437 P.3d 544
Utah Ct. App.2018Background
- Probation officers found Vratislav R. Bilek in a motel room with E.C., narcotics, paraphernalia, and his cell phone; officers recovered 179 photos and 9 videos of E.C. nude and apparently unconscious.
- E.C. testified she had been given methamphetamine and other drugs by Bilek, became "mostly asleep," did not consent to being photographed or filmed while unconscious, and had a history of exchanging sex/photos for drugs or money.
- The State charged Bilek with forcible sexual abuse (felony), distribution of a controlled substance (felony), two counts of class A misdemeanor voyeurism, and possession of drug paraphernalia (misdemeanor).
- At trial the court admitted testimony that officers were conducting a probation check (denying exclusion of probation status), denied a midtrial request by Bilek to represent himself, and denied a directed verdict; the jury convicted on two voyeurism counts, distribution, and possession of paraphernalia, and acquitted on forcible sexual abuse.
- On appeal the court vacated the class A voyeurism convictions for insufficient evidence that Bilek used a "concealed or disguised" electronic device, but affirmed the drug distribution and paraphernalia convictions (finding any error about probation status harmless and the self-representation request untimely).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Bilek) | Held |
|---|---|---|---|
| Whether evidence proved the "concealed or disguised" device element for class A voyeurism | Proof that Bilek photographed/recorded E.C. while she was unconscious shows he secretly/surreptitiously took images and thus satisfied the concealed/disguised-device element | Consciousness of the victim alone cannot show the device was concealed or disguised; photos/videos were taken with the phone used openly | Evidence that E.C. was unconscious sufficed to show recordings were "secretly or surreptitiously" made, but did not prove the device was "concealed or disguised"; voyeurism convictions vacated |
| Whether appellate court should enter convictions for lesser included class B voyeurism under subsection (4) | If class A insufficient, court should remand with directions to enter class B convictions | Entry of lesser convictions would be unfair because jury was not instructed on subsection (4) and defense focused on subsection (1) elements | Not appropriate to enter class B convictions; remand for further proceedings because jury did not necessarily find elements of subsection (4) and defendant would be prejudiced |
| Whether admission of evidence that Bilek was on probation was erroneous and reversible | Admission was proper to explain officers’ presence; even if error, it was harmless | Admission unduly prejudiced jury by exposing prior status | Any error in admitting probation-status testimony was harmless given overwhelming drug evidence and limiting instruction; convictions for drug offenses affirmed |
| Whether district court erred in denying midtrial request for self-representation | Denial proper because request was untimely and not made before trial | Denial violated constitutional right to self-representation | Denial was within court's discretion because defendant requested to proceed pro se only midtrial; no reversible error |
Key Cases Cited
- State v. Wilder, 420 P.3d 1064 (Utah 2018) (standard for reviewing jury verdicts and inferences)
- Mackin v. State, 387 P.3d 986 (Utah 2016) (reversal for insufficient evidence requires reasonable doubt)
- LeBeau v. State, 337 P.3d 254 (Utah 2014) (statutory interpretation principles; give meaning to all parts)
- State v. Bair, 275 P.3d 1050 (Utah Ct. App. 2012) (authority to enter judgment for lesser included offense under certain conditions)
- State v. Dunn, 850 P.2d 1201 (Utah 1993) (analysis for lesser included offense convictions)