2019 UT App 177

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JEREMY DAVID THOMAS,

Appellant.

Opinion

No. 20180644-CA

Filed November 7, 2019

Third District Court, Salt Lake Department

The Honorable Elizabeth A. Hruby-Mills

No. 161912645

Nathalie S. Skibine and Steffen Soller, Attorneys

for Appellant

Sean D. Reyes and Tera J. Peterson, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which 

JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

POHLMAN, Judge:

¶1 During a trip to Salt Lake City, a woman (Victim) and her 

husband decided to take their six-year-old son to a local park to 

play soccer. While there, Jeremy David Thomas yelled at Victim, 

pulled down his pants, and exposed his pubic area to her. The 

State charged Thomas with lewdness, lewdness involving a 

child, and intoxication. Following trial, the jury convicted 

Thomas on all counts. On appeal, Thomas argues that his 

convictions should be reversed due to jury instruction errors. We 

disagree and affirm.
State v. Thomas

20180644-CA 2 2019 UT App 177

BACKGROUND1

¶2 Victim and her husband, along with their son, traveled to 

Salt Lake City for business. The couple took their son to a local 

park, which was “very close” to their hotel, to play soccer. While 

they were playing, a man, later identified as Thomas, began 

yelling at the family from a distance of approximately twenty 

yards, asking if Victim wanted to “touch” or “see” his “dick.” At 

that time, Victim’s son was “right next to [her].”

¶3 Alarmed, the family began walking back to their car, and 

Thomas continued yelling at them. While walking, Victim 

looked back several times to “make sure nobody was following.” 

When she looked back, Victim observed that Thomas had pulled 

his pants down “below his pelvic region” such that “everything 

was exposed.” At that point, Victim was focused on diverting 

her son’s attention away from Thomas and getting the family 

into the car. Therefore, she was not focused on the details of 

Thomas’s exposure. Nevertheless, Victim testified at trial that 

she was “absolutely sure” that she saw Thomas’s penis and 

pubic area when she looked back. She also testified that,

although he was looking Thomas’s way, her son did not see the 

exposure.

¶4 Once the family reached their car, they called the police, 

who responded quickly. Victim, having kept “an eye” on 

Thomas while walking to the car, pointed him out to the police 

once they arrived. Upon making contact with Thomas, the 

officers smelled “a very strong odor of alcoholic beverage 

coming from his person” and noticed that he exhibited 

characteristics consistent with intoxication. Thomas was also 

 

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. Reigelsperger, 2017 UT App 101, 

¶ 2 n.1, 400 P.3d 1127 (cleaned up).
State v. Thomas

20180644-CA 3 2019 UT App 177

“acting very aggressive . . . , yelling, screaming.” Victim was 

“ultimately able to tell [the police] that [they] had stopped the 

right person.”

¶5 Based on these events, the State charged Thomas with 

lewdness (with priors), lewdness involving a child, and 

intoxication. Following a one-day trial, the jury convicted 

Thomas on all counts.2

¶6 Before trial, Thomas stipulated to the elements 

instructions for the lewdness and lewdness involving a child 

charges. The lewdness statute provides,

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; 

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

below the top of the areola, 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 Supp. 2019). Similarly, 

the lewdness involving a child statute provides,

A person is guilty of lewdness involving a child if 

the person . . . intentionally or knowingly: (a) does 

any of the following in the presence of a child who 

is under 14 years of age: (i) performs an act of 

sexual intercourse or sodomy; (ii) exposes his or 

her genitals, the female breast below the top of the 

 

2. Thomas does not challenge his intoxication conviction on 

appeal.
State v. Thomas

20180644-CA 4 2019 UT App 177

areola, the buttocks, the anus, or the pubic area: 

(A) in a public place; or (B) in a private place under 

circumstances the person should know will likely 

cause affront or alarm or with the intent to arouse 

or gratify the sexual desire of the actor or the child; 

(iii) masturbates; or (iv) performs any other act of 

lewdness . . . .

Id. § 76-9-702.5(2).3 Both elements instructions tracked the 

required statutory elements for the respective offenses and, in 

addition to the enumerated acts of lewdness prohibited by the 

statutes (such as exposing one’s pubic area), both instructions 

included the statutory catchall element—“any other act of 

lewdness” (the Catchall Variant)—as a potential variant of both 

offenses.

¶7 On the day of trial, the district court suggested that the 

“[r]eference to female body parts” included in the stipulated 

lewdness elements instructions did not pertain to the case and 

that the State, in revising the jury instructions, could take that 

language out. Thomas did not object and did not suggest to the 

court that other language in the elements instructions was 

inapplicable and should be similarly excised.

¶8 Both parties also submitted additional proposed 

instructions. For example, the State proposed instructing the jury 

that the Catchall Variant “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.” Thomas did not object to this definition. Instead, 

drawing from State v. Bagnes, 2014 UT 4, 322 P.3d 719, Thomas 

 

3. The lewdness and the lewdness involving a child statutes have 

recently been amended. However, the amendments are not 

material to this appeal, and we therefore cite the most recent 

version of both statutes.
State v. Thomas

20180644-CA 5 2019 UT App 177

requested two additional, general definitional instructions for 

lewdness: (1) “Lewdness involves conduct of a sexual, lascivious 

nature and an irregular indulgence of lust” (the Sexual Nature 

Instruction) and (2) “Conduct may be strange and socially 

inappropriate without the conduct being lewd” (the Strange 

Conduct Instruction). Id. ¶¶ 1, 13–29 (defining lewdness as 

involving conduct “marked by lasciviousness” and an “irregular 

indulgence of lust,” and explaining that conduct may be 

“strange” and “socially inappropriate” without being lewd).

¶9 After some discussion with the parties, and with the 

assistance and assent of Thomas, the court combined the Sexual 

Nature Instruction with the State’s Catchall Variant definition. 

Rather than limit the definition to the “other acts of lewdness” 

variant, the revised instruction broadly provided,

Lewdness includes the act of the same general kind 

of sexual misconduct class, character, or nature as 

the enumerated conduct of public intercourse, 

sodomy, exposure of genitals or buttocks, or 

masturbation.

¶10 However, the court declined to give the Strange Conduct 

Instruction. The court explained why it did not think the 

instruction was necessary—that, while “certainly accurate,” the 

issue addressed in the instruction “comes up through argument 

that the elements aren’t met,” which “goes back to the State’s 

burden of establishing the elements to get there.”

¶11 The State, citing Salt Lake City v. Howe, 2016 UT App 219, 

387 P.3d 562, also proposed that for purposes of the lewdness 

involving a child charge the jury be instructed that “[i]n the 

presence of a child” “means that a child need only be in the same 

place as the person committing the act” (the Presence 

Instruction). See generally id. ¶¶ 14–16 (defining “in the presence 

of a child” under the lewdness involving a child statute as 

meaning that “a child need only be in the same place as a person 

committing a lewd act”).
State v. Thomas

20180644-CA 6 2019 UT App 177

¶12 Thomas objected. He explained that while Howe “does 

discuss” what the State’s instruction proposed, another case—

Bagnes—was more on point, as it addressed “this very issue of 

lewdness.” By Thomas’s reading, Bagnes imposed a requirement 

of “some sort of visual contact or a showing of that particular 

part of the body” for the conduct to fall within the ambit of the 

statute—one not incorporated into the State’s proposed 

instruction. In this respect, he stated that Howe’s discussion on 

the presence issue appeared to be inconsistent with Bagnes. The 

State responded by distinguishing Bagnes, explaining that it was 

“very clearly . . . dealing with some other acts of lewdness and 

not presence of another,” while, in contrast, Howe is “directly on 

point” with respect to the presence issue.

¶13 The court agreed with the State. It explained that, in its 

view, Howe is “closer to the situation here and to the issue at 

hand” than Bagnes. It also noted that the language in the State’s 

proposed instruction appeared to have been “pulled directly 

from that [Howe] case.” The court therefore instructed the jury 

that “in the presence of a child,” for purposes of the lewdness

involving a child charge, meant that “a child need only be in the 

same place as the person committing the act.”

ISSUES AND STANDARDS OF REVIEW

¶14 On appeal, Thomas argues that the court erred by giving 

the Presence Instruction. He also argues that the court erred by 

failing to define the Catchall Variant more narrowly for the jury. 

Thomas’s challenges to the jury instructions present questions of 

law, which we review for correctness. State v. Walker, 2017 UT 

App 2, ¶ 19, 391 P.3d 380. However, even if “an error is found in 

jury instructions, reversal is warranted only if there is a 

reasonable probability that the error affected the outcome of the 

case.” State v. Carrell, 2018 UT App 21, ¶ 19, 414 P.3d 1030; see 

also State v. Horvath, 2018 UT App 165, ¶ 22, 436 P.3d 191 

(explaining that an appellant challenging the failure to give an 

instruction must demonstrate that, had the instruction been 
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20180644-CA 7 2019 UT App 177

given, “there is a reasonable likelihood that she would have 

enjoyed a more favorable trial result” (cleaned up)).

¶15 In the alternative, Thomas argues that the district court 

plainly erred by failing to sua sponte excise the Catchall Variant

from the elements instructions for both lewdness and lewdness 

involving a child. To prevail on a plain error review, Thomas 

must establish the existence of an obvious, prejudicial error. State 

v. Roberts, 2019 UT App 9, ¶ 10, 438 P.3d 885.

ANALYSIS

I. The Presence Instruction

¶16 Thomas first argues that the district court erred in 

instructing the jury with respect to the statutory element of “in 

the presence of a child” (the Presence Element), as provided in 

Utah Code section 76-9-702.5(2), lewdness involving a child. As 

discussed above, the court agreed, over Thomas’s objection, to 

give the Presence Instruction and thus instructed the jury that 

“in the presence of a child,” for purposes of the lewdness 

involving a child charge, meant that “a child need only be in the 

same place as the person committing the act.” See Salt Lake City v. 

Howe, 2016 UT App 219, ¶ 15, 387 P.3d 562.

¶17 Thomas also challenges the court’s decision to instruct the 

jury on the Presence Element by claiming that the instruction 

was “overly broad.” Central to Thomas’s challenge is his 

argument that the court erred by using Howe as the basis of the 

instruction. He contends that Howe was a sufficiency of the 

evidence case, not a jury instruction case, and that it addressed 

only what evidence was “minimally sufficient” to meet the 

Presence Element. In this respect, he argues that the resolution of 

this issue should be guided by State v. Walker, 2017 UT App 2, 

391 P.3d 380, in which this court vacated a defendant’s 

conviction for aggravated assault based on jury instruction 

errors. Walker, Thomas contends, instructs that appellate cases 
State v. Thomas

20180644-CA 8 2019 UT App 177

“holding that the evidence is minimally sufficient” do “not 

hold—or even address—whether juries in subsequent cases 

should be instructed using the language the court used to reject a 

sufficiency argument.” (Cleaned up.) As a result, he asserts, the 

court erred by giving the State’s proposed instruction because 

Howe merely addressed the sufficiency of the evidence in that 

case and rendered no conclusive holding for jury instruction 

purposes on the Presence Element. And he contends that this 

error violated his rights by effectively establishing this element 

as a matter of law and removing it from the jury’s consideration.

¶18 In response, the State argues that there was no 

instructional error because the Presence Instruction was “simply 

a statement of the law,” as it was drawn directly from Howe’s 

statutory interpretation of the Presence Element. (Cleaned up.) 

The State contends that this issue should be guided by State v. 

Lambdin, 2017 UT 46, 424 P.3d 117, not Walker. In Lambdin, our 

supreme court stated that “there is no error when a district court 

includes [an appellate court’s] interpretation of a statutory term 

in instructions for the jury, because that interpretation is simply 

a statement of the law.” Id. ¶¶ 17–19 (rejecting the argument that 

an appellate court should not define statutory terms that have an 

“ordinary, dictionary meaning,” as that proposition “is 

completely at odds with our implied constitutional authority to 

interpret the law in order to address the merits of cases before 

us”). We agree with the State and conclude that there was no 

error in the court’s decision to give the Presence Instruction.

¶19 It is the “role of the [district court] judge to instruct the 

jury on the law,” State v. Palmer, 2009 UT 55, ¶ 14, 220 P.3d 1198 

(cleaned up), and “jury instructions are intended to inform 

jurors of the applicable law,” Lambdin, 2017 UT 46, ¶ 19; see also

Utah R. Crim. P. 19(a) (“The court may instruct the jury 

concerning . . . the elements and burden of proof for the alleged 

crime, and the definition of terms.”). However, while district

courts are entitled to determine, instruct, and resolve “pure 

questions of law,” they must nevertheless “take care not to step 

into the jury’s fact-finding shoes” by giving instructions that 
State v. Thomas

20180644-CA 9 2019 UT App 177

ultimately invade the jury’s role by effectively “removing an 

element of an offense from the jury’s consideration.” Walker, 

2017 UT App 2, ¶¶ 20–36 (cleaned up).

¶20 For example, in Walker, this court determined that the 

district court improperly invaded the jury’s province when it 

instructed that “strangulation to the point of unconsciousness 

constitutes serious bodily injury.” Id. (cleaned up). One of the 

elements of the offense for which the defendant was ultimately 

convicted—aggravated assault—was whether the defendant had 

“used means or force likely to produce death or serious bodily 

injury.” Id. ¶¶ 14, 18. This court explained that the question of 

whether strangulation constituted serious bodily injury was “not 

a pure legal question,” but was instead “a question for the jury 

to decide based on the facts presented in the case before it.” Id.

¶¶ 24–26 (“[A] fact question, or a mixed question of law and fact, 

does not morph into a pure legal question . . . merely because the 

evidence is overwhelming and might be characterized as 

supporting only one reasonable conclusion as a matter of law.”). 

And by instructing the jury that “strangulation to the point of 

unconsciousness” constituted, as a matter of law, means or force 

likely to produce serious bodily injury, we concluded that the 

district court effectively took that factual question from the jury’s 

consideration. Id. ¶¶ 20–36 (cleaned up).

¶21 In reaching this conclusion, we rejected the State’s 

argument that the instruction was proper because its language 

was drawn from two supreme court cases that held 

“strangulation to unconsciousness constitutes serious bodily 

injury as a matter of law.” Id. ¶¶ 28–36 (cleaned up). We 

distinguished the cases identified by the State—State v. Fisher, 

680 P.2d 35 (Utah 1984), and State v. Speer, 750 P.2d 186 (Utah 

1988)—by explaining that both cases reached their holdings as to 

whether strangulation constituted serious bodily injury by 

applying the statutory definition of “serious bodily injury” to the 

precise factual circumstances of the case at hand. See Walker, 2017 

UT App 2, ¶¶ 28–36; see also Fisher, 680 P.2d at 37 (reaching the 

holding while addressing a sufficiency of the evidence 
State v. Thomas

20180644-CA 10 2019 UT App 177

challenge); Speer, 750 P.2d at 191 (reaching the holding on a 

lesser included offense instruction challenge). The strangulation 

issue in each case was thus decided on the set of facts in play, 

and neither case purported to interpret the statutory terms as a 

matter of law or hold that strangulation to the point of 

unconsciousness will always constitute serious bodily injury. See 

Walker, 2017 UT App 2, ¶¶ 28–36; see also Fisher, 680 P.2d at 37; 

Speer, 750 P.2d at 191. Similarly, neither case held or addressed 

“whether juries in subsequent cases would be required to find 

that strangulation or attempted strangulation constituted serious 

bodily injury or force likely to cause such injury.” Walker, 2017 

UT App 2, ¶ 34. Put simply, neither case purported to interpret 

the meaning of the term “serious bodily injury” as a matter of 

law. Id. ¶¶ 28–36.

¶22 However, a district court’s creation of a Walker-like 

problem—by using factually based sufficiency conclusions as 

jury instructions—is distinguishable from circumstances when a 

district court instructs a jury using an appellate court’s purely 

legal interpretation of a statute. As our supreme court observed 

in Lambdin, before an appellate court can apply a statute to the 

facts of a particular case, “it is often necessary to interpret the 

statute to determine the proper outcome.” 2017 UT 46, ¶¶ 17–18 

(observing that appellate courts have “implied constitutional 

authority to interpret the law in order to address the merits of 

cases”). Interpreting a statute requires the appellate court to 

determine the “intent of the legislature” in the abstract, apart 

from the facts of any particular case. Id. ¶ 18. “When interpreting 

statutes, we look to the ordinary meaning of the words, using 

the dictionary as our starting point,” after which “we then must 

look to the context of the language in question.” Id. ¶ 22 (cleaned 

up); see also State v. Bagnes, 2014 UT 4, ¶¶ 13–23, 322 P.3d 719; 

Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶¶ 14–15, 267 

P.3d 863. Importantly, such an interpretation of a statute (or a 

term in a statute) “does not create new law, it says what the law 

is.” Lambdin, 2017 UT 46, ¶ 19. For this reason, because “jury 

instructions are intended to inform jurors of the applicable 

law, . . . there is no error when a district court includes [an 
State v. Thomas

20180644-CA 11 2019 UT App 177

appellate court’s] interpretation of a statutory term in 

instructions for the jury, because that interpretation is simply a 

statement of the law.” Id.

¶23 Significantly, statements of the law derived from statutory 

interpretation can occur and be required in sufficiency of the 

evidence cases, such as when “a review of a sufficiency of the 

evidence argument . . . present[s] a threshold question of law—

of the elements of the underlying offense.” Bagnes, 2014 UT 4, 

¶ 10. For example, in Bagnes, the appellant challenged the 

evidence sustaining his conviction for lewdness involving a 

child. Id. ¶ 9. To make a determination of whether the evidence 

was sufficient, our supreme court noted that the appellant was 

charged with an “other act of lewdness” under Utah Code 

section 76-9-702.5, and it determined that before it could render 

any conclusion about the sufficiency of the evidence, it first had 

to define that term as a matter of law. Id. ¶¶ 10–12. Thus, the 

court proceeded to interpret that term by looking to dictionary 

definitions, interpretive canons, and the overall context in which 

the term appeared. Id. ¶¶ 13–23. And the court reached the 

merits of the evidentiary challenge only after resolving the 

threshold interpretive question. Id. ¶¶ 13–29; see also Walker, 2017 

UT App 2, ¶¶ 23–24 (explaining that “pure questions of law . . . 

are not within the province of the jury” but rather are the 

province of the court itself (cleaned up)). The court’s purely legal 

interpretation of the term “other act of lewdness,” apart from its 

application to the facts in play, therefore constituted a 

“statement of the law”—one that could be used without error by 

a district court in the future to instruct a jury on that particular 

element, should the need for it arise. See Lambdin, 2017 UT 46, 

¶ 19.

¶24 Applying these principles to the case at hand, we 

conclude that, contrary to Thomas’s arguments, Lambdin is on 

point, not Walker. This court’s statements about the Presence 

Element in Howe resulted from our statutory interpretation of 

the term “in the presence of a child” as a threshold question of 

law, not from our determination that the evidence in Howe was 
State v. Thomas

20180644-CA 12 2019 UT App 177

minimally sufficient. 2016 UT App 219, ¶¶ 14–16. As a result, 

this court’s interpretation of the Presence Element constituted a

“statement of the law.” See Lambdin, 2017 UT 46, ¶ 19. Thus, in 

instructing the jury according to the interpretation of that 

element in Howe, the district court in the present case simply 

provided the jury a statement of the law, not a fact-intensive 

conclusion improvidently fashioned as one. Compare Lambdin, 

2017 UT 46, ¶¶ 15–24, with Walker, 2017 UT App 2, ¶¶ 20–36.

¶25 In Howe, the defendant was convicted of lewdness 

involving a child. 2016 UT App 219, ¶ 7. After the City had 

rested its case, Howe made a motion for a directed verdict, 

arguing that the evidence was not “legally sufficient” to 

establish all the elements of the offense. Id. (cleaned up). The 

motion was denied. Id. On appeal, Howe argued, among other 

things, that the evidence was not sufficient for the jury to “find 

that Howe was in the presence of children.” Id. ¶¶ 8–9. Rather 

than simply challenging the evidentiary sufficiency with respect 

to the Presence Element, however, Howe placed the 

interpretation of that element directly at issue. He conceded that 

“children under age fourteen were at the playground” where his 

offense took place. Id. ¶ 14. He nevertheless argued that the 

statute was ambiguous with respect to the Presence Element, 

and he suggested, based on the statute’s title, that a child “must 

somehow be involved in the lewd act beyond his or her mere 

proximity to the lewd behavior.” Id. Interpreting the Presence 

Element in this way, he contended, the evidence was not 

sufficient to sustain his conviction. Id. ¶¶ 8, 14.

¶26 This court rejected both Howe’s assertion that the statute 

was ambiguous and his proffered interpretation. Id. ¶¶ 15–16. 

We concluded that the statute was not ambiguous by 

undertaking a plain language analysis of the Presence Element. 

Id. ¶ 15. Specifically, we looked to, and recited, the ordinary 

dictionary meaning of “presence.” Id.; see also Lambdin, 2017 UT 

46, ¶¶ 22–23 (looking first to the “ordinary meaning” of the term 

at issue as set forth in the dictionary); Bagnes, 2014 UT 4, ¶¶ 13–

16 (same, in the context of resolving a threshold question of law 
State v. Thomas

20180644-CA 13 2019 UT App 177

to a sufficiency challenge). We then applied that ordinary 

meaning to the context in which the term appeared, concluding 

that “[a]pplying this definition to the statute yields only one 

reasonable interpretation [of the Presence Element]—that a child 

need only be in the same place as a person committing a lewd 

act.” Howe, 2016 UT App 219, ¶ 15; see also Bagnes, 2014 UT 4, 

¶¶ 13–23 (applying the ordinary meaning to the statute to 

determine that “other act of lewdness” incorporates the 

“narrower notion” of lewdness set forth in the dictionary). On 

this basis, we rejected Howe’s proffered interpretation, 

concluding that it would “contradict the ordinary meaning of 

the statutory language.” Howe, 2016 UT App 219, ¶ 16. Only then 

did we apply our interpretation of the Presence Element to the 

facts in play, concluding that evidence of children in a 

playground “ten to fifteen feet away” from Howe at the time of 

the lewd behavior was sufficient to establish presence and to 

sustain Howe’s conviction. Id.

¶27 Thus, while the overarching question in Howe centered on 

the sufficiency of the evidence supporting Howe’s conviction, 

resolving Howe’s challenge required that we first interpret the 

Presence Element as a threshold legal question before applying it

to the facts in play. Our interpretation of the Presence Element 

thereby constituted “simply a statement of the law”—one that 

therefore could be employed by a district court in a jury 

instruction without error. See Lambdin, 2017 UT 46, ¶ 19. And, 

indeed, there is no language in Howe suggesting that our 

statutory interpretation of the Presence Element was cabined 

solely as an assessment of the minimal sufficiency of the 

evidence in that case alone. Compare Howe, 2016 UT App 219, 

¶¶ 15–16, with Walker, 2017 UT App 2, ¶¶ 25–36.

¶28 Here, the district court’s jury instruction on the Presence 

Element was nearly identical to the interpretation set forth in 

Howe. It thus represented a statement of the law, not an 

improperly imported factual conclusion. Accordingly, there was 

no error in the district court’s decision to instruct the jury with 
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20180644-CA 14 2019 UT App 177

respect to the interpretation of the Presence Element set forth in 

Howe.4 See Lambdin, 2017 UT 46, ¶ 19.

¶29 Thomas also raises several related and additional 

arguments suggesting that the instruction was overly broad. 

But given our conclusion that Howe interpreted the Presence 

Element as a purely legal question, none are ultimately 

persuasive.

¶30 First, Thomas contends that Bagnes “rejected the 

suggestion that a child need only be in the same place in every 

instance.” (Cleaned up.) But as described above, Bagnes did not 

deal with, or purport to interpret, the Presence Element; it 

interpreted and resolved a sufficiency challenge surrounding the 

 

4. Our conclusion on this point effectively resolves Thomas’s 

additional argument on appeal that the instruction violated his 

right to have the jury consider whether the facts established all 

the elements of the offense, including the Presence Element. 

Central to this argument is Thomas’s contention that the 

instruction created a Walker-like problem by impermissibly 

morphing a factually driven conclusion from Howe, a sufficiency 

case, into a purely legal conclusion—one that effectively 

instructed the jury that it had to find the Presence Element 

established as a matter of law. But we have concluded that this 

case is better considered under the principles set forth in 

Lambdin, not Walker, because our interpretation of the Presence 

Element in Howe represented a pure statement of law. As a 

result, the Presence Instruction did not take from the jury the 

consideration of the Presence Element. Indeed, as the State 

points out, the jury still had to apply the facts to find whether 

Thomas committed the lewd act in the child’s presence. And the 

fact that the evidence might have been undisputed on this point 

does not mean that the jury was effectively stripped of its 

fact-finding duty with respect to that element; it simply meant 

that the jury might not have had to resolve conflicting evidence 

on this issue in reaching its verdict.
State v. Thomas

20180644-CA 15 2019 UT App 177

Catchall Variant in the lewdness involving a child statute. 2014 

UT 4, ¶¶ 11–29. Bagnes therefore cannot plausibly be read to 

limit or contravene the interpretation of the Presence Element set 

forth in Howe. Compare Bagnes, 2014 UT 4, ¶¶ 10–29, with Howe, 

2016 UT App 219, ¶¶ 14–17.

¶31 Next, Thomas contends that the “language in the jury 

instruction is broader than the definitions this Court provided in 

Howe” and that the instruction was “misleading” in the context 

of his case. He supports these contentions by citing definitions of 

his own finding for the word “present”—definitions not 

addressed or included in Howe’s interpretation of the Presence 

Element—and generally arguing that the Presence Instruction 

was incorrect. But we have concluded that Howe interpreted the 

Presence Element as a matter of law, and the instruction the 

district court provided was nearly identical to the interpretation 

established in Howe. Thus, we cannot conclude that giving the 

jury instruction was error based simply on Thomas’s proffer of 

other potential definitions of the word “present.”

¶32 Thomas finally asserts that the jury instruction was overly 

broad because section 76-3-203.10 of our criminal code—which 

addresses violent offenses committed in the presence of a 

child—defines the element of “in the presence of a child” more 

narrowly than Howe. But as the State points out, the legislature 

did not include the same definition in the lewdness involving a 

child statute, see generally Utah Code Ann. § 76-9-702.5

(LexisNexis Supp. 2019), and we must presume that the 

legislature’s omission was intentional, see Marion Energy, 2011 

UT 50, ¶ 14 (“[Appellate courts] 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)).

¶33 In short, we discern no error in the district court’s

decision to provide the jury the Presence Instruction.
State v. Thomas

20180644-CA 16 2019 UT App 177

II. The Sexual Nature and Strange Conduct Instructions

¶34 Thomas next argues that the district court erred when it 

declined to “narrow the statutory definition” of the Catchall 

Variant. Drawing on the supreme court’s statutory interpretation 

of the Catchall Variant in Bagnes, both the State and Thomas 

proposed instructions related to the definition of lewdness. The 

State initially proposed that the Catchall Variant be defined as 

“includ[ing] 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.” Thomas, 

on the other hand, proposed two instructions defining lewd 

conduct more generally: (1) the Sexual Nature Instruction, 

stating, “Lewdness involves conduct of a sexual, lascivious 

nature and an irregular indulgence of lust,” and (2) the Strange 

Conduct Instruction, stating, “Conduct may be strange and 

socially inappropriate without the conduct being lewd.”

¶35 The court ultimately combined the State’s proposed 

instruction for “other acts of lewdness” with Thomas’s Sexual 

Nature Instruction, arriving at an overall definition for lewdness 

itself, not simply a definition for the Catchall Variant: “Lewdness 

includes the act of the same general kind of sexual misconduct 

class, character, or nature as the enumerated conduct of public 

intercourse, sodomy, exposure of genitals or buttocks, or

masturbation.”

¶36 On appeal, Thomas challenges the district court’s decision 

with respect to the Sexual Nature Instruction, but does so with a 

broad brush, focusing on the Catchall Variant and chiefly 

arguing that the instruction given by the court “did not 

sufficiently narrow the statutory definition of lewdness.” He 

faults the court for giving the instruction because, in his view, 

“the instruction’s use of the word ‘includes’ does not make clear 

that the instruction is limiting,” and the instruction “does not 

specify that it applies to the ‘any other act of lewdness’ catchall.” 

The State responds that the court did not err in giving the 
State v. Thomas

20180644-CA 17 2019 UT App 177

instruction but, even if it did, the alleged error was not 

prejudicial.

¶37 We agree with the State that the alleged error was not 

prejudicial. Even assuming the instruction was erroneous—a 

conclusion we do not reach here—Thomas suffered no prejudice 

from it. See generally State v. Carrell, 2018 UT App 21, ¶ 19, 414 

P.3d 1030 (stating that even if “an error is found in jury 

instructions, reversal is warranted only if there is a reasonable 

probability that the error affected the outcome of the case”).

¶38 Thomas suggests that the alleged error was prejudicial 

because he made a remark to Victim that he suggests might have 

led the jury to convict him under the Catchall Variant, not the 

exposure variant, based on the jury’s “common understanding” 

of lewdness. Thomas also suggests that the evidence 

surrounding the remark was stronger than that of the exposure 

itself.

¶39 However, as the State points out, the evidence 

surrounding the exposure act was overwhelming and far from 

equivocal. The only witnesses who testified at trial were Victim 

and one of the police officers who responded to Victim’s call, 

and, among other things, Victim consistently and repeatedly 

testified that Thomas exposed his pubic area, stating that 

Thomas had pulled down his pants such that “everything was 

exposed” and that she was “absolutely sure” that Thomas 

exposed his pubic area.

¶40 Further, the prosecution focused on the exposure variant 

of the lewdness offenses, not the Catchall Variant, in establishing 

Thomas’s guilt. The State told the jury that it had the burden to 

prove beyond a reasonable doubt that Thomas “exposed his 

genitals or his pubic area in a public place, the park.” The State

then argued to the jury that it could convict Thomas if it found 

that “he exposed his genitals or . . . his pubic area,” and that the 

jury should convict Thomas because he “did expose his genitals, 

he did expose his pubic area” in the presence of Victim’s child.
State v. Thomas

20180644-CA 18 2019 UT App 177

And while the State referenced the remark, it did so in setting 

forth the context of the events and the exposure and establishing 

that the exposure act was sexual in nature; at no point did the 

State suggest that the lewdness elements were met or that the 

jury should find Thomas guilty based solely on the remark. 

Moreover, even defense counsel at times conceded that exposure 

had occurred but argued that Thomas was not guilty of the 

offenses because the exposure was not sexual misconduct or 

“sexual in nature” and was instead “just [Thomas] being a 

knucklehead because he was drunk.”

¶41 In short, both the evidence presented to the jury about the 

charged offenses and the parties’ arguments at trial centered on

proving or disproving Thomas’s guilt under the exposure 

variant, not the Catchall Variant. In these circumstances, it was

not reasonably likely that, even if the jury had received a more 

limiting instruction about the meaning of the Catchall Variant,

the narrowed instruction would have affected the outcome of the 

case. See Carrell, 2018 UT App 21, ¶ 19; see also State v. Hummel, 

2017 UT 19, ¶ 83 n.30, 393 P.3d 314 (stating that there is “no need 

to reverse a conviction even if there were erroneous instructions 

on one variation of a crime submitted to the jury where the 

evidence overwhelmingly supports a conviction under [another]

variation,” and listing jury instruction cases where no reversal 

was necessary because the appellant had not shown that the 

challenged instructions were harmful (cleaned up)); State v. Reid, 

2018 UT App 146, ¶¶ 33–36, 427 P.3d 1261 (concluding that there 

was no prejudice on alleged instructional errors related to two 

variants where there was “ample evidence” supporting the other 

three variants instructed).

5 Accordingly, we reject Thomas’s 

contention that the alleged instructional errors merit reversal.

 

5. Thomas also challenges the district court’s failure to give the 

Strange Conduct Instruction. Below, Thomas argued that it 

would be appropriate to give the instruction because he 

“anticipated . . . that the conduct that [the jury] will hear about 

(continued...)
State v. Thomas

20180644-CA 19 2019 UT App 177

III. Inclusion of the Catchall Variant

¶42 In the alternative, Thomas argues that it was plain error 

for the district court to allow the elements instructions for the 

lewdness offenses to include the Catchall Variant. Conceding 

that this issue was not preserved, Thomas argues that we should 

review this challenge under the plain error doctrine. See State v. 

Roberts, 2019 UT App 9, ¶ 10, 438 P.3d 885 (“A trial court plainly 

errs when it commits obvious, prejudicial error.”). Relying on 

two ineffective assistance of counsel cases addressing jury 

instructions for the offense of forcible sexual abuse, State v. Ray, 

2017 UT App 78, 397 P.3d 817, cert. granted, 406 P.3d 250 (Utah 

2017), and the offense of sexual abuse of a child, State v. Lewis, 

2014 UT App 241, 337 P.3d 1053, Thomas argues that failing to 

excise the Catchall Variant was obvious error. And he contends 

the error was prejudicial because there was “testimony that 

Thomas made a lewd remark that, while not on par with” the 

enumerated acts described in the lewdness statutes, “might well 

be viewed as lewdness by jurors applying their common 

understanding of the term,” and because the exposure evidence 

was comparatively weak.

 

(...continued)

may seem strange,” and it would be helpful for the jury to 

understand “that just because it’s not appropriate and people 

usually don’t do it . . . doesn’t necessarily mean that it’s lewd 

and that [the jury has] to look at the actual elements.” The court 

disagreed. It explained that, while the instruction was “certainly 

accurate,” it thought that the issue was one that “comes up 

through argument that the elements aren’t met,” which “goes 

back to the State’s burden of establishing the elements to get 

there.” On that basis, it declined to give the instruction. Thomas 

has not engaged with this reasoning on appeal. As a result, we 

reject this challenge. See iDrive Logistics LLC v. IntegraCore LLC, 

2018 UT App 40, ¶ 79, 424 P.3d 970 (“Where an appellant fails to 

address the basis of the district court’s ruling, we reject the 

challenge.”).
State v. Thomas

20180644-CA 20 2019 UT App 177

¶43 We disagree that the court committed obvious error by 

not sua sponte excising the Catchall Variant from the lewdness 

elements instructions. “For an error to be obvious to the trial 

court, the party arguing for the exception to preservation must 

show that the law governing the error was clear, or plainly 

settled, at the time the alleged error was made.” State v. Johnson, 

2017 UT 76, ¶ 21, 416 P.3d 443 (cleaned up); see also State v. 

Roman, 2015 UT App 183, ¶ 9, 356 P.3d 185 (stating that 

“[w]ithout clear guidance in the law, any error would not have 

been obvious to the district court,” and concluding that the party

seeking reversal on plain error review was unable to “avail 

himself of the plain error exception” where he failed to direct 

this court to settled law to support his argument for error).

¶44 Thomas has not demonstrated on appeal that the law 

governing the inclusion or excision of the Catchall Variant was 

“clear, or plainly settled, at the time the alleged error was 

made.” See Johnson, 2017 UT 76, ¶ 21 (cleaned up). To begin with, 

neither Ray nor Lewis establishes the proposition that a variant 

not relied on must be excised from the jury instructions and that 

a district court errs if it fails to do so. Further, neither case dealt 

with or addressed the failure to specifically excise the Catchall 

Variant from jury instructions setting out the lewdness elements 

under the applicable lewdness statutes. See Utah Code Ann. 

§ 76-9-702 (LexisNexis Supp. 2019) (lewdness); id. § 76-9-702.5

(lewdness involving a child). Rather, both Ray and Lewis

addressed jury instruction errors with respect to the “indecent 

liberties” variant in our forcible sexual abuse statute and sexual 

abuse of a child statute—different statutes involving distinct 

elements compared to the lewdness statutes at issue here. Ray, 

2017 UT App 78, ¶¶ 16–20; Lewis, 2014 UT App 241, ¶¶ 10–13; see 

also Utah Code Ann. § 76-5-404(1) (LexisNexis Supp. 2019) 

(setting forth the elements of forcible sexual abuse); id.

§ 76-5-404.1(2) (stating the elements of sexual abuse of a child). 

As a result, neither Ray nor Lewis constituted settled law with 

respect to the propriety of instructing on the Catchall Variant at 

the time of the alleged error. And Thomas points to no authority 

otherwise suggesting that the law regarding including or 
State v. Thomas

20180644-CA 21 2019 UT App 177

excising the Catchall Variant was sufficiently settled at the time 

of the alleged error. Accordingly, Thomas has not demonstrated 

that the court plainly erred by failing to sua sponte excise the 

Catchall Variant. See Johnson, 2017 UT 76, ¶ 21.

¶45 To be sure, given the State’s admission that it was not 

pursuing charges under the Catchall Variant, it might have been 

prudent for the district court to excise the Catchall Variant (as it 

did with the language in the statutes related to “female body 

parts”). Nevertheless, Thomas has not established that it was 

obvious error not to do so.6 Thus, we are unable to conclude that 

the district court plainly erred in failing to sua sponte excise the 

Catchall Variant from the elements instructions.

CONCLUSION

¶46 Thomas has not demonstrated that the district court erred 

with respect to its decisions surrounding the challenged jury 

instructions. Accordingly, we affirm Thomas’s convictions.

 

6. For the reasons discussed above, supra ¶¶ 36–41, we also 

cannot conclude that any potential error in including the 

Catchall Variant was harmful. See State v. Hummel, 2017 UT 19, 

¶¶ 81–85 & n.30, 393 P.3d 314 (“Under our established case law, 

we may reverse on the basis of an unnecessary jury instruction 

only if the instruction is shown to be prejudicial (or in other 

words not harmless).”).