State v. Powell
2020 UT App 63
| Utah Ct. App. | 2020Background
- Powell, a wheelchair user, was observed on two separate occasions in retail stores with the crotch of his jeans cut out and a see-through mesh covering his genitals; two witnesses (a daughter and her stepmother) testified they could see his penis.
- After the second incident the stepmother photographed Powell; she reported the incident on social media; a detective later investigated and obtained screenshots from the second store’s surveillance but the footage did not show exposure; the first store had already recorded over its footage.
- Powell spoke with police at his home, admitting a pattern of exposing himself “for the thrill” and admitting he generally wore see-through spandex/mesh; he later gave a written statement offering an alternative explanation for the second incident (a kinked catheter).
- Powell was charged with two counts of lewdness (with prior-conviction enhancements); the State focused on the exposure variant of the lewdness statute; after the State rested, the court denied a directed-verdict motion and the jury convicted on both counts.
- On appeal Powell argued the evidence was insufficient as a matter of law (directed verdict), and he asserted multiple ineffective-assistance-of-counsel claims (failure to object to jury instructions, failure to move to dismiss for lost/destroyed surveillance, failure to advise re: right to testify, failure to move to suppress statements); he also sought a Rule 23B remand for factual findings.
- The Utah Court of Appeals affirmed the convictions and denied Powell’s Rule 23B remand request.
Issues
| Issue | Powell's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency / Directed verdict: whether exposure as a matter of law occurred | Powell: mesh/partial covering and attempt to cover show no legal exposure; alternate catheter explanation | State: witnesses saw his penis through mesh and Powell admitted he exposed himself; evidence sufficient for jury | Affirmed — reasonable jury could find exposure beyond a reasonable doubt |
| Ineffective assistance — jury instructions (age element; attempt prefatory clause; mental state; lesser included; lasciviousness) | Powell: instructions were legally flawed (age not element, omitted attempt clause, allowed recklessness, failed to give attempted-lewdness or lasciviousness instruction) | State: instructions conformed to statute and precedent; many of Powell’s readings are erroneous or inapplicable; counsel could reasonably decline futile or strategy-undermining objections | Affirmed — counsel not shown objectively deficient; no prejudice shown |
| Ineffective assistance — failure to move to dismiss for lost/destroyed surveillance evidence (due process) | Powell: stores’ lost/overwritten footage and police failure to preserve denied due process; counsel should have moved to dismiss | State: footage was store-owned (not State); Detective viewed footage and collected screenshots; Tiedemann test not triggered here; dismissal not mandated and other remedies exist | Affirmed — no showing State had duty to preserve or that dismissal was appropriate; counsel not deficient for not moving to dismiss |
| Rule 23B remand: failure to advise re: right to testify and failure to move to suppress statements (Miranda) | Powell: counsel misadvised about testifying without waiving Fifth Amendment and failed to move to suppress statements made at home | State: Mohamud does not permit jury trial testimony without waiver; custody/Miranda not shown; allegations speculative and unsupported by affidavit | Denied — Powell’s factual allegations are nonspeculative or fail legal prerequisite; remand not warranted |
Key Cases Cited
- State v. Gonzalez, 345 P.3d 1168 (2015 UT 10) (standard for reviewing denial of directed verdict / sufficiency review)
- State v. Ashcraft, 349 P.3d 664 (2015 UT 5) (reviewing evidence in light most favorable to verdict)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective assistance standard)
- State v. Tiedemann, 162 P.3d 1106 (2007 UT 49) (due process analysis for lost/destroyed evidence)
- State v. Bagnes, 322 P.3d 719 (2014 UT 4) (discussion of catchall "any other act of lewdness" and lasciviousness)
- State v. Mohamud, 395 P.3d 133 (2017 UT 23) (clarifying testimony in hearings about lost evidence and Fifth Amendment concerns)
- State v. Reed, 8 P.3d 1025 (2000 UT 68) (interpretation of "not amounting to" language in statutes)
- State v. Fullerton, 428 P.3d 1052 (2018 UT 49) (custody/Miranda custody analysis)