*1 conversion, only to was entitled Lysenko premises equipment remove the terminated. had been his sublease

Therefore, damages correct measure equipment Lysenko's the value that Accordingly, the if removed. would have correctly affirmed the appeals

court of equipment's to award

court's decision affirm the court

salvage thus value. We it but for

appeals to the result reached as opinion. in this

reasons stated

[ HOWE, Justice 25 Chief Justice DURRANT,

DURHAM, Judge Justice concur in Associate Chief Justice

ALLPHIN opinion.

RUSSON's himself, Having disqualified

T Justice herein; participate does not

WILKINS ALLPHIN sat. Judge MICHAEL G.

District App.

2000 Utah Ct. CITY, LAKE Plaintiff

SALT Appellee, ROBERTS, Defendant

Keith Appellant.

No. 990876-CA. of Utah.

Court

June 2000. *2 Orem, McCullough, Appel-

W. Andrew for lant. Daynes,

Richard W. Salt Lake Prose- Office, City, Appellee. cutor's Salt Lake BENCH, BILLINGS, Judges Before ORME.

OPINION BILLINGS, Judge: appeals T1 Defendant his conviction for conduct under Salt Lake part Code section affirm in 11.16.100. We and remand with instructions.

FACTS City police Two undercover Salt Lake officers parking followed defendant's car to a lot behind a bar the woman he had picked up prostitute. was a known One offi- arrived, cer testified that when numer- patrons ous arriving of the bar were lot, leaving parking anyone and that could walk back to in the area the lot where couple parked, which was behind two flatbed trucks. He stated the car was an area that was view." However, to observe defendant and his com- them, panion being spotted by without "parked officers front bar so [defen- companion] dant and his couldn't see [the police] car snuck around on foot and approached car." One officer then crawled underneath one of the flatbed trucks approach the car so he could not be seen. emerging The officer testified that after standing under the flatbed truck he was "15 stated, away." to 20 feet The officer "I could sitting see into the back window. She was passenger seat I turned toward him. shirt, saw exposing her lift her her breasts. put I saw the driver his mouth to her breasts approached . and that's I when the car from the back." The officer further testified prohibit and state law is to bit of nance "gave them a little trucks places public may behavior where the room," his com- that defendant and hiding Compliance with affronted or offended. hidden" behind panion were "somewhat city preclude compliance ordinance does trucks, member of the and that no with state law or vice versa. See Walker the truck likely underneath to crawl would be *3 Co., 335, Pac. R.R. P.2d Union 844 339-40 However, conduct. defendant's to observe (Utah Ct.App.1992) (holding city ordinance person repeatedly that a stated the officer preempted by ordinance law because had where defendant get to the area could state prohibited specifically act allowed under crawling under the truck. parked without law). Accordingly, we affirm trial state trial, was Following a bench defendant T3 City court's conclusion that Lake Code Salt under section convicted § 11.16.100is valid as it does not conflict City of the Lake Code. 11.16.100 Salt with state law.1 ANALYSIS IL "Sexual Conduct" argues that 15 Defendant next City I. Ordinance support finding that facts do not he "[eln- city asserts the %4 Defendant first gage[d] sexual conduct with another convicted is under which he was ordinance 11.16.100(B) by person," prohibited as section mirror the state it does not invalid because exposure an intentional of his ... or "maldle governing lewdness. See Utah Code statute area, any portion genitals, pubic buttocks or (1996). question § This is a Ann. 76-9-702 nipple the areola of the female and/or law; thus, review it for correctness. we breast," prohibited section as Anderson, v. 910 P.2d See State 11.16.100(C)2 We review the trial court's 1996). (Utah Supreme Court has The Utah clearly findings factual under a erroneous passed municipalities held that ordinances O'Brien, P.2d See State v. standard. they or con are inconsistent are valid unless (Utah Ct.App.1998). Gym Redwood v. flict with state law. See Comm'n, the trial 16 We conclude the facts before County 624 P.2d Lake Salt beyond show a rea- court were sufficient to (Utah Allred, 1981); City Salt Lake (1968); 298,299, "engaged in doubt that defendant 437P.2d sonable 20 Utah 2d (1999). meaning within the of the § sexual conduct" Code Ann. 10-8-84 see also Utah City Lake Code defines law are not ordinance. Salt Municipal ordinances and state masturbation, "human pur conduct" as "sexual inconsistent when share common intercourse, any touching subject or "closely mat pose related and are Allred, Furthermore, genitals, human female covered or uncovered at 487. ter." 487 P.2d breast, the human pubic areas or buttocks of identical "municipal ordinance need not be female, alone or between whether consis male or controlling state statute to be to the Walker, City 790 members of opposite sex." it." tent with the same or Salt Richfield Undisputed § 11.16.010. Lake Code case, In Ct.App.1990). this P.2d the arrest- testimony that one of Lake established language of the Salt the fact that parked in his car saw defendant officers the state does not mirror ordinance of the woman he kissing the breasts ordinance invalid. does not render the statute exposed geni- defendant's city was with and saw purpose ordi- The common of both section 11.16.100 additionally 2. Defendant contends contends the terms of 1. Defendant conduct," unconstitutionally vague basing his make it not define "sexual the ordinance does C, interpretation argument of subsection raises this on However, void. defendant and thus appeal. argument "[Issues on for the first time genitals. exposure governing intentional appeal will be ad raised for the first time on conduct" is defined section "sexual only proceedings dem the trial court dressed if could rea- the trial court 11.16.010, and because Olsen, 'plain error'" onstrated sonably sexual conduct oc- have found that (citation omitted). (Utah 1993) P.2d curred, argu- not address defendant's we need al to demonstrate or even Defendant has failed regarding subsection C. ment court; thus, lege plain we do error the trial argument. vagueness his not address Street," testimony sufficiently supported a "{nlo tals. This Maunakea and where evi- any pedestrian finding of "sexual conduct." dence of or vehicular traffic offered," on the lane was the court held "it "Open to III Place Public View" improbable was acts would [defendant's] public" be observed members of the argues Finally, defendant that he T7 reversed conviction. State improperly convicted he was because was Broad, 61 Haw. 1379-82 public "in a view" when the (1979). § sexual conduct occurred. See 11.16.100. id. court defendant "in a The trial found 19 As the Court of of New place open to view" under the ordi out, pointed necessary interpret York "it is nance defendant "was [in] apply the statute here in a manner that *4 parking place. lot" when the conduct took comports purpose." with People its Defendant claims the district court's inter McNamara, 78 N.Y.2d 578 N.Y.S.2d pretation statutory language the in was (1991)(interpreting 585 N.E.2d interpreta error. "Because a district court's "public place"). term "That a member of the legal question, tion of a statute is a we review public may pass by certainly part is of the Stubbs, ruling its for correctness." Jeffs public place, essence of a harm and the to (Utah 1998). 970P.2d person's precisely such a sensibilities is Conversely, aimed at the portion statute. where T8 The relevant of the ordinance likely, no such harm is the any person, states: "It shall be unlawful for statute is not Thus, view, agree violated." Id. we place open public in with the New while a to to conduct, performed York willfully: "[slexual ... court that acts in Engage B. in sexual parked prosecuted person." may cars ... [under alone or with another Lake Salt § Code 11.16.100. No Utah case has objective the ordinance] when the cir cumstances establish that the acts "open public defined what constitutes lewd com to likely mitted view" there can and would under the ordinance. in be seen situations, passerby." a casual addressing jurisdic- similar Id. other emphasized tions have the na- fact-intensive T10 Defendant contends the fact that inquiry. example, Ap- ture of the For the parked night he his car at behind flatbed pellate Court Illinois held that consensual lot, trucks in the rear parking area of the activity city park sexual in a which two-story was bordered a cement lagoon, near the at seven o'clock the wall, fence, a chain-link and a closed busi morning September, on the first of on a ness, support does the trial court's con bright, sunshiny day, people where walked public clusion that he "in was a to (as dogs jogged their the defendant view," doing), was himself and where the defen- only dant not could have been but in fact case, T11 In this the trial court police riding was seen officer parking concluded that the lot the behind bar road, automobile on an access was indeed public was to view" under the ordi "public place" [in] there awas apparently upon nance. The court relied the high probability that the deviate conduct place public fact that the conduct took in a would be viewed other members lot, trial, parking stating at "I think the public. problem language is that [of the ordi Baus, Ill.App.3d with, tough nance] N.E.2d is to deal but I'm not involy- (1973). contrast, In going in a case struggle to with it too much. It was a parked lot, view, sexual occurring public parking my conduct in a it was [there vehicle "in a opposite open public turnaround area a resi to fore} view." We conclude the am., dence" at 3:30 where "the judge applied legal car was an incorrect stan public dard equating parking lot to the lights," stationed between two street where persons police "no other than the statutorily required "place open public officers saw to [defendant,] lot, they A parking themselves would not view." such as one him they have seen had not followed him behind the bar where defendant's (re- Ct.App.1993) P.2d open occurred, "place may not be a may or the ordinance. purposes of public view" for findings were manding trial court's of each on the facts inadequate appellate turns court to determine This determination the con key inquiry is whether ap- properly case. legal whether standard by a member likely to be observed plied). duct is Broad, at 1381 public. See Rocker, 336, 475 52 Haw. (quoting State CONCLUSION (1970) (stating that "the trier P.2d public if finding place justified in 1 13 affirm the trial court's conclusion

fact is We § likely Lake Code 11.16.100is valid. that Salt it is to be exposure is such that observers")3 casual by a number of seen the facts before the trial court We conclude beyond a sufficient to show reasonable were { that the officers indicates 12 The record "engaged in con- that defendant doubt bar; car to the had followed meaning of the ordinance. duct" within passed by spotted the merely had not cannot determine as matter of Because we kissing defendant activity. officer saw One con- from the record whether defendant's law companion, but of his breast place "open occurred in a duct the flat- officer crawled under only after the view," we remand with instructions that truck, would the officer admitted bed which legal set forth *5 apply court the standard passerby or trial thing a casual an unusual for opinion. should then tes- in this The court the officers patron to do. bar arriving conviction de- patrons were reaffirm or vacate defendant's tified that numerous any of parking lot and that whether or not leaving pending the on its determination place open walked to the area where "in them could have occurred a to the conduct public view." officer parked his car. One defendant had the that he could see con- further testified standing twenty to fifteen duct at issue when ORME, K. 114 I GREGORY CONCUR: the record away from the car. From

feet Judge. us, as a matter we cannot before determine BENCH, (dissenting part): Judge "in defendant was or was not of law whether Accordingly, open public view." place a to [ I II the agree I with sections 15 the trial court with this case to we remand however, disagree, I with see- opinion. main apply law as set forth to the instructions the trial III I do not believe tion pre- previously opinion this to the evidence whether this sex- needs to redetermine court to determine whether sented place open to "in a conduct occurred ual public view." See State to conduct public view." (Utah Giron, Ct.App. 1121 948 P.2d inter- Although courts have not 116 Utah 1997) to re-exam- (remanding for trial court ordinance, we have had particular preted this presented previously "[bJecause ine evidence assessing experience in what is significant operating under a misun- trial court was the Hansen, In the search and sei- law"); open to view. derstanding of the State expecta- "plainly, the existence of diminished disagree with the dissent's conclusion 3. We purposes] privacy Amendment statutory language [for Fourth interpretation "in a tion the the interior of automobile does not transform place open public view" in this to McNamara, 'public place.'" People into a lewdness ordinance should be drawn conduct N.E.2d 578 N.Y.S.2d holding N.Y.2d decisions that Fourth Amendment (1991) "public place"). (interpreting term protection does not attach from unlawful search govern- policy Amendment police under the Fourth objects plain officer. While to view of may an automobile objects falling ing officer search long when an the law that has been "lilt disorderly conduct policy when posi- and the behind plain officer from a within the view of an place open public view" are subject 'in a are the occurs where he is entitled to be not tion Holden, search," entirely controls officer different. The former 964 P.2d State v. of an unlawful (Utah Amendment; the latter (quoting under the Fourth Ct.App.1998) State v. 318, 321 private Lee, 1981)), observing (Utah protects lewd citizens from this case does 633 P.2d comports interpretation with this Our challenge legality under the conduct. search with case law policy and isconsistent difference the New York Court Fourth Amendment. As argument: states. rejecting from our sister a similar noted in context, example, public parking we have consis he stood in a lot. zure Given evidencewhen tently allowedofficers to seize well-accepted standard in Utah case law re- " open position 'in from a the evidenceis view garding it be in a what means to lawfully public'" accessible to view, I see no need to look to the (Utah Holden, Ct.App.), 964 P.2d jurisdictions. foreign My case law of conclu- 1998) (Utah denied, (quot cert. 982 P.2d 88 foreign sion is the fact that the bolstered Lee, 1981)); 633 P.2d State v. jurisdictions opinion cited in the main would Belgard, see also State v. import "likely seen a casual [to bel (Utah Ct.App.1992) (stating that onee officer standard, passerby" required which nei- is "lawfully pub place is in a accessible to the plain language ther of the instant lic," officer is "free to observe whatever was ordinance nor the relevant Utah case law. open might in his view that have been ob Accordingly, outright I would affirm any general served other member of the judgment of the trial court. public"). undisputed 1 17 It is that the officer

instant case saw defendant kiss

breasts of the woman he was with and he exposed genitals.

saw defendant's It is also

undisputed officer witnessed this place lawfully

sexual conduct from a accessi- any general public-as

ble to member of the