2020 UT App 154

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ORLSON GENE CHARLES,

Appellant.

Opinion

No. 20190963-CA

Filed November 13, 2020

Seventh District Court, Monticello Department

The Honorable Don Torgerson

No. 191700081

K. Andrew Fitzgerald, Attorney for Appellant

Kendall G. Laws, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1 Orlson Gene Charles faced two misdemeanor charges—

lewdness involving a child and general lewdness—stemming 

from his actions involving a mother and her daughter. After a 

bench trial, the district court found that Charles, in the presence 

of a child under age fourteen, had committed an “other act of 

lewdness” under the relevant statute, and entered a judgment of 

conviction against Charles for lewdness involving a child, but 

determined that any conviction for general lewdness was 

merged into the conviction for lewdness involving a child. 

Charles appeals his conviction. We reject Charles’s two main 

arguments—that his actions did not constitute an “other act of 

lewdness” and that his conviction was unconstitutional—but we 

nevertheless reverse Charles’s conviction for lewdness involving 
State v. Charles

20190963-CA 2 2020 UT App 154

a child, because the State presented insufficient evidence of the 

daughter’s age. We remand the case to the district court for 

judgment of acquittal on that count, and for further proceedings 

regarding the general lewdness count.

BACKGROUND

¶2 One afternoon, a woman (Mother) was driving with her 

daughter (Daughter) and Daughter’s friend (Friend), whom 

Mother described, several times, as “two little kids” and “little 

girls.” Daughter was riding in the front passenger seat, and 

Friend was in the back seat. As Mother pulled into Friend’s 

driveway to drop Friend off, she saw Charles—a man she did 

not know—walking in the street. As the girls got out of the car

and began to walk toward the house, Mother noticed that 

Charles had stopped and was standing behind Mother’s vehicle, 

attempting to make eye contact with her through the window. 

Charles then began making two gestures toward Mother. With 

one hand, he placed two of his “fingers to his mouth in a V 

[shape] and [stuck] his tongue through it,” which Mother

interpreted as a simulation of oral sex and an “[o]ral sex invite.” 

At the same time, Charles had his other hand “over his crotch,” 

but she could not tell “if he was rubbing himself.”

¶3 Mother testified that she was “instantly alarmed.” She

remained in the car, looked back at Charles, and found him “still 

there doing that.” Over the course of the next few minutes, 

“every time” Mother looked in her rearview mirror she saw 

Charles “still standing back there doing that.” By Mother’s 

estimate, Charles continued to “star[e] at” her and make the 

same gestures for about five to seven minutes. Mother testified 

that she felt “scared” and was wondering why Charles was 

lingering there, making the gestures. She became concerned that 

Charles was potentially “out to hurt somebody” or “mess with 

little girls.” Eventually, Daughter returned to the car, and asked 
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20190963-CA 3 2020 UT App 154

Mother why “the man standing back there” was making the 

gestures and what the gestures meant. Based on this exchange 

and their subsequent conversation, Mother concluded that 

Daughter saw Charles and that he saw her, and observed that 

the events made Daughter “very nervous.”

¶4 Mother contacted police after leaving the scene, and an 

officer soon located Charles. After investigating, the State 

charged Charles with lewdness involving a child, a class A 

misdemeanor (count 1), and lewdness, a class B misdemeanor

(count 2). The basis for count 2 was the gestures made toward 

Mother, and the basis for count 1 was Charles “knowing that a 

child was present” when he made the gestures.

¶5 The case proceeded to trial, and at Charles’s request the 

matter was tried to the bench. Only two witnesses testified at 

trial: Mother and the responding officer. Neither witness was 

asked about Daughter’s age, and neither witness offered any 

evidence of Daughter’s exact age, although, as noted, Mother 

stated on several occasions that Daughter and Friend were “little

kids” and “little girls.”

¶6 During closing argument, Charles made no assertion that 

his actions had been a form of speech, or that conviction was 

barred on constitutional grounds; instead Charles argued that, 

although his conduct was “an act of impropriety,” it did not 

“rise[] to the level of . . . criminal lewdness” under the governing 

statute. The district court found Charles’s arguments unavailing, 

and determined “beyond a reasonable doubt” that Charles 

committed an “other act of lewdness,” and that he committed 

that act “in the presence of a child under the age of 14 years old.” 

The court stated that “there’s simply no interpretation of his 

conduct that is anything other than . . . misconduct of a sexual 

nature which makes it an other act of lewdness under the 

statute.” Under the facts, then, the court found that Charles had 

committed both class B misdemeanor lewdness (under count 2) 
State v. Charles

20190963-CA 4 2020 UT App 154

and class A misdemeanor lewdness involving a child (under 

count 1), but concluded that the two convictions merged,

reasoning that, since Charles’s behavior “was one act in the 

presence of a child and also in the presence of an adult,” it did 

not “warrant[] a separate charge.” The court therefore declined 

to enter a judgment of conviction on count 2, and entered a 

judgment of conviction only on count 1.

ISSUES AND STANDARDS OF REVIEW

¶7 Charles now appeals his conviction for lewdness 

involving a child, raising two main issues. First, he mounts a 

constitutional challenge, arguing that the district court violated 

his right to free speech by entering a conviction that criminalized 

“gestures that are protected by the First Amendment.” But

Charles raises this issue for the first time on appeal and, as we 

explain below, the issue is therefore unpreserved. Charles makes 

mention of the plain error exception to our preservation rules, 

but he fails to adequately brief the applicability of that exception.

¶8 Second, Charles asserts that the State failed to present 

evidence sufficient to satisfy two of the required elements of 

lewdness involving a child: that his conduct qualified as “any 

other act of lewdness” under the relevant statutes, and that his 

actions occurred “in the presence of a child who is under 14 

years of age.” The first issue—whether Charles’s actions, the 

facts of which are essentially undisputed, meet the statutory

definition of “other act[s] of lewdness”—presents a question of 

statutory interpretation. On such questions, “our review is for 

correctness.” See Biesele v. Mattena, 2019 UT 30, ¶ 31, 449 P.3d 1. 

The second issue—whether the State’s evidence of Daughter’s 

age was sufficient—presents a question of evidentiary 

sufficiency. “When reviewing a bench trial for sufficiency of the 

evidence, we must sustain the district court’s judgment unless it 

is against the clear weight of the evidence, or if we otherwise 
State v. Charles

20190963-CA 5 2020 UT App 154

reach a definite and firm conviction that a mistake has been 

made.” State v. Holland, 2018 UT App 203, ¶ 9, 437 P.3d 501

(quotation simplified); see also State v. Miller, 2017 UT App 171, 

¶ 7, 405 P.3d 860 (“We may reverse only when it is apparent that 

there is not sufficient competent evidence as to each element of 

the crime charged.” (quotation simplified)).

¶9 Finally, because we reverse Charles’s conviction for 

lewdness involving a child on the basis that the State failed to 

present sufficient evidence of Daughter’s age, but reject 

Charles’s remaining arguments, we briefly mention the district 

court’s decision that any conviction on count 2 (for lewdness) 

was merged into Charles’s conviction on count 1 (for lewdness 

involving a child).

ANALYSIS

I

¶10 Charles’s first challenge is constitutional: he asserts that 

his gestures were protected by the First Amendment to the 

United States Constitution, and that therefore his conviction in 

this case cannot stand. Charles acknowledges that he did not 

present this argument to the district court, and that the issue is 

therefore unpreserved. “A failure to preserve an issue in the 

[district] court generally precludes a party from arguing that 

issue in an appellate court, absent a valid exception,” of which 

there are three: “plain error, ineffective assistance of counsel, 

and exceptional circumstances.” State v. Johnson, 2017 UT 76, 

¶¶ 18–19, 416 P.3d 443. Thus, we may only reach the 

unpreserved constitutional issue if Charles “establish[es] the 

applicability of one of these exceptions.” See id. ¶ 19.

¶11 In the “statement of issues” section of his opening brief, 

Charles briefly references the plain error exception to our 
State v. Charles

20190963-CA 6 2020 UT App 154

preservation rules. But in the remainder of his opening brief, 

Charles fails to make any argument regarding the plain error 

exception, and makes no attempt to persuade us that this 

exception should apply on the facts of this case.1

¶12 “To prevail on a plain error claim, an appellant must 

show that (i) an error exists; (ii) the error should have been 

obvious to the [district] court; and (iii) the error is harmful, i.e., 

absent the error, there is a reasonable likelihood of a more 

favorable outcome for the appellant.” State v. Almaguer, 2020 UT 

App 117, ¶ 11, 472 P.3d 326 (quotation simplified). “For an error 

to be obvious to the [district] court, the party . . . must show that 

the law governing the error was clear, or plainly settled, at the 

time the alleged error was made.” Johnson, 2017 UT 76, ¶ 21

(quotation simplified). In his opening brief, Charles makes no 

effort to discuss these standards, and therefore fails to carry his 

burden of demonstrating that the district court committed 

obvious error in failing to step in, without being asked to do so, 

and halt the State’s prosecution of him on constitutional 

grounds. On this basis, we reject Charles’s claim that his 

conviction was unconstitutional.

 

1. After the State pointed out Charles’s failure to brief the plain 

error issue in his opening brief, Charles made some effort to 

address the issue in his reply brief. However, “[w]hen a party 

fails to raise and argue an issue on appeal, or raises it for the first 

time in a reply brief, that issue is waived and will typically not 

be addressed by the appellate court.” State v. Johnson, 2017 UT 

76, ¶ 16, 416 P.3d 443; see also Kendall v. Olsen, 2017 UT 38, ¶ 13, 

424 P.3d 12 (stating that it was “too late” for an appellant to 

address an issue “in his reply brief,” because it “deprives the 

appellee of the chance to respond”).
State v. Charles

20190963-CA 7 2020 UT App 154

II

¶13 Next, Charles asserts that the State’s evidence failed to 

satisfy two of the statutory elements of the crime of which he 

was convicted. The relevant statute provides as follows:

A person is guilty of lewdness involving a child if 

the person . . . intentionally or knowingly:

(a) does any of the following in the presence of a 

child who is under 14 years of age:

(i) performs an act of sexual intercourse or 

sodomy;

(ii) exposes his or her genitals, the female breast 

below the top of the areola, the buttocks, the 

anus, or the pubic area: 

(A) in a public place; or 

(B) in a private place under circumstances 

the person should know will likely cause 

affront or alarm or with the intent to arouse 

or gratify the sexual desire of the actor or 

the child; 

(iii) masturbates; or 

(iv) performs any other act of lewdness . . . .

Utah Code Ann. § 76-9-702.5(2) (LexisNexis Supp. 2019).2

Because there is no evidence that Charles performed an actual 

 

2. In charging documents, the State referenced the 2018 version 

of section 76-9-702.5. However, the statute was amended during 

the 2019 legislative session, and took effect on May 14, 2019, one 

day before the events at issue in this case. See Lewdness Statute 

(continued...)
State v. Charles

20190963-CA 8 2020 UT App 154

sexual act, exposed himself, or masturbated, the State relied on 

subsection (2)(a)(iv) and asserted that Charles’s actions 

constituted an “other act of lewdness.” The district court agreed, 

and also found that Charles had committed that act in the 

presence of a child under the age of fourteen.

¶14 Charles’s first statutory argument is that his actions 

did not constitute an “other act of lewdness.” His second 

statutory argument is that the State failed to present sufficient 

evidence of Daughter’s age, and therefore failed to satisfy one of 

the statutory elements of lewdness involving a child. We address 

each of Charles’s elements-based arguments, in turn.3

 

(...continued)

Modification Act, ch. 394, § 1, 2019 Utah Laws 2724, 2724. 

Because we apply the law as it exists at the time of the criminal 

offense, see State v. Clark, 2011 UT 23, ¶ 11, 251 P.3d 829 

(“[C]ourts must apply the law in effect at the time of the 

occurrence regulated by that law.” (quotation simplified)), we 

cite to the 2019 version of the statute. In any event, the 2019 

amendments are not relevant here, and neither party suggests 

that application of the 2019 version—as opposed to the 2018 

version—of the statute would change the outcome of this appeal. 

3. The phrase “other act of lewdness” appears identically in both 

the “lewdness” statute, Utah Code Ann. § 76-9-702(1)(d) 

(LexisNexis Supp. 2019), and the “lewdness involving a child” 

statute, id. § 76-9-702.5(2)(a)(iv) (LexisNexis Supp. 2019). Thus, 

on the facts of this case, if Charles’s first elements-based 

argument is correct, he can be guilty of neither count 1 (lewdness 

involving a child) nor count 2 (lewdness). His second elementsbased argument, however, goes only to count 1. 
State v. Charles

20190963-CA 9 2020 UT App 154

A

¶15 Our supreme court has discussed, at some length, the 

meaning of the “other act of lewdness” language found in Utah’s 

lewdness statutes. In State v. Bagnes, 2014 UT 4, 322 P.3d 719, the 

court began its analysis by noting that “[t]he term ‘lewdness’ is 

not defined by statute,” and concluded that the term should be 

given its ordinary meaning. Id. ¶¶ 13–14. After reviewing several 

dictionary definitions of “lewdness,” the court determined that 

the statutory language was meant to convey the notion of

“lascivious lewdness,” a term the court described as “lewdness 

involving misconduct of a sexual nature.” Id. ¶¶ 15–16. In 

particular, the court invoked the interpretive canon ejusdem 

generis, which provides that “general catchall terms appearing at 

the beginning or end of an exemplary statutory list are 

understood to be informed by the content of the terms of the 

list.” Id. ¶ 18. The court concluded that an “other act of 

lewdness” must be of “the same kind, class, character, or nature 

as those” acts that were “specifically enumerated” in the statute, 

such as a sex act, exposure, or masturbation. Id. ¶ 19 (quotation 

simplified). The court summed up its analysis as follows:

In other words, “other act[s] of lewdness”

encompasses conduct similar to, but not falling 

precisely within, the enumerated acts. The 

similarity, moreover, must be in terms of 

lasciviousness or indulgence of lust. So the catchall 

term applies to conduct that does not precisely 

amount to one of the enumerated lewd acts but 

that dramatizes, gesticulates, imitates, or simulates 

such acts. Thus, simulated masturbation qualifies 

as an “other act of lewdness.” And a parallel 

principle would extend to the other lewd acts 

enumerated by statute: A simulated sex act could 

amount to an “other act of lewdness,” as could an 

act of virtual exposure of private parts . . . .
State v. Charles

20190963-CA 10 2020 UT App 154

Id. ¶ 23 (quotation simplified); see also In re A.T., 2001 UT 82, 

¶¶ 11–13, 34 P.3d 228 (holding that “the simulation of 

masturbation in a public place with the intent to offend” would 

constitute an “other act of lewdness” under the statute).

¶16 In reaching its conclusion that Charles performed an 

“other act of lewdness,” the court cited and analyzed Bagnes and, 

with that case in mind, found that Charles’s actions constituted 

“misconduct of a sexual nature.” The court characterized 

Charles’s actions as “simulating oral sex” and an “invitation to 

oral sex.” The court then stated that “there’s simply no 

interpretation of [Charles’s] conduct that is anything other than 

. . . misconduct of a sexual nature,” and concluded that the 

actions constituted an “other act of lewdness under the statute.”

¶17 Charles assails this conclusion, claiming that the district 

court erred by characterizing his actions as sexual misconduct. 

Charles asserts that his gestures did not “rise[] to the level of . . . 

criminal lewdness” of a sexual nature, and instead compares 

them to “use of the middle finger.” We certainly acknowledge 

Charles’s point that, even though raising one’s middle finger 

toward another is a gesture that historically carried a sexual 

connotation, it is not always used or intended that way, and in 

modern times it is often used merely as a general insult or 

even an attempt at humor. See The Finger, Wikipedia, 

https://en.wikipedia.org/wiki/The_finger [https://perma.cc/

TU6H-PC89]; see also Brockway v. Shepherd, 942 F. Supp. 1012, 

1016 (M.D. Pa. 1996) (determining, in that case, that the act of 

raising one’s middle finger toward another was “not sexual in 

nature” and instead was “intended to express disrespect for and 

to offend” the person at whom it was directed). If all Charles had 

done here was raise his middle finger toward Mother and 

Daughter, we would certainly be presented with a different case. 

But Charles’s actions were significantly more sexually 

suggestive than merely raising one’s middle finger. Here, 

Charles simulated oral sex with his fingers and tongue while 
State v. Charles

20190963-CA 11 2020 UT App 154

staring at Mother, a person he did not know, and did so for five 

to seven minutes continuously, while placing his other hand on 

his crotch. These actions—unlike raising one’s middle finger—

are unambiguously sexual in nature, and would be alarming and 

offensive to any reasonable person under the circumstances. See 

In re A.T., 2001 UT 82, ¶¶ 10–13 (stating that a simulated sex act 

can qualify as an “other act of lewdness” when performed “with 

the intent to offend” and alarm the victim, assessed from the 

perspective of “an objective viewer”).

¶18 Given our supreme court’s instruction that a “simulated 

sex act” can “amount to an ‘other act of lewdness’” under the 

lewdness statute, see Bagnes, 2014 UT 4, ¶ 23, and given the 

particulars of Charles’s actions, we conclude that the district 

court’s analysis of Bagnes and the relevant statute was sound,

and that it did not err in its interpretation of the statute or in its 

application of the statute to Charles’s conduct. Charles 

committed an “other act of lewdness” that was “similar to, but 

not falling precisely within,” the specific acts enumerated in the 

lewdness statutes. See id. Accordingly, the State presented 

sufficient evidence at trial to satisfy that element of the statute.

B

¶19 Charles next asserts that the State failed to present 

sufficient evidence of Daughter’s age, and therefore failed to 

establish an essential element of the crime of “lewdness 

involving a child.” See Utah Code Ann. § 76-9-702.5. That crime 

requires that the lewdness occur “in the presence of a child who 

is under 14 years of age.” See id. § 76-9-702.5(2)(a).

¶20 The State responds by pointing out that Charles did not 

raise this issue before the district court, and made no objection at 

trial that the State had failed to satisfy the age element. In the 

State’s view, Charles’s challenge to the district court’s finding on 

this point is unpreserved. The State’s preservation argument 
State v. Charles

20190963-CA 12 2020 UT App 154

would be well-taken if this were an appeal from a jury trial; our 

supreme court has long held that a defendant who wishes to 

challenge the sufficiency of the evidence following a jury trial 

must raise the issue to the district court first. See State v. Holgate, 

2000 UT 74, ¶ 14, 10 P.3d 346. However, because Charles’s guilt

was adjudicated via a bench trial, the State’s argument is 

without merit. “Unlike challenges to a jury verdict, a defendant 

need not file a separate motion or make a separate objection to 

challenge the sufficiency of the evidence supporting the court’s 

factual findings in a bench trial.” State v. Holland, 2018 UT App

203, ¶ 9, 437 P.3d 501; see also State v. Larsen, 2000 UT App 106, 

¶ 9 n.4, 999 P.2d 1252 (citing Utah R. Civ. P. 52(a)(3), Utah R. 

Crim. P. 81(e)). Therefore, Charles was not required to take any 

action to preserve a challenge to the sufficiency of the evidence

with regard to the statutory elements of the crime, and we 

accordingly proceed to review his challenge to the sufficiency of 

the State’s evidence on the age element.4

 

4. We note that this principle applies only to sufficiency 

challenges that go to an element of the crime, which the State 

bears the burden of proving beyond any reasonable doubt. 

Charles’s constitutional argument, by contrast, is an affirmative 

defense, see 22 C.J.S. Criminal Law: Substantive Principles § 46

(2020), to which standard preservation rules apply even in bench 

trials; a defendant who fails to raise an affirmative defense to the 

district court in a bench trial cannot raise that defense for the 

first time on appeal, unless one of the exceptions to our 

preservation doctrine applies. See State v. Bond, 2015 UT 88, 

¶¶ 14–15, 36, 361 P.3d 104 (holding, in the context of an 

unpreserved federal constitutional claim, that the defendant has 

the “high burden” on appeal to show that plain error or another 

exception applies); see also State v. Sagal, 2019 UT App 95, ¶ 25, 

444 P.3d 572 (applying Bond’s holding—that “unpreserved 

federal constitutional claims are not subject to a heightened 

(continued...)
State v. Charles

20190963-CA 13 2020 UT App 154

¶21 Turning to the merits of that challenge, Charles correctly 

points out that the State elicited no testimony regarding 

Daughter’s age. Indeed, the State concedes that “there is no 

evidence of [Daughter’s] exact age.”5 The State points only to 

Mother’s references to Daughter and Friend as “little kids” and

“little girls,” and asserts that these references constitute

sufficient evidence upon which the district court could have 

grounded its finding that Charles’s actions occurred “in the 

presence of a child who is under 14 years of age.” See Utah Code 

Ann. § 76-9-702.5(2)(a). We acknowledge that district courts, 

sitting as factfinders in bench trials, are permitted to draw 

 

(...continued)

review standard”—in an appeal from a bench trial). For this 

reason, we may consider Charles’s challenge to the sufficiency of 

the evidence with regard to Daughter’s age, because that is an 

element of the offense on which the State bore the burden of 

proof and the district court had to make a finding, but we may 

not consider—absent a preservation exception—Charles’s 

unpreserved constitutional arguments, which constitute 

affirmative defenses on which the district court was neither 

required to nor given an opportunity to rule. See supra ¶¶ 10–12. 

5. In a footnote in its brief, the State asserts—without citation to 

the record—that Daughter “was present in the courtroom . . . 

throughout the proceedings.” The State’s appellate counsel was 

also the State’s trial counsel, and we have no reason to doubt the 

veracity of counsel’s representation. But there is no evidence in 

the record to indicate Daughter’s presence in the courtroom: she 

did not testify as a witness, and there is no mention of her 

presence—let alone any description of her age or appearance—in 

the transcript of the trial. Accordingly, we cannot consider this 

bare assertion by the State in our analysis of the evidence 

available to the district court. See Utah R. App. P. 11(a). 
State v. Charles

20190963-CA 14 2020 UT App 154

reasonable inferences from the evidence presented. See State v. 

Briggs, 2008 UT 75, ¶ 11, 197 P.3d 628 (noting that a district 

court’s findings in a criminal bench trial may “include inferences 

drawn from the evidence”). But in criminal cases, proof must be 

beyond a reasonable doubt, and any inferences drawn from the 

evidence must comport with this stringent burden of proof. See

State v. Workman, 852 P.2d 981, 987 (Utah 1993) (stating that 

“[c]riminal convictions cannot rest on conjecture or supposition; 

they must be established beyond a reasonable doubt,” and that 

“speculative inferences” cannot satisfy that standard); see also

State v. Whitaker, 2016 UT App 104, ¶¶ 12, 17, 374 P.3d 56 (stating 

that a defendant’s intent could be inferred from circumstantial 

evidence, but that such evidence needed to satisfy the 

“reasonable doubt” standard, and determining that it did not).

¶22 Utah appellate courts have not had occasion to address 

whether such vague references to a victim’s age as “little kid” or 

“little girl,” without more, could be enough to sustain a finding, 

beyond a reasonable doubt, that the victim was under the age of 

fourteen. But other authority suggests that such statements are 

not enough on their own. At least one appellate court has faced 

precisely this issue; that court overturned a conviction of lewd 

and lascivious acts in the presence of a child under the age of 

fourteen, explaining that “mere reference to a witness as a ‘little 

child’ or a ‘little girl’ does not alone justify the conclusion that 

she was a child under the age of fourteen years.” See People v. 

Levoy, 194 P. 524, 525 (Cal. Ct. App. 1920). And more recently, 

one Utah district court reached the same conclusion, refusing to 

admit prior bad acts evidence under rule 404(c) of the Utah 

Rules of Evidence—which allows propensity evidence if the 

prior bad acts concern “child molestation,” a term requiring the 

victim to be under fourteen—when the only evidence of the 

victims’ age was a statement that they were “little girls.” See

State v. Ferguson, 2011 UT App 77, ¶ 6, 250 P.3d 89 (describing 

the district court as having ruled that “little girls” was too 

“nondescript” a characterization to support an inference that the 
State v. Charles

20190963-CA 15 2020 UT App 154

victims were under fourteen; that part of the district court’s 

ruling was not at issue on appeal); see also Utah R. Evid. 404(c).

¶23 Moreover, in Washington v. State, 645 So. 2d 915 (Miss. 

1994), the court overturned a conviction for “sexual battery” of 

“a child under the age of fourteen,” even though the victim had 

testified during the trial, because “there was no direct oral 

testimony concerning the age of the youthful victim.” Id. at 917. 

In that case, the State argued that, even though it had forgotten 

to ask the victim how old she was, the factfinder could infer that 

the victim was younger than fourteen through “ocular

perception” of her while she was testifying, and from testimony 

that “she had teenage babysitters.” Id. at 916, 919. The court 

found these arguments unavailing, noting that “[t]here was no 

direct oral testimony presented to the jury from which a 

reasonable, hypothetical juror could find that [the victim] was 

under fourteen years of age,” and that “the State . . . failed to 

place anything in the record to enable [the appellate court] to 

review the ocular and auditory aspect of the proof.” Id. at 916, 

919; accord State v. Day, 735 So. 2d 56, 60 (La. Ct. App. 1999)

(holding that circumstantial evidence, including the factfinder’s 

ability to view witnesses at trial, was sufficient to support a 

finding that one victim was under eighteen, because that victim 

was described as being in “elementary school,” but was 

insufficient to support that same finding with regard to two 

other victims who were described as being in high school).

¶24 We agree with Charles that the evidence contained in the 

record in this case is insufficient to support a finding, beyond a 

reasonable doubt, that Daughter was under the age of fourteen. 

Daughter did not testify, and there is no record evidence that the 

district court actually saw Daughter, and even if there were, that 

may not have sufficed as proof of her age in any event. See

Washington, 645 So. 2d at 919. The State did not ask either of its 

witnesses—Mother or the responding officer—any questions 

about Daughter’s age. There was no evidence—as there was in 
State v. Charles

20190963-CA 16 2020 UT App 154

Day—that Daughter was in any particular grade at school, or 

even that she attended elementary school. See Day, 735 So. 2d at 

60. The only evidence of Daughter’s age to which the State can 

point is Mother’s references to Daughter and Friend as “little 

kids” and “little girls.” But this is not enough. On occasion, 

people refer to fourteen-year-olds as “little girls,” including in 

court cases. See, e.g., State v. Grider, No. 75720, 2000 WL 146544, 

at *2, *3 (Ohio Ct. App. Feb. 10, 2000) (in rape case, defendant 

referred to a fourteen-year-old victim as a “little girl”); Martin v. 

Horton, No. 344875, 2019 WL 2145710, at *3 (Mich. Ct. App. May 

16, 2019) (in negligence action, fourteen-year-old accident victim 

referred to herself as a “little girl”). Indeed, as evidenced by the 

citations in the margin,6 we note that interested observers, 

including the victim herself, often referred to Elizabeth Smart—

 

6. See, e.g., United States v. Mitchell, 706 F. Supp. 2d 1148, 

1160, 1173, 1203, 1214–15, 1216 (D. Utah 2010) (referring 

to fourteen-year-old Elizabeth Smart and other similarly 

aged targets of the defendant as “young girls”); see also Pat 

Reavy et al., Elizabeth Smart Describes Rapes, Sex Abuse, 

Imprisonment, Threats, Deseret News (Nov. 8, 2010), 

https://www.deseret.com/2010/11/8/20151342/elizabeth-smartdescribes-rapes-sex-abuse-imprisonment-threats#courtroomdrawing-of-elizabeth-smart-on-the-stand [https://perma.cc/2BQLKGZ4] (quoting Elizabeth Smart describing herself, from the 

witness stand at trial, as a “little girl” at the time she was 

kidnapped); Dean E. Murphy, Utah Girl, 15, Is Found Alive 9 

Months After Kidnapping, N.Y. Times (Mar. 13, 2003), 

https://www.nytimes.com/2003/03/13/us/utah-girl-15-is-foundalive-9-months-after-kidnapping.html [https://perma.cc/9LQ3-

HMDD] (quoting Elizabeth Smart’s relatives as stating, upon 

learning that she had been found alive in 2003 at the age of 

fifteen, that “I don’t think any little girl was prayed for more in 

the history of the world”).
State v. Charles

20190963-CA 17 2020 UT App 154

who was fourteen when she was abducted from her Salt Lake 

City home in 2002—as a “little girl” or a “young girl.” 

¶25 It would have been easy enough for the State to have 

asked Mother to state Daughter’s age while Mother was on the 

witness stand. The State did not do so, and the remainder of the 

record does not contain sufficient circumstantial evidence to 

support a finding, beyond a reasonable doubt, that Daughter 

was under the age of fourteen at the time of the offense. 

Ultimately, we agree with the sentiments of the Mississippi 

Supreme Court in Washington, when it stated as follows: 

The fact that establishing a victim’s age is rarely a 

problem for the prosecutor suggests that as a 

matter of policy, this Court should not routinely 

approve convictions where the State fails to put on 

reviewable proof of age, when age is an essential 

element of the crime. In fact, proof of age in the 

case at bar only would have required asking [the 

witness] one simple question: “How old [is the 

victim]?” It is rather apparent to this Court that the 

State simply left out this essential element of proof.

645 So. 2d at 920. We therefore conclude that insufficient 

evidence exists in the record before us to support one of the 

essential elements of the crime of lewdness involving a child, 

and that Charles’s conviction on that count cannot stand.

III

¶26 Although we determine that the evidence was insufficient 

to sustain Charles’s conviction on count 1, the State’s failure of 

proof on that count concerns an element that is only part of 

count 1, and not count 2. A defendant can, of course, be 

convicted of general lewdness, a class B misdemeanor, even if 

the victim is “14 years of age or older.” See Utah Code Ann. § 76-
State v. Charles

20190963-CA 18 2020 UT App 154

9-702(1) (LexisNexis Supp. 2019). After trial in this matter, the 

district court appeared to conclude that all of the elements of 

count 2 were met as well, but determined that any conviction on 

count 2 for general lewdness would merge into Charles’s 

conviction on count 1 for lewdness involving a child. 

Accordingly, the district court declined to enter a judgment of 

conviction on count 2.

¶27 Nothing in our decision today precludes a conviction of 

Charles on count 2. We have rejected his constitutional 

argument, as well as his argument that his actions did not 

constitute an “other act of lewdness.” But neither side briefed the 

issue of what should happen with count 2 in the event that we 

reversed Charles’s conviction on count 1 due to lack of proof of 

Daughter’s age. Under these circumstances, we think it best to 

remand the case to the district court for further proceedings 

regarding count 2.

CONCLUSION

¶28 We reject Charles’s constitutional arguments, as well as 

his assertion that his actions did not constitute an “other act of 

lewdness” under the lewdness statutes. However, we agree with 

Charles that the State failed to present sufficient evidence of 

Daughter’s age, and that Charles’s conviction on count 1 for 

lewdness involving a child must be reversed. We remand the 

case for entry of a judgment of acquittal on that count, as well as 

for further proceedings regarding the disposition of count 2.