State v. Thomas, 474 P.3d 470

Background

Jeremy Thomas, intoxicated, yelled sexual remarks at a woman and pulled his pants down in a public park while her six‑year‑old son was nearby; police arrested him after the victim identified him.
The State charged Thomas with lewdness, lewdness involving a child, and intoxication; jury convicted on all counts.
Thomas stipulated to statutory elements instructions, which included the statutory exposure variants and the statutory "any other act of lewdness" catchall (the Catchall Variant).
The district court, over Thomas’s objection, instructed the jury that for lewdness involving a child "in the presence of a child" means the child need only be in the same place as the actor (the Presence Instruction), relying on Howe.
The court combined the State’s definition of the Catchall Variant with a proposed instruction that lewdness involves sexual, lascivious conduct (the Sexual Nature language); the court declined to give a separate "Strange Conduct" instruction.
On appeal Thomas argued the Presence Instruction was overly broad, the Catchall Variant was insufficiently narrowed (and should have been excised), and that any instruction errors were plain or prejudicial; the appellate court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Presence Instruction: meaning of "in the presence of a child" for lewdness involving a child	Court properly may instruct jury using appellate statutory interpretation (State)	Thomas: Howe was a sufficiency case, not a proper source for a binding jury instruction; instruction was overly broad and invaded jury fact‑finding	Affirmed — Howe construed the term as a question of law; use in jury instruction was a correct statement of law (Lambdin controls)
Definition/Narrowing of Catchall Variant ("any other act of lewdness")	Thomas: court should have narrowed or excised the catchall to prevent conviction on vague/common‑sense notions of lewdness	State: instruction was acceptable; evidence and prosecution focused on exposure variant	No reversible error — even if instruction ambiguous, exposure evidence was overwhelming and State charged/examined on exposure variant (harmless)
Failure to give Strange Conduct instruction	Thomas: needed to emphasize that socially inappropriate conduct is not necessarily lewd	State: instruction unnecessary; elements and burden cover that distinction	Court did not err in declining the instruction; issue comes through adversary argument and burden on State
Plain error excision of Catchall Variant sua sponte	Thomas: trial court should have sua sponte removed unused catchall; failure was obvious and prejudicial	State: law was not settled that unused variant must be excised; Ray/Lewis do not control here	No plain error — appellant failed to show the law was "clear or plainly settled" that court had to excise the catchall; any inclusion was not obviously prejudicial

Key Cases Cited

State v. Bagnes, 322 P.3d 719 (Utah 2014) (interpreting "other act of lewdness" as a threshold question of law)
Salt Lake City v. Howe, 387 P.3d 562 (Utah Ct. App. 2016) (construing "in the presence of a child" to mean child need only be in the same place as actor)
State v. Walker, 391 P.3d 380 (Utah Ct. App. 2017) (warning against instructing fact‑intensive conclusions as pure law)
State v. Lambdin, 424 P.3d 117 (Utah 2017) (district court may include appellate statutory interpretations in jury instructions as statements of law)
State v. Carrell, 414 P.3d 1030 (Utah Ct. App. 2018) (instructional error requires reasonable probability of affecting outcome to warrant reversal)
State v. Hummel, 393 P.3d 314 (Utah 2017) (no reversal needed when overwhelming evidence supports an instructed variant)
State v. Ray, 397 P.3d 817 (Utah Ct. App. 2017) (discussing instruction issues in forcible sexual abuse context)
State v. Lewis, 337 P.3d 1053 (Utah Ct. App. 2014) (instructional concerns in sexual abuse-of-child context)
State v. Fisher, 680 P.2d 35 (Utah 1984) (case‑specific sufficiency analysis)
State v. Speer, 750 P.2d 186 (Utah 1988) (case‑specific holding on sufficiency/lesser included offense)
Marion Energy, Inc. v. KFJ Ranch P’ship, 267 P.3d 863 (Utah 2011) (statutory‑interpretation canon: omissions are presumed purposeful)
State v. Johnson, 416 P.3d 443 (Utah 2017) (plain‑error standard requires settled law showing the error was obvious)