2021 UT App 24

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

DANIEL CHRIS KITCHES,

Appellant.

Opinion

No. 20181037-CA

Filed March 11, 2021

Third District Court, Salt Lake Department

The Honorable Paul B. Parker

No. 171910265

Debra M. Nelson and Wendy J. Brown, Attorneys

for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, 

in which JUDGE RYAN M. HARRIS and

SENIOR JUDGE KATE APPLEBY concurred.1

MORTENSEN, Judge:

¶1 Daniel Chris Kitches monitored the text messages his exwife (Ex-Wife) sent and discovered that she started dating soon 

after their divorce. When he learned she had spent the night 

with her new boyfriend, Kitches menaced her over the course of

eight days—principally by threatening to distribute a video he 

previously made of himself and Ex-Wife engaged in an intimate 

 

1. Senior Judge Kate Appleby sat by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Kitches

20181037-CA 2 2021 UT App 24

act—until he was eventually arrested. A jury convicted Kitches 

of numerous offenses, and he now appeals. We affirm. 

BACKGROUND2

¶2 Kitches and Ex-Wife were married for eight years and had

two children together. But the marriage turned tumultuous in its 

final years, so they agreed to separate in March 2017. Although 

Kitches and Ex-Wife occasionally argued about their children, 

their interactions were somewhat amicable between the time ExWife moved out of the marital home in March 2017 and when 

their divorce was finalized in August that year. The eventual 

divorce decree awarded joint physical and legal custody of the 

children and limited communication between Kitches and ExWife to child-related issues.

¶3 In the decree, Kitches and Ex-Wife agreed to maintain 

their cell phone plan until they finished paying off their phones. 

Within a few days of the divorce being finalized, Kitches 

damaged his phone and asked Ex-Wife (the primary account 

holder) to activate one of his old phones, which she did. Ex-Wife 

was unaware that reactivating Kitches’s old phone initiated 

“integrated text messaging,” enabling him to see any text 

messages she sent or received.

¶4 For approximately two weeks, Kitches actively monitored 

Ex-Wife’s text messages without notifying her that he could do 

so. Among others, he read messages in which Ex-Wife 

 

2. “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 when necessary to 

understand issues raised on appeal.” State v. Cruz, 2020 UT App 

157, n.1, 478 P.3d 631 (cleaned up).
State v. Kitches

20181037-CA 3 2021 UT App 24

complained to her friends and family about the divorce. He also 

read the messages Ex-Wife sent and received from her new 

boyfriend (Boyfriend). Things took a new course when Ex-Wife 

and Boyfriend sent messages which made apparent that they 

spent a night together at Boyfriend’s house. Kitches quickly 

messaged Ex-Wife to confront her about the overnight stay and,

in the process, admitted to her that because of the integrated 

messaging, he had been able to—and did—monitor her text 

messages. Ex-Wife immediately called the phone company and 

disabled the feature.

¶5 Later that day (September 5), Kitches phoned Ex-Wife and

informed her that he had digitally recorded the two of them 

having sex on a previous occasion, and he threatened to send the 

video to her family, friends, and Boyfriend. Ex-Wife was 

“shocked” by Kitches’s admission that he had filmed them 

having sex and she was afraid he would follow through on his 

threat. Thinking it would impede Kitches’s ability to send the 

video to anyone, Ex-Wife called the phone company and 

canceled his cell phone service. 

¶6 The next day (September 6), Ex-Wife sent Kitches an 

email asking to meet at their phone company’s storefront so that 

they could separate their phone service. Kitches responded by 

confronting Ex-Wife about text messages she had sent about the 

divorce and demanded that she turn on his phone service. ExWife replied, “I want all the videos and messages off your phone 

first, then I have no problem doing so. You have no right to send 

a video that I was not nor would I consent to.” (Emphasis added.) 

Kitches asserted “[t]hey [we]re not on [his] phone” and told her 

that—in the course of monitoring her text messages—he had 

saved “half naked pics” that she sent to Boyfriend. When ExWife again asked Kitches to delete all the foregoing and asked 

whether he was “planning on blackmailing [her],” Kitches 

responded by stating, “No deal.” He also expressed his desire to 
State v. Kitches

20181037-CA 4 2021 UT App 24

“warn” Boyfriend that Ex-Wife would “do absolutely anything 

to harm another person.”

¶7 That night, Boyfriend sent Kitches an email stating, 

“[O]ur mutual friend, [Ex-Wife,] said you have been talking

about me and had something you wanted to tell/show me. So

here’s my contact info.” Boyfriend later testified that he reached 

out to Kitches in an apparent attempt to defuse the situation, as 

he was also a divorced father and thought he might be able to 

resolve Kitches’s concerns. Kitches emailed back that Ex-Wife 

was a “sociopath” and one of the most “despicable human 

beings” he had ever met. Kitches also told Boyfriend that he had 

a video of himself and Ex-Wife having sex and offered to send it 

to Boyfriend: 

I actually have [a] time . . . stamped video, and it 

was the film sex, it was the film [of] her while she 

was over here so she couldn’t accuse me of 

anything ever again. My attorney said film and

record everything. So if you’d like a copy, which I 

don’t think you do, I have it.

When Boyfriend asked to see the video, Kitches responded that 

“for half a second [he] thought about sending it to [Boyfriend],” 

but “there is a law that says you cannot forward nudity.” 

¶8 The following morning (September 7), Kitches sent ExWife an email asking her to turn his phone service back on, 

which Ex-Wife again indicated she would do only if he deleted

the video. Kitches demanded she turn on his phone and alluded 

to highly intimate portions of the video. Ex-Wife responded by 

expressing concern that her “boss [wa]s at [her] desk,” to which 

Kitches sent the ominous reply, “Sending.” He sent a follow-up 

email one minute later, which said only, “Sent.” When Ex-Wife

explained that sending the video was illegal, Kitches responded,

“You have 5 minutes. I will send.” Ex-Wife believed that Kitches 
State v. Kitches

20181037-CA 5 2021 UT App 24

would follow through on his threat, so she acquiesced to his 

demand and contacted the phone company, instructing it to turn 

his cell phone service back on. While Ex-Wife was on the phone 

with the phone company, Kitches sent her emails complaining 

that she was not reactivating his phone service quickly enough. 

He also interrogated her about her sexual involvement with 

Boyfriend and demanded she not allow their children to be 

around Boyfriend.

¶9 Later that day, after turning Kitches’s phone service back 

on, Ex-Wife drove to his office to ensure that he would delete the 

video. When she arrived, Kitches sarcastically “asked if she 

wanted to watch the video and [said] that he and his coworkers 

watched it in the mornings while eating donuts.” Kitches 

eventually feigned agreement to delete the video, and while ExWife looked over his shoulder, he appeared to delete several 

video files from his work computer.

¶10 But the next morning (September 8), Kitches sent Ex-Wife 

a text message informing her that he still had “five videos”

which he threatened to send to her employer—specifically, her 

supervisor—and Boyfriend. Ex-Wife felt she had lost control of 

the situation and called the police, but she declined to press 

charges because they had “just gone through a divorce” and she 

only wanted the videos deleted. An officer then contacted 

Kitches and informed him that it would be a crime for him to 

send the videos. Kitches told the officer he would not send the 

videos to anyone.

¶11 The next night (September 9), Ex-Wife planned to watch a 

football game at Boyfriend’s house in Orem. Because the game 

did not start until 8:30 p.m., she arranged for the children to 

spend the night at her parents’ house in West Valley. Ex-Wife 

and Boyfriend had dinner, watched the game, and fell asleep in 

Boyfriend’s bedroom.
State v. Kitches

20181037-CA 6 2021 UT App 24

¶12 Meanwhile, Kitches drove by Ex-Wife’s house in Sandy at 

about 2:00 a.m. (September 10). Apparently, he was looking to 

see whether she was home. When he saw that Ex-Wife’s truck 

was not parked at her house, he performed an internet search of 

Boyfriend’s name on his phone and found Boyfriend’s address.

¶13 Kitches drove to Boyfriend’s house, arriving at 

approximately 4:30 a.m., and aggressively pounded on the front 

door. In the process, he realized that Boyfriend’s doorbell had a 

camera on it, so he pulled the doorbell out of the wall. He also 

sent Ex-Wife a text message that said he was “coming in” to take 

the children. Ex-Wife was frightened by the fact that Kitches had 

found her in the first place, and Boyfriend immediately 

contacted the police.

¶14 The police arrived at Boyfriend’s house at approximately 

4:40 a.m., by which time Kitches had already fled the scene. ExWife spoke with police and was visibly “frantic, especially about 

the welfare of her children.” While she was providing a witness 

statement to the officer, Kitches called Ex-Wife on her cell phone. 

The officer answered Ex-Wife’s phone and spoke to Kitches. 

Kitches was aggressive on the phone and expressed his concern 

that his children were in the house while Ex-Wife was having 

sex in the next room. He then cursed at the officer before 

hanging up the phone. Soon after, Kitches messaged Ex-Wife

stating,

I know that wasn’t a cop. You dumbass mother 

F’er. . . . Come outside. Come outside. Come 

outside now. What, you can’t have a conversation? 

What are you afraid of me you F’ing mother F’er? . 

. . And you call yourself a good mother. Really, a 

good mother sleeping with a guy after three F’ing 

weeks with the kids.
State v. Kitches

20181037-CA 7 2021 UT App 24

¶15 Kitches sent this text message in the course of driving to 

Ex-Wife’s parents’ house, where he arrived at approximately 

5:00 a.m. Kitches snuck around to the back of the house and 

entered through an unlocked door. After getting inside the 

house, Kitches walked to the room the children were sleeping in, 

looked in, and then left the house soon thereafter. Ex-Wife’s 

father was awake and observed all the foregoing from a couch in 

the living room. Ex-Wife’s father was “frightened” and “didn’t 

know what to expect,” so he did not attempt to stop Kitches 

from entering or moving about the house because he “didn’t 

want to confront” an intruder.

¶16 Ex-Wife went to get her children from her parents’ 

house as soon as she finished speaking with police and 

arrived there at approximately 6:00 a.m. Ex-Wife’s father 

informed her that he had observed Kitches enter the house about 

an hour earlier, and she immediately called the police again. 

While Ex-Wife was speaking to police, Kitches continued to send 

her text messages calling her a “slut” and threatening to seek 

sanctions in their divorce case because she spent the night at 

Boyfriend’s house. He also denied that he went to Ex-Wife’s 

parents’ house that morning, claiming he “was with [his]

girlfriend.”

¶17 Two days later (September 12), Ex-Wife sent Kitches an 

email telling him to stop emailing Boyfriend. Kitches implied 

that Boyfriend invited the ongoing emails, and the two sent a 

few emails back and forth arguing about this issue. Ex-Wife 

again turned Kitches’s phone plan off because she was 

frustrated and felt as though Kitches’s conduct was taking over 

her life: he was emailing her at work about the video (after 

claiming that he deleted it), he was communicating with 

Boyfriend and potentially ruining that relationship, and her 

parents had suddenly become involved. Kitches signed up for 

his own phone service that day and sent the following message 

to Ex-Wife:
State v. Kitches

20181037-CA 8 2021 UT App 24

Every Friday for two months, Sunday night and 

others, you leave around noon and I can’t get [the 

children] until 5, Saturday, Sunday and all the 

other times I don’t know. Great mom. Great mom 

out sleep around. Um, great mom out sleep 

around. Class. We’re all proud of you two weeks 

and F’g with a troll. Sorry making love. At least 

when you get prego I don’t have to pay. You are a 

B telling the kids on me. Wow, I’m so angry. Your 

fault. . . . Oh, sorry your legs are probably above 

your head.

¶18 The following morning (September 13), Kitches sent ExWife a text message containing clips of the video he made of the 

two of them having sex. He followed up by sending the video to 

both her personal and work email addresses. The emails 

consisted only of the video attachments. Ex-Wife called the 

police and finally decided to pursue charges about the video

because,

He’s now taunting me with—he’s now physically 

sent me a video that I never consented to, but he’s 

been threatening to do it for the past five days. 

That I have not gone to any law enforcement. I just 

have asked him to delete them. And . . . at some 

point I had to do something because I—what this 

was doing to me emotionally, I had to—I had to 

fight back. I had to do something.

¶19 The next day (September 14), Kitches spoke with two 

detectives at the police station. He claimed the video was made 

approximately nine months earlier, around December 2016 or 

January 2017, and that Ex-Wife was aware she was being 

recorded at the time. But Kitches allowed the detectives to 

download the contents of his phone, and the files showed that 

the video was created on July 18, 2017, only two months earlier. 
State v. Kitches

20181037-CA 9 2021 UT App 24

When the officer pointed out this discrepancy, Kitches claimed 

he misinterpreted the prior question about the date the video 

was made. Kitches also initially denied he sent the video to 

anyone, but he later admitted that he sent it to Ex-Wife as “an 

implied threat.”

¶20 As part of the investigation, a detective specializing in 

burglary also questioned Kitches about the morning of 

September 10. Kitches claimed he went to Boyfriend’s house to 

“make sure the kids were okay,” but he also admitted that he 

wanted to “send[] a message” and make Boyfriend fear him. 

Kitches also denied that he went to Ex-Wife’s parents’ house that 

morning, accusing Ex-Wife and her father of concocting the 

story and filing a false police report in retaliation for Kitches 

not agreeing to switch weekends for parent-time with the 

children.

¶21 Police arrested Kitches that afternoon. They later executed 

a search warrant for his work computer and found six different 

files depicting the sexual encounter from July 18, 2017. They also 

found a separate video which depicted Ex-Wife showering in the 

marital home. Kitches was subsequently charged with two

voyeurism counts for making both recordings, one count of 

voyeurism-distribution for sending the recording of the 

sexual encounter to Ex-Wife, one count of criminal stalking 

based on various instances described above, and one count of 

criminal trespassing for entering Ex-Wife’s parents’ house on 

September 10.

¶22 At trial, Ex-Wife testified about the content of both 

videos—the recording of the sexual encounter and the recording 

of her taking a shower—and stated that she did not consent to 

being filmed on either occasion. She explained that the video of 

the sexual encounter depicted events on July 18, 2017, and she 

had no idea she was being recorded. That day, Ex-Wife visited

the marital home to pick up some of her belongings and Kitches 
State v. Kitches

20181037-CA 10 2021 UT App 24

talked about reconciling in a very “heartfelt” manner, and 

this conversation led to physical intimacy in the guest 

bedroom. Kitches’s phone—the recording device—evidently was 

placed on a dresser in the guest bedroom, and the video 

depicts the room as being empty before Kitches led Ex-Wife 

into the room with him, lay down on the bed, and requested

to have sex with her. In the video, Ex-Wife expressed

concerns about getting intimate in the guest room because she 

thought a neighbor might be able to see them through the 

window, but Kitches insisted that it was “okay” and the 

neighbor could not see them. She eventually consented to the 

sexual encounter.

¶23 Regarding the shower recording, Ex-Wife testified that it

too was recorded in the marital home, but it must have been 

recorded before March 15, 2017—the date she moved out of the 

marital home. She testified that, based on her observation of the 

video, “it looks from the angle that it was kind of tucked in the 

corner, and it almost looks like it was hidden or covered 

somewhat by, like, a towel, to where I wouldn’t even . . . look to

see if there was a phone or filming device in there.” Ex-Wife 

testified that she never recorded herself taking a shower in the 

bathroom nor had she ever agreed to be recorded in the shower 

on any occasion.

¶24 Kitches moved for a directed verdict generally on all 

counts. But in arguing his motion, Kitches specifically took issue 

with two counts. First, he argued that he could not be convicted 

for voyeurism-distribution for sending the recording of the 

sexual encounter to Ex-Wife. Second, he argued that he could 

not be convicted for trespassing because he reasonably believed 

he had permission to enter Ex-Wife’s parents’ house. The trial 

court denied Kitches’s motion in its entirety. Subsequently, the 

jury convicted Kitches on all counts. He now appeals each of his 

convictions. 
State v. Kitches

20181037-CA 11 2021 UT App 24

PRESERVATION

¶25 Kitches asks for reversal, arguing that the State failed to 

present sufficient evidence to support any of the charges and, 

accordingly, the trial court should have granted his motion for a 

directed verdict. He also raises alternative challenges urging us

to vacate and remand his voyeurism-distribution and stalking 

convictions, asserting that the jury was improperly instructed on 

the elements of these charges. Kitches maintains that he 

preserved all but one of his claims. He concedes that trial 

counsel did not object to the allegedly erroneous stalking 

instruction, and he asks us to review that issue for ineffective 

assistance of counsel. 

¶26 The State argues that almost none of Kitches’s claims

were preserved and asserts that we should only review the 

unpreserved ones for ineffective assistance of counsel. But as we 

discuss below, in our view all the allegedly unpreserved claims 

fail on their merits anyway. 

¶27 We recognize that “[o]ur rules of preservation are critical 

to the appellate process and are themselves an important 

mechanism for promoting fairness.” State v. Larrabee, 2013 UT 70, 

¶ 32, 321 P.3d 1136. And because of this, “we should not dilute 

[our preservation rules] by stretching their standards to justify 

our consideration of a question we find interesting or

important.” In re Baby Girl T., 2012 UT 78, ¶ 56, 298 P.3d 1251

(Lee, J., dissenting). Thus, we generally will not review issues 

unless they were presented “in such a way that the court ha[d]

an opportunity to rule on [them].” State v. Argueta, 2018 UT App 

142, ¶ 44, 429 P.3d 764 (cleaned up). But these rules are “selfimposed,” and we retain “wide discretion when deciding 

whether to entertain . . . matters that are first raised on appeal.”

State v. Houston, 2015 UT 40, ¶ 19, 353 P.3d 55 (cleaned up); see

also Frito-Lay v. Utah Labor Comm’n, 2009 UT 71, ¶ 30, 222 P.3d 55 

(“There are times when a reviewing court may exercise its 
State v. Kitches

20181037-CA 12 2021 UT App 24

discretion in addressing an unpreserved issue . . . .”). And in 

exercising our discretion, we should remember that our 

preservation rules exist “to serve judicial economy and to 

prevent a defendant from failing to object to an issue in the 

hopes of reversal of a conviction on appeal.” Houston, 2015 UT 

40, ¶ 19; see also Salt Lake City v. Josephson, 2019 UT 6, ¶ 10, 435 

P.3d 255 (“When parties fail to preserve issues, we do not receive 

the benefit of a trial judge’s reasoning and analysis on the issue 

at hand.” (cleaned up)).

¶28 With these principles in mind, if the merits of a claim 

can easily be resolved in favor of the party asserting that the claim 

was not preserved, we readily may opt to do so without 

addressing preservation. This approach accords with the 

purpose of our preservation rules, as it prioritizes judicial 

economy without altering the incentive to object at trial. See, e.g.,

United States v. Weed, 873 F.3d 68, 72 (1st Cir. 2017) (“Because 

[the defendant’s] claims are easily disposed of on the merits, we 

decline to decide this preliminary question [of preservation] 

. . . .”); United States v. Navarro, 800 F.3d 1104, 1113 (9th Cir. 2015)

(choosing to exercise its discretion to reach the merits of the 

defendant’s unpreserved constitutional claim because the court 

had “little doubt” that the defendant “failed to demonstrate a 

constitutional violation”); Wilson v. Ozmint, 352 F.3d 847, 868 

(4th Cir. 2003) (choosing to reach the merits of the defendant’s 

unpreserved claim in part because the claim was “patently 

without merit and therefore easily disposed of” and addressing 

the merits thus served the interest of judicial economy (cleaned 

up)); State v. Webster, 865 N.W.2d 223, 232 (Iowa 2015) (noting 

that courts may dispatch cases on the “underlying merits” 

without deciding the question of preservation). In this case, 

because we can easily dispose of Kitches’s claims on their merits, 

we choose to exercise our prerogative to simply assume that 

Kitches’s claims were preserved and proceed to consideration of 

the merits. 
State v. Kitches

20181037-CA 13 2021 UT App 24

ISSUES AND STANDARDS OF REVIEW

¶29 As noted above, Kitches asserts that all his insufficiency of 

the evidence claims were preserved by his directed verdict 

motion. “We review a trial court’s ruling on a motion for 

directed verdict for correctness.” State v. Doyle, 2018 UT App 239, 

¶ 11, 437 P.3d 1266 (cleaned up). “We will uphold the trial 

court’s decision if, upon reviewing the evidence and all 

inferences that can be reasonably drawn from it, we conclude 

that some evidence exists from which a reasonable jury could 

find that the elements of the crime had been proven beyond a 

reasonable doubt.” Id. (cleaned up).

¶30 We review the allegedly preserved voyeurismdistribution jury instruction error for correctness. See State v. 

Cegers, 2019 UT App 54, ¶ 19, 440 P.3d 924. And we review the 

concededly unpreserved stalking instruction error for ineffective 

assistance of counsel, which presents a matter of law. See State v. 

Cruz, 2020 UT App 157, ¶ 15, 478 P.3d 63.

ANALYSIS

I. Voyeurism 

¶31 Kitches contends that the State failed to present sufficient 

evidence to support either voyeurism conviction. He principally

argues that the evidence presented at trial was insufficient to 

show that Ex-Wife did not consent to being recorded in either 

instance.

¶32 Utah’s voyeurism statute provides,

A person is guilty of voyeurism who intentionally 

uses any type of technology to secretly or 

surreptitiously record video of a person:
State v. Kitches

20181037-CA 14 2021 UT App 24

(a) for the purpose of viewing any portion of 

the individual’s body regarding which the 

individual has a reasonable expectation of 

privacy, whether or not that portion of the body 

is covered with clothing;

(b) without the knowledge or consent of the 

individual; and

(c) under circumstances in which the individual 

has a reasonable expectation of privacy.

Utah Code Ann. § 76-9-702.7(1) (LexisNexis 2017).3

¶33 Kitches first contends the evidence was insufficient to 

show that the recording of the sexual encounter on July 18, 2017, 

 

3. We note that section 76-9-702.7(1) was amended in May 2017. 

For the shower recording, which happened prior to May 2017, 

the jury was properly instructed on the previous version of the 

offense. The earlier version is substantively identical to the 

current version, save for the previous additional requirement 

that the defendant “concealed or disguised” the device used to 

“secretly or surreptitiously” record a person. See Utah Code 

Ann. § 76-9-702.7(1) (LexisNexis 2014) (emphasis added); see also 

State v. Bilek, 2018 UT App 208, ¶¶ 24–27, 437 P.3d 544

(discussing the distinction between the “concealed or disguised” 

and the “secretly or surreptitiously” elements). With that said, 

Kitches’s arguments on appeal are not based specifically on this 

language or any other differences in the previous version of the 

code. But even if they were, sufficient evidence was introduced 

to show that the device used to record Ex-Wife in the shower 

was concealed or disguised: Ex-Wife testified that she did not 

see the device, and the video itself appeared to depict a towel 

covering the device. Thus, in addressing Kitches’s arguments, 

we make no further mention of the previous version of section 

76-9-702.7(1). 
State v. Kitches

20181037-CA 15 2021 UT App 24

amounted to voyeurism. He argues that the evidence introduced 

at trial demonstrated that Ex-Wife was “relatively unconcerned” 

about the existence of the video and was instead concerned only 

about it being disseminated—which we infer is meant to suggest 

that if Ex-Wife had not consented to making the video, she 

would have emphasized this particular point of concern more 

forcefully. He also points to other evidence that may suggest ExWife consented to or otherwise knew she was being recorded, 

such as a moment of the video which appears to show Ex-Wife 

looking in the direction of the recording device. 

¶34 Kitches’s arguments are unavailing. The State introduced 

ample evidence to show that Ex-Wife did not consent to being 

recorded during the sexual encounter. For one thing, as 

correctly pointed out by the State during closing arguments, 

what the video depicts was itself circumstantial evidence 

tending to show “a calculated effort on [Kitches’s] part to lure 

[Ex-Wife] into th[e] bedroom [and] persuade her to have sex, 

because he knew that there was a camera running.” Moreover, 

Ex-Wife later explicitly stated to Kitches that she did not and 

would not consent to being recorded in such a video. And 

notably, Kitches never responded to Ex-Wife by suggesting that 

she did consent to being filmed. The jury reasonably could infer 

that Kitches’s silence in response to Wife’s direct assertion of 

non-consent was a tacit admission that Ex-Wife’s version of 

events was correct. Relatedly, Kitches’s own statement to 

Boyfriend that he filmed Ex-Wife on the purported advice of his 

lawyer so that Ex-Wife could not “accuse [him] of anything” 

further supports that Kitches filmed the encounter without ExWife’s knowledge or consent. Regardless, Ex-Wife directly 

testified at trial that she never consented to being filmed. And 

given the particular facts of the case and the nature of the charge 

at issue, this testimony in and of itself was “some evidence” of 

Ex-Wife’s lack of consent that would justify submitting the issue

to the jury. See supra ¶ 29.
State v. Kitches

20181037-CA 16 2021 UT App 24

¶35 As the foregoing demonstrates, Kitches’s arguments 

amount to nothing more than assertions that conflicting evidence 

was introduced on this element. “But the existence of conflicting 

evidence alone cannot justify taking the case away from the jury. 

To the contrary, when the evidence presented is conflicting or 

disputed, the jury serves as the exclusive judge of both the 

credibility of witnesses and the weight to be given particular 

evidence.” State v. Cruz, 2020 UT App 157, ¶ 23, 478 P.3d 631

(cleaned up). Here, the jury could permissibly resolve that the 

substantial evidence demonstrating Ex-Wife’s lack of consent to 

being recorded outweighed the comparably minimal evidence 

that may have allowed a different finding.

¶36 Kitches next contends that the evidence introduced in 

support of his voyeurism conviction for the shower recording 

was insufficient in several regards. He argues that “the State 

failed to provide evidence that the recording of [Ex-Wife]

showering was nonconsensual, who recorded it, or even when 

the recording occurred.” With regard to the argument about the 

timing of the offense, Kitches essentially assails the fact that, 

because Ex-Wife was not sure exactly when she was recorded in 

the shower other than testifying that it had to have happened 

before she moved out of the marital home, the jury was 

instructed that the offense took place sometime between January 

1, 2017, and March 31, 2017.

¶37 Kitches’s arguments again are unpersuasive. As before, 

what the video depicted was circumstantial evidence that ExWife was unaware she was being recorded, and Ex-Wife also 

directly testified that she never was aware of or consented to 

being recorded in the shower. The State thus introduced 

sufficient evidence that Kitches filmed Ex-Wife in the shower 

without her consent. Second, it was never in any genuine 

dispute that the video was both recorded in the master bathroom 

of the marital home and recovered from Kitches’s computer. 

These facts permitted a reasonable inference that Kitches was the 
State v. Kitches

20181037-CA 17 2021 UT App 24

individual who recorded Ex-Wife in the shower. And Kitches’s 

final argument about the date is irrelevant to whether the 

evidence introduced at trial was sufficient because “the specific 

date of the act is not an element of the crime.” State v. Gulbransen, 

2005 UT 7, ¶ 31, 106 P.3d 734, abrogated on other grounds by Met v. 

State, 2016 UT 51, 388 P.3d 447; see generally Utah Code Ann. 

§ 76-9-702.7. Moreover, because the offense of voyeurism 

requires that the victim not be aware that they were being 

recorded in the first place, requiring the date of the offense to be 

presented with razor-like precision would defeat the goal of the 

statute, as it would effectively bar prosecution in the run of cases 

absent an admission by the offender as to the date that they 

“secretly or surreptitiously” recorded their victim.

¶38 Based on the foregoing, the State presented sufficient 

evidence to support both of Kitches’s voyeurism convictions.

Accordingly, we reject his contention that we should reverse 

these convictions. 

II. Voyeurism-Distribution 

¶39 Along with his voyeurism convictions stemming from 

recording Ex-Wife in the sexual encounter and in the shower, 

Kitches also was convicted for distribution under the voyeurism 

statute—a separately defined offense that carries a higher 

penalty for distributing the voyeuristic material. See Utah Code 

Ann. § 76-9-702.7(3) (LexisNexis 2017). Both of Kitches’s 

challenges to this conviction—regarding the sufficiency of the 

evidence and the allegedly erroneous jury instruction—are 

premised on the same two assumptions: (1) the evidence 

demonstrated that Kitches sent the video only to Ex-Wife and (2) 

sending the voyeuristic material to the victim does not count as 

“distribution” under the statute, which instead requires that the 

voyeuristic material be sent to “uninvolved third parties.” He 

thus argues that the evidence was necessarily insufficient to 

support his voyeurism-distribution conviction and likewise 
State v. Kitches

20181037-CA 18 2021 UT App 24

argues the jury was erroneously instructed that it could convict

him if it found that he sent the voyeuristic material only to ExWife.4

¶40 Subsection (3) of the voyeurism statute5 outlines the 

offense of voyeurism-distribution. As is relevant, it provides that 

“[d]istribution or sale of any images, including in print, 

electronic, magnetic, or digital format, obtained under [the 

subsection of the statute that outlines the base offense of 

voyeurism] by transmission, display, or dissemination” is a 

separate offense under the voyeurism statute and “is a third 

degree felony.” Id. Although subsection (3) outlines the offense 

of voyeurism-distribution, the term “distribution” is not 

defined anywhere in the voyeurism statute. See generally id. § 76-

9-702.7.

¶41 Kitches argues that the ordinary and accepted meaning of 

distribution “necessarily means broadening access to an item, 

spreading out or dispersing,” and thus requires the defendant to 

 

4. At oral argument, Kitches asserted that the trial court should 

not have defined the term “distribution” at all in the jury 

instructions. But Kitches failed to meaningfully develop this 

argument in his opening brief. See State v. Sloan, 2003 UT App 

170, ¶ 13, 72 P.3d 138 (“An issue is inadequately briefed when 

the overall analysis of the issue is so lacking as to shift the 

burden of research and argument to the reviewing court.” 

(cleaned up)). As a result, we will not address this argument. See 

Utah Physicians for a Healthy Env’t v. Executive Dir. of the Utah 

Dep’t of Env’t Quality, 2016 UT 49, ¶¶ 28–38, 391 P.3d 148 (noting 

that it would “turn the briefing process on its head” if the court 

were to consider arguments not developed in the opening brief).

5. Any future references to “subsection (3),” if not otherwise 

specified, refer to Utah Code section 76-9-702.7(3).
State v. Kitches

20181037-CA 19 2021 UT App 24

have sent the voyeuristic material to “an individual who is not a 

party to the intimate act depicted.” And he asserts that such an 

interpretation is necessary to read subsection (3) in harmony 

with Utah Code section 76-5b-203—colloquially referred to as 

Utah’s revenge-porn statute—which outlines the offense of 

“[d]istribution of an intimate image.” See id. § 76-5b-203(2) 

(2020). The revenge-porn statute provides that it is a class A 

misdemeanor “if the actor knowingly or intentionally distributes 

to any third party any intimate image” if, among other things, 

“the actor knows that the depicted individual has not given 

consent to the actor to distribute the intimate image” and “the 

intimate image was created by or provided to the actor under 

circumstances in which the individual has a reasonable 

expectation of privacy.” See id. (emphasis added). Kitches seizes 

on the fact that the revenge-porn statute explicitly requires the 

actor to send the intimate image to a “third party” and asserts 

that it would be “nonsensical” to interpret “distribution” under 

subsection (3) in any way that does not embrace this same 

requirement.

¶42 Whether “distribution” under subsection (3) requires the 

defendant to distribute the offending material to a third party is 

a question of statutory interpretation. “When interpreting a 

statute, we rely first on the statute’s plain language as the best 

evidence of the legislature’s intent.” State v. Bilek, 2018 UT App 

208, ¶ 24, 437 P.3d 544 (cleaned up). “In so doing, we read each 

term according to its ordinary and accepted meaning.” State v. 

Davis, 2011 UT 57, ¶ 21, 266 P.3d 765 (cleaned up). “We also 

presume that the expression of one term should be interpreted as 

the exclusion of another, thereby presuming all omissions to be 

purposeful.” Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000

(cleaned up). And “we read the language of the statute as a 

whole and also in its relation to other statutes.” Davis, 2011 UT 

57, ¶ 21 (cleaned up). This is to say that we interpret the 

language of the statute at issue “in harmony with other statutes 
State v. Kitches

20181037-CA 20 2021 UT App 24

in the same chapter and related chapters.” State v. Rushton, 2017 

UT 21, ¶ 18, 395 P.3d 92 (cleaned up).

¶43 We disagree that the ordinary meaning of distribution 

“necessarily means broadening access to an item.” (Emphasis 

added.) While distribution can denote a broadening of access, it 

also is defined more generally as “to deliver.” See Distribute, 

Black’s Law Dictionary (11th ed. 2019). And the simple act of 

“delivery” is clearly met when the defendant sends the 

voyeuristic recording to any person, including the person 

depicted.6 But the same would be true even if we were to accept 

Kitches’s preferred definition that distribution requires 

“broadening access to an item.” Under subsection (3), the “item” 

of concern is the recording that was “obtained under 

[s]ubsection (1)”—i.e., the voyeuristic recording. See Utah Code 

Ann. § 76-9-702.7(3). Whether the defendant sends that 

recording to a third party, or instead sends it to the individual 

who, “without the[ir] knowledge or consent,” was “secretly or 

surreptitiously” recorded, access to the recording has been 

broadened. See generally id. § 76-9-702.7.

¶44 And although we agree that the revenge-porn statute is a 

related statute that should be harmonized with subsection (3), 

that statute further elucidates that “distribution” occurs under 

 

6. At oral argument, the parties raised the issue of whether 

“distribution” occurs, within the meaning of subsection (3), if the 

victim were to ask the defendant to send the victim the video. In 

our view, the statute as currently worded criminalizes any 

distribution of the material and makes no room for an exception 

which would, in effect, absolve the defendant of distribution 

merely because a concerned victim seeks to determine whether 

they were secretly or surreptitiously recorded. If this was not the 

legislature’s intent, it is of course able to amend the statute to 

provide for a different result.
State v. Kitches

20181037-CA 21 2021 UT App 24

subsection (3) whether the defendant sends the voyeuristic 

recording to the victim or to another person. Kitches’s argument 

to the contrary fixates on the fact that, in setting forth the 

elements of the offense, the revenge-porn statute specifies that 

distribution must be “to any third party.” Id. § 76-5b-203(2). But 

he overlooks the fact that the statute separately defines the term 

“distribute” and does so in a way that omits any requirement 

that the actor send the intimate image to a third party:

“Distribute” means selling, exhibiting, displaying, 

wholesaling, retailing, providing, giving, granting 

admission to, providing access to, or otherwise 

transferring or presenting an image to another 

individual, with or without consideration.

Id. § 76-5b-203(1)(a) (emphasis added); see also Phillips v. 

Department of Com., 2017 UT App 84, ¶ 27, 397 P.3d 863 (“We

seek to give effect to omissions in statutory language by 

presuming all omissions to be purposeful.” (cleaned up)). And 

applying this definition to the term “distribution” in subsection 

(3) leads to one result: a defendant commits the offense at the 

moment they send the voyeuristic material to “another 

individual,” which necessarily includes the person depicted. See 

Utah Code Ann. § 76-5b-203(1)(a). Moreover, the fact that the 

legislature narrowly circumscribed the offense in the revengeporn statute to include distribution only to a “third party,” but 

did not include any such requirement in subsection (3), further 

evinces that the legislature intended for distribution under 

subsection (3) to embrace the broader definition. The legislature 

apparently knew how to narrow subsection (3)’s applicability 

but chose not to.

¶45 Such an interpretation also harmonizes the statutes’ 

respective purposes. As a general matter, the revenge-porn 

statute is intended to prevent a situation in which the victim is 

willingly recorded and willingly provides that recording to the 
State v. Kitches

20181037-CA 22 2021 UT App 24

defendant (either by sending it to the defendant or by consenting 

to the defendant recording the act depicted), and the defendant 

then turns around and distributes that recording to a “third 

party,” i.e., someone to whom the defendant “knows that the 

depicted individual has not given consent to the [defendant] to 

distribute the intimate image.” See id. § 76-5b-203(2). The

revenge-porn statute thus recognizes that the defendant’s 

culpability stems from the non-consensual nature of the second 

transfer. That offense thus inherently requires that the recording 

have been sent to someone other than the person who both 

willingly participated in and provided the recording to the 

defendant.7

¶46 In contrast, the voyeurism statute applies to situations in 

which the victim never consented to being recorded in the first 

instance but was instead “secretly or surreptitiously” recorded. 

There is thus nothing inherent in the base offense which then 

necessarily requires that subsection (3) apply only to instances in 

which the defendant sends the recording to a third party. And 

the particular facts of this case illustrate one reason why the 

voyeurism statute specifically omits any mention of a “third

party” requirement. Kitches all but admitted he sent the video to 

Ex-Wife to cause her emotional distress when he acknowledged 

that he sent it as “an implied threat.” And Ex-Wife testified that 

watching the video indeed caused her emotional distress:

It was probably one of the most emotionally 

draining things. I—I did not want to watch it. I—

 

7. Or in the parlance of Kitches’s preferred definition of 

“distribution,” the individual depicted in the recording always 

had “access” to it by consenting to being recorded and willingly 

providing the recording to the defendant. Therefore, sending the 

recording back to the individual depicted would not achieve the 

requisite broadening of access.
State v. Kitches

20181037-CA 23 2021 UT App 24

that was a moment between . . . felt like that was a 

private moment between the two of us, and it 

made me feel dirty, and it shouldn’t. It made me 

feel an inch tall. It was embarrassing, humiliating. 

It was—I should not have had to have watched 

that or seen that . . . .

¶47 Based on the foregoing, we reject Kitches’s statutory 

arguments and hold that the undisputed evidence that he sent

the video to Ex-Wife constitutes “distribution” under subsection 

(3). We thus reject Kitches’s contention that the evidence was 

insufficient to support his conviction. We likewise reject his

related contention that the trial court improperly instructed the 

jury that it could convict him under subsection (3) if it found that 

he indeed sent the video to Ex-Wife as described above.

III. Stalking 

¶48 Kitches also assails his stalking conviction on two 

separate grounds, but both are premised on the notion that the 

State failed to present sufficient evidence that he engaged in 

“two or more acts” as are needed to commit the offense. See Utah 

Code Ann. § 76-5-106.5(1)(a) (LexisNexis Supp. 2020).8 Kitches’s 

first contention is that the trial court should have granted his 

motion for a directed verdict based on this alleged evidentiary 

deficiency. Kitches’s second contention is that counsel should

have objected to a jury instruction—which Kitches asserts did 

not make sufficiently clear to the jury that it had to find that he

engaged in more than one act—and argues that the jury would 

have acquitted him if the instruction had been clarified because 

of the same alleged evidentiary deficiency.

 

8. The statutory provisions in effect at the relevant time do not 

differ from the current provisions in any way material to this 

case. We thus cite the current Utah Code for convenience. 
State v. Kitches

20181037-CA 24 2021 UT App 24

¶49 Utah Code section 76-5-106.5(2) provides,

A person is guilty of stalking who intentionally or 

knowingly engages in a course of conduct directed 

at a specific person and knows or should know that 

the course of conduct would cause a reasonable 

person:

(a) to fear for the person’s own safety or the 

safety of a third person; or 

(b) to suffer other emotional distress.

Id. A crucial element of the offense is thus that the defendant 

must have engaged in a “course of conduct” directed at the 

victim. See id. Course of conduct is separately defined in the 

statute as requiring the defendant to have engaged in “two or 

more acts” proscribed by the statute. Id. § 76-5-106.5(1)(a). And 

the statute provides a broadly inclusive list as to what those 

proscribed acts are, including, 

(i) acts in which the actor follows, monitors, 

observes, photographs, surveils, threatens, or 

communicates to or about a person, or interferes 

with a person’s property:

(A) directly, indirectly, or through any third 

party; and

(B) by any action, method, device, or means; or

(ii) when the actor engages in any of the following 

acts or causes someone else to engage in any of 

these acts:

(A) approaches or confronts a person; [or]

. . . 

(D) sends material by any means to the person.
State v. Kitches

20181037-CA 25 2021 UT App 24

Id.

¶50 We have thus characterized stalking as “inherently an 

offense of repetition,” given the requirement that the actor 

engage in two or more acts directed at the victim. Hardy v. Hardy, 

2020 UT App 88, ¶ 6, 467 P.3d 931 (cleaned up). But in 

determining whether an act counts toward the course of 

conduct, we have also made clear that the acts must be viewed 

“cumulatively in light of all the facts and circumstances.” Butters 

v. Herbert, 2012 UT App 329, ¶ 12, 291 P.3d 826 (cleaned up). So,

although a single incident may not appear to be a qualifying act 

directed at the victim, an objective evaluation of all the 

circumstances—particularly the nature and timing of the acts—

may indeed show that the incident was part and parcel of a 

broader course of conduct directed at the victim. See Ragsdale v. 

Fishler, 2020 UT 56, ¶ 37; Butters, 2012 UT App 329, ¶ 15; Ellison 

v. Stam, 2006 UT App 150, ¶ 38, 136 P.3d 1242.

¶51 To be frank, the State introduced an arsenal of evidence to 

show that Kitches engaged in “two or more acts” directed at ExWife. First, the evidence demonstrated that he “monitor[ed]” ExWife’s text messages for approximately two weeks. See Utah 

Code Ann. § 76-5-106.5(1)(a)(i). Next, the evidence demonstrated 

that Kitches “confront[ed]” her about the content of her text 

messages on several occasions—in one specific example, he 

confronted her about sending “half naked pics” which he 

admitted to intercepting and saving. See id. § 76-5-

106.5(1)(a)(ii)(A). Moreover, Kitches explicitly “threaten[ed]” ExWife on no fewer than three occasions that he had a video of 

them having sex and would send it to her family, friends, 

employer, and Boyfriend.

9 See id. § 76-5-106.5(1)(a)(i). Each of 

 

9. We need not parse the record for each and every time Kitches 

threatened Ex-Wife. Instead, we simply note that explicit threats 

were made on September 5, 7, and 8. And because these threats 

(continued...)
State v. Kitches

20181037-CA 26 2021 UT App 24

these explicit threats counts as a separate act toward the course 

of conduct, and thus the course of conduct element is met by this 

undisputed evidence alone. Kitches also “communicat[ed]” to 

Ex-Wife that he had shared the video with his co-workers,

10 and 

later “sen[t]” the video to Ex-Wife as an “implied threat.” See id.

§ 76-5-106.5(1)(a)(i), (ii)(D). He also “monitor[ed]” Ex-Wife on 

the morning of September 10 when he drove by her house at 2:00 

a.m. to ascertain her whereabouts and then “follow[ed]” her to 

Boyfriend’s house, where he then “confront[ed]” her about being 

there. See id. § 76-5-106.5(1)(a)(i), (ii)(A). So as to not belabor the 

point, we end our recitation of the supporting evidence here. 

¶52 Kitches specifically takes issue with only two of the 

above-recited acts. As a result, we need not engage with 

Kitches’s arguments because, even if correct, he still fails to 

challenge the bevy of other distinct acts in which he engaged 

that establish the course of conduct element.11 We thus reject 

 

(...continued)

were made on different dates, in tandem with other factual 

circumstances surrounding them, there is no question that they 

constitute “distinct acts.” See Hardy v. Hardy, 2020 UT App 88, 

¶ 8, 467 P.3d 931 (explaining that to be “distinct,” acts “must be 

distinct in time or purpose”).

10. That this statement apparently was untrue does not negate 

that this was a qualifying act. Indeed, the fact that Kitches lied 

about showing his co-workers the video suggests that he 

intended to cause Ex-Wife emotional distress by relaying the 

false information.

11. We note that, throughout his brief, Kitches repeatedly 

attempts to excuse his conduct by suggesting that nothing he did 

was “directed at” Ex-Wife, and that he was instead motivated 

only out of concern for the well-being of his children. This 

(continued...)
State v. Kitches

20181037-CA 27 2021 UT App 24

Kitches’s contention that the evidence was insufficient to 

support his conviction for stalking.

¶53 And we reject Kitches’s ineffective assistance claim

regarding the allegedly erroneous jury instruction for largely the 

same reason. To prevail on this claim, Kitches must show that 

counsel’s failure to object to the alleged error “prejudiced the 

defense.” State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871 (cleaned 

up). And even assuming the jury was erroneously instructed 

that it could convict Kitches of stalking if it found that he 

engaged in fewer than two acts and that counsel should have 

objected to the instruction, “[t]he burden is on [Kitches] to 

demonstrate a reasonable probability that the outcome of his . . . 

case would have been different absent counsel’s error.” State v. 

Scott, 2020 UT 13, ¶ 43, 462 P.3d 350; see also State v. Grunwald, 

2020 UT 40, ¶ 22, 478 P.3d 1 (“When applying [the] prejudice 

analysis in the context of erroneous jury instructions, we must 

 

(...continued)

argument misses the mark. See Ragsdale v. Fishler, 2020 UT 56, 

¶ 32 (“[R]egardless of whether a petitioner is a respondent’s 

ultimate target, the fact that the respondent engaged in any act 

proscribed by the statute two or more times makes his or her 

conduct ‘directed at’ the petitioner.”). And even if his subjective 

motivations were dispositive, the record before the jury firmly 

belies the notion that his conduct was motivated solely out of 

concern for his children. The mere acts themselves (especially 

when viewed in totality) would allow the jury to reasonably 

infer that all of Kitches’s conduct was directed at Ex-Wife for the 

subjective purpose of causing her emotional distress. And 

Kitches’s own statements bear this out. For example, his 

admission that he followed Ex-Wife to Boyfriend’s house at 4:00 

a.m. to “make a point” and instill fear allowed the jury to reject 

Kitches’s overtures about any purported concern for his 

children.
State v. Kitches

20181037-CA 28 2021 UT App 24

determine whether there is a reasonable probability the jury 

would not have convicted the defendant if the jury instructions 

had been correct.”). Given that the evidence demonstrated that 

Kitches engaged in numerous acts directed at Ex-Wife—most of 

which he does not even dispute—he cannot demonstrate a 

reasonable probability that the jury would have acquitted him if

the instruction had been perfectly accurate.12

 

12. Although not strictly necessary, we also note that counsel did 

not perform deficiently. As initially constructed, the jury 

instruction was legally incorrect. The written instruction moved 

the “two or more acts” requirement from Utah Code section 76-

5-106.5(1)(a) into subsection (1)(a)(i)—i.e., the instruction implied 

that the jury could convict Kitches of stalking if it found that he 

engaged in one solitary act proscribed under subsection (1)(a)(ii). 

But counsel objected to this error as the court read the 

instruction aloud to the jury. The court held a brief sidebar and 

agreed that the instruction was in error. It then orally instructed 

the jury that the two or more acts requirement applied to both 

subsections. The court also instructed the jurors to make 

alterations to their respective written instructions, such that the 

jurors each had legally correct written instructions. On appeal, 

Kitches tacitly acknowledges that the corrected instruction 

“tracked the statutory definition” but asserts that counsel 

nevertheless should have objected again because “[t]he altered 

written instruction [was] messy and confusing . . . [and] [t]he 

court’s verbal explanation of what should be corrected [was]

similarly perplexing.” But Kitches fails to offer any explanation 

as to how the corrected instruction was “messy,” “confusing,” or 

“perplexing.” Kitches has thus failed to demonstrate deficient 

performance. The court’s corrected instruction properly 

instructed the jury on the elements of the offense, and thus 

counsel had no reason to further object to it. See State v. Powell, 

(continued...)
State v. Kitches

20181037-CA 29 2021 UT App 24

IV. Trespassing

¶54 Finally, Kitches contends that the State failed to present 

sufficient evidence to support his conviction for criminal 

trespass. As he did at trial, Kitches concedes that he did enter ExWife’s parents’ house on the morning of September 10 but 

primarily argues that he reasonably believed he had permission

to enter the house that morning. He essentially argues that the 

testimony of Ex-Wife’s father conclusively established this fact. 

As is relevant, Ex-Wife’s father testified that, during Kitches’s

marriage to Ex-Wife, Kitches had “permission to enter [his] 

home, especially for the children,” but after the divorce, his 

contact with the household was limited to dropping the children 

off on Wednesday and Friday mornings.

¶55 A defendant is guilty of criminal trespass if the defendant

(1) knowingly13 “enter[ed] or remain[ed] unlawfully” on 

 

(...continued)

2020 UT App 63, ¶ 24, 463 P.3d 705 (“If the instruction was 

correct, [the defendant] cannot establish deficient performance 

for failing to object to it.”).

13. The jury was instructed that Kitches must have knowingly 

entered or remained on the property. The State argues that 

“[b]ecause the trespass statute does not include a mental state for 

the entering element, the State only had to prove that [Kitches] 

acted at least recklessly as to that element” but asserts that the 

mental state is essentially irrelevant here, arguing that the 

evidence was nevertheless sufficient to demonstrate that Kitches 

knowingly entered the house unlawfully. We agree that the 

evidence was sufficient to show that Kitches knowingly entered 

the house unlawfully, and thus we simply couch the elements 

and our resultant conclusions as such, without need to decide 

the issue.
State v. Kitches

20181037-CA 30 2021 UT App 24

property, and (2) was “reckless as to whether [their] . . . presence 

[would] cause fear for the safety of another.” Utah Code Ann. 

§ 76-6-206(2)(a); see also id. § 76-2-103(2) (“A person engages in 

conduct . . . [k]nowingly, or with knowledge, with respect to his 

conduct or to circumstances surrounding his conduct when he is 

aware of the nature of his conduct or the existing 

circumstances.”); id. § 76-2-103(3) (“A person engages in conduct

. . . [r]ecklessly with respect to circumstances surrounding his 

conduct or the result of his conduct when he is aware of but 

consciously disregards a substantial and unjustifiable risk that 

the circumstances exist or the result will occur.”). So long as the 

foregoing elements are met, the defendant is guilty of the offense 

even if entry onto the property was brief. See State v. Powell, 2013 

UT App 64, ¶ 4, 298 P.3d 1289 (per curiam) (“This testimony is 

sufficient for the jury to find that [the defendant] was inside the 

apartment, even if only briefly. Accordingly, the evidence was 

sufficient to support the conviction for criminal trespass.”).

¶56 Kitches argues that the State failed to introduce sufficient 

evidence to show that he either knowingly entered the house

unlawfully or was reckless as to whether his presence in the 

house would cause fear for the safety of another. In so arguing, 

he characterizes Ex-Wife’s father’s testimony as establishing that, 

during the marriage, he had permission to enter the house 

provided that his entry “related to the children,” and because no 

one told him that these privileges of entry had been revoked or 

narrowed, he reasonably believed he had permission to enter the 

house on September 10 to check on his children. Based on this 

premise, he argues that the evidence necessarily was insufficient 

to show that he had the requisite mental state to unlawfully 

enter the home. He likewise argues that because he reasonably 

believed he had permission to enter the house, the State 

necessarily failed to show he was reckless as to whether his 

presence would cause fear for the safety of another, especially 

since he did not “disguise himself or sneak around [the] house.”
State v. Kitches

20181037-CA 31 2021 UT App 24

¶57 We disagree. First, the bare factual circumstances—which 

were not in dispute at trial or on appeal—permitted a reasonable 

inference that Kitches knowingly entered the house unlawfully. 

Kitches entered the house at an unusually early morning hour 

(5:00 a.m. on a Sunday), did so by sneaking around the back of 

the house, silently entered through an unlocked door, and failed 

to announce his presence to anyone in the house. From these 

facts alone, the jury could infer that Kitches silently entered and 

moved throughout the house because he knew his entry was 

unlawful and thus intentionally tried to conceal his presence. 

And to this point, Kitches initially lied both to Ex-Wife and the 

police about entering the house, categorically denying that he 

did so. This further suggested that he knew he did not have 

permission to enter the house. One would expect that an 

individual who honestly believed they had permission to enter 

the house would simply advance that understanding—especially

to the police—rather than denying entry altogether. Kitches’s 

discussion about his purportedly reasonable belief that he had 

permission to enter the house that morning is, at most, 

conflicting evidence of his mental state that was solely within the 

jury’s province to weigh and reject. See supra ¶ 35.

¶58 With the foregoing in mind, the State also presented 

sufficient evidence that Kitches was reckless as to whether his 

entry would cause fear for the safety of another. Kitches snuck 

into an occupied residence through the back door at 5:00 a.m. In 

other words, his entry occurred in a manner and at a time that 

would suggest to reasonable occupants that the house was being 

burglarized. See, e.g., State v. Sisneros, 631 P.2d 856, 859 (Utah 

1981) (noting that “[w]hen one breaks and enters a building in 

the nighttime, without consent, an inference may be drawn” that 

the defendant committed burglary). Based on this, the jury could 

permissibly conclude that a reasonable person would know that 

such an entry would create a substantial and unjustifiable risk 

that an occupant would fear for personal safety on seeing a 
State v. Kitches

20181037-CA 32 2021 UT App 24

potential intruder—which, as Ex-Wife’s father testified, is exactly 

what happened here. Correspondingly, the jury could

reasonably infer that Kitches was subjectively aware of and 

disregarded this risk. And again, the fact that he did not disguise 

himself before breaking into the home is only conflicting 

evidence of his mental state which the jury was free to disregard. 

See supra ¶ 35.

¶59 Based on the foregoing, we reject Kitches’s contention that 

the State did not present sufficient evidence to support his 

conviction for trespassing. 

CONCLUSION

¶60 We reject each of Kitches’s contentions in which he seeks 

reversal of his convictions on the basis that the evidence was 

insufficient to support them. And for related reasons, we reject 

his contentions in which he seeks remand of his voyeurismdistribution and stalking convictions. 

¶61 Affirmed.