State of Utah v. Lyman

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Raymond Rick Lyman,
Defendant and Appellant.

MEMORANDUM DECISION(1)
(Not For Official Publication)

Case No. 981539-CA

F I L E D
September 16, 1999
  1999 UT App 263 -----

Fifth District, Cedar City Department
The Honorable J. Philip Eves

Attorneys:
Neil A. Kaplan and Anneli R. Smith, Salt Lake City, for Appellant
Scott M. Burns, Cedar City, for Appellee

-----

Before Judges Greenwood, Bench, and Orme.

PER CURIAM:

Lyman appeals the trial court's order refusing to dismiss the lewdness charges against him. We affirm.

Under the applicable lewdness statute: (1) A person is guilty of lewdness if the person under circumstances not amounting to rape, object rape, forcible sodomy, forcible sexual abuse, or an attempt to commit any of these offenses, performs an act of sexual intercourse or sodomy, exposes his or her genitals or private parts, masturbates, engages in trespassory voyeurism, or performs any other act of lewdness 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. Utah Code Ann. § 76-9-702(1)(1996) (emphasis added).(2) Lyman contends that the State cannot convict him of trespassory voyeurism because the incidents for which he was charged took place on his business property. We reject this argument. In American Fork v. Carr, 970 P.2d 717 (Utah Ct. App. 1998), this court determined that the term "trespassory voyeurism" in the lewdness statute does not require a showing of trespass on real property: "Trespass" is broadly defined as "[t]o infringe upon the privacy, time or attention of another." Under the plain meaning of the terms, therefore, a person engages in trespassory voyeurism by deriving sexual gratification from observing the sex organs or sex acts of someone who has a reasonable expectation of privacy. Thus, contrary to defendant's claim, the phrase trespassory voyeurism does not require proof that defendant trespassed on real property. We therefore hold that the trial court properly denied defendant's Motion to Dismiss and properly refused to instruct the jury that the prosecution needed to establish that defendant trespassed on real property. Id. at 719 (citations omitted) (emphasis added). The same rationale applies here. The State need not show that Lyman trespassed on real property to convict him of "trespassory voyeurism" under section 76-9-702.

Similarly, we reject Lyman's argument that the lewdness statute is unconstitutionally void for vagueness and thereby did not put him on notice that voyeurism without a trespass on real property was prohibited. A statute is not unconstitutionally vague if it is sufficiently explicit to inform the ordinary reader what conduct is prohibited and does so in a manner that does not encourage arbitrary and discriminatory enforcement. See Greenwood v. City of North Salt Lake, 817 P.2d 816, 819 (Utah 1991). We conclude that the lewdness statute, including the "trespassory voyeurism" and likely to cause "affront or alarm" sections, put Lyman on notice that hiding in a maintenance closet and surreptitiously observing unclothed or partially clothed women through a "peep hole" is a crime.

The trial court's ruling is affirmed.
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Gregory K. Orme, Judge
 

1.On September 16, 1999, the court issued a Memorandum Decision in this case wherein the listed attorneys for appellee incorrectly included Jan Graham and Christine Soltis. That error has now been corrected. The issuance date remains the same.

2. Effective May 3, 1999, this statute was subdivided and certain stylistic changes were made. However, the amendment is not applicable to this case, and, even if it was, the key language has not changed.