Flawed Jury Instruction Leads to Reversal

The Court of Appeals of Utah has overturned the conviction of David Lewis for sexual abuse of a child, after his trial counsel failed to object to flawed jury instructions.

At trial, the thirteen-year-old child accuser testified that the defendant told her she was sexy and then touched her breast and genitals over her clothing. The defendant, in contrast, testified that he told the girl she was pretty and asked her to show him her stomach, which she did. He stated that he teasingly poked her stomach and told her she needed to work on her abs.

The jury instructions closely followed the charged statute. They said that a person commits sexual abuse of a child if the “actor touches the anus, buttocks, or genitalia of any child… or otherwise takes indecent liberties with a child…” The jury instructions did not define “indecent liberties,” and the defendant’s trial counsel did not object to that part of the instruction.

On appeal, the defendant argued that his trial counsel should have objected to the “indecent liberties” phrase because the jurors had no way to know its legal definition.

To reverse a conviction for ineffective assistance of counsel, a defendant must show that the trial counsel’s representation fell below an objective standard of reasonableness and that the defendant was prejudiced by the deficient representation.

The appellate court found that the defendant met this burden. The Utah Supreme Court had previously interpreted “indecent liberties” to mean conduct of the “same magnitude of gravity” as the specific acts listed in the statute. The Model Utah Jury Instruction for sexual abuse of a child includes this interpretation. The court found there was no reason for trial counsel not to object to the jury instruction’s omitting this interpretation.

The appellate court reasoned that without this interpretation, “a juror might reasonably assume that this catch-all phrase covered actions that are less serious than the specifically prohibited conduct—including actions that are merely socially… reprehensible” or inappropriate. The jury could have viewed the defendant’s testimony about poking the stomach of the girl as “indecent liberties” without viewing this action as having the same magnitude of gravity as the acts listed in the statute.

The court found that if the jury had been correctly instructed, there was a reasonable probability that the outcome of the trial would have been different. It therefore reversed the conviction.

In Seattle and throughout Washington state, “Indecent Liberties” is a particular sex crime. It is most often used to prosecute sexual touching of persons who have some special vulnerability.