2020 UT App 63

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

STEVEN NORMAN POWELL,

Appellant.

Opinion

No. 20180109-CA

Filed April 16, 2020

Third District Court, Salt Lake Department

The Honorable Mark S. Kouris

No. 151913515

Ronald Fujino, Attorney for Appellant

Sean D. Reyes and Jeffrey S. Gray, 

Attorneys for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which 

JUDGES GREGORY K. ORME and DIANA HAGEN concurred.

POHLMAN, Judge:

¶1 In 2017, Steven Norman Powell was convicted of two 

counts of lewdness, with enhancements for prior convictions. 

Powell challenges his convictions, arguing that the trial court 

erred when it denied his motion for a directed verdict and that 

his trial counsel provided constitutionally ineffective assistance.

He also moves this court pursuant to rule 23B of the Utah Rules 

of Appellate Procedure to remand his case to the trial court for 

the entry of findings of fact to support a determination that his 

trial counsel performed ineffectively. We deny Powell’s rule 23B 

motion and affirm his convictions.
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BACKGROUND1

¶2 Powell’s lewdness convictions arise from two separate 

instances at two separate stores where the same two witnesses, a 

woman (Daughter) and her stepmother (Stepmother), observed, 

by sheer coincidence, Powell in his wheelchair with his genitals 

exposed. Daughter testified at trial that, on both occasions, 

Powell was in a wheelchair wearing jeans where the crotch area 

was “cut out” and that, although there was some kind of 

material covering Powell’s genital area, it was “[v]ery 

see-through” with “holes.” She stated that in both instances, she 

was able to see his penis through the material.

¶3 Stepmother testified that, in the first incident, she also 

observed Powell in his wheelchair wearing jeans where “the 

crotch was cut out,” that there was some black, see-through 

mesh over his genitals, and that she saw his penis through the 

material. As to the second incident, Stepmother testified that as 

she tried to take a picture of Powell to send to law enforcement, 

he saw her doing so and “grabbed [a] pair of pants” next to him 

to cover himself.2 Following the second encounter, Stepmother 

reported the incident on the local police department’s social 

media page.

¶4 Approximately nine months later, a detective (Detective) 

began investigating the complaint. As part of his investigation, 

 

1. “On appeal, we review the record facts in a light most 

favorable to the jury’s verdict and recite the facts accordingly. 

We present conflicting evidence only as necessary to understand 

issues raised on appeal.” State v. Bowden, 2019 UT App 167, ¶ 2 

n.1, 452 P.3d 503 (cleaned up).

2. Stepmother’s photograph shows Powell covering his crotch 

with the leg of a pair of pants hanging on a nearby display hook.
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Detective sought surveillance videos from both stores. While the 

second store still had surveillance footage from the night in 

question, the first store did not; by that time, it had already 

recorded over it. Detective viewed the video footage from the 

second store and was able to identify Powell and to partially 

track his movements through the store, but Detective “never 

found any footage of [Powell] exposing himself.” Detective took

two screenshots that demonstrated only that Powell had been 

present in the store.

¶5 Detective and another officer went to Powell’s residence 

to talk to him. Powell allowed the officers into his residence and 

agreed to speak to them. He confirmed that he had been at both 

stores on the nights in question. When asked by Detective why 

he exposed himself, Powell explained that he had been 

paralyzed from the waist down following a car accident when he 

was twenty-seven, that before the accident he had been a “thrill 

seeker,” and that, since that time, he would “go out into the 

community” two or three times a month and expose himself to 

“create excitement in his life” and “for the thrill of it.” He also 

confirmed to Detective that when he exposed himself, he 

generally wore a “spandex or mesh material” over his genitals 

that someone “could see through.”

¶6 In a later written statement, Powell largely confirmed his 

statements to Detective about exposing himself “just for the risk 

factor.” As to the second incident, however, he provided an 

alternative explanation for the exposure, stating that he had a 

condom catheter attached to his leg that had become kinked and 

that he had tried to unkink it while in the store, but he did not 

believe that anyone observed him doing so. In his written 

statement, Powell also stated that he had been confronted before 

about exposing himself and felt bad about doing it.

¶7 Powell was charged with two counts of lewdness, with 

priors. At the one-day trial, Daughter, Stepmother, and Detective
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testified for the State. At the close of the State’s case, defense 

counsel moved for a directed verdict, which the trial court 

denied. The jury convicted Powell on both counts.

¶8 Powell appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Powell raises two main arguments on appeal. First, he

argues that reversal of his convictions is appropriate because the 

trial court erred by denying his directed verdict motion. “We 

review a trial court’s ruling on a motion for directed verdict for 

correctness.” State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168. 

With respect to the sufficiency of the evidence, we “review the 

evidence and all inferences which may reasonably be drawn 

from it in the light most favorable to the verdict.” State v. 

Ashcraft, 2015 UT 5, ¶ 18, 349 P.3d 664 (cleaned up). “We will 

uphold a trial court’s denial of a motion for directed verdict 

based on a claim of insufficiency of the evidence if, when viewed 

in the light most favorable to the State, some evidence exists 

from which a reasonable jury could find that the elements of the 

crime had been proven beyond a reasonable doubt.” Gonzalez, 

2015 UT 10, ¶ 27 (cleaned up).

¶10 Second, Powell asks that we reverse his convictions or, 

alternatively, remand for a new trial due to the ineffective 

assistance of his trial counsel. “When a claim of ineffective 

assistance of counsel is raised for the first time on appeal, there is 

no lower court ruling to review and we must decide whether the 

defendant was deprived of the effective assistance of counsel as 

a matter of law.” State v. Escobar-Florez, 2019 UT App 135, ¶ 22, 

450 P.3d 98 (cleaned up).

¶11 In connection with some of his claims of ineffective 

assistance of counsel, Powell seeks a remand for an evidentiary 

hearing under rule 23B of the Utah Rules of Appellate 
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Procedure. Rule 23B allows this court to remand a criminal case 

“to the trial court for entry of findings of fact, necessary for the 

appellate court’s determination of a claim of ineffective 

assistance of counsel.” Utah R. App. P. 23B(a). This court will 

grant a rule 23B motion to remand “only upon a nonspeculative 

allegation of facts, not fully appearing in the record on appeal, 

which, if true, could support a determination that counsel was 

ineffective.” Id.

ANALYSIS

I. Motion for a Directed Verdict

¶12 Powell contends that the trial court erred in denying his 

directed verdict motion. While Powell raises several arguments 

in an effort to demonstrate the court’s error, at its core, his 

challenge is that his actions did not constitute exposure under 

the lewdness statute. In support, he points to his alternative 

catheter explanation and to evidence that, at one point, he tried 

to cover himself and that his genital area was covered by a meshlike material. And, relying on caselaw that seemingly supports 

his characterization of the evidence, he contends that, while his 

conduct or clothing might have offended social mores, his 

actions did not rise to the level of lewdness as a matter of law.

¶13 Powell has not demonstrated that no reasonable jury 

could conclude that his conduct constituted lewdness under the 

statute. At the time of Powell’s conduct, the lewdness statute 

provided,

A person is guilty of lewdness if the person . . . 

performs any of the following acts 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: (a) an act of sexual intercourse or sodomy; 
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20180109-CA 6 2020 UT App 63

(b) exposes his or her genitals, . . . the buttocks, the 

anus, or the pubic area; (c) masturbates; or (d) any 

other act of lewdness.

Utah Code Ann. § 76-9-702(1) (LexisNexis 2012).

¶14 During trial, the State focused solely on the exposure 

variant of the lewdness statute; indeed, in closing argument, the 

prosecutor told the jury that “it’s pretty clear today that we’re 

just focusing on one of those acts, that [Powell] exposed his 

genitals,” and that the State was not alleging “that he engaged in 

sexual intercourse, or that he masturbated, or that there was any 

other act of lewdness.”

¶15 To that end, Daughter testified that in both incidents

Powell wore jeans that appeared to have the crotch area “cut 

out”; that even though there was some kind of material covering 

that area, it was “[v]ery see-through”; and that she saw his penis 

through that material on both occasions. Stepmother echoed 

Daughter’s testimony with respect to the first incident, 

explaining that there was only some see-through, “black mesh” 

covering Powell’s genital area and that she could see his penis 

through it. As to the second incident, Stepmother testified that it 

was only after Powell noticed her trying to take his picture that 

he used a pair of pants hanging on a nearby rack to temporarily 

cover himself. And Detective testified that Powell himself 

admitted that he had been in both stores on the nights in 

question and that it was his common practice to go out into the 

community a few times a month and expose himself for the 

“thrill of it.”

¶16 Powell has not demonstrated that appearing in a public 

place with only a see-through material covering his genitals does 

not constitute an act of exposure under our statute. While he 

suggests, for example, that his conduct was not lewd because 

there was testimony that he attempted to cover himself during 

one of the incidents and because his genital area was covered 
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with a mesh-like material, he does not engage with the most 

damning aspect of the witnesses’ testimonies—that the witnesses 

could see, and actually did see, his penis. In this respect, he 

provides no authority for the proposition that covering his 

genital area with a see-through material prevented his conduct 

from crossing the line into criminal exposure as a matter of law.

¶17 Thus, without more, we discern no error by the trial court

in submitting the case to the jury. Stepmother’s and Daughter’s

testimonies, along with Detective’s recounting of Powell’s own 

admissions, provided ample evidence from which the jury could 

find that Powell had exposed his genitals in a public place on 

both occasions, as defined under our lewdness statute. See State 

v. Gonzalez, 2015 UT 10, ¶ 27, 345 P.3d 1168 (stating that we will 

uphold a jury’s verdict on a sufficiency challenge if there is

“some evidence . . . from which a reasonable jury could find that 

the elements of the crime had been proven beyond a reasonable 

doubt” (cleaned up)).3

 

3. Powell makes other arguments about lewdness generally to 

suggest that his conduct was not lewd. For example, he contends 

that lewdness requires a lascivious, sexual component and that 

such a component was not present in his conduct. However, 

these arguments seem to apply to the catchall variant of 

lewdness, which, while included in the jury instructions on the 

elements of lewdness, was not the focus of the case. See generally

State v. Bagnes, 2014 UT 4, ¶ 19, 322 P.3d 719 (addressing the 

limiting principle applicable to the catchall element of our 

lewdness statute). The State expressly told the jury in closing 

that it was “just focusing” on whether Powell had “exposed his 

genitals.” But even if the catchall variant might have been 

implicated, Powell’s other arguments do not undermine the 

sufficiency of the evidence supporting his two separate acts of 

exposure. We therefore reject them.
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20180109-CA 8 2020 UT App 63

II. Ineffective Assistance of Counsel

¶18 Powell argues that he received constitutionally ineffective 

assistance of counsel, claiming his trial counsel made two major 

errors. First, he argues that counsel was ineffective for not 

objecting to the lewdness elements jury instruction. Second, he 

argues that counsel was ineffective for not moving to dismiss the 

case on the basis of lost or destroyed evidence.

¶19 “The Sixth Amendment to the United States Constitution 

guarantees a criminal defendant the assistance of counsel for his 

defense, meaning that he has the right to effective assistance of 

counsel.” State v. Bond, 2015 UT 88, ¶ 59, 361 P.3d 104 (cleaned 

up). To prevail on his ineffective assistance of counsel claims, 

Powell must demonstrate both that counsel’s performance was 

deficient, in that it “fell below an objective standard of 

reasonable professional judgment,” and that counsel’s deficient 

performance prejudiced him. See Archuleta v. Galetka, 2011 UT 73, 

¶ 38, 267 P.3d 232 (cleaned up). “Both elements must be present, 

and if either is lacking, the claim fails and the court need not 

address the other.” State v. Nelson, 2015 UT 62, ¶ 12, 355 P.3d 

1031.

¶20 To show deficient performance, given the “variety of 

circumstances faced by defense counsel [and] the range of 

legitimate decisions regarding how best to represent a criminal 

defendant,” Powell must overcome the “strong presumption” 

that, “under the circumstances, the challenged action might be 

considered sound trial strategy.” See Strickland v. Washington, 466 

U.S. 668, 689 (1984) (cleaned up); see also State v. Scott, 2020 UT 

13, ¶ 35 (explaining that “the performance inquiry will often 

include an analysis of whether there could have been a sound 

strategic reason for counsel’s actions,” and that, “for instance, if 

the court concludes that the challenged action might be 

considered sound trial strategy, it follows that counsel did not 

perform deficiently” (cleaned up)). And “because the decision 
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20180109-CA 9 2020 UT App 63

not to pursue a futile motion is almost always a sound trial 

strategy, counsel’s failure to make a motion that would be futile 

if raised does not constitute deficient performance.” State v. 

Torres, 2018 UT App 113, ¶ 16, 427 P.3d 550 (cleaned up). That 

said, we are mindful that even if we “cannot conceive of a sound 

strategic reason for counsel’s challenged conduct, it does not 

automatically follow that counsel was deficient.” Scott, 2020 UT 

13, ¶ 36. As our supreme court recently affirmed, “the ultimate 

question is always whether, considering all the circumstances, 

counsel’s acts or omissions were objectively unreasonable.” Id.

(citing Strickland, 466 U.S. at 687).

¶21 To establish prejudice, Powell must show that “counsel’s

performance prejudiced him, meaning that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Bond, 2015 

UT 88, ¶ 59 (cleaned up). The prejudice requirement is a 

“relatively high hurdle to overcome,” and “a mere potential 

effect on the outcome is not enough.” State v. Apodaca, 2019 UT 

54, ¶ 50, 448 P.3d 1255 (cleaned up). Rather, “the likelihood of a 

different result must be substantial.” Id. (cleaned up).

¶22 We first address Powell’s claims of error with respect to 

the jury instructions, and we then address his claim that counsel 

should have moved to dismiss the case on the basis of lost or 

destroyed evidence.

A. Jury Instructions

¶23 Powell challenges trial counsel’s failure to object to the 

elements instruction for lewdness on several grounds. 

Specifically, he argues that counsel should have objected to the 

elements instruction because it (1) improperly listed the “14 

years of age or older” requirement as an alternative basis for 

conviction rather than as a required element, (2) omitted a

prefatory attempt clause, and (3) improperly allowed conviction 

based on a reckless mental state. He also argues that (4) counsel
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20180109-CA 10 2020 UT App 63

performed deficiently for not requesting an instruction on 

attempted lewdness as a lesser included offense of lewdness and 

that (5) counsel should have asked the court to instruct the jury 

that lewd acts are only those acts “marked by lasciviousness.”

(Cleaned up.)

¶24 “To evaluate whether trial counsel performed deficiently 

in failing to object to the jury instructions, we must first consider 

whether those instructions were legally correct.” State v. Liti, 

2015 UT App 186, ¶ 12, 355 P.3d 1078. If the instruction was

correct, Powell cannot establish deficient performance for failing 

to object to it. See State v. Lee, 2014 UT App 4, ¶ 22, 318 P.3d 1164 

(“Failure to object to jury instructions that correctly state the law 

is not deficient performance.”); see also State v. Maama, 2015 UT 

App 235, ¶ 37, 359 P.3d 1272 (determining that where the 

challenged instruction was correct, an objection to the 

instruction would have been futile, and failing to raise a futile 

objection is not deficient performance).

¶25 For both lewdness charges, the jury was instructed that it 

had to find beyond a reasonable doubt for each element that 

Powell

Intentionally, knowingly, or recklessly performed 

any of the following acts:

a. An act of sexual intercourse or sodomy;

b. Exposed his genitals, buttocks, anus, or his pubic 

area;

c. Masturbated; or

d. Any other act of lewdness[,]

And did so
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20180109-CA 11 2020 UT App 63

a. In a public place or

b. Under circumstances which the defendant 

should have known would likely cause affront or 

alarm to another 14 years of age or older.

¶26 We now address each ground raised by Powell and 

ultimately conclude that counsel did not perform deficiently.

1. Age Element

¶27 Powell first contends that counsel performed deficiently 

by not objecting to the lewdness elements instruction where it

allowed the jury to convict him without finding that his conduct 

occurred in the “presence of another who is 14 years of age or 

older.” He argues that, under the lewdness statute, the age 

requirement is a “mandatory element” and that the jury should 

have been required to find that his lewd acts were performed in 

the presence of someone who was at least fourteen years old.

¶28 The plain language of the statute does not support 

Powell’s interpretation. We interpret statutes with the aim of 

giving “effect to the legislature’s intent,” and the “best evidence 

of the legislature’s intent is the plain language of the statute 

itself.” State v. Ogden, 2018 UT 8, ¶ 31, 416 P.3d 1132 (cleaned 

up); see also State v. Harker, 2010 UT 56, ¶ 12, 240 P.3d 780. “We 

presume that the legislature used each word advisedly,” such 

that the “expression of one term should be interpreted as the 

exclusion of another.” Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 

1000 (cleaned up). “When we can ascertain the intent of the 

legislature from the statutory terms alone, no other interpretive 

tools are needed, and our task of statutory construction is 

typically at an end.” Id. (cleaned up).

¶29 As referenced above, at the time of Powell’s conduct, the 

lewdness statute required that a person perform one of the 

enumerated lewd acts “in a public place or under circumstances 
State v. Powell

20180109-CA 12 2020 UT App 63

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) (LexisNexis 2012)

(emphasis added). The plain language included the word “or” in 

describing the attendant circumstances under which the lewd act 

had to be performed. “Or” is a “function word to indicate an 

alternative.” Or, Merriam-Webster.com, https://www.merriamwebster.com/dictionary/or [https://perma.cc/W6DH-55J2]; see 

also State v. Canton, 2013 UT 44, ¶ 13, 308 P.3d 517 (“In 

determining the ordinary meaning of nontechnical terms of a 

statute, our starting point is the dictionary.” (cleaned up)). Thus, 

on its face, the lewdness statute permits conviction in the 

alternative, on either basis—when the lewd act is performed in a 

public place or in the presence of a person “14 years of age or 

older.” Not only are we bound by this plain expression of intent,

see Aris Vision Inst. v. Wasatch Prop. Mgmt., Inc., 2006 UT 45, ¶ 17, 

143 P.3d 278, but Powell cites no authority to otherwise suggest 

that, despite the use of the word “or” in the statute, it would be 

proper for this court to interpret the statute as though the 

legislature had used the word “and.”

¶30 Thus, Powell has not demonstrated that the instruction 

was incorrect for failing to require the jury to find that he 

performed a lewd act in the presence of a person “14 years of age 

or older.” Accordingly, we conclude that Powell has not shown 

that counsel performed deficiently by failing to object to the 

elements instruction on that basis. See Lee, 2014 UT App 4, ¶ 22.

2. Attempt Clause

¶31 Powell next argues that counsel was ineffective for failing 

to require that the jury instructions include the clause “or an 

attempt to commit any of these offenses” as an element of the 

offense.

¶32 In the lewdness statute, the attempt clause is part of a 

prefatory phrase to setting out the required circumstances 
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20180109-CA 13 2020 UT App 63

surrounding, and the enumerated acts of, lewdness. The statute 

provides that a person is guilty of lewdness if, “under 

circumstances not amounting to rape, object rape, forcible 

sodomy, forcible sexual abuse, aggravated sexual assault, or an 

attempt to commit any of these offenses, [he or she] performs any of 

the following [enumerated] acts.” Utah Code Ann. § 76-9-702(1) 

(emphasis added). Powell argues that the attempt clause should 

have been included in the jury instructions as an element

because it effectively transforms lewdness into a specific intent 

crime.4 In this respect, he argues, the clause’s omission from the 

instructions allowed the jury to convict him on a lesser mental 

state than that required for specific intent crimes like attempt.

¶33 The plain language of the statute does not support 

Powell’s suggested interpretation. The attempt clause in relation 

to the larger statute connects to circumstances “not amounting 

to” lewdness, rather than to circumstances amounting to 

lewdness. In other words, rather than setting out what lewdness

is, the attempt clause is part of a larger description of what 

lewdness is not. See State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 

92 (stating that “we read the plain language of the statute as a 

whole,” drawing meaning from the “context in which [the 

language at issue] is used” (cleaned up)); State v. Rasabout, 2015 

UT 72, ¶ 10, 356 P.3d 1258 (“To ascertain that intent, we look first 

to the text of the statute within its context.”).

¶34 And as the State notes, Utah courts have previously 

determined that “under circumstances not amounting to” 

clauses (when accompanied by an associated list of other crimes)

do not constitute elements of the actual crime that follows. See

State v. Reed, 2000 UT 68, ¶¶ 32–33, 8 P.3d 1025 (rejecting the 

 

4. Attempt crimes are specific intent crimes. See State v. Jones, 

2002 UT 01, ¶ 9, 44 P.3d 658 (“[T]he offense of attempt requires 

an intent to commit a specific offense.”).
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20180109-CA 14 2020 UT App 63

argument that “not amounting to” language in the aggravated 

sexual abuse of a child statute “obligated the State to establish a 

primary offense that did not amount to sodomy, or attempted 

sodomy [as an element of the offense], in order to convict him of 

aggravated sexual abuse,” and stating that “‘the only rule that is 

realistic and makes sense is that the State need prove only that 

which it has charged and should be able to ignore proof as to 

lack of any greater offense to which the accused just may be 

required to respond’” (quoting State v. Peters, 550 P.2d 199, 199–

200 (Utah 1976))); State v. Ansari, 2004 UT App 326, ¶¶ 7–13, 100 

P.3d 231 (explaining that the “‘not amounting to’ clause” has 

been “consistently interpreted . . . to not require the State to 

affirmatively disprove other crimes”); see also State v. Young, 2015 

UT App 286, ¶¶ 9–10, 364 P.3d 55 (analyzing “by any means 

other than” language in a statute, and stating that “Utah cases 

have interpreted similar provisions of other criminal statutes 

and held that those provisions do not require the State to 

disprove the defendant’s commission of the act or acts the 

statutory language excludes” (cleaned up)).

¶35 Powell does not acknowledge this precedent and has not 

otherwise demonstrated that the elements instruction was 

incorrect because it failed to include the attempt clause. He 

therefore has not shown that it was objectively unreasonable 

under the circumstances for counsel to have declined to request 

the attempt clause’s inclusion. See Scott, 2020 UT 13, ¶ 36. Thus, 

Powell has not shown that counsel performed deficiently on this 

basis. See Lee, 2014 UT App 4, ¶ 22.

3. Reckless Mental State

¶36 Powell next challenges the mental states provided in the 

jury instructions. The elements instruction provided that the jury 

could find Powell guilty of lewdness if it found that he 

“[i]ntentionally, knowingly, or recklessly performed any of the”

enumerated acts of lewdness. Relying heavily on the lewdness 
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involving a child statute, which requires that the person commit 

the enumerated acts of lewdness “intentionally or knowingly,” 

see Utah Code Ann. § 76-9-702.5(1) (LexisNexis 2012), Powell 

argues that “the ‘intentionally or knowingly’ mental states” from 

that statute apply to the more general lewdness statute. And 

because counsel did not request that “recklessly” be omitted 

from the elements instruction, counsel performed deficiently.

¶37 Again, the plain language of the statute does not support 

Powell’s interpretation. While we appreciate Powell’s attempt to 

analogize to the lewdness involving a child statute, we cannot 

read into the lewdness statute language that it does not contain. 

See State v. Robertson, 2017 UT 27, ¶ 40, 438 P.3d 491 (stating that 

the judiciary interprets and applies legislation “according to 

what appears to be the legislature’s intent, neither inferring 

substantive terms into the text that are not already there nor 

taking away from the statutory text by ignoring it or rendering it 

superfluous” (cleaned up)); Associated Gen. Contractors v. Board of 

Oil, Gas & Mining, 2001 UT 112, ¶ 30, 38 P.3d 291 (“We will not 

infer substantive terms into the text that are not already there. 

Rather, the interpretation must be based on the language used, 

and we have no power to rewrite the statute to conform to an 

intention not expressed.” (cleaned up)).

¶38 The lewdness statute, as opposed to the lewdness 

involving a child statute, does not provide the applicable mental 

states associated with performing the enumerated lewd acts.

Utah Code Ann. § 76-9-702(1). And we must presume that the 

omission in the lewdness statute was intentional. See Marion 

Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 

(“We presume that the expression of one term should be 

interpreted as the exclusion of another. We therefore seek to give 

effect to omissions in statutory language by presuming all 

omissions to be purposeful.” (cleaned up)). Our legislature has 

expressly provided for the contingency of “when the definition 

of the offense does not specify a culpable mental state and the 
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20180109-CA 16 2020 UT App 63

offense does not involve strict liability.” Utah Code Ann. 

§ 76-2-102 (LexisNexis 2012). For such offenses, section 76-2-102 

provides that “intent, knowledge, or recklessness shall suffice to 

establish criminal responsibility.” Id. In allowing the jury to find 

guilt based upon a determination that Powell performed the 

lewd act intentionally, knowingly, or recklessly, the lewdness 

elements instruction therefore comported with this statute and, 

by extension, the plain language applicable to the lewdness 

statute.

¶39 Powell has not demonstrated that the elements instruction 

was erroneous for including “recklessly” as a mental state. See

Lee, 2014 UT App 4, ¶ 22. Accordingly, Powell has not shown

that it was unreasonable for counsel not to object to the inclusion 

of “recklessly” in the elements instruction. See Scott, 2020 UT 13, 

¶ 36.

4. Lesser Included Offense

¶40 Powell argues that his counsel performed deficiently by 

not requesting that the jury be instructed on a lesser included 

offense of attempted lewdness. Powell contends that there was a 

rational basis in the evidence for acquitting him of the lewdness 

charges while convicting him of attempted lewdness.

¶41 Our legislature has generally provided that an offense is 

lesser included when, among other things, “[i]t constitutes an 

attempt, solicitation, conspiracy, or form of preparation to 

commit the offense charged or an offense otherwise included 

therein.” Utah Code Ann. § 76-1-402(3)(b) (LexisNexis 2012). “A 

defendant is entitled to a jury instruction on a lesser included 

offense, so long as the evidence would permit a jury rationally to 

find him guilty of the lesser offense and acquit him of the 

greater.” State v. Hull, 2017 UT App 233, ¶ 15, 414 P.3d 526 

(cleaned up).
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20180109-CA 17 2020 UT App 63

¶42 But when an appellant challenges trial counsel’s failure to 

request a lesser included offense instruction as constitutionally 

ineffective, the appellant runs headlong into the “strong 

presumption” that, under the circumstances, the failure to 

request the lesser included offense instruction “might be 

considered sound trial strategy.” See Strickland, 466 U.S. at 689 

(cleaned up). As we have explained, “even when there is a basis 

for a lesser-included-offense instruction, counsel can reasonably 

decide not to request one.” Hull, 2017 UT App 233, ¶ 16. 

“Depending on the facts of a particular case, counsel may have 

perfectly valid tactical reasons to forgo the instruction and to 

instead present an ‘all or nothing’ defense that entails avoiding a 

lesser-included-offense instruction in the hopes the jury will find 

the defendant ‘totally innocent of any wrongdoing.’” Id. (cleaned 

up); see also State v. Binkerd, 2013 UT App 216, ¶ 31, 310 P.3d 755 

(explaining that counsel’s decision not to request a lesser 

included offense instruction is entitled to considerable deference 

“in recognition of the fact that counsel is in the best position to 

gauge the defendant’s likelihood of defeating a charge outright 

and to weigh the possibility that acquittal is not in the cards but 

that a jury might be satisfied with a conviction on a lesser 

charge”).

¶43 For example, counsel could reasonably pursue an “all or 

nothing defense” when, in light of the weaknesses in the State’s 

evidence of the case, it would be reasonable for counsel to 

conclude that submitting a lesser included offense instruction 

would obviate a defendant’s reasonable chances of a full 

acquittal. Hull, 2017 UT App 233, ¶¶ 16–21. Likewise, counsel 

does not perform deficiently by failing to request a lesser 

included offense instruction that is inconsistent with the defense 

presented at trial. See State v. Hall, 946 P.2d 712, 723–24 (Utah Ct. 

App. 1997) (concluding that counsel did not perform deficiently 

by failing to request a lesser included offense instruction that 

“would have been inconsistent” with the defense theory argued 

at trial); accord State v. Perry, 899 P.2d 1232, 1241 (Utah Ct. App. 
State v. Powell

20180109-CA 18 2020 UT App 63

1995); see also State v. Campos, 2013 UT App 213, ¶ 34, 309 P.3d 

1160 (“Any election between inconsistent defenses is a legitimate 

exercise of trial strategy rather than ineffective assistance of 

counsel.” (cleaned up)).

¶44 Here, even assuming Powell is correct that the 

requirements for requesting a lesser included offense instruction 

were met, he has not shown that counsel was deficient by not 

requesting one. Counsel’s theory at trial was that Daughter and 

Stepmother did not see what they thought they saw—essentially 

an argument that Powell did not expose himself and that the 

witnesses’ testimonies to the contrary were unreliable. To that 

end, counsel emphasized that both stores would have been busy 

on both nights and that, apart from Daughter’s and Stepmother’s 

testimonies, there was no corroborating evidence of actual 

exposure. Trial counsel also pointed both to Detective’s 

testimony that the video surveillance footage he viewed did not 

show Powell exposing himself and to the lack of evidence about 

involvement of either store’s management. And counsel asserted 

that, while Powell might have admitted to Detective to generally 

exposing himself on other occasions, he did not admit to doing 

so on either specific occasion.

¶45 Given the defense’s theory, counsel could have 

reasonably concluded that requesting a lesser included offense 

instruction for attempted lewdness would have undermined its 

theory that the jury should not credit Daughter’s and 

Stepmother’s testimonies at all and that no exposure, attempted 

or otherwise, had occurred. In these circumstances, not 

requesting a lesser included offense instruction of attempted 

lewdness was an objectively reasonable decision entitled to our 

deference, see Binkerd, 2013 UT App 216, ¶ 31, and Powell has 

not otherwise demonstrated that counsel acted unreasonably in

light of the theory presented at trial and the evidence counsel 

believed supported it, see Hull, 2017 UT App 233, ¶ 17; see also

Scott, 2020 UT 13, ¶ 36. Accordingly, Powell has not shown that 
State v. Powell

20180109-CA 19 2020 UT App 63

counsel performed deficiently by not requesting the lesser

included offense instruction.

5. Lasciviousness as Lewdness

¶46 Powell’s final ineffective assistance claim relating to the 

jury instructions is that counsel performed deficiently by not 

requesting an instruction, based on a discussion in State v. 

Bagnes, 2014 UT 4, 322 P.3d 719, defining lewdness as conduct 

“marked by lasciviousness.” (Cleaned up.)

¶47 To carry his burden of persuasion on appeal, Powell must 

“explain, with reasoned analysis supported by citations to legal 

authority and the record, why the party should prevail on 

appeal.” Utah R. App. P. 24(a)(8). When the claim of error is that 

counsel was ineffective for failing to request that a jury 

instruction be given (or failing to argue that the instructions

given did not accurately or completely instruct the jury on the 

law), the appellant must, at the very least, “explain what parts of 

the [challenged] instruction were inadequate or what the 

instruction should have said.” Taylor v. State, 2007 UT 12, ¶¶ 66–

67, 156 P.3d 739; see also State v. Baer, 2019 UT App 15, ¶¶ 18–20, 

438 P.3d 979 (determining that appellant failed to demonstrate 

that counsel performed deficiently for assenting to certain jury 

instructions where he did not explain the error in the 

instructions). Powell has not met that burden here.

¶48 While Powell contends that counsel should have 

requested an instruction of lewdness as defined in Bagnes, he 

does not engage with the instructions that were given and 

explain how they were insufficient. For example, the court did 

instruct the jury that “‘[a]ny other act of lewdness’” includes 

“acts of the same general kind, class, character, or nature as the 

enumerated conduct of public intercourse, sodomy, exposure of 

the genitals or buttocks, or masturbation.” See Bagnes, 2014 UT 4, 

¶ 19. Powell does not acknowledge this instruction or explain 

why it did not sufficiently alert the jury to the type of conduct 
State v. Powell

20180109-CA 20 2020 UT App 63

meant to be proscribed under the lewdness statute. Likewise, 

Powell fails to describe what additional instruction he claims 

counsel should have requested. Thus, Powell’s claim is 

unavailing.5

¶49 In sum, while Powell has raised several grounds for 

challenging counsel’s performance with respect to the jury 

instructions, we conclude Powell has not demonstrated that 

counsel performed deficiently in relation to them.

B. Lost or Destroyed Evidence

¶50 Powell argues that counsel performed deficiently by not 

moving to dismiss the case due to the lost or destroyed video 

surveillance from both stores, which he argues violated his right 

to due process under the Utah Constitution. As already 

discussed, to succeed on an ineffective assistance of counsel 

claim, Powell must demonstrate that it was objectively 

unreasonable under the circumstances for counsel to have 

declined to move for dismissal on the basis of the loss of the 

video surveillance footage. See Scott, 2020 UT 13, ¶ 36. Powell 

has not met this burden.

¶51 In State v. Tiedemann, 2007 UT 49, 162 P.3d 1106, our 

supreme court set out a two-part analysis for addressing due 

process claims under the Utah Constitution based on claims that 

the State lost or destroyed exculpatory evidence. Id. ¶ 44; accord

 

5. Even had Powell demonstrated deficient performance, we 

question whether he was harmed by this alleged error. The 

Bagnes court interpreted and applied the catchall variant, “any 

other act of lewdness.” See Bagnes, 2014 UT 4, ¶¶ 11–23. But as 

already discussed, Powell’s case centered instead on the 

exposure variant, which Bagnes did not interpret or apply. It is 

therefore difficult to credit Powell’s assertion that the lack of a 

Bagnes-like instruction harmed him.
State v. Powell

20180109-CA 21 2020 UT App 63

State v. Mohamud, 2017 UT 23, ¶ 18, 395 P.3d 133; State v. DeJesus, 

2017 UT 22, ¶ 27, 395 P.3d 111. In making this argument, Powell 

focuses on the stores’ culpability in not retaining the surveillance 

video and the police’s purported obligation to immediately 

make some attempt to preserve potential evidence upon receipt 

of a report. But as stated in Tiedemann, “criminal defendants are 

entitled to information possessed by the State to aid in their 

defense.” 2007 UT 49, ¶ 40 (emphasis added). Powell has not 

shown that the State’s duty to preserve or maintain the video 

surveillance was triggered. He also has not shown that the State 

actually lost or destroyed the video footage or that, even if it 

had, dismissal would have been the appropriate remedy.

¶52 As Powell concedes, any video surveillance of either 

event was recorded by the stores’ surveillance systems and 

maintained by the stores, not the State. He also concedes that the 

first store, and not the State, destroyed any surveillance footage

it might have had by recording over it.

¶53 As to the second store, Powell directs us to no place in the 

record suggesting the video surveillance was lost or destroyed. 

Indeed, Detective was able to view the surveillance many 

months after the incidents occurred. And even assuming the 

second store recorded over it subsequent to Detective’s viewing,

Powell points to no evidence suggesting that the State ever 

received an actual copy of the footage from the second store; 

from our review, it appears that, at most, there was evidence that

Detective collected two screenshots from the second store’s 

video, but there was no evidence presented at trial that Detective 

also collected a copy of the video itself.

¶54 In this respect, Powell has not shown that the Tiedemann

test applies in situations where a private party, not the State, 

controls the maintenance and preservation of the potential

evidence. Indeed, Powell relies heavily on DeJesus to make his 

argument, but the video surveillance in that case was recorded, 
State v. Powell

20180109-CA 22 2020 UT App 63

possessed, and then lost by the Utah State Prison—a State actor. 

See 2017 UT 22, ¶¶ 3–6, 38–54.

¶55 And to the extent Powell faults the police for not taking 

immediate efforts to collect the video surveillance, he has not 

directed us to any authority suggesting that Tiedemann and its 

progeny may be read to impose on police an obligation to 

“immediately” make an “initial quick” investigation upon 

receiving any report of crime, with the aim of preserving any 

potential evidence before any legal theories have been identified.

¶56 Finally, even assuming that a due process violation had 

occurred, Powell also has not demonstrated that the remedy he 

claims counsel should have sought—dismissal—would have 

been warranted. If a court determines that the defendant’s due 

process rights have been violated, the court must then decide the 

proper remedy for the violation, which may include, but is not 

limited to, dismissal of the case. See Tiedemann, 2007 UT 49, ¶ 45 

(speaking in terms of sanctioning the State if the balancing of the 

factors suggests it is appropriate to do so to “preserve[] 

defendants’ constitutional rights”); see also DeJesus, 2017 UT 22, 

¶ 46 n.67 (explaining that “nowhere [in Tiedemann] is dismissal 

mandated as the sole remedy” and that “because the touchstone 

for the balancing process is fundamental fairness, courts may 

find that other, less drastic remedies may adequately protect the 

due process rights of criminal defendants” (cleaned up)).

¶57 Thus, we conclude that Powell has not demonstrated that 

his trial counsel performed deficiently by not moving for 

dismissal due to the unavailable video surveillance.

III. Motion for Rule 23B Remand

¶58 Finally, Powell requests that, pursuant to rule 23B of the 

Utah Rules of Appellate Procedure, we remand this case to the 

trial court for “entry of findings of fact” he claims are necessary 

for this court’s determination of two additional claims for 
State v. Powell

20180109-CA 23 2020 UT App 63

ineffective assistance of counsel: the failure of counsel to 

adequately advise him regarding his right to testify, and 

counsel’s failure to move for suppression of the statements 

Powell made to Detective. We deny Powell’s motion.

¶59 Upon motion from a party to an appeal in a criminal case, 

rule 23B confers on an appellate court the authority to remand a 

case to the trial court for “entry of findings of fact, necessary for 

the appellate court’s determination of a claim of ineffective 

assistance of counsel.” Utah R. App. P. 23B(a). “The motion will 

be available only upon a nonspeculative allegation of facts, not 

fully appearing in the record on appeal, which, if true, could 

support a determination that counsel was ineffective.” Id.; see 

also State v. Griffin, 2015 UT 18, ¶ 20, 441 P.3d 1166 (“It stands to 

reason that if the defendant could not meet the test for 

ineffective assistance of counsel, even if his new factual 

allegations were true, there is no reason to remand the case, and 

we should deny the motion.”). Additionally, “rule 23B motions 

must be accompanied by affidavits that show the claimed 

deficient performance of the attorney and that show the claimed 

prejudice suffered by the appellant as a result of the claimed 

deficient performance.” State v. Biebinger, 2018 UT App 123, ¶ 14, 

428 P.3d 36 (cleaned up); see also Utah R. App. P. 23B(b).

A. Right to Testify

¶60 Powell has not demonstrated facts that, even if proved, 

could support a claim of ineffective assistance of counsel for 

failure to adequately advise him with respect to his right to 

testify at trial. Powell argues that counsel failed to advise him 

that he had the option of testifying at trial without waiving his 

Fifth Amendment right against self-incrimination. Powell points 

to State v. Mohamud, 2017 UT 23, 395 P.3d 133, as authority 

supporting both the proposition that he could have testified

before the jury without surrendering his Fifth Amendment 

privileges and that his counsel performed deficiently by not 
State v. Powell

20180109-CA 24 2020 UT App 63

advising him of the same. To support this argument factually, he 

avers that his counsel “had not distinguished the parameters of 

[his] right to testify in the same way as announced” in Mohamud

and that had counsel so advised him, he “would not have passed 

on the need to testify in [his] own behalf” during the defense’s 

presentation of its case. In this respect, Powell avers that he 

“wanted to explain at trial what discrepancies the video footage 

would have shown,” particularly in attempting to “rebut[] the 

allegations from the State witnesses,” and that it was his 

counsel’s “incomplete or incorrect advice” about his right to 

testify that “led [him] to surrender” that right “when [he] did 

not want to do so.” He also sets forth certain facts he would have 

testified to about his experiences in both stores.

¶61 Powell’s reliance on Mohamud to demonstrate ineffective 

assistance on this issue is misguided. In Mohamud, our supreme 

court recognized that criminal defendants seeking to establish a 

due process violation based on the State’s loss or destruction of 

exculpatory video evidence often face a difficult task in 

attempting to describe “why the video would have been relevant 

to [the] defense.” Id. ¶¶ 22–23. The court therefore noted that to 

meet the threshold requirement of showing a reasonable 

probability that the evidence would have been exculpatory, the 

defendant “could have testified on his own behalf as to what the 

video would have shown, which would not have waived his 

Fifth Amendment right against self-incrimination.” Id. ¶ 23.

¶62 Significantly, however, the court explained that this right 

to testify without waiving Fifth Amendment privileges applied 

to resolve the tension between “a defendant’s desire to testify in 

a hearing that adjudicates a claim of constitutional right in a criminal 

case and the right of that defendant not to give testimony that is 

incriminating as to the charge in question.” Id. (emphasis added)

(cleaned up). There is simply no suggestion in Mohamud that a 

defendant may testify in front of the jury during trial to establish 
State v. Powell

20180109-CA 25 2020 UT App 63

his view of the lost evidence without waiving his right against 

self-incrimination.6

¶63 Accordingly, because the premise underlying Powell’s 

request for remand on this point is flawed, Powell cannot

demonstrate the existence of facts that “could support a 

determination that counsel’s performance was deficient.” 

Biebinger, 2018 UT App 123, ¶ 14 (cleaned up). Certainly, Powell 

has not shown that it was objectively unreasonable for counsel to 

have advised him not to testify during the defense’s presentation 

of its case if his desire was to preserve his Fifth Amendment 

right against self-incrimination. Powell therefore has not 

established that remand under rule 23B for the entry of findings 

of fact on this point is warranted.7 Griffin, 2015 UT 18, ¶ 20.

B. Suppression Motion

¶64 Powell has also not shown that remand is appropriate for 

entry of findings to support his claim that counsel was 

ineffective for failing to move to suppress his statements to 

 

6. Even on its own facts, State v. Mohamud is inapposite. 

Mohamud involved a pretrial hearing on a motion to dismiss, not 

a jury trial. 2017 UT 23, ¶¶ 5–6, 395 P.3d 133.

7. In connection with this challenge, Powell claims that counsel 

failed to impeach the witnesses with respect to certain facts in 

their testimonies. However, he does not explain how these facts 

connect with counsel’s failure to properly advise him on his 

right to testify. Instead, he merely offers his interpretation of the 

facts and requests that we remand for those facts to be entered. 

To the extent Powell meant to raise this as an additional ground 

for remand under rule 23B, he has not adequately briefed it, and 

we decline to address it further. See State v. MacNeill, 2017 UT 

App 48, ¶ 83, 397 P.3d 626.
State v. Powell

20180109-CA 26 2020 UT App 63

Detective. Powell argues that Detective and another officer 

questioned him at his home without giving required Miranda

warnings. See Miranda v. Arizona, 384 U.S. 436, 444 (1966) 

(holding that “the prosecution may not use statements, whether 

exculpatory or inculpatory, stemming from custodial 

interrogation of the defendant unless it demonstrates the use of 

procedural safeguards effective to secure the privilege against 

self-incrimination”); see also State v. Perea, 2013 UT 68, ¶ 91, 322 

P.3d 624 (“The U.S. Supreme Court’s landmark decision in 

Miranda v. Arizona prevents the use of incriminating statements 

stemming from custodial interrogation of a defendant unless 

certain procedural safeguards are met.” (cleaned up)). Because 

this is so, he claims that counsel should have moved to suppress 

his statements to Detective and the other officer.

¶65 Miranda applies when a person is subject to custodial 

interrogation, and “require[s] that certain warnings be given 

prior to custodial interrogation if the resulting evidence is to be 

used against the accused.” State v. Reigelsperger, 2017 UT App 

101, ¶ 41, 400 P.3d 1127 (cleaned up); see also State v. Fullerton, 

2018 UT 49, ¶ 19, 428 P.3d 1052 (explaining that the “Miranda

safeguards apply when an individual is taken into custody or 

otherwise deprived of his freedom by the authorities in any 

significant way and is subjected to questioning” (cleaned up)).

Thus, “a threshold inquiry in any Miranda challenge is whether 

the defendant was in custody at the time of questioning.” State v. 

Fredrick, 2019 UT App 152, ¶ 29, 450 P.3d 1154.

¶66 To determine custody, a two-step approach is employed. 

First, it must be ascertained “whether, in light of the objective 

circumstances of the interrogation, a reasonable person would 

have felt he or she was not at liberty to terminate the 

interrogation and leave.” Reigelsperger, 2017 UT App 101, ¶ 45 

(cleaned up). Second, “if the court concludes that the person’s 

freedom of movement was sufficiently curtailed, the court then 

asks whether the relevant environment presented the same 
State v. Powell

20180109-CA 27 2020 UT App 63

inherently coercive pressures as the type of station house 

questioning at issue in Miranda.” Id. (cleaned up); accord

Fullerton, 2018 UT 49, ¶ 21.

¶67 Powell does not adequately address the issue of whether, 

at the time that Detective questioned him with another officer at 

his home, he was actually in custody. The sum total of his 

argument that he was in custody is that the police had focused 

on and targeted him as a suspect for both exposure episodes. He 

does not engage with the two-part custody test described above 

or the facts potentially present in his case regarding whether his 

freedom was curtailed and, if it was, whether the questioning in 

his home presented the same coercive pressures as station house 

questioning would have.

¶68 Instead, Powell essentially asks that we presume custody 

because he was the focus of an investigation. We decline to do 

so. See Stansbury v. California, 511 U.S. 318, 324–25 (1994) (per 

curiam) (“Even a clear statement from an officer that the person 

under interrogation is a prime suspect is not, in itself, dispositive 

of the custody issue, for some suspects are free to come and go 

until the police decide to make an arrest.”); Fullerton, 2018 UT 49, 

¶¶ 34–36 (concluding that, even though the officers’ questioning 

turned accusatory and focused on the suspect, the circumstances 

did not rise to the level of custody).

¶69 Because Powell has not adequately briefed the issue of 

whether his Miranda rights were even triggered, he has not 

provided a basis from which we can conclude that counsel 

provided ineffective assistance in failing to move for suppression

of his statements to Detective. State v. Ferry, 2007 UT App 128, 

¶ 12, 163 P.3d 647. And because he has not carried his burden on 

this point, we therefore must deny his request for remand. 

Griffin, 2015 UT 18, ¶ 20.
State v. Powell

20180109-CA 28 2020 UT App 63

CONCLUSION

¶70 We affirm. Powell has not shown that the trial court erred 

by sending the case to the jury. Additionally, Powell has not 

demonstrated that his trial counsel was constitutionally 

ineffective with respect to the jury instructions or for failing to 

request dismissal on the basis of lost or destroyed exculpatory 

evidence. Finally, Powell has not established that remand under 

rule 23B of the Utah Rules of Appellate Procedure is appropriate.