484 P.3d 415
Utah Ct. App.2021Background:
- Daniel Kitches and his ex-wife divorced in August 2017; they shared custody and a joint phone plan. After reactivating an old phone, Kitches saw Ex-Wife’s texts via integrated messaging and monitored her messages for about two weeks.
- Kitches recorded two videos of Ex-Wife without her consent: a July 18, 2017 sexual encounter and an earlier shower recording; the files were later found on his devices.
- After learning Ex-Wife spent a night with her new boyfriend, Kitches repeatedly threatened to distribute the sex video, emailed and texted the video to Ex-Wife (and to her work email), and sent menacing communications to the boyfriend.
- On September 10, 2017, Kitches drove to the boyfriend’s home in the early morning (removed a doorbell camera), then entered Ex-Wife’s parents’ house through a back door, looked into the children’s bedroom, and fled; police were involved multiple times.
- Kitches was charged with two counts of voyeurism (recordings), one count of voyeurism-distribution (sending the sexual video), one count of criminal stalking (course of conduct directed at Ex-Wife), and one count of criminal trespass (entering parents’ house); a jury convicted on all counts and he appealed.
Issues:
| Issue | State's Argument | Kitches' Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for voyeurism convictions | Video content, Ex-Wife’s testimony that she did not consent, circumstantial evidence, and files on Kitches’s devices suffice to submit consent question to jury | Evidence suggested possible consent or awareness (momentary looks, Ex-Wife’s earlier concerns focused on dissemination), so evidence insufficient | Affirmed: sufficient evidence that recordings were made without consent; jury credited victim testimony and circumstantial proof |
| Voyeurism-distribution: does sending to the victim count as “distribution”; sufficiency & jury instruction | "Distribution" includes delivering or otherwise transferring images to another individual; sending to the person depicted broadens access and falls within subsection (3); evidence he sent the video to Ex-Wife supports distribution conviction | "Distribution" requires sending to a third party (uninvolved person); sending only to the victim cannot support distribution conviction; jury instruction erroneous | Affirmed: sending the voyeuristic recording to the victim qualifies as distribution under §76-9-702.7(3); conviction and instruction upheld |
| Stalking: sufficiency of "course of conduct" and jury instruction / ineffective assistance claim | Multiple acts (monitoring texts, repeated threats on different dates, following, confronting, sending video, contacting third parties) constitute two-or-more-acts course of conduct; instruction issues do not prejudice defendant | Acts were insufficient/ not "directed at" Ex-Wife; jury instruction misstated "two or more acts" requirement and counsel’s failure to object was ineffective | Affirmed: ample discrete acts established course of conduct; even if instruction error occurred, no prejudice shown—no reversible IAC |
| Trespass: sufficiency re unlawful entry and mens rea (belief in permission) | Entry at 5:00 a.m., sneaking through back, failure to announce, lies to police, and the context permitted inference of knowing unlawful entry and recklessness as to causing fear | Testimony showed historic permission to enter for children; Kitches reasonably believed he still had permission, so entry not unlawful | Affirmed: jury could infer unlawful entry and recklessness from time, manner, and surrounding conduct; evidence sufficient |
Key Cases Cited
- State v. Cruz, 478 P.3d 631 (Utah Ct. App. 2020) (conflicting evidence does not justify removing issues of credibility from jury)
- State v. Doyle, 437 P.3d 1266 (Utah Ct. App. 2018) (standard of review for directed verdict)
- State v. Bilek, 437 P.3d 544 (Utah Ct. App. 2018) (discussion of voyeurism statute language and device concealment)
- State v. Gulbransen, 106 P.3d 734 (Utah 2005) (specific date of act is not an essential element of certain offenses)
- Butters v. Herbert, 291 P.3d 826 (Utah Ct. App. 2012) (acts in a course of conduct must be evaluated cumulatively in context)