State v. Powell

2020 UT App 63

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
STEVEN NORMAN POWELL,
Appellant.

Opinion
No. 20180109-CA
Filed April 16, 2020

Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 151913515

Ronald Fujino, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray,
Attorneys for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and DIANA HAGEN concurred.

POHLMAN, Judge:

¶1 In 2017, Steven Norman Powell was convicted of two
counts of lewdness, with enhancements for prior convictions.
Powell challenges his convictions, arguing that the trial court
erred when it denied his motion for a directed verdict and that
his trial counsel provided constitutionally ineffective assistance.
He also moves this court pursuant to rule 23B of the Utah Rules
of Appellate Procedure to remand his case to the trial court for
the entry of findings of fact to support a determination that his
trial counsel performed ineffectively. We deny Powell’s rule 23B
motion and affirm his convictions.
 State v. Powell

BACKGROUND 1

¶2 Powell’s lewdness convictions arise from two separate
instances at two separate stores where the same two witnesses, a
woman (Daughter) and her stepmother (Stepmother), observed,
by sheer coincidence, Powell in his wheelchair with his genitals
exposed. Daughter testified at trial that, on both occasions,
Powell was in a wheelchair wearing jeans where the crotch area
was “cut out” and that, although there was some kind of
material covering Powell’s genital area, it was “[v]ery
see-through” with “holes.” She stated that in both instances, she
was able to see his penis through the material.

¶3 Stepmother testified that, in the first incident, she also
observed Powell in his wheelchair wearing jeans where “the
crotch was cut out,” that there was some black, see-through
mesh over his genitals, and that she saw his penis through the
material. As to the second incident, Stepmother testified that as
she tried to take a picture of Powell to send to law enforcement,
he saw her doing so and “grabbed [a] pair of pants” next to him
to cover himself. 2 Following the second encounter, Stepmother
reported the incident on the local police department’s social
media page.

¶4 Approximately nine months later, a detective (Detective)
began investigating the complaint. As part of his investigation,

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Bowden, 2019 UT App 167, ¶ 2
n.1, 452 P.3d 503 (cleaned up).

2. Stepmother’s photograph shows Powell covering his crotch
with the leg of a pair of pants hanging on a nearby display hook.

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 State v. Powell

Detective sought surveillance videos from both stores. While the
second store still had surveillance footage from the night in
question, the first store did not; by that time, it had already
recorded over it. Detective viewed the video footage from the
second store and was able to identify Powell and to partially
track his movements through the store, but Detective “never
found any footage of [Powell] exposing himself.” Detective took
two screenshots that demonstrated only that Powell had been
present in the store.

¶5 Detective and another officer went to Powell’s residence
to talk to him. Powell allowed the officers into his residence and
agreed to speak to them. He confirmed that he had been at both
stores on the nights in question. When asked by Detective why
he exposed himself, Powell explained that he had been
paralyzed from the waist down following a car accident when he
was twenty-seven, that before the accident he had been a “thrill
seeker,” and that, since that time, he would “go out into the
community” two or three times a month and expose himself to
“create excitement in his life” and “for the thrill of it.” He also
confirmed to Detective that when he exposed himself, he
generally wore a “spandex or mesh material” over his genitals
that someone “could see through.”

¶6 In a later written statement, Powell largely confirmed his
statements to Detective about exposing himself “just for the risk
factor.” As to the second incident, however, he provided an
alternative explanation for the exposure, stating that he had a
condom catheter attached to his leg that had become kinked and
that he had tried to unkink it while in the store, but he did not
believe that anyone observed him doing so. In his written
statement, Powell also stated that he had been confronted before
about exposing himself and felt bad about doing it.

¶7 Powell was charged with two counts of lewdness, with
priors. At the one-day trial, Daughter, Stepmother, and Detective

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 State v. Powell

testified for the State. At the close of the State’s case, defense
counsel moved for a directed verdict, which the trial court
denied. The jury convicted Powell on both counts.

¶8 Powell appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Powell raises two main arguments on appeal. First, he
argues that reversal of his convictions is appropriate because the
trial court erred by denying his directed verdict motion. “We
review a trial court’s ruling on a motion for directed verdict for
correctness.” State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168.
With respect to the sufficiency of the evidence, we “review the
evidence and all inferences which may reasonably be drawn
from it in the light most favorable to the verdict.” State v.
Ashcraft, 2015 UT 5, ¶ 18, 349 P.3d 664 (cleaned up). “We will
uphold a trial court’s denial of a motion for directed verdict
based on a claim of insufficiency of the evidence if, when viewed
in the light most favorable to the State, some evidence exists
from which a reasonable jury could find that the elements of the
crime had been proven beyond a reasonable doubt.” Gonzalez,
2015 UT 10, ¶ 27 (cleaned up).

¶10 Second, Powell asks that we reverse his convictions or,
alternatively, remand for a new trial due to the ineffective
assistance of his trial counsel. “When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.” State v. Escobar-Florez, 2019 UT App 135, ¶ 22,
450 P.3d 98 (cleaned up).

¶11 In connection with some of his claims of ineffective
assistance of counsel, Powell seeks a remand for an evidentiary
hearing under rule 23B of the Utah Rules of Appellate

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 State v. Powell

Procedure. Rule 23B allows this court to remand a criminal case
“to the trial court for entry of findings of fact, necessary for the
appellate court’s determination of a claim of ineffective
assistance of counsel.” Utah R. App. P. 23B(a). This court will
grant a rule 23B motion to remand “only upon a nonspeculative
allegation of facts, not fully appearing in the record on appeal,
which, if true, could support a determination that counsel was
ineffective.” Id.

ANALYSIS

I. Motion for a Directed Verdict

¶12 Powell contends that the trial court erred in denying his
directed verdict motion. While Powell raises several arguments
in an effort to demonstrate the court’s error, at its core, his
challenge is that his actions did not constitute exposure under
the lewdness statute. In support, he points to his alternative
catheter explanation and to evidence that, at one point, he tried
to cover himself and that his genital area was covered by a mesh-
like material. And, relying on caselaw that seemingly supports
his characterization of the evidence, he contends that, while his
conduct or clothing might have offended social mores, his
actions did not rise to the level of lewdness as a matter of law.

¶13 Powell has not demonstrated that no reasonable jury
could conclude that his conduct constituted lewdness under the
statute. At the time of Powell’s conduct, the lewdness statute
provided,

A person is guilty of lewdness if the person . . .
performs any of the following acts in a public place
or under circumstances which the person should
know will likely cause affront or alarm to, on, or in
the presence of another who is 14 years of age or
older: (a) an act of sexual intercourse or sodomy;

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 State v. Powell

(b) exposes his or her genitals, . . . the buttocks, the
anus, or the pubic area; (c) masturbates; or (d) any
other act of lewdness.

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

¶14 During trial, the State focused solely on the exposure
variant of the lewdness statute; indeed, in closing argument, the
prosecutor told the jury that “it’s pretty clear today that we’re
just focusing on one of those acts, that [Powell] exposed his
genitals,” and that the State was not alleging “that he engaged in
sexual intercourse, or that he masturbated, or that there was any
other act of lewdness.”

¶15 To that end, Daughter testified that in both incidents
Powell wore jeans that appeared to have the crotch area “cut
out”; that even though there was some kind of material covering
that area, it was “[v]ery see-through”; and that she saw his penis
through that material on both occasions. Stepmother echoed
Daughter’s testimony with respect to the first incident,
explaining that there was only some see-through, “black mesh”
covering Powell’s genital area and that she could see his penis
through it. As to the second incident, Stepmother testified that it
was only after Powell noticed her trying to take his picture that
he used a pair of pants hanging on a nearby rack to temporarily
cover himself. And Detective testified that Powell himself
admitted that he had been in both stores on the nights in
question and that it was his common practice to go out into the
community a few times a month and expose himself for the
“thrill of it.”

¶16 Powell has not demonstrated that appearing in a public
place with only a see-through material covering his genitals does
not constitute an act of exposure under our statute. While he
suggests, for example, that his conduct was not lewd because
there was testimony that he attempted to cover himself during
one of the incidents and because his genital area was covered

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 State v. Powell

with a mesh-like material, he does not engage with the most
damning aspect of the witnesses’ testimonies—that the witnesses
could see, and actually did see, his penis. In this respect, he
provides no authority for the proposition that covering his
genital area with a see-through material prevented his conduct
from crossing the line into criminal exposure as a matter of law.

¶17 Thus, without more, we discern no error by the trial court
in submitting the case to the jury. Stepmother’s and Daughter’s
testimonies, along with Detective’s recounting of Powell’s own
admissions, provided ample evidence from which the jury could
find that Powell had exposed his genitals in a public place on
both occasions, as defined under our lewdness statute. See State
v. Gonzalez, 2015 UT 10, ¶ 27, 345 P.3d 1168 (stating that we will
uphold a jury’s verdict on a sufficiency challenge if there is
“some evidence . . . from which a reasonable jury could find that
the elements of the crime had been proven beyond a reasonable
doubt” (cleaned up)). 3

3. Powell makes other arguments about lewdness generally to
suggest that his conduct was not lewd. For example, he contends
that lewdness requires a lascivious, sexual component and that
such a component was not present in his conduct. However,
these arguments seem to apply to the catchall variant of
lewdness, which, while included in the jury instructions on the
elements of lewdness, was not the focus of the case. See generally
State v. Bagnes, 2014 UT 4, ¶ 19, 322 P.3d 719 (addressing the
limiting principle applicable to the catchall element of our
lewdness statute). The State expressly told the jury in closing
that it was “just focusing” on whether Powell had “exposed his
genitals.” But even if the catchall variant might have been
implicated, Powell’s other arguments do not undermine the
sufficiency of the evidence supporting his two separate acts of
exposure. We therefore reject them.

20180109-CA 7 2020 UT App 63
 State v. Powell

II. Ineffective Assistance of Counsel

¶18 Powell argues that he received constitutionally ineffective
assistance of counsel, claiming his trial counsel made two major
errors. First, he argues that counsel was ineffective for not
objecting to the lewdness elements jury instruction. Second, he
argues that counsel was ineffective for not moving to dismiss the
case on the basis of lost or destroyed evidence.

¶19 “The Sixth Amendment to the United States Constitution
guarantees a criminal defendant the assistance of counsel for his
defense, meaning that he has the right to effective assistance of
counsel.” State v. Bond, 2015 UT 88, ¶ 59, 361 P.3d 104 (cleaned
up). To prevail on his ineffective assistance of counsel claims,
Powell must demonstrate both that counsel’s performance was
deficient, in that it “fell below an objective standard of
reasonable professional judgment,” and that counsel’s deficient
performance prejudiced him. See Archuleta v. Galetka, 2011 UT 73,
¶ 38, 267 P.3d 232 (cleaned up). “Both elements must be present,
and if either is lacking, the claim fails and the court need not
address the other.” State v. Nelson, 2015 UT 62, ¶ 12, 355 P.3d
1031.

¶20 To show deficient performance, given the “variety of
circumstances faced by defense counsel [and] the range of
legitimate decisions regarding how best to represent a criminal
defendant,” Powell must overcome the “strong presumption”
that, “under the circumstances, the challenged action might be
considered sound trial strategy.” See Strickland v. Washington, 466
U.S. 668, 689 (1984) (cleaned up); see also State v. Scott, 2020 UT
13, ¶ 35 (explaining that “the performance inquiry will often
include an analysis of whether there could have been a sound
strategic reason for counsel’s actions,” and that, “for instance, if
the court concludes that the challenged action might be
considered sound trial strategy, it follows that counsel did not
perform deficiently” (cleaned up)). And “because the decision

20180109-CA 8 2020 UT App 63
 State v. Powell

not to pursue a futile motion is almost always a sound trial
strategy, counsel’s failure to make a motion that would be futile
if raised does not constitute deficient performance.” State v.
Torres, 2018 UT App 113, ¶ 16, 427 P.3d 550 (cleaned up). That
said, we are mindful that even if we “cannot conceive of a sound
strategic reason for counsel’s challenged conduct, it does not
automatically follow that counsel was deficient.” Scott, 2020 UT
13, ¶ 36. As our supreme court recently affirmed, “the ultimate
question is always whether, considering all the circumstances,
counsel’s acts or omissions were objectively unreasonable.” Id.
(citing Strickland, 466 U.S. at 687).

¶21 To establish prejudice, Powell must show that “counsel’s
performance prejudiced him, meaning that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Bond, 2015
UT 88, ¶ 59 (cleaned up). The prejudice requirement is a
“relatively high hurdle to overcome,” and “a mere potential
effect on the outcome is not enough.” State v. Apodaca, 2019 UT
54, ¶ 50, 448 P.3d 1255 (cleaned up). Rather, “the likelihood of a
different result must be substantial.” Id. (cleaned up).

¶22 We first address Powell’s claims of error with respect to
the jury instructions, and we then address his claim that counsel
should have moved to dismiss the case on the basis of lost or
destroyed evidence.

A. Jury Instructions

¶23 Powell challenges trial counsel’s failure to object to the
elements instruction for lewdness on several grounds.
Specifically, he argues that counsel should have objected to the
elements instruction because it (1) improperly listed the “14
years of age or older” requirement as an alternative basis for
conviction rather than as a required element, (2) omitted a
prefatory attempt clause, and (3) improperly allowed conviction
based on a reckless mental state. He also argues that (4) counsel

20180109-CA 9 2020 UT App 63
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performed deficiently for not requesting an instruction on
attempted lewdness as a lesser included offense of lewdness and
that (5) counsel should have asked the court to instruct the jury
that lewd acts are only those acts “marked by lasciviousness.”
(Cleaned up.)

¶24 “To evaluate whether trial counsel performed deficiently
in failing to object to the jury instructions, we must first consider
whether those instructions were legally correct.” State v. Liti,
2015 UT App 186, ¶ 12, 355 P.3d 1078. If the instruction was
correct, Powell cannot establish deficient performance for failing
to object to it. See State v. Lee, 2014 UT App 4, ¶ 22, 318 P.3d 1164
(“Failure to object to jury instructions that correctly state the law
is not deficient performance.”); see also State v. Maama, 2015 UT
App 235, ¶ 37, 359 P.3d 1272 (determining that where the
challenged instruction was correct, an objection to the
instruction would have been futile, and failing to raise a futile
objection is not deficient performance).

¶25 For both lewdness charges, the jury was instructed that it
had to find beyond a reasonable doubt for each element that
Powell

Intentionally, knowingly, or recklessly performed
any of the following acts:

a. An act of sexual intercourse or sodomy;

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

c. Masturbated; or

d. Any other act of lewdness[,]

And did so

20180109-CA 10 2020 UT App 63
 State v. Powell

a. In a public place or

b. Under circumstances which the defendant
should have known would likely cause affront or
alarm to another 14 years of age or older.

¶26 We now address each ground raised by Powell and
ultimately conclude that counsel did not perform deficiently.

1. Age Element

¶27 Powell first contends that counsel performed deficiently
by not objecting to the lewdness elements instruction where it
allowed the jury to convict him without finding that his conduct
occurred in the “presence of another who is 14 years of age or
older.” He argues that, under the lewdness statute, the age
requirement is a “mandatory element” and that the jury should
have been required to find that his lewd acts were performed in
the presence of someone who was at least fourteen years old.

¶28 The plain language of the statute does not support
Powell’s interpretation. We interpret statutes with the aim of
giving “effect to the legislature’s intent,” and the “best evidence
of the legislature’s intent is the plain language of the statute
itself.” State v. Ogden, 2018 UT 8, ¶ 31, 416 P.3d 1132 (cleaned
up); see also State v. Harker, 2010 UT 56, ¶ 12, 240 P.3d 780. “We
presume that the legislature used each word advisedly,” such
that the “expression of one term should be interpreted as the
exclusion of another.” Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d
1000 (cleaned up). “When we can ascertain the intent of the
legislature from the statutory terms alone, no other interpretive
tools are needed, and our task of statutory construction is
typically at an end.” Id. (cleaned up).

¶29 As referenced above, at the time of Powell’s conduct, the
lewdness statute required that a person perform one of the
enumerated lewd acts “in a public place or under circumstances

20180109-CA 11 2020 UT App 63
 State v. Powell

which the person should know will likely cause affront or alarm
to, on, or in the presence of another who is 14 years of age or
older.” Utah Code Ann. § 76-9-702(1) (LexisNexis 2012)
(emphasis added). The plain language included the word “or” in
describing the attendant circumstances under which the lewd act
had to be performed. “Or” is a “function word to indicate an
alternative.” Or, Merriam-Webster.com, https://www.merriam-
webster.com/dictionary/or [https://perma.cc/W6DH-55J2]; see
also State v. Canton, 2013 UT 44, ¶ 13, 308 P.3d 517 (“In
determining the ordinary meaning of nontechnical terms of a
statute, our starting point is the dictionary.” (cleaned up)). Thus,
on its face, the lewdness statute permits conviction in the
alternative, on either basis—when the lewd act is performed in a
public place or in the presence of a person “14 years of age or
older.” Not only are we bound by this plain expression of intent,
see Aris Vision Inst. v. Wasatch Prop. Mgmt., Inc., 2006 UT 45, ¶ 17,
143 P.3d 278, but Powell cites no authority to otherwise suggest
that, despite the use of the word “or” in the statute, it would be
proper for this court to interpret the statute as though the
legislature had used the word “and.”

¶30 Thus, Powell has not demonstrated that the instruction
was incorrect for failing to require the jury to find that he
performed a lewd act in the presence of a person “14 years of age
or older.” Accordingly, we conclude that Powell has not shown
that counsel performed deficiently by failing to object to the
elements instruction on that basis. See Lee, 2014 UT App 4, ¶ 22.

2. Attempt Clause

¶31 Powell next argues that counsel was ineffective for failing
to require that the jury instructions include the clause “or an
attempt to commit any of these offenses” as an element of the
offense.

¶32 In the lewdness statute, the attempt clause is part of a
prefatory phrase to setting out the required circumstances

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 State v. Powell

surrounding, and the enumerated acts of, lewdness. The statute
provides that a person is guilty of lewdness if, “under
circumstances not amounting to rape, object rape, forcible
sodomy, forcible sexual abuse, aggravated sexual assault, or an
attempt to commit any of these offenses, [he or she] performs any of
the following [enumerated] acts.” Utah Code Ann. § 76-9-702(1)
(emphasis added). Powell argues that the attempt clause should
have been included in the jury instructions as an element
because it effectively transforms lewdness into a specific intent
crime. 4 In this respect, he argues, the clause’s omission from the
instructions allowed the jury to convict him on a lesser mental
state than that required for specific intent crimes like attempt.

¶33 The plain language of the statute does not support
Powell’s suggested interpretation. The attempt clause in relation
to the larger statute connects to circumstances “not amounting
to” lewdness, rather than to circumstances amounting to
lewdness. In other words, rather than setting out what lewdness
is, the attempt clause is part of a larger description of what
lewdness is not. See State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d
92 (stating that “we read the plain language of the statute as a
whole,” drawing meaning from the “context in which [the
language at issue] is used” (cleaned up)); State v. Rasabout, 2015
UT 72, ¶ 10, 356 P.3d 1258 (“To ascertain that intent, we look first
to the text of the statute within its context.”).

¶34 And as the State notes, Utah courts have previously
determined that “under circumstances not amounting to”
clauses (when accompanied by an associated list of other crimes)
do not constitute elements of the actual crime that follows. See
State v. Reed, 2000 UT 68, ¶¶ 32–33, 8 P.3d 1025 (rejecting the

4. Attempt crimes are specific intent crimes. See State v. Jones,
2002 UT 01, ¶ 9, 44 P.3d 658 (“[T]he offense of attempt requires
an intent to commit a specific offense.”).

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 State v. Powell

argument that “not amounting to” language in the aggravated
sexual abuse of a child statute “obligated the State to establish a
primary offense that did not amount to sodomy, or attempted
sodomy [as an element of the offense], in order to convict him of
aggravated sexual abuse,” and stating that “‘the only rule that is
realistic and makes sense is that the State need prove only that
which it has charged and should be able to ignore proof as to
lack of any greater offense to which the accused just may be
required to respond’” (quoting State v. Peters, 550 P.2d 199, 199–
200 (Utah 1976))); State v. Ansari, 2004 UT App 326, ¶¶ 7–13, 100
P.3d 231 (explaining that the “‘not amounting to’ clause” has
been “consistently interpreted . . . to not require the State to
affirmatively disprove other crimes”); see also State v. Young, 2015
UT App 286, ¶¶ 9–10, 364 P.3d 55 (analyzing “by any means
other than” language in a statute, and stating that “Utah cases
have interpreted similar provisions of other criminal statutes
and held that those provisions do not require the State to
disprove the defendant’s commission of the act or acts the
statutory language excludes” (cleaned up)).

¶35 Powell does not acknowledge this precedent and has not
otherwise demonstrated that the elements instruction was
incorrect because it failed to include the attempt clause. He
therefore has not shown that it was objectively unreasonable
under the circumstances for counsel to have declined to request
the attempt clause’s inclusion. See Scott, 2020 UT 13, ¶ 36. Thus,
Powell has not shown that counsel performed deficiently on this
basis. See Lee, 2014 UT App 4, ¶ 22.

3. Reckless Mental State

¶36 Powell next challenges the mental states provided in the
jury instructions. The elements instruction provided that the jury
could find Powell guilty of lewdness if it found that he
“[i]ntentionally, knowingly, or recklessly performed any of the”
enumerated acts of lewdness. Relying heavily on the lewdness

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 State v. Powell

involving a child statute, which requires that the person commit
the enumerated acts of lewdness “intentionally or knowingly,”
see Utah Code Ann. § 76-9-702.5(1) (LexisNexis 2012), Powell
argues that “the ‘intentionally or knowingly’ mental states” from
that statute apply to the more general lewdness statute. And
because counsel did not request that “recklessly” be omitted
from the elements instruction, counsel performed deficiently.

¶37 Again, the plain language of the statute does not support
Powell’s interpretation. While we appreciate Powell’s attempt to
analogize to the lewdness involving a child statute, we cannot
read into the lewdness statute language that it does not contain.
See State v. Robertson, 2017 UT 27, ¶ 40, 438 P.3d 491 (stating that
the judiciary interprets and applies legislation “according to
what appears to be the legislature’s intent, neither inferring
substantive terms into the text that are not already there nor
taking away from the statutory text by ignoring it or rendering it
superfluous” (cleaned up)); Associated Gen. Contractors v. Board of
Oil, Gas & Mining, 2001 UT 112, ¶ 30, 38 P.3d 291 (“We will not
infer substantive terms into the text that are not already there.
Rather, the interpretation must be based on the language used,
and we have no power to rewrite the statute to conform to an
intention not expressed.” (cleaned up)).

¶38 The lewdness statute, as opposed to the lewdness
involving a child statute, does not provide the applicable mental
states associated with performing the enumerated lewd acts.
Utah Code Ann. § 76-9-702(1). And we must presume that the
omission in the lewdness statute was intentional. See Marion
Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863
(“We presume that the expression of one term should be
interpreted as the exclusion of another. We therefore seek to give
effect to omissions in statutory language by presuming all
omissions to be purposeful.” (cleaned up)). Our legislature has
expressly provided for the contingency of “when the definition
of the offense does not specify a culpable mental state and the

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 State v. Powell

offense does not involve strict liability.” Utah Code Ann.
§ 76-2-102 (LexisNexis 2012). For such offenses, section 76-2-102
provides that “intent, knowledge, or recklessness shall suffice to
establish criminal responsibility.” Id. In allowing the jury to find
guilt based upon a determination that Powell performed the
lewd act intentionally, knowingly, or recklessly, the lewdness
elements instruction therefore comported with this statute and,
by extension, the plain language applicable to the lewdness
statute.

¶39 Powell has not demonstrated that the elements instruction
was erroneous for including “recklessly” as a mental state. See
Lee, 2014 UT App 4, ¶ 22. Accordingly, Powell has not shown
that it was unreasonable for counsel not to object to the inclusion
of “recklessly” in the elements instruction. See Scott, 2020 UT 13,
¶ 36.

4. Lesser Included Offense

¶40 Powell argues that his counsel performed deficiently by
not requesting that the jury be instructed on a lesser included
offense of attempted lewdness. Powell contends that there was a
rational basis in the evidence for acquitting him of the lewdness
charges while convicting him of attempted lewdness.

¶41 Our legislature has generally provided that an offense is
lesser included when, among other things, “[i]t constitutes an
attempt, solicitation, conspiracy, or form of preparation to
commit the offense charged or an offense otherwise included
therein.” Utah Code Ann. § 76-1-402(3)(b) (LexisNexis 2012). “A
defendant is entitled to a jury instruction on a lesser included
offense, so long as the evidence would permit a jury rationally to
find him guilty of the lesser offense and acquit him of the
greater.” State v. Hull, 2017 UT App 233, ¶ 15, 414 P.3d 526
(cleaned up).

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 State v. Powell

¶42 But when an appellant challenges trial counsel’s failure to
request a lesser included offense instruction as constitutionally
ineffective, the appellant runs headlong into the “strong
presumption” that, under the circumstances, the failure to
request the lesser included offense instruction “might be
considered sound trial strategy.” See Strickland, 466 U.S. at 689
(cleaned up). As we have explained, “even when there is a basis
for a lesser-included-offense instruction, counsel can reasonably
decide not to request one.” Hull, 2017 UT App 233, ¶ 16.
“Depending on the facts of a particular case, counsel may have
perfectly valid tactical reasons to forgo the instruction and to
instead present an ‘all or nothing’ defense that entails avoiding a
lesser-included-offense instruction in the hopes the jury will find
the defendant ‘totally innocent of any wrongdoing.’” Id. (cleaned
up); see also State v. Binkerd, 2013 UT App 216, ¶ 31, 310 P.3d 755
(explaining that counsel’s decision not to request a lesser
included offense instruction is entitled to considerable deference
“in recognition of the fact that counsel is in the best position to
gauge the defendant’s likelihood of defeating a charge outright
and to weigh the possibility that acquittal is not in the cards but
that a jury might be satisfied with a conviction on a lesser
charge”).

¶43 For example, counsel could reasonably pursue an “all or
nothing defense” when, in light of the weaknesses in the State’s
evidence of the case, it would be reasonable for counsel to
conclude that submitting a lesser included offense instruction
would obviate a defendant’s reasonable chances of a full
acquittal. Hull, 2017 UT App 233, ¶¶ 16–21. Likewise, counsel
does not perform deficiently by failing to request a lesser
included offense instruction that is inconsistent with the defense
presented at trial. See State v. Hall, 946 P.2d 712, 723–24 (Utah Ct.
App. 1997) (concluding that counsel did not perform deficiently
by failing to request a lesser included offense instruction that
“would have been inconsistent” with the defense theory argued
at trial); accord State v. Perry, 899 P.2d 1232, 1241 (Utah Ct. App.

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 State v. Powell

1995); see also State v. Campos, 2013 UT App 213, ¶ 34, 309 P.3d
1160 (“Any election between inconsistent defenses is a legitimate
exercise of trial strategy rather than ineffective assistance of
counsel.” (cleaned up)).

¶44 Here, even assuming Powell is correct that the
requirements for requesting a lesser included offense instruction
were met, he has not shown that counsel was deficient by not
requesting one. Counsel’s theory at trial was that Daughter and
Stepmother did not see what they thought they saw—essentially
an argument that Powell did not expose himself and that the
witnesses’ testimonies to the contrary were unreliable. To that
end, counsel emphasized that both stores would have been busy
on both nights and that, apart from Daughter’s and Stepmother’s
testimonies, there was no corroborating evidence of actual
exposure. Trial counsel also pointed both to Detective’s
testimony that the video surveillance footage he viewed did not
show Powell exposing himself and to the lack of evidence about
involvement of either store’s management. And counsel asserted
that, while Powell might have admitted to Detective to generally
exposing himself on other occasions, he did not admit to doing
so on either specific occasion.

¶45 Given the defense’s theory, counsel could have
reasonably concluded that requesting a lesser included offense
instruction for attempted lewdness would have undermined its
theory that the jury should not credit Daughter’s and
Stepmother’s testimonies at all and that no exposure, attempted
or otherwise, had occurred. In these circumstances, not
requesting a lesser included offense instruction of attempted
lewdness was an objectively reasonable decision entitled to our
deference, see Binkerd, 2013 UT App 216, ¶ 31, and Powell has
not otherwise demonstrated that counsel acted unreasonably in
light of the theory presented at trial and the evidence counsel
believed supported it, see Hull, 2017 UT App 233, ¶ 17; see also
Scott, 2020 UT 13, ¶ 36. Accordingly, Powell has not shown that

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 State v. Powell

counsel performed deficiently by not requesting the lesser
included offense instruction.

5. Lasciviousness as Lewdness

¶46 Powell’s final ineffective assistance claim relating to the
jury instructions is that counsel performed deficiently by not
requesting an instruction, based on a discussion in State v.
Bagnes, 2014 UT 4, 322 P.3d 719, defining lewdness as conduct
“marked by lasciviousness.” (Cleaned up.)

¶47 To carry his burden of persuasion on appeal, Powell must
“explain, with reasoned analysis supported by citations to legal
authority and the record, why the party should prevail on
appeal.” Utah R. App. P. 24(a)(8). When the claim of error is that
counsel was ineffective for failing to request that a jury
instruction be given (or failing to argue that the instructions
given did not accurately or completely instruct the jury on the
law), the appellant must, at the very least, “explain what parts of
the [challenged] instruction were inadequate or what the
instruction should have said.” Taylor v. State, 2007 UT 12, ¶¶ 66–
67, 156 P.3d 739; see also State v. Baer, 2019 UT App 15, ¶¶ 18–20,
438 P.3d 979 (determining that appellant failed to demonstrate
that counsel performed deficiently for assenting to certain jury
instructions where he did not explain the error in the
instructions). Powell has not met that burden here.

¶48 While Powell contends that counsel should have
requested an instruction of lewdness as defined in Bagnes, he
does not engage with the instructions that were given and
explain how they were insufficient. For example, the court did
instruct the jury that “‘[a]ny other act of lewdness’” includes
“acts of the same general kind, class, character, or nature as the
enumerated conduct of public intercourse, sodomy, exposure of
the genitals or buttocks, or masturbation.” See Bagnes, 2014 UT 4,
¶ 19. Powell does not acknowledge this instruction or explain
why it did not sufficiently alert the jury to the type of conduct

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 State v. Powell

meant to be proscribed under the lewdness statute. Likewise,
Powell fails to describe what additional instruction he claims
counsel should have requested. Thus, Powell’s claim is
unavailing. 5

¶49 In sum, while Powell has raised several grounds for
challenging counsel’s performance with respect to the jury
instructions, we conclude Powell has not demonstrated that
counsel performed deficiently in relation to them.

B. Lost or Destroyed Evidence

¶50 Powell argues that counsel performed deficiently by not
moving to dismiss the case due to the lost or destroyed video
surveillance from both stores, which he argues violated his right
to due process under the Utah Constitution. As already
discussed, to succeed on an ineffective assistance of counsel
claim, Powell must demonstrate that it was objectively
unreasonable under the circumstances for counsel to have
declined to move for dismissal on the basis of the loss of the
video surveillance footage. See Scott, 2020 UT 13, ¶ 36. Powell
has not met this burden.

¶51 In State v. Tiedemann, 2007 UT 49, 162 P.3d 1106, our
supreme court set out a two-part analysis for addressing due
process claims under the Utah Constitution based on claims that
the State lost or destroyed exculpatory evidence. Id. ¶ 44; accord

5. Even had Powell demonstrated deficient performance, we
question whether he was harmed by this alleged error. The
Bagnes court interpreted and applied the catchall variant, “any
other act of lewdness.” See Bagnes, 2014 UT 4, ¶¶ 11–23. But as
already discussed, Powell’s case centered instead on the
exposure variant, which Bagnes did not interpret or apply. It is
therefore difficult to credit Powell’s assertion that the lack of a
Bagnes-like instruction harmed him.

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 State v. Powell

State v. Mohamud, 2017 UT 23, ¶ 18, 395 P.3d 133; State v. DeJesus,
2017 UT 22, ¶ 27, 395 P.3d 111. In making this argument, Powell
focuses on the stores’ culpability in not retaining the surveillance
video and the police’s purported obligation to immediately
make some attempt to preserve potential evidence upon receipt
of a report. But as stated in Tiedemann, “criminal defendants are
entitled to information possessed by the State to aid in their
defense.” 2007 UT 49, ¶ 40 (emphasis added). Powell has not
shown that the State’s duty to preserve or maintain the video
surveillance was triggered. He also has not shown that the State
actually lost or destroyed the video footage or that, even if it
had, dismissal would have been the appropriate remedy.

¶52 As Powell concedes, any video surveillance of either
event was recorded by the stores’ surveillance systems and
maintained by the stores, not the State. He also concedes that the
first store, and not the State, destroyed any surveillance footage
it might have had by recording over it.

¶53 As to the second store, Powell directs us to no place in the
record suggesting the video surveillance was lost or destroyed.
Indeed, Detective was able to view the surveillance many
months after the incidents occurred. And even assuming the
second store recorded over it subsequent to Detective’s viewing,
Powell points to no evidence suggesting that the State ever
received an actual copy of the footage from the second store;
from our review, it appears that, at most, there was evidence that
Detective collected two screenshots from the second store’s
video, but there was no evidence presented at trial that Detective
also collected a copy of the video itself.

¶54 In this respect, Powell has not shown that the Tiedemann
test applies in situations where a private party, not the State,
controls the maintenance and preservation of the potential
evidence. Indeed, Powell relies heavily on DeJesus to make his
argument, but the video surveillance in that case was recorded,

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 State v. Powell

possessed, and then lost by the Utah State Prison—a State actor.
See 2017 UT 22, ¶¶ 3–6, 38–54.

¶55 And to the extent Powell faults the police for not taking
immediate efforts to collect the video surveillance, he has not
directed us to any authority suggesting that Tiedemann and its
progeny may be read to impose on police an obligation to
“immediately” make an “initial quick” investigation upon
receiving any report of crime, with the aim of preserving any
potential evidence before any legal theories have been identified.

¶56 Finally, even assuming that a due process violation had
occurred, Powell also has not demonstrated that the remedy he
claims counsel should have sought—dismissal—would have
been warranted. If a court determines that the defendant’s due
process rights have been violated, the court must then decide the
proper remedy for the violation, which may include, but is not
limited to, dismissal of the case. See Tiedemann, 2007 UT 49, ¶ 45
(speaking in terms of sanctioning the State if the balancing of the
factors suggests it is appropriate to do so to “preserve[]
defendants’ constitutional rights”); see also DeJesus, 2017 UT 22,
¶ 46 n.67 (explaining that “nowhere [in Tiedemann] is dismissal
mandated as the sole remedy” and that “because the touchstone
for the balancing process is fundamental fairness, courts may
find that other, less drastic remedies may adequately protect the
due process rights of criminal defendants” (cleaned up)).

¶57 Thus, we conclude that Powell has not demonstrated that
his trial counsel performed deficiently by not moving for
dismissal due to the unavailable video surveillance.

III. Motion for Rule 23B Remand

¶58 Finally, Powell requests that, pursuant to rule 23B of the
Utah Rules of Appellate Procedure, we remand this case to the
trial court for “entry of findings of fact” he claims are necessary
for this court’s determination of two additional claims for

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 State v. Powell

ineffective assistance of counsel: the failure of counsel to
adequately advise him regarding his right to testify, and
counsel’s failure to move for suppression of the statements
Powell made to Detective. We deny Powell’s motion.

¶59 Upon motion from a party to an appeal in a criminal case,
rule 23B confers on an appellate court the authority to remand a
case to the trial court for “entry of findings of fact, necessary for
the appellate court’s determination of a claim of ineffective
assistance of counsel.” Utah R. App. P. 23B(a). “The motion will
be available only upon a nonspeculative allegation of facts, not
fully appearing in the record on appeal, which, if true, could
support a determination that counsel was ineffective.” Id.; see
also State v. Griffin, 2015 UT 18, ¶ 20, 441 P.3d 1166 (“It stands to
reason that if the defendant could not meet the test for
ineffective assistance of counsel, even if his new factual
allegations were true, there is no reason to remand the case, and
we should deny the motion.”). Additionally, “rule 23B motions
must be accompanied by affidavits that show the claimed
deficient performance of the attorney and that show the claimed
prejudice suffered by the appellant as a result of the claimed
deficient performance.” State v. Biebinger, 2018 UT App 123, ¶ 14,
428 P.3d 36 (cleaned up); see also Utah R. App. P. 23B(b).

A. Right to Testify

¶60 Powell has not demonstrated facts that, even if proved,
could support a claim of ineffective assistance of counsel for
failure to adequately advise him with respect to his right to
testify at trial. Powell argues that counsel failed to advise him
that he had the option of testifying at trial without waiving his
Fifth Amendment right against self-incrimination. Powell points
to State v. Mohamud, 2017 UT 23, 395 P.3d 133, as authority
supporting both the proposition that he could have testified
before the jury without surrendering his Fifth Amendment
privileges and that his counsel performed deficiently by not

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 State v. Powell

advising him of the same. To support this argument factually, he
avers that his counsel “had not distinguished the parameters of
[his] right to testify in the same way as announced” in Mohamud
and that had counsel so advised him, he “would not have passed
on the need to testify in [his] own behalf” during the defense’s
presentation of its case. In this respect, Powell avers that he
“wanted to explain at trial what discrepancies the video footage
would have shown,” particularly in attempting to “rebut[] the
allegations from the State witnesses,” and that it was his
counsel’s “incomplete or incorrect advice” about his right to
testify that “led [him] to surrender” that right “when [he] did
not want to do so.” He also sets forth certain facts he would have
testified to about his experiences in both stores.

¶61 Powell’s reliance on Mohamud to demonstrate ineffective
assistance on this issue is misguided. In Mohamud, our supreme
court recognized that criminal defendants seeking to establish a
due process violation based on the State’s loss or destruction of
exculpatory video evidence often face a difficult task in
attempting to describe “why the video would have been relevant
to [the] defense.” Id. ¶¶ 22–23. The court therefore noted that to
meet the threshold requirement of showing a reasonable
probability that the evidence would have been exculpatory, the
defendant “could have testified on his own behalf as to what the
video would have shown, which would not have waived his
Fifth Amendment right against self-incrimination.” Id. ¶ 23.

¶62 Significantly, however, the court explained that this right
to testify without waiving Fifth Amendment privileges applied
to resolve the tension between “a defendant’s desire to testify in
a hearing that adjudicates a claim of constitutional right in a criminal
case and the right of that defendant not to give testimony that is
incriminating as to the charge in question.” Id. (emphasis added)
(cleaned up). There is simply no suggestion in Mohamud that a
defendant may testify in front of the jury during trial to establish

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 State v. Powell

his view of the lost evidence without waiving his right against
self-incrimination. 6

¶63 Accordingly, because the premise underlying Powell’s
request for remand on this point is flawed, Powell cannot
demonstrate the existence of facts that “could support a
determination that counsel’s performance was deficient.”
Biebinger, 2018 UT App 123, ¶ 14 (cleaned up). Certainly, Powell
has not shown that it was objectively unreasonable for counsel to
have advised him not to testify during the defense’s presentation
of its case if his desire was to preserve his Fifth Amendment
right against self-incrimination. Powell therefore has not
established that remand under rule 23B for the entry of findings
of fact on this point is warranted. 7 Griffin, 2015 UT 18, ¶ 20.

B. Suppression Motion

¶64 Powell has also not shown that remand is appropriate for
entry of findings to support his claim that counsel was
ineffective for failing to move to suppress his statements to

6. Even on its own facts, State v. Mohamud is inapposite.
Mohamud involved a pretrial hearing on a motion to dismiss, not
a jury trial. 2017 UT 23, ¶¶ 5–6, 395 P.3d 133.

7. In connection with this challenge, Powell claims that counsel
failed to impeach the witnesses with respect to certain facts in
their testimonies. However, he does not explain how these facts
connect with counsel’s failure to properly advise him on his
right to testify. Instead, he merely offers his interpretation of the
facts and requests that we remand for those facts to be entered.
To the extent Powell meant to raise this as an additional ground
for remand under rule 23B, he has not adequately briefed it, and
we decline to address it further. See State v. MacNeill, 2017 UT
App 48, ¶ 83, 397 P.3d 626.

20180109-CA 25 2020 UT App 63
 State v. Powell

Detective. Powell argues that Detective and another officer
questioned him at his home without giving required Miranda
warnings. See Miranda v. Arizona, 384 U.S. 436, 444 (1966)
(holding that “the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against
self-incrimination”); see also State v. Perea, 2013 UT 68, ¶ 91, 322
P.3d 624 (“The U.S. Supreme Court’s landmark decision in
Miranda v. Arizona prevents the use of incriminating statements
stemming from custodial interrogation of a defendant unless
certain procedural safeguards are met.” (cleaned up)). Because
this is so, he claims that counsel should have moved to suppress
his statements to Detective and the other officer.

¶65 Miranda applies when a person is subject to custodial
interrogation, and “require[s] that certain warnings be given
prior to custodial interrogation if the resulting evidence is to be
used against the accused.” State v. Reigelsperger, 2017 UT App
101, ¶ 41, 400 P.3d 1127 (cleaned up); see also State v. Fullerton,
2018 UT 49, ¶ 19, 428 P.3d 1052 (explaining that the “Miranda
safeguards apply when an individual is taken into custody or
otherwise deprived of his freedom by the authorities in any
significant way and is subjected to questioning” (cleaned up)).
Thus, “a threshold inquiry in any Miranda challenge is whether
the defendant was in custody at the time of questioning.” State v.
Fredrick, 2019 UT App 152, ¶ 29, 450 P.3d 1154.

¶66 To determine custody, a two-step approach is employed.
First, it must be ascertained “whether, in light of the objective
circumstances of the interrogation, a reasonable person would
have felt he or she was not at liberty to terminate the
interrogation and leave.” Reigelsperger, 2017 UT App 101, ¶ 45
(cleaned up). Second, “if the court concludes that the person’s
freedom of movement was sufficiently curtailed, the court then
asks whether the relevant environment presented the same

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 State v. Powell

inherently coercive pressures as the type of station house
questioning at issue in Miranda.” Id. (cleaned up); accord
Fullerton, 2018 UT 49, ¶ 21.

¶67 Powell does not adequately address the issue of whether,
at the time that Detective questioned him with another officer at
his home, he was actually in custody. The sum total of his
argument that he was in custody is that the police had focused
on and targeted him as a suspect for both exposure episodes. He
does not engage with the two-part custody test described above
or the facts potentially present in his case regarding whether his
freedom was curtailed and, if it was, whether the questioning in
his home presented the same coercive pressures as station house
questioning would have.

¶68 Instead, Powell essentially asks that we presume custody
because he was the focus of an investigation. We decline to do
so. See Stansbury v. California, 511 U.S. 318, 324–25 (1994) (per
curiam) (“Even a clear statement from an officer that the person
under interrogation is a prime suspect is not, in itself, dispositive
of the custody issue, for some suspects are free to come and go
until the police decide to make an arrest.”); Fullerton, 2018 UT 49,
¶¶ 34–36 (concluding that, even though the officers’ questioning
turned accusatory and focused on the suspect, the circumstances
did not rise to the level of custody).

¶69 Because Powell has not adequately briefed the issue of
whether his Miranda rights were even triggered, he has not
provided a basis from which we can conclude that counsel
provided ineffective assistance in failing to move for suppression
of his statements to Detective. State v. Ferry, 2007 UT App 128,
¶ 12, 163 P.3d 647. And because he has not carried his burden on
this point, we therefore must deny his request for remand.
Griffin, 2015 UT 18, ¶ 20.

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 State v. Powell

CONCLUSION

¶70 We affirm. Powell has not shown that the trial court erred
by sending the case to the jury. Additionally, Powell has not
demonstrated that his trial counsel was constitutionally
ineffective with respect to the jury instructions or for failing to
request dismissal on the basis of lost or destroyed exculpatory
evidence. Finally, Powell has not established that remand under
rule 23B of the Utah Rules of Appellate Procedure is appropriate.

20180109-CA 28 2020 UT App 63