State v. Charles, 477 P.3d 492

While a mother drove her daughter and the daughter’s friend to drop off the friend, a stranger (Charles) stood behind the car and repeatedly made sexually suggestive gestures—simulating oral sex with fingers and tongue and holding his hand over his crotch—while staring for about 5–7 minutes.
Daughter noticed and asked her mother what the man’s gestures meant; Mother felt alarmed and later reported the incident to police.
The State charged Charles with lewdness involving a child (class A misdemeanor, Count 1) and general lewdness (class B misdemeanor, Count 2); the factual dispute was minimal at the bench trial.
At trial only Mother and the responding officer testified; neither was asked the child’s exact age; Mother described the girls several times as "little kids" or "little girls."
The district court found Charles committed an "other act of lewdness" and that it occurred "in the presence of a child under 14," convicted on Count 1 and merged/did not enter judgment on Count 2.
On appeal the court rejected Charles’s unpreserved First Amendment challenge and his claim that the gestures were not lewd, but reversed Count 1 because the State produced insufficient evidence that the child was under 14; remanded for acquittal on Count 1 and further proceedings on Count 2.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Whether Charles preserved a First Amendment challenge	State: Defendant did not preserve free-speech claim below	Charles: Gestures were protected speech; conviction unconstitutional	Not preserved; appellant failed to show plain error; claim rejected on appeal
2. Whether gestures constituted an "other act of lewdness" under the statute	State: Simulated oral sex and crotch contact are lascivious conduct akin to enumerated acts	Charles: Gestures were not sexual misconduct (comparable to nonsexual insults)	Court applied Bagnes: simulated sexual acts qualify; gesture met "other act of lewdness"
3. Whether evidence proved the child was under 14 (element of lewdness involving a child)	State: Mother’s repeated references to "little kids/little girls" sufficed for inference	Charles: No testimony or other evidence of age; State failed to prove element beyond reasonable doubt	Insufficient evidence of age; conviction on lewdness involving a child reversed; acquittal ordered on Count 1
4. Remedy and effect on Count 2 (general lewdness)	State: Counts may merge; alternatively Count 2 may stand	Charles: (sought reversal generally)	Merger was a district-court ruling; appellate court remanded for further proceedings on Count 2 after reversing Count 1

State v. Bagnes, 322 P.3d 719 (Utah 2014) (interprets "other act of lewdness" to include lascivious simulations of enumerated sexual acts)
In re A.T., 34 P.3d 228 (Utah 2001) (simulation of masturbation can qualify as "other act of lewdness")
State v. Johnson, 416 P.3d 443 (Utah 2017) (preservation exceptions and standards for reaching unpreserved claims)
State v. Bond, 361 P.3d 104 (Utah 2015) (unpreserved federal-constitutional claims require showing of plain error or other exception)
Washington v. State, 645 So.2d 915 (Miss. 1994) (reversing sexual-offense conviction where prosecution failed to introduce proof of victim’s age)
State v. Holland, 437 P.3d 501 (Utah Ct. App. 2018) (standard for reviewing sufficiency of evidence after a bench trial)