 	based 	on 	jury 	instruction
errors. Walker, Thomas contends, instructs that appellate cases

State v. Thomas
20180644-CA 	8 	2019 UT App 177
“holding that the evidence is minimally sufficient” do “not
hold—or 	even 	address—whether 	juries 	in 	subsequent 	cases
should be instructed using the language the court used to reject a
sufficiency argument.” (Cleaned up.) As a result, he asserts, the
court erred by giving the State’s proposed instruction because
Howe merely addressed the sufficiency of the evidence in that
case and rendered no conclusive holding for jury instruction
purposes on the Presence Element. And he contends that this
error violated his rights by effectively establishing this element
as a matter of law and removing it from the jury’s consideration.
¶18 	In 	response, 	the 	State 	argues 	that 	there 	was 	no
instructional error because the Presence Instruction was “simply
a statement of the law,” as it was drawn directly from Howe’s
statutory interpretation of the Presence Element. (Cleaned up.)
The State contends that this issue should be guided by State v.
Lambdin, 2017 UT 46, 424 P.3d 117, not Walker. In Lambdin, our
supreme court stated that “there is no error when a district court
includes [an appellate court’s] interpretation of a statutory term
in instructions for the jury, because that interpretation is simply
a statement of the law.” Id. ¶¶ 17–19 (rejecting the argument that
an appellate court should not define statutory terms that have an
“ordinary, 	dictionary 	meaning,” 	as 	that 	proposition 	“is
completely at odds with our implied constitutional authority to
interpret the law in order to address the merits of cases before
us”). We agree with the State and conclude that there was no
error in the court’s decision to give the Presence Instruction.
¶19 	It is the “role of the [district court] judge to instruct the
jury on the law,” State v. Palmer, 2009 UT 55, ¶ 14, 220 P.3d 1198
(cleaned up), and “jury instructions are intended to inform
jurors of the applicable law,” Lambdin, 2017 UT 46, ¶ 19; see also
Utah 	R. 	Crim. 	P. 	19(a) 	(“The 	court 	may 	instruct 	the 	jury
concerning . . . the elements and burden of proof for the alleged
crime, and the definition of terms.”). However, while district
courts are entitled to determine, instruct, and resolve “pure
questions of law,” they must nevertheless “take care not to step
into the jury’s fact-finding shoes” by giving instructions that

State v. Thomas
20180644-CA 	9 	2019 UT App 177
ultimately invade the jury’s role by effectively “removing an
element of an offense from the jury’s consideration.” Walker,
2017 UT App 2, ¶¶ 20–36 (cleaned up).
¶20 	For example, in Walker, this court determined that the
district court improperly invaded the jury’s province when it
instructed that “strangulation to the point of unconsciousness
constitutes serious bodily injury.” Id. (cleaned up). One of the
elements of the offense for which the defendant was ultimately
convicted—aggravated assault—was whether the defendant had
“used means or force likely to produce death or serious bodily
injury.” Id. ¶¶ 14, 18. This court explained that the question of
whether strangulation constituted serious bodily injury was “not
a pure legal question,” but was instead “a question for the jury
to decide based on the facts presented in the case before it.” Id.
¶¶ 24–26 (“[A] fact question, or a mixed question of law and fact,
does not morph into a pure legal question . . . merely because the
evidence 	is 	overwhelming 	and 	might 	be 	characterized 	as
supporting only one reasonable conclusion as a matter of law.”).
And by instructing the jury that “strangulation to the point of
unconsciousness” constituted, as a matter of law, means or force
likely to produce serious bodily injury, we concluded that the
district court effectively took that factual question from the jury’s
consideration. Id. ¶¶ 20–36 (cleaned up).
¶21 	In 	reaching 	this 	conclusion, 	we 	rejected 	the 	State’s
argument that the instruction was proper because its language
was 	drawn 	from 	two 	supreme 	court 	cases 	that 	held
“strangulation 	to 	unconsciousness 	constitutes 	serious 	bodily
injury as a matter of law.” Id. ¶¶ 28–36 (cleaned up). We
distinguished the cases identified by the State—State v. Fisher,
680 P.2d 35 (Utah 1984), and State v. Speer, 750 P.2d 186 (Utah
1988)—by explaining that both cases reached their holdings as to
whether 	strangulation 	constituted 	serious 	bodily 	injury 	by
applying the statutory definition of “serious bodily injury” to the
precise factual circumstances of the case at hand. See Walker, 2017
UT App 2, ¶¶ 28–36; see also Fisher, 680 P.2d at 37 (reaching the
holding 	while 	addressing 	a 	sufficiency 	of 	the 	evidence

State v. Thomas
20180644-CA 	10 	2019 UT App 177
challenge); Speer, 750 P.2d at 191 (reaching the holding on a
lesser included offense instruction challenge). The strangulation
issue in each case was thus decided on the set of facts in play,
and neither case purported to interpret the statutory terms as a
matter 	of 	law 	or 	hold 	that 	strangulation 	to 	the 	point 	of
unconsciousness will always constitute serious bodily injury. See
Walker, 2017 UT App 2, ¶¶ 28–36; see also Fisher, 680 P.2d at 37;
Speer, 750 P.2d at 191. Similarly, neither case held or addressed
“whether juries in subsequent cases would be required to find
that strangulation or attempted strangulation constituted serious
bodily injury or force likely to cause such injury.” Walker, 2017
UT App 2, ¶ 34. Put simply, neither case purported to interpret
the meaning of the term “serious bodily injury” as a matter of
law. Id. ¶¶ 28–36.
¶22 	However, 	a 	district 	court’s 	creation 	of 	a 	Walker-like
problem—by using factually based sufficiency conclusions as
jury instructions—is distinguishable from circumstances when a
district court instructs a jury using an appellate court’s purely
legal interpretation of a statute. As our supreme court observed
in Lambdin, before an appellate court can apply a statute to the
facts of a particular case, “it is often necessary to interpret the
statute to determine the proper outcome.” 2017 UT 46, ¶¶ 17–18
(observing that appellate courts have “implied constitutional
authority to interpret the law in order to address the merits of
cases”). Interpreting a statute requires the appellate court to
determine the “intent of the legislature” in the abstract, apart
from the facts of any particular case. Id. ¶ 18. “When interpreting
statutes, we look to the ordinary meaning of the words, using
the dictionary as our starting point,” after which “we then must
look to the context of the language in question.” Id. ¶ 22 (cleaned
up); see also State v. Bagnes, 2014 UT 4, ¶¶ 13–23, 322 P.3d 719;
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶¶ 14–15, 267
P.3d 863. Importantly, such an interpretation of a statute (or a
term in a statute) “does not create new law, it says what the law
is.” Lambdin, 2017 UT 46, ¶ 19. For this reason, because “jury
instructions are intended to inform jurors of the applicable
law, . . . there is no error when a district court includes [an

State v. Thomas
20180644-CA 	11 	2019 UT App 177
appellate 	court’s] 	interpretation 	of 	a 	statutory 	term 	in
instructions for the jury, because that interpretation is simply a
statement of the law.” Id.
¶23 	Significantly, statements of the law derived from statutory
interpretation can occur and be required in sufficiency of the
evidence cases, such as when “a review of a sufficiency of the
evidence argument . . . present[s] a threshold question of law—
of the elements of the underlying offense.” Bagnes, 2014 UT 4,
¶ 10. 	For 	example, 	in 	Bagnes, 	the 	appellant 	challenged 	the
evidence sustaining his conviction for lewdness involving a
child. Id. ¶ 9. To make a determination of whether the evidence
was sufficient, our supreme court noted that the appellant was
charged with an “other act of lewdness” under Utah Code
section 76-9-702.5, and it determined that before it could render
any conclusion about the sufficiency of the evidence, it first had
to define that term as a matter of law. Id. ¶¶ 10–12. Thus, the
court proceeded to interpret that term by looking to dictionary
definitions, interpretive canons, and the overall context in which
the term appeared. Id. ¶¶ 13–23. And the court reached the
merits of 	the 	evidentiary 	challenge 	only 	after 	resolving 	the
threshold interpretive question. Id. ¶¶ 13–29; see also Walker, 2017
UT App 2, ¶¶ 23–24 (explaining that “pure questions of law . . .
are not within the province of the jury” but rather are the
province of the court itself (cleaned up)). The court’s purely legal
interpretation of the term “other act of lewdness,” apart from its
application 	to 	the 	facts 	in 	play, 	therefore 	constituted 	a
“statement of the law”—one that could be used without error by
a district court in the future to instruct a jury on that particular
element, should the need for it arise. See Lambdin, 2017 UT 46,
¶ 19.
¶24 	Applying 	these 	principles 	to 	the 	case 	at 	hand, 	we
conclude that, contrary to Thomas’s arguments, Lambdin is on
point, not Walker. This court’s statements about the Presence
Element in Howe resulted from our statutory interpretation of
the term “in the presence of a child” as a threshold question of
law, not from our determination that the evidence in Howe was

State v. Thomas
20180644-CA 	12 	2019 UT App 177
minimally sufficient. 2016 UT App 219, ¶¶ 14–16. As a result,
this court’s interpretation of the Presence Element constituted a
“statement of the law.” See Lambdin, 2017 UT 46, ¶ 19. Thus, in
instructing 	the 	jury 	according 	to 	the 	interpretation 	of 	that
element in Howe, the district court in the present case simply
provided the jury a statement of the law, not a fact-intensive
conclusion improvidently fashioned as one. Compare Lambdin,
2017 UT 46, ¶¶ 15–24, with Walker, 2017 UT App 2, ¶¶ 20–36.
¶25 	In 	Howe, 	the 	defendant 	was 	convicted 	of 	lewdness
involving a child. 2016 UT App 219, ¶ 7. After the City had
rested its case, Howe made a motion for a directed verdict,
arguing 	that 	the 	evidence 	was 	not 	“legally 	sufficient” 	to
establish all the elements of the offense. Id. (cleaned up). The
motion was denied. Id. On appeal, Howe argued, among other
things, that the evidence was not sufficient for the jury to “find
that Howe was in the presence of children.” Id. ¶¶ 8–9. Rather
than simply challenging the evidentiary sufficiency with respect
to 	the 	Presence 	Element, 	however, 	Howe 	placed 	the
interpretation of that element directly at issue. He conceded that
“children under age fourteen were at the playground” where his
offense took place. Id. ¶ 14. He nevertheless argued that the
statute was ambiguous with respect to the Presence Element,
and he suggested, based on the statute’s title, that a child “must
somehow be involved in the lewd act beyond his or her mere
proximity to the lewd behavior.” Id. Interpreting the Presence
Element 	in 	this 	way, 	he 	contended, 	the 	evidence 	was 	not
sufficient to sustain his conviction. Id. ¶¶ 8, 14.
¶26 	This court rejected both Howe’s assertion that the statute
was ambiguous and his proffered interpretation. Id. ¶¶ 15–16.
We 	concluded 	that 	the 	statute 	was 	not 	ambiguous 	by
undertaking a plain language analysis of the Presence Element.
Id. ¶ 15. Specifically, we looked to, and recited, the ordinary
dictionary meaning of “presence.” Id.; see also Lambdin, 2017 UT
46, ¶¶ 22–23 (looking first to the “ordinary meaning” of the term
at issue as set forth in the dictionary); Bagnes, 2014 UT 4, ¶¶ 13–
16 (same, in the context of resolving a threshold question of law

State v. Thomas
20180644-CA 	13 	2019 UT App 177
to 	a 	sufficiency 	challenge). 	We 	then 	applied 	that 	ordinary
meaning to the context in which the term appeared, concluding
that “[a]pplying this definition to the statute yields only one
reasonable interpretation [of the Presence Element]—that a child
need only be in the same place as a person committing a lewd
act.” Howe, 2016 UT App 219, ¶ 15; see also Bagnes, 2014 UT 4,
¶¶ 13–23 	(applying 	the 	ordinary 	meaning 	to 	the 	statute 	to
determine 	that 	“other 	act 	of 	lewdness” 	incorporates 	the
“narrower notion” of lewdness set forth in the dictionary). On
this 	basis, 	we 	rejected 	Howe’s 	proffered 	interpretation,
concluding that it would “contradict the ordinary meaning of
the statutory language.” Howe, 2016 UT App 219, ¶ 16. Only then
did we apply our interpretation of the Presence Element to the
facts 	in 	play, 	concluding 	that 	evidence 	of 	children 	in 	a
playground “ten to fifteen feet away” from Howe at the time of
the lewd behavior was sufficient to establish presence and to
sustain Howe’s conviction. Id.
¶27 	Thus, while the overarching question in Howe centered on
the sufficiency of the evidence supporting Howe’s conviction,
resolving Howe’s challenge required that we first interpret the
Presence Element as a threshold legal question before applying it
to the facts in play. Our interpretation of the Presence Element
thereby constituted “simply a statement of the law”—one that
therefore 	could 	be 	employed 	by 	a 	district 	court 	in 	a 	jury
instruction without error. See Lambdin, 2017 UT 46, ¶ 19. And,
indeed, 	there 	is 	no 	language 	in 	Howe 	suggesting 	that 	our
statutory interpretation of the Presence Element was cabined
solely 	as 	an 	assessment 	of 	the 	minimal 	sufficiency 	of 	the
evidence in that case alone. Compare Howe, 2016 UT App 219,
¶¶ 15–16, with Walker, 2017 UT App 2, ¶¶ 25–36.
¶28 	Here, the district court’s jury instruction on the Presence
Element was nearly identical to the interpretation set forth in
Howe. 	It 	thus 	represented 	a 	statement 	of 	the 	law, 	not 	an
improperly imported factual conclusion. Accordingly, there was
no error in the district court’s decision to instruct the jury with

State v. Thomas
20180644-CA 	14 	2019 UT App 177
respect to the interpretation of the Presence Element set forth in
Howe.4 See Lambdin, 2017 UT 46, ¶ 19.
¶29 	Thomas 	also 	raises 	several 	related 	and 	additional
arguments suggesting that the instruction was overly broad.
But given our conclusion that Howe interpreted the Presence
Element 	as 	a 	purely 	legal 	question, 	none 	are 	ultimately
persuasive.
¶30 	First, 	Thomas 	contends 	that 	Bagnes 	“rejected 	the
suggestion that a child need only be in the same place in every
instance.” (Cleaned up.) But as described above, Bagnes did not
deal with, or purport to interpret, the Presence Element; it
interpreted and resolved a sufficiency challenge surrounding the
4. Our conclusion on this point effectively resolves Thomas’s
additional argument on appeal that the instruction violated his
right to have the jury consider whether the facts established all
the elements of the offense, including the Presence Element.
Central 	to 	this 	argument 	is 	Thomas’s 	contention 	that 	the
instruction 	created 	a 	Walker-like 	problem 	by 	impermissibly
morphing a factually driven conclusion from Howe, a sufficiency
case, 	into 	a 	purely 	legal 	conclusion—one 	that 	effectively
instructed the jury that it had to find the Presence Element
established as a matter of law. But we have concluded that this
case 	is 	better 	considered 	under 	the 	principles 	set 	forth 	in
Lambdin, not Walker, because our interpretation of the Presence
Element in Howe represented a pure statement of law. As a
result, the Presence Instruction did not take from the jury the
consideration of the Presence Element. Indeed, as the State
points out, the jury still had to apply the facts to find whether
Thomas committed the lewd act in the child’s presence. And the
fact that the evidence might have been undisputed on this point
does not mean that the jury was effectively stripped of its
fact-finding duty with respect to that element; it simply meant
that the jury might not have had to resolve conflicting evidence
on this issue in reaching its verdict.

State v. Thomas
20180644-CA 	15 	2019 UT App 177
Catchall Variant in the lewdness involving a child statute. 2014
UT 4, ¶¶ 11–29. Bagnes therefore cannot plausibly be read to
limit or contravene the interpretation of the Presence Element set
forth in Howe. Compare Bagnes, 2014 UT 4, ¶¶ 10–29, with Howe,
2016 UT App 219, ¶¶ 14–17.
¶31 	Next, Thomas contends that the “language in the jury
instruction is broader than the definitions this Court provided in
Howe” and that the instruction was “misleading” in the context
of his case. He supports these contentions by citing definitions of
his 	own 	finding 	for 	the 	word 	“present”—definitions 	not
addressed or included in Howe’s interpretation of the Presence
Element—and generally arguing that the Presence Instruction
was incorrect. But we have concluded that Howe interpreted the
Presence Element as a matter of law, and the instruction the
district court provided was nearly identical to the interpretation
established in Howe. Thus, we cannot conclude that giving the
jury instruction was error based simply on Thomas’s proffer of
other potential definitions of the word “present.”
¶32 	Thomas finally asserts that the jury instruction was overly
broad because section 76-3-203.10 of our criminal code—which
addresses 	violent 	offenses 	committed 	in 	the 	presence 	of 	a
child—defines the element of “in the presence of a child” more
narrowly than Howe. But as the State points out, the legislature
did not include the same definition in the lewdness involving a
child 	statute, 	see 	generally 	Utah 	Code 	Ann. 	§ 	76-9-702.5
(LexisNexis 	Supp. 	2019), 	and 	we 	must 	presume 	that 	the
legislature’s omission was intentional, see Marion Energy, 2011
UT 50, ¶ 14 (“[Appellate courts] presume that the expression of
one term should be interpreted as the exclusion of another.
We therefore 	seek 	to 	give 	effect 	to 	omissions 	in 	statutory
language by presuming all omissions to be purposeful.” (cleaned
up)).
¶33 	In 	short, 	we 	discern 	no 	error 	in 	the 	district 	court’s
decision to provide the jury the Presence Instruction.

State v. Thomas
20180644-CA 	16 	2019 UT App 177
II. The Sexual Nature and Strange Conduct Instructions
¶34 	Thomas next argues that the district court erred when it
declined to “narrow the statutory definition” of the Catchall
Variant. Drawing on the supreme court’s statutory interpretation
of the Catchall Variant in Bagnes, both the State and Thomas
proposed instructions related to the definition of lewdness. The
State initially proposed that the Catchall Variant be defined as
“includ[ing] acts of the same general kind, class, character, or
nature as the enumerated conduct of public intercourse, sodomy,
exposure of the genitals or buttocks, or masturbation.” Thomas,
on the other hand, proposed two instructions defining lewd
conduct 	more 	generally: 	(1) 	the 	Sexual 	Nature 	Instruction,
stating, 	“Lewdness 	involves conduct 	of 	a 	sexual, 	lascivious
nature and an irregular indulgence of lust,” and (2) the Strange
Conduct Instruction, 	stating, “Conduct may be strange and
socially inappropriate without the conduct being lewd.”
¶35 	The 	court 	ultimately 	combined 	the 	State’s 	proposed
instruction for “other acts of lewdness” with Thomas’s Sexual
Nature Instruction, arriving at an overall definition for lewdness
itself, not simply a definition for the Catchall Variant: “Lewdness
includes the act of the same general kind of sexual misconduct
class, character, or nature as the enumerated conduct of public
intercourse, 	sodomy, 	exposure 	of 	genitals 	or 	buttocks, 	or
masturbation.”
¶36 	On appeal, Thomas challenges the district court’s decision
with respect to the Sexual Nature Instruction, but does so with a
broad 	brush, 	focusing 	on 	the 	Catchall 	Variant 	and 	chiefly
arguing 	that 	the 	instruction 	given 	by 	the 	court 	“did 	not
sufficiently narrow the statutory definition of lewdness.” He
faults the court for giving the instruction because, in his view,
“the instruction’s use of the word ‘includes’ does not make clear
that the instruction is limiting,” and the instruction “does not
specify that it applies to the ‘any other act of lewdness’ catchall.”
The State responds that the court did not err in giving the

State v. Thomas
20180644-CA 	17 	2019 UT App 177
instruction 	but, 	even 	if 	it 	did, 	the 	alleged 	error 	was 	not
prejudicial.
¶37 	We agree with the State that the alleged error was not
prejudicial. Even assuming the instruction was erroneous—a
conclusion we do not reach here—Thomas suffered no prejudice
from it. See generally State v. Carrell, 2018 UT App 21, ¶ 19, 414
P.3d 	1030 	(stating 	that 	even 	if 	“an 	error 	is 	found 	in 	jury
instructions, reversal is warranted only if there is a reasonable
probability that the error affected the outcome of the case”).
¶38 	Thomas suggests that the alleged error was prejudicial
because he made a remark to Victim that he suggests might have
led the jury to convict him under the Catchall Variant, not the
exposure variant, based on the jury’s “common understanding”
of 	lewdness. 	Thomas 	also 	suggests 	that 	the 	evidence
surrounding the remark was stronger than that of the exposure
itself.
¶39 	However, 	as 	the 	State 	points 	out, 	the 	evidence
surrounding the exposure act was overwhelming and far from
equivocal. The only witnesses who testified at trial were Victim
and one of the police officers who responded to Victim’s call,
and, among other things, Victim consistently and repeatedly
testified 	that 	Thomas 	exposed 	his 	pubic 	area, 	stating 	that
Thomas had pulled down his pants such that “everything was
exposed” 	and 	that 	she 	was 	“absolutely 	sure” 	that 	Thomas
exposed his pubic area.
¶40 	Further, the prosecution focused on the exposure variant
of the lewdness offenses, not the Catchall Variant, in establishing
Thomas’s guilt. The State told the jury that it had the burden to
prove beyond a reasonable doubt that Thomas “exposed his
genitals or his pubic area in a public place, the park.” The State
then argued to the jury that it could convict Thomas if it found
that “he exposed his genitals or . . . his pubic area,” and that the
jury should convict Thomas because he “did expose his genitals,
he did expose his pubic area” in the presence of Victim’s child.

State v. Thomas
20180644-CA 	18 	2019 UT App 177
And while the State referenced the remark, it did so in setting
forth the context of the events and the exposure and establishing
that the exposure act was sexual in nature; at no point did the
State suggest that the lewdness elements were met or that the
jury should find Thomas guilty based solely on the remark.
Moreover, even defense counsel at times conceded that exposure
had occurred but argued that Thomas was not guilty of the
offenses because the exposure was not sexual misconduct or
“sexual in nature” and was instead “just [Thomas] being a
knucklehead because he was drunk.”
¶41 	In short, both the evidence presented to the jury about the
charged offenses and the parties’ arguments at trial centered on
proving 	or 	disproving 	Thomas’s 	guilt 	under 	the 	exposure
variant, not the Catchall Variant. In these circumstances, it was
not reasonably likely that, even if the jury had received a more
limiting instruction about the meaning of the Catchall Variant,
the narrowed instruction would have affected the outcome of the
case. See Carrell, 2018 UT App 21, ¶ 19; see also State v. Hummel,
2017 UT 19, ¶ 83 n.30, 393 P.3d 314 (stating that there is “no need
to reverse a conviction even if there were erroneous instructions
on one variation of a crime submitted to the jury where the
evidence overwhelmingly supports a conviction under [another]
variation,” and listing jury instruction cases where no reversal
was necessary because the appellant had not shown that the
challenged instructions were harmful (cleaned up)); State v. Reid,
2018 UT App 146, ¶¶ 33–36, 427 P.3d 1261 (concluding that there
was no prejudice on alleged instructional errors related to two
variants where there was “ample evidence” supporting the other
three 	variants 	instructed).5 Accordingly, 	we 	reject 	Thomas’s
contention that the alleged instructional errors merit reversal.
5. Thomas also challenges the district court’s failure to give the
Strange 	Conduct Instruction. 	Below, 	Thomas argued 	that 	it
would 	be 	appropriate 	to 	give 	the 	instruction 	because 	he
“anticipated . . . that the conduct that [the jury] will hear about
(continued…)

State v. Thomas
20180644-CA 	19 	2019 UT App 177
III. Inclusion of the Catchall Variant
¶42 	In the alternative, Thomas argues that it was plain error
for the district court to allow the elements instructions for the
lewdness offenses to include the Catchall Variant. Conceding
that this issue was not preserved, Thomas argues that we should
review this challenge under the plain error doctrine. See State v.
Roberts, 2019 UT App 9, ¶ 10, 438 P.3d 885 (“A trial court plainly
errs when it commits obvious, prejudicial error.”). Relying on
two 	ineffective 	assistance 	of 	counsel 	cases 	addressing 	jury
instructions for the offense of forcible sexual abuse, State v. Ray,
2017 UT App 78, 397 P.3d 817, cert. granted, 406 P.3d 250 (Utah
2017), and the offense of sexual abuse of a child, State v. Lewis,
2014 UT App 241, 337 P.3d 1053, Thomas argues that failing to
excise the Catchall Variant was obvious error. And he contends
the error was prejudicial because there was “testimony that
Thomas made a lewd remark that, while not on par with” the
enumerated acts described in the lewdness statutes, “might well
be 	viewed 	as 	lewdness 	by 	jurors 	applying 	their 	common
understanding of the term,” and because the exposure evidence
was comparatively weak.
(…continued)
may seem strange,” and it would be helpful for the jury to
understand “that just because it’s not appropriate and people
usually don’t do it . . . doesn’t necessarily mean that it’s lewd
and that [the jury has] to look at the actual elements.” The court
disagreed. It explained that, while the instruction was “certainly
accurate,” it thought that the issue was one that “comes up
through argument that the elements aren’t met,” which “goes
back to the State’s burden of establishing the elements to get
there.” On that basis, it declined to give the instruction. Thomas
has not engaged with this reasoning on appeal. As a result, we
reject this challenge. See iDrive Logistics LLC v. IntegraCore LLC,
2018 UT App 40, ¶ 79, 424 P.3d 970 (“Where an appellant fails to
address the basis of the district court’s ruling, we reject the
challenge.”).

State v. Thomas
20180644-CA 	20 	2019 UT App 177
¶43 	We disagree that the court committed obvious error by
not sua sponte excising the Catchall Variant from the lewdness
elements instructions. “For an error to be obvious to the trial
court, the party arguing for the exception to preservation must
show that the law governing the error was clear, or plainly
settled, at the time the alleged error was made.” State v. Johnson,
2017 UT 76, ¶ 21, 416 P.3d 443 (cleaned up); see also State v.
Roman, 	2015 	UT 	App 	183, 	¶ 	9, 	356 	P.3d 	185 	(stating 	that
“[w]ithout clear guidance in the law, any error would not have
been obvious to the district court,” and concluding that the party
seeking reversal on plain error review was unable to “avail
himself of the plain error exception” where he failed to direct
this court to settled law to support his argument for error).
¶44 	Thomas has not demonstrated on appeal that the law
governing the inclusion or excision of the Catchall Variant was
“clear, or plainly settled, at the time the alleged error was
made.” See Johnson, 2017 UT 76, ¶ 21 (cleaned up). To begin with,
neither Ray nor Lewis establishes the proposition that a variant
not relied on must be excised from the jury instructions and that
a district court errs if it fails to do so. Further, neither case dealt
with or addressed the failure to specifically excise the Catchall
Variant from jury instructions setting out the lewdness elements
under the applicable lewdness statutes. See Utah Code Ann.
§ 76-9-702 (LexisNexis Supp. 2019) (lewdness); id. § 76-9-702.5
(lewdness 	involving 	a 	child). 	Rather, 	both 	Ray 	and 	Lewis
addressed jury instruction errors with respect to the “indecent
liberties” variant in our forcible sexual abuse statute and sexual
abuse of a child statute—different statutes involving distinct
elements compared to the lewdness statutes at issue here. Ray,
2017 UT App 78, ¶¶ 16–20; Lewis, 2014 UT App 241, ¶¶ 10–13; see
also Utah 	Code Ann. § 	76-5-404(1) 	(LexisNexis Supp. 	2019)
(setting 	forth 	the 	elements 	of 	forcible 	sexual 	abuse); 	id.
§ 76-5-404.1(2) (stating the elements of sexual abuse of a child).
As a result, neither Ray nor Lewis constituted settled law with
respect to the propriety of instructing on the Catchall Variant at
the time of the alleged error. And Thomas points to no authority
otherwise 	suggesting 	that 	the 	law 	regarding 	including 	or

State v. Thomas
20180644-CA 	21 	2019 UT App 177
excising the Catchall Variant was sufficiently settled at the time
of the alleged error. Accordingly, Thomas has not demonstrated
that the court plainly erred by failing to sua sponte excise the
Catchall Variant. See Johnson, 2017 UT 76, ¶ 21.
¶45 	To be sure, given the State’s admission that it was not
pursuing charges under the Catchall Variant, it might have been
prudent for the district court to excise the Catchall Variant (as it
did with the language in the statutes related to “female body
parts”). Nevertheless, Thomas has not established that it was
obvious error not to do so.6 Thus, we are unable to conclude that
the district court plainly erred in failing to sua sponte excise the
Catchall Variant from the elements instructions.
CONCLUSION
¶46 	Thomas has not demonstrated that the district court erred
with respect to its decisions surrounding the challenged jury
instructions. Accordingly, we affirm Thomas’s convictions.
6. For the reasons discussed above, supra ¶¶ 36–41, we also
cannot 	conclude 	that 	any 	potential 	error 	in 	including 	the
Catchall Variant was harmful. See State v. Hummel, 2017 UT 19,
¶¶ 81–85 & n.30, 393 P.3d 314 (“Under our established case law,
we may reverse on the basis of an unnecessary jury instruction
only if the instruction is shown to be prejudicial (or in other
words not harmless).”).