OPINION
Defendant Kent Jesse Carr appeals his jury conviction of lewdness, a class B misdemeanor, in violation of Utah Code Ann. § 76-9-702 (Supp.1998). We reverse and remand for a new trial.
BACKGROUND
In August 1997, Joshuа Waldron entered a public restroom at a shopping facility and saw defendant standing next to the restroom sinks. Waldron entered a bathroom stall and heard defendant enter the adjacent stall. After a moment, Waldron thought he saw defendant peeking over the stall at him. Defendant then left the stall and began peering at Waldron through the spаce between the door and the wall. Waldron made eye contact with defendant for several seconds, then Waldron rushed toward the door and shouted, “Hey, what’s going on?” Defendant then left the restroom.
Waldron also left the restroom and told two of his friends about the encounter. Wal-dron and his friends followed defendant to defendant’s plaсe of employment. Waldron felt violated and wanted to confront defendant about the incident. The police were called and Waldron told an officer abоut the incident in the restroom. The officer then cited defendant for lewdness. See Utah Code Ann. § 76-9-702 (Supp.1998).
Before trial, defendant filed a Motion to Dismiss, arguing that to convict a person of lewdness basеd on trespassory voyeurism, the person must be a trespasser on real property. The trial court denied the motion, but invited defendant to reassert the motion at the сlose of the prosecution’s case. At trial, defendant renewed his motion, and the trial court denied the motion on its merits. Although the information charged defendant with lewdness, thе trial court instructed the .jury that defendant was charged with the offense of trespassory voyeurism and gave an elements instruction to that effect. The jury found defendant guilty of lewdnеss.
*719 STANDARD OF REVIEW
“This court reviews the trial court’s interpretation of a statute for correctness, giving no deference to the trial court’s determinations.”
State v. Gallegos,
ANALYSIS
Section 76-9-702(1) of the Utah Code provides as follows:
A person is guilty of lewdness if the person under circumstances not amounting to rape, object rape, forcible sodomy, forcible sexual abuse, aggravated sexual assault, or an attеmpt to commit any of these offenses, performs an act of sexual intercourse or sodomy, exposes his or her genitals or private parts, masturbates, engages in trespassory voyeurism, or performs any other act of lewdness in a public place or under circumstances which the person should know will likely cause affront or alarm to, on, or in the presence of another who is 14 years of age or older.
Utah Code Ann. § 76-9-702(1) (Supp.1998) (emphasis added).
“At common law, lewdness was a specific kind of public indecency. It was defined as the unlawful indulgence of lust and involved grоss indecency with respect to sexual conduct.” 3 Wharton’s Criminal Law § 307, at 194-95 (Charles E. Torcía ed., 15 ed.1995). Here, the prosecution claimed that defendant violated the lewdness statute by engаging in trespassory voyeurism. Thus, we must determine whether the trial court erred in denying defendant’s Motion to Dismiss and whether the trial court erred in failing to properly instruct the jury regarding the elеments of lewdness based on trespassory voyeurism.
“When we interpret statutes, our primary goal is to give effect to the legislature’s intent in light of the purpose the statute was mеant to achieve. We therefore look first to the statute’s plain language.”
Evans v. State,
Defendant also argues that the lewdness statute requires a jury instruction as to defendant’s intent to seek sexual gratification. The record is devoid of any оbjection at trial regarding the absence of a jury instruction on intent to seek sexual gratification. When a party fails to object to instructions at trial, this court will not review the instructions absent a showing of manifest injustice. Rule 19(c) of the Utah Rules of Criminal Procedure provides:
No party may assign as error any portion of the charge or omission thеrefrom unless he objects thereto before the jury is instructed, stating distinctly the matter to which he objects and the ground of his objection. Notwithstanding a party’s failure to object, error may be assigned to *720 instructions in order to avoid a manifest injustice.
This court has consistently held that “[failure to give an elements instruction for a crime satisfies the manifest injustice standard under Rule 19(c) and constitutes reversible error as a matter of law.”
Gibson,
Both parties submitted a proposed jury instruction to the trial court identifying the elements of lewdness. For example, the prosecution’s instruction stated that the jury must find that defendant
did one of the following in a public place or under circumstances which he should know would cause affront or alarm to, on, or in the presence of another who is 14 years of age or older:
a. Performed an act of sexual intercourse or sodomy;
b. Exposed his genitals or private parts;
c. Masturbated;
d. Engaged in trespassory voyeurism;
e. Performed any other act of lewdness.
Instead of using one of the submitted instructions, the trial court instructed the jury as follows:
In this case, the defendant is charged with trespass voyeurism. The elements of trespass voyeurism are as follows:
1. That the Defendant positioned himself in a public restroom in a place where he could see the activities of Joshua Wal-dron behind closed restroom stall doors.
2. That the Defendant’s intent was to observe Mr. Waldrоn and his activities behind the closed restroom stall.
3.That such conduct was not with the permission or invitation of Mr. Waldron and under such circumstances as would give rise in Mr. Waldron to an expectation of privacy from such observation.
The trial court’s instructions fail to mention the elements of lewdness, as provided by the statute.
When instructing the jury on the elemеnts of the offense, the trial court must specifically instruct the jury regarding the “eupable mental state required” to commit the crime. Utah Code Ann. § 76-1-501 (1995). To find a defendant guilty of lewdness based on trespassory voyeurism, the jury must determine that defendant sought to derive sexual gratification by observing the sex organs or sex acts of a person who has an expectation of privacy. Lewdness itself is defined as “Preoccupied with sex: LUSTFUL.” Webster’s, supra at 631. Likewise, as mentioned above, voyeurism includes intentional behavior on the part of the рerpetrator to derive sexual gratification. The trial court’s instructions, however, failed to instruct the jury that to convict defendant of lewdness based upon trespassоry voyeurism, the jury must find that defendant sought to derive sexual gratification.
Consequently, the trial court failed to properly instruct the jury on the elements of the offense charged. This failure satisfies the manifest injustice standard under Rule 19(c).
See Gibson,
We have considered defendant’s other arguments and conclude that they are without merit.
See State v. Carter,
CONCLUSION
The trial court properly denied defendant’s Motion to Dismiss and properly refused to instruct the jury that trespassory voyeurism requires proof that defendant trespassed on real property. However, the trial court failed to instruct the jury regarding the elements of the alleged offense. We therefore *721 reverse the conviction and remand for further proceedings consistent with this opinion.
BILLINGS, Judge and ORME, Judge, concur.