2021 UT App 24
STATE OF UTAH, Appellee, v. DANIEL CHRIS KITCHES, Appellant.
No. 20181037-CA
THE UTAH COURT OF APPEALS
Filed March 11, 2021
Third District Court, Salt Lake Department; The Honorable Paul B. Parker; No. 171910265
Debra M. Nelson and Wendy J. Brown, Attorneys for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGE RYAN M. HARRIS and SENIOR JUDGE KATE APPLEBY concurred.1
¶1 Daniel Chris Kitches monitored the text messages his ex-wife (Ex-Wife) sent and discovered that she started dating soon after their divorce. When he learned she had spent the night with her new boyfriend, Kitches menaced her over the course of eight days—principally by threatening to distribute a video he previously made of himself and Ex-Wife engaged in an intimate act—until he was eventually arrested. A jury convicted Kitches of numerous offenses, and he now appeals. We affirm.
BACKGROUND2
¶2 Kitches and Ex-Wife were married for eight years and had two children together. But the marriage turned tumultuous in its final years, so they agreed to separate in March 2017. Although Kitches and Ex-Wife occasionally argued about their children, their interactions were somewhat
¶3 In the decree, Kitches and Ex-Wife agreed to maintain their cell phone plan until they finished paying off their phones. Within a few days of the divorce being finalized, Kitches damaged his phone and asked Ex-Wife (the primary account holder) to activate one of his old phones, which she did. Ex-Wife was unaware that reactivating Kitches‘s old phone initiated “integrated text messaging,” enabling him to see any text messages she sent or received.
¶4 For approximately two weeks, Kitches actively monitored Ex-Wife‘s text messages without notifying her that he could do so. Among others, he read messages in which Ex-Wife complained to her friends and family about the divorce. He also read the messages Ex-Wife sent and received from her new boyfriend (Boyfriend). Things took a new course when Ex-Wife and Boyfriend sent messages which made apparent that they spent a night together at Boyfriend‘s house. Kitches quickly messaged Ex-Wife to confront her about the overnight stay and, in the process, admitted to her that because of the integrated messaging, he had been able to—and did—monitor her text messages. Ex-Wife immediately called the phone company and disabled the feature.
¶5 Later that day (September 5), Kitches phoned Ex-Wife and informed her that he had digitally recorded the two of them having sex on a previous occasion, and he threatened to send the video to her family, friends, and Boyfriend. Ex-Wife was “shocked” by Kitches‘s admission that he had filmed them having sex and she was afraid he would follow through on his threat. Thinking it would impede Kitches‘s ability to send the video to anyone, Ex-Wife called the phone company and canceled his cell phone service.
¶6 The next day (September 6), Ex-Wife sent Kitches an email asking to meet at their phone company‘s storefront so that they could separate their phone service. Kitches responded by confronting Ex-Wife about text messages she had sent about the divorce and demanded that she turn on his phone service. Ex-Wife replied, “I want all the videos and messages off your phone first, then I have no problem doing so. You have no right to send a video that I was not nor would I consent to.” (Emphasis added.) Kitches asserted “[t]hey [we]re not on [his] phone” and told her that—in the course of monitoring her text messages—he had saved “half naked pics” that she sent to Boyfriend. When Ex-Wife again asked Kitches to delete all the foregoing and asked whether he was “planning on blackmailing [her],” Kitches responded by stating, “No deal.” He also expressed his desire to “warn” Boyfriend that Ex-Wife would “do absolutely anything to harm another person.”
¶7 That night, Boyfriend sent Kitches an email stating, “[O]ur mutual friend, [Ex-Wife,] said you have been talking about me and had something you wanted to tell/show me. So here‘s my contact info.” Boyfriend later testified that he reached out to Kitches in an apparent attempt to defuse the situation, as he was also a divorced father and thought he might be able to resolve Kitches‘s concerns. Kitches emailed back that Ex-Wife was a “sociopath” and one of the most “despicable human beings” he had ever met. Kitches also told Boyfriend that he had a video of himself and Ex-Wife having sex and offered to send it to Boyfriend:
I actually have [a] time . . . stamped video, and it was the film sex, it was the film [of] her while she was over here so she couldn‘t accuse me of anything ever again. My attorney said film and record everything. So if you‘d like a copy, which I don‘t think you do, I have it.
When Boyfriend asked to see the video, Kitches responded that “for half a second [he] thought about sending it to [Boyfriend],” but “there is a law that says you cannot forward nudity.”
¶8 The following morning (September 7), Kitches sent Ex-Wife an email asking her to turn his phone service back on, which Ex-Wife again indicated she would do only if he
¶9 Later that day, after turning Kitches‘s phone service back on, Ex-Wife drove to his office to ensure that he would delete the video. When she arrived, Kitches sarcastically “asked if she wanted to watch the video and [said] that he and his coworkers watched it in the mornings while eating donuts.” Kitches eventually feigned agreement to delete the video, and while Ex-Wife looked over his shoulder, he appeared to delete several video files from his work computer.
¶10 But the next morning (September 8), Kitches sent Ex-Wife a text message informing her that he still had “five videos” which he threatened to send to her employer—specifically, her supervisor—and Boyfriend. Ex-Wife felt she had lost control of the situation and called the police, but she declined to press charges because they had “just gone through a divorce” and she only wanted the videos deleted. An officer then contacted Kitches and informed him that it would be a crime for him to send the videos. Kitches told the officer he would not send the videos to anyone.
¶11 The next night (September 9), Ex-Wife planned to watch a football game at Boyfriend‘s house in Orem. Because the game did not start until 8:30 p.m., she arranged for the children to spend the night at her parents’ house in West Valley. Ex-Wife and Boyfriend had dinner, watched the game, and fell asleep in Boyfriend‘s bedroom.
¶12 Meanwhile, Kitches drove by Ex-Wife‘s house in Sandy at about 2:00 a.m. (September 10). Apparently, he was looking to see whether she was home. When he saw that Ex-Wife‘s truck was not parked at her house, he performed an internet search of Boyfriend‘s name on his phone and found Boyfriend‘s address.
¶13 Kitches drove to Boyfriend‘s house, arriving at approximately 4:30 a.m., and aggressively pounded on the front door. In the process, he realized that Boyfriend‘s doorbell had a camera on it, so he pulled the doorbell out of the wall. He also sent Ex-Wife a text message that said he was “coming in” to take the children. Ex-Wife was frightened by the fact that Kitches had found her in the first place, and Boyfriend immediately contacted the police.
¶14 The police arrived at Boyfriend‘s house at approximately 4:40 a.m., by which time Kitches had already fled the scene. Ex-Wife spoke with police and was visibly “frantic, especially about the welfare of her children.” While she was providing a witness statement to the officer, Kitches called Ex-Wife on her cell phone. The officer answered Ex-Wife‘s phone and spoke to Kitches. Kitches was aggressive on the phone and expressed his concern that his children were in the house while Ex-Wife was having sex in the next room. He then cursed at the officer before hanging up the phone. Soon after, Kitches messaged Ex-Wife stating,
I know that wasn‘t a cop. You dumbass mother F‘er. . . . Come outside. Come outside. Come outside now. What, you can‘t have a conversation? What are you afraid of me you F‘ing mother F‘er? . . . And you call yourself a good mother. Really, a good mother sleeping with a guy after three F‘ing weeks with the kids.
¶15 Kitches sent this text message in the course of driving to Ex-Wife‘s parents’ house, where he arrived at approximately 5:00 a.m. Kitches snuck around to the back of the house and entered through an unlocked door. After getting inside the house, Kitches
¶16 Ex-Wife went to get her children from her parents’ house as soon as she finished speaking with police and arrived there at approximately 6:00 a.m. Ex-Wife‘s father informed her that he had observed Kitches enter the house about an hour earlier, and she immediately called the police again. While Ex-Wife was speaking to police, Kitches continued to send her text messages calling her a “slut” and threatening to seek sanctions in their divorce case because she spent the night at Boyfriend‘s house. He also denied that he went to Ex-Wife‘s parents’ house that morning, claiming he “was with [his] girlfriend.”
¶17 Two days later (September 12), Ex-Wife sent Kitches an email telling him to stop emailing Boyfriend. Kitches implied that Boyfriend invited the ongoing emails, and the two sent a few emails back and forth arguing about this issue. Ex-Wife again turned Kitches‘s phone plan off because she was frustrated and felt as though Kitches‘s conduct was taking over her life: he was emailing her at work about the video (after claiming that he deleted it), he was communicating with Boyfriend and potentially ruining that relationship, and her parents had suddenly become involved. Kitches signed up for his own phone service that day and sent the following message to Ex-Wife:
Every Friday for two months, Sunday night and others, you leave around noon and I can‘t get [the children] until 5, Saturday, Sunday and all the other times I don‘t know. Great mom. Great mom out sleep around. Um, great mom out sleep around. Class. We‘re all proud of you two weeks and F‘g with a troll. Sorry making love. At least when you get prego I don‘t have to pay. You are a B telling the kids on me. Wow, I‘m so angry. Your fault. . . . Oh, sorry your legs are probably above your head.
¶18 The following morning (September 13), Kitches sent Ex-Wife a text message containing clips of the video he made of the two of them having sex. He followed up by sending the video to both her personal and work email addresses. The emails consisted only of the video attachments. Ex-Wife called the police and finally decided to pursue charges about the video because,
He‘s now taunting me with—he‘s now physically sent me a video that I never consented to, but he‘s been threatening to do it for the past five days. That I have not gone to any law enforcement. I just have asked him to delete them. And . . . at some point I had to do something because I—what this was doing to me emotionally, I had to—I had to fight back. I had to do something.
¶19 The next day (September 14), Kitches spoke with two detectives at the police station. He claimed the video was made approximately nine months earlier, around December 2016 or January 2017, and that Ex-Wife was aware she was being recorded at the time. But Kitches allowed the detectives to download the contents of his phone, and the files showed that the video was created on July 18, 2017, only two months earlier. When the officer pointed out this discrepancy, Kitches claimed he misinterpreted the prior question about the date the video was made. Kitches also initially denied he sent the video to anyone, but he later admitted that he sent it to Ex-Wife as “an implied threat.”
¶20 As part of the investigation, a detective specializing in burglary also questioned Kitches about the morning of September 10. Kitches claimed he went to Boyfriend‘s house to “make sure the kids were okay,” but he also admitted that he wanted to “send[] a message” and make Boyfriend fear him. Kitches also denied that he went to Ex-Wife‘s parents’ house that morning, accusing Ex-Wife and her father of concocting the story and filing a false police report in retaliation for Kitches not agreeing to switch weekends for parent-time with the children.
¶21 Police arrested Kitches that afternoon. They later executed a search warrant for his
¶22 At trial, Ex-Wife testified about the content of both videos—the recording of the sexual encounter and the recording of her taking a shower—and stated that she did not consent to being filmed on either occasion. She explained that the video of the sexual encounter depicted events on July 18, 2017, and she had no idea she was being recorded. That day, Ex-Wife visited the marital home to pick up some of her belongings and Kitches talked about reconciling in a very “heartfelt” manner, and this conversation led to physical intimacy in the guest bedroom. Kitches‘s phone—the recording device—evidently was placed on a dresser in the guest bedroom, and the video depicts the room as being empty before Kitches led Ex-Wife into the room with him, lay down on the bed, and requested to have sex with her. In the video, Ex-Wife expressed concerns about getting intimate in the guest room because she thought a neighbor might be able to see them through the window, but Kitches insisted that it was “okay” and the neighbor could not see them. She eventually consented to the sexual encounter.
¶23 Regarding the shower recording, Ex-Wife testified that it too was recorded in the marital home, but it must have been recorded before March 15, 2017—the date she moved out of the marital home. She testified that, based on her observation of the video, “it looks from the angle that it was kind of tucked in the corner, and it almost looks like it was hidden or covered somewhat by, like, a towel, to where I wouldn‘t even . . . look to see if there was a phone or filming device in there.” Ex-Wife testified that she never recorded herself taking a shower in the bathroom nor had she ever agreed to be recorded in the shower on any occasion.
¶24 Kitches moved for a directed verdict generally on all counts. But in arguing his motion, Kitches specifically took issue with two counts. First, he argued that he could not be convicted for voyeurism-distribution for sending the recording of the sexual encounter to Ex-Wife. Second, he argued that he could not be convicted for trespassing because he reasonably believed he had permission to enter Ex-Wife‘s parents’ house. The trial court denied Kitches‘s motion in its entirety. Subsequently, the jury convicted Kitches on all counts. He now appeals each of his convictions.
PRESERVATION
¶25 Kitches asks for reversal, arguing that the State failed to present sufficient evidence to support any of the charges and, accordingly, the trial court should have granted his motion for a directed verdict. He also raises alternative challenges urging us to vacate and remand his voyeurism-distribution and stalking convictions, asserting that the jury was improperly instructed on the elements of these charges. Kitches maintains that he preserved all but one of his claims. He concedes that trial counsel did not object to the allegedly erroneous stalking instruction, and he asks us to review that issue for ineffective assistance of counsel.
¶26 The State argues that almost none of Kitches‘s claims were preserved and asserts that we should only review the unpreserved ones for ineffective assistance of counsel. But as we discuss below, in our view all the allegedly unpreserved claims fail on their merits anyway.
¶27 We recognize that “[o]ur rules of preservation are critical to the appellate process and are themselves an important mechanism for promoting fairness.” State v. Larrabee, 2013 UT 70, ¶ 32, 321 P.3d 1136. And because of this, “we should not dilute [our preservation rules] by stretching their standards to justify our consideration of a question we find interesting or important.” In re Baby Girl T., 2012 UT 78, ¶ 56, 298 P.3d 1251 (Lee, J., dissenting). Thus, we
¶28 With these principles in mind, if the merits of a claim can easily be resolved in favor of the party asserting that the claim was not preserved, we readily may opt to do so without addressing preservation. This approach accords with the purpose of our preservation rules, as it prioritizes judicial economy without altering the incentive to object at trial. See, e.g., United States v. Weed, 873 F.3d 68, 72 (1st Cir. 2017) (“Because [the defendant‘s] claims are easily disposed of on the merits, we decline to decide this preliminary question [of preservation] . . . .“); United States v. Navarro, 800 F.3d 1104, 1113 (9th Cir. 2015) (choosing to exercise its discretion to reach the merits of the defendant‘s unpreserved constitutional claim because the court had “little doubt” that the defendant “failed to demonstrate a constitutional violation“); Wilson v. Ozmint, 352 F.3d 847, 868 (4th Cir. 2003) (choosing to reach the merits of the defendant‘s unpreserved claim in part because the claim was “patently without merit and therefore easily disposed of” and addressing the merits thus served the interest of judicial economy (cleaned up)); State v. Webster, 865 N.W.2d 223, 232 (Iowa 2015) (noting that courts may dispatch cases on the “underlying merits” without deciding the question of preservation). In this case, because we can easily dispose of Kitches‘s claims on their merits, we choose to exercise our prerogative to simply assume that Kitches‘s claims were preserved and proceed to consideration of the merits.
ISSUES AND STANDARDS OF REVIEW
¶29 As noted above, Kitches asserts that all his insufficiency of the evidence claims were preserved by his directed verdict motion. “We review a trial court‘s ruling on a motion for directed verdict for correctness.” State v. Doyle, 2018 UT App 239, ¶ 11, 437 P.3d 1266 (cleaned up). “We will uphold the trial court‘s decision if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt.” Id. (cleaned up).
¶30 We review the allegedly preserved voyeurism-distribution jury instruction error for correctness. See State v. Cegers, 2019 UT App 54, ¶ 19, 440 P.3d 924. And we review the concededly unpreserved stalking instruction error for ineffective assistance of counsel, which presents a matter of law. See State v. Cruz, 2020 UT App 157, ¶ 15, 478 P.3d 63.
ANALYSIS
I. Voyeurism
¶31 Kitches contends that the State failed to present sufficient evidence to support either voyeurism conviction. He principally argues that the evidence presented at trial was insufficient to show that Ex-Wife did not consent to being recorded in either instance.
¶32 Utah‘s voyeurism statute provides,
A person is guilty of voyeurism who intentionally uses any type of technology to secretly or surreptitiously record video of a person:
(a) for the purpose of viewing any portion of the individual‘s body regarding which the individual has a reasonable
expectation of privacy, whether or not that portion of the body is covered with clothing; (b) without the knowledge or consent of the individual; and
(c) under circumstances in which the individual has a reasonable expectation of privacy.
¶33 Kitches first contends the evidence was insufficient to show that the recording of the sexual encounter on July 18, 2017, amounted to voyeurism. He argues that the evidence introduced at trial demonstrated that Ex-Wife was “relatively unconcerned” about the existence of the video and was instead concerned only about it being disseminated—which we infer is meant to suggest that if Ex-Wife had not consented to making the video, she would have emphasized this particular point of concern more forcefully. He also points to other evidence that may suggest Ex-Wife consented to or otherwise knew she was being recorded, such as a moment of the video which appears to show Ex-Wife looking in the direction of the recording device.
¶34 Kitches‘s arguments are unavailing. The State introduced ample evidence to show that Ex-Wife did not consent to being recorded during the sexual encounter. For one thing, as correctly pointed out by the State during closing arguments, what the video depicts was itself circumstantial evidence tending to show “a calculated effort on [Kitches‘s] part to lure [Ex-Wife] into th[e] bedroom [and] persuade her to have sex, because he knew that there was a camera running.” Moreover, Ex-Wife later explicitly stated to Kitches that she did not and would not consent to being recorded in such a video. And notably, Kitches never responded to Ex-Wife by suggesting that she did consent to being filmed. The jury reasonably could infer that Kitches‘s silence in response to Wife‘s direct assertion of non-consent was a tacit admission that Ex-Wife‘s version of events was correct. Relatedly, Kitches‘s own statement to Boyfriend that he filmed Ex-Wife on the purported advice of his lawyer so that Ex-Wife could not “accuse [him] of anything” further supports that Kitches filmed the encounter without Ex-Wife‘s knowledge or consent. Regardless, Ex-Wife directly testified at trial that she never consented to being filmed. And given the particular facts of the case and the nature of the charge at issue, this testimony in and of itself was “some evidence” of Ex-Wife‘s lack of consent that would justify submitting the issue to the jury. See supra ¶ 29.
¶35 As the foregoing demonstrates, Kitches‘s arguments amount to nothing more than assertions that conflicting evidence was introduced on this element. “But the existence of conflicting evidence alone cannot justify taking the case away from the jury. To the contrary, when the evidence presented is conflicting or disputed, the jury serves as the exclusive judge of both the credibility of witnesses and the weight to be given particular evidence.” State v. Cruz, 2020 UT App 157, ¶ 23, 478 P.3d 631 (cleaned up). Here, the jury could permissibly resolve that the substantial evidence demonstrating Ex-Wife‘s lack of consent to being recorded outweighed the comparably minimal evidence that may have allowed a different finding.
¶36 Kitches next contends that the evidence introduced in support of his voyeurism conviction for the shower recording was
¶37 Kitches‘s arguments again are unpersuasive. As before, what the video depicted was circumstantial evidence that Ex-Wife was unaware she was being recorded, and Ex-Wife also directly testified that she never was aware of or consented to being recorded in the shower. The State thus introduced sufficient evidence that Kitches filmed Ex-Wife in the shower without her consent. Second, it was never in any genuine dispute that the video was both recorded in the master bathroom of the marital home and recovered from Kitches‘s computer. These facts permitted a reasonable inference that Kitches was the individual who recorded Ex-Wife in the shower. And Kitches‘s final argument about the date is irrelevant to whether the evidence introduced at trial was sufficient because “the specific date of the act is not an element of the crime.” State v. Gulbransen, 2005 UT 7, ¶ 31, 106 P.3d 734, abrogated on other grounds by Met v. State, 2016 UT 51, 388 P.3d 447; see generally
¶38 Based on the foregoing, the State presented sufficient evidence to support both of Kitches‘s voyeurism convictions. Accordingly, we reject his contention that we should reverse these convictions.
II. Voyeurism-Distribution
¶39 Along with his voyeurism convictions stemming from recording Ex-Wife in the sexual encounter and in the shower, Kitches also was convicted for distribution under the voyeurism statute—a separately defined offense that carries a higher penalty for distributing the voyeuristic material. See
¶40 Subsection (3) of the voyeurism statute5 outlines the offense of voyeurism-distribution. As is relevant, it provides that “[d]istribution or sale of any images, including in print, electronic, magnetic, or digital format, obtained under [the subsection of the statute that outlines the base offense of voyeurism]
¶41 Kitches argues that the ordinary and accepted meaning of distribution “necessarily means broadening access to an item, spreading out or dispersing,” and thus requires the defendant to have sent the voyeuristic material to “an individual who is not a party to the intimate act depicted.” And he asserts that such an interpretation is necessary to read subsection (3) in harmony with
¶42 Whether “distribution” under subsection (3) requires the defendant to distribute the offending material to a third party is a question of statutory interpretation. “When interpreting a statute, we rely first on the statute‘s plain language as the best evidence of the legislature‘s intent.” State v. Bilek, 2018 UT App 208, ¶ 24, 437 P.3d 544 (cleaned up). “In so doing, we read each term according to its ordinary and accepted meaning.” State v. Davis, 2011 UT 57, ¶ 21, 266 P.3d 765 (cleaned up). “We also presume that the expression of one term should be interpreted as the exclusion of another, thereby presuming all omissions to be purposeful.” Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (cleaned up). And “we read the language of the statute as a whole and also in its relation to other statutes.” Davis, 2011 UT 57, ¶ 21 (cleaned up). This is to say that we interpret the language of the statute at issue “in harmony with other statutes in the same chapter and related chapters.” State v. Rushton, 2017 UT 21, ¶ 18, 395 P.3d 92 (cleaned up).
¶43 We disagree that the ordinary meaning of distribution “necessarily means broadening access to an item.” (Emphasis added.) While distribution can denote a broadening of access, it also is defined more generally as “to deliver.” See Distribute, Black‘s Law Dictionary (11th ed. 2019). And the simple act of “delivery” is clearly met when the defendant sends the voyeuristic recording to any person, including the person depicted.6 But the same would be true even if we were to accept Kitches‘s preferred definition that distribution requires “broadening access to an item.” Under subsection (3), the “item” of concern is the recording that was “obtained under [s]ubsection (1)“—i.e., the voyeuristic recording. See
¶44 And although we agree that the revenge-porn statute is a related statute that should be harmonized with subsection (3), that statute further elucidates that “distribution”
subsection (3) whether the defendant sends the voyeuristic recording to the victim or to another person. Kitches‘s argument to the contrary fixates on the fact that, in setting forth the elements of the offense, the revenge-porn statute specifies that distribution must be “to any third party.”
“Distribute” means selling, exhibiting, displaying, wholesaling, retailing, providing, giving, granting admission to, providing access to, or otherwise transferring or presenting an image to another individual, with or without consideration.
¶ 45 Such an interpretation also harmonizes the statutes’ respective purposes. As a general matter, the revenge-porn statute is intended to prevent a situation in which the victim is willingly recorded and willingly provides that recording to the defendant (either by sending it to the defendant or by consenting to the defendant recording the act depicted), and the defendant then turns around and distributes that recording to a “third party,” i.e., someone to whom the defendant “knows that the depicted individual has not given consent to the [defendant] to distribute the intimate image.” See
¶ 46 In contrast, the voyeurism statute applies to situations in which the victim never consented to being recorded in the first instance but was instead “secretly or surreptitiously” recorded. There is thus nothing inherent in the base offense which then necessarily requires that subsection (3) apply only to instances in which the defendant sends the recording to a third party. And the particular facts of this case illustrate one reason why the voyeurism statute specifically omits any mention of a “third party” requirement. Kitches all but admitted he sent the video to Ex-Wife to cause her emotional distress when he acknowledged that he sent it as “an implied threat.” And Ex-Wife testified that watching the video indeed caused her emotional distress:
It was probably one of the most emotionally draining things. I—I did not want to watch it. I—that was a moment between . . . felt like that was a private moment between the two of us, and it made me feel dirty, and it shouldn‘t. It made me feel an inch tall. It was embarrassing, humiliating. It was—I should not have had to have watched that or seen that . . . .
¶ 47 Based on the foregoing, we reject Kitches‘s statutory arguments and hold that the undisputed evidence that he sent the video to Ex-Wife constitutes “distribution” under subsection (3). We thus reject Kitches‘s contention that the evidence was insufficient to support his conviction. We likewise reject his related contention that the trial
III. Stalking
¶ 48 Kitches also assails his stalking conviction on two separate grounds, but both are premised on the notion that the State failed to present sufficient evidence that he engaged in “two or more acts” as are needed to commit the offense. See
¶ 49
A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person:
(a) to fear for the person‘s own safety or the safety of a third person; or
(b) to suffer other emotional distress.
(i) acts in which the actor follows, monitors, observes, photographs, surveils, threatens, or communicates to or about a person, or interferes with a person‘s property:
(A) directly, indirectly, or through any third party; and
(B) by any action, method, device, or means; or
(ii) when the actor engages in any of the following acts or causes someone else to engage in any of these acts:
(A) approaches or confronts a person; [or]
. . .
(D) sends material by any means to the person.
¶ 50 We have thus characterized stalking as “inherently an offense of repetition,” given the requirement that the actor engage in two or more acts directed at the victim. Hardy v. Hardy, 2020 UT App 88, ¶ 6, 467 P.3d 931 (cleaned up). But in determining whether an act counts toward the course of conduct, we have also made clear that the acts must be viewed “cumulatively in light of all the facts and circumstances.” Butters v. Herbert, 2012 UT App 329, ¶ 12, 291 P.3d 826 (cleaned up). So, although a single incident may not appear to be a qualifying act directed at the victim, an objective evaluation of all the circumstances—particularly the nature and timing of the acts—may indeed show that the incident was part and parcel of a broader course of conduct directed at the victim. See Ragsdale v. Fishler, 2020 UT 56, ¶ 37; Butters, 2012 UT App 329, ¶ 15; Ellison v. Stam, 2006 UT App 150, ¶ 38, 136 P.3d 1242.
¶ 51 To be frank, the State introduced an arsenal of evidence to show that Kitches engaged in “two or more acts” directed at Ex-Wife. First, the evidence demonstrated that he “monitor[ed]” Ex-Wife‘s text messages for approximately two weeks. See
¶ 52 Kitches specifically takes issue with only two of the above-recited acts. As a result, we need not engage with Kitches‘s arguments because, even if correct, he still fails to challenge the bevy of other distinct acts in which he engaged that establish the course of conduct element.11 We thus reject Kitches‘s contention that the evidence was insufficient to support his conviction for stalking.
¶ 53 And we reject Kitches‘s ineffective assistance claim regarding the allegedly erroneous jury instruction for largely the same reason. To prevail on this claim, Kitches must show that counsel‘s failure to object to the alleged error “prejudiced the defense.” State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871 (cleaned up). And even assuming the jury was erroneously instructed that it could convict Kitches of stalking if it found that he engaged in fewer than two acts and that counsel should have objected to the instruction, “[t]he burden is on [Kitches] to demonstrate a reasonable probability that the outcome of his . . . case would have been different absent counsel‘s error.” State v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350; see also State v. Grunwald, 2020 UT 40, ¶ 22, 478 P.3d 1 (“When applying [the] prejudice analysis in the context of erroneous jury instructions, we must determine whether there is a reasonable probability the jury would not have convicted the defendant if the jury instructions had been correct.“). Given that the evidence demonstrated that Kitches engaged in numerous acts directed at Ex-Wife—most of which he does not even dispute—he cannot demonstrate a reasonable probability that the jury would have acquitted him if the instruction had been perfectly accurate.12
¶ 54 Finally, Kitches contends that the State failed to present sufficient evidence to support his conviction for criminal trespass. As he did at trial, Kitches concedes that he did enter Ex-Wife‘s parents’ house on the morning of September 10 but primarily argues that he reasonably believed he had permission to enter the house that morning. He essentially argues that the testimony of Ex-Wife‘s father conclusively established this fact. As is relevant, Ex-Wife‘s father testified that, during Kitches‘s marriage to Ex-Wife, Kitches had “permission to enter [his] home, especially for the children,” but after the divorce, his contact with the household was limited to dropping the children off on Wednesday and Friday mornings.
¶ 55 A defendant is guilty of criminal trespass if the defendant (1) knowingly13 “enter[ed] or remain[ed] unlawfully” on property, and (2) was “reckless as to whether [their] . . . presence [would] cause fear for the safety of another.”
¶ 56 Kitches argues that the State failed to introduce sufficient evidence to show that he either knowingly entered the house unlawfully or was reckless as to whether his presence in the house would cause fear for the safety of another. In so arguing, he characterizes Ex-Wife‘s father‘s testimony as establishing that, during the marriage, he had permission to enter the house provided that his entry “related to the children,” and because no one told him that these privileges of entry had been revoked or narrowed, he reasonably believed he had permission to enter the house on September 10 to check on his children. Based on this premise, he argues that the evidence necessarily was insufficient to show that he had the requisite mental state
¶ 57 We disagree. First, the bare factual circumstances—which were not in dispute at trial or on appeal—permitted a reasonable inference that Kitches knowingly entered the house unlawfully. Kitches entered the house at an unusually early morning hour (5:00 a.m. on a Sunday), did so by sneaking around the back of the house, silently entered through an unlocked door, and failed to announce his presence to anyone in the house. From these facts alone, the jury could infer that Kitches silently entered and moved throughout the house because he knew his entry was unlawful and thus intentionally tried to conceal his presence. And to this point, Kitches initially lied both to Ex-Wife and the police about entering the house, categorically denying that he did so. This further suggested that he knew he did not have permission to enter the house. One would expect that an individual who honestly believed they had permission to enter the house would simply advance that understanding—especially to the police—rather than denying entry altogether. Kitches‘s discussion about his purportedly reasonable belief that he had permission to enter the house that morning is, at most, conflicting evidence of his mental state that was solely within the jury‘s province to weigh and reject. See supra ¶ 35.
¶ 58 With the foregoing in mind, the State also presented sufficient evidence that Kitches was reckless as to whether his entry would cause fear for the safety of another. Kitches snuck into an occupied residence through the back door at 5:00 a.m. In other words, his entry occurred in a manner and at a time that would suggest to reasonable occupants that the house was being burglarized. See, e.g., State v. Sisneros, 631 P.2d 856, 859 (Utah 1981) (noting that “[w]hen one breaks and enters a building in the nighttime, without consent, an inference may be drawn” that the defendant committed burglary). Based on this, the jury could permissibly conclude that a reasonable person would know that such an entry would create a substantial and unjustifiable risk that an occupant would fear for personal safety on seeing a potential intruder—which, as Ex-Wife‘s father testified, is exactly what happened here. Correspondingly, the jury could reasonably infer that Kitches was subjectively aware of and disregarded this risk. And again, the fact that he did not disguise himself before breaking into the home is only conflicting evidence of his mental state which the jury was free to disregard. See supra ¶ 35.
¶ 59 Based on the foregoing, we reject Kitches‘s contention that the State did not present sufficient evidence to support his conviction for trespassing.
CONCLUSION
¶ 60 We reject each of Kitches‘s contentions in which he seeks reversal of his convictions on the basis that the evidence was insufficient to support them. And for related reasons, we reject his contentions in which he seeks remand of his voyeurism-distribution and stalking convictions.
¶ 61 Affirmed.