HAGEN, Judge
Opinion Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 161400438 Nathalie S. Skibine and Heather J. Chesnut, Attorneys for Appellant Sean D. Reyes and Marian Decker, Attorneys for Appellee JUDGE DIANA HAGEN authored this Opinion, in which JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred. HAGEN, Judge: ¶1 Probation officers discovered Vratislav Roger Bilek in a motel room with drugs, drug paraphernalia, and a disoriented woman (E.C.). A search of Bilek's cell phone revealed numerous nude photographs and video recordings of E.C. in which she appeared to be unconscious. Subsequently, Bilek was convicted of two counts of voyeurism, one count of distribution of a controlled substance, and one count of possession of drug paraphernalia. ¶2 With respect to his voyeurism convictions, Bilek argues that the State presented insufficient evidence to prove that he used a "concealed or disguised" electronic device to secretly or surreptitiously record or view E.C. Specifically, Bilek argues that the "concealed or disguised" element of class A misdemeanor voyeurism cannot be satisfied by proving only that he provided E.C. with drugs to render her unconscious. We hold that evidence that E.C. was unconscious is sufficient to prove that Bilek secretly or surreptitiously made the recordings, but it does not satisfy the separate element that requires the use of a concealed or disguised electronic device. Accordingly, we vacate his voyeurism convictions. ¶3 Bilek also argues for reversal of his other convictions because the State wrongfully admitted evidence that he was on probation at the time of the offenses and because the district court denied his right to self-representation. We reject these challenges and affirm Bilek's convictions for distribution of a controlled substance and possession of drug paraphernalia.
BACKGROUND
"On review of a jury verdict, we recite the evidence, and all the reasonable inferences that flow from the evidence, in the light most favorable to the verdict." State v. Wilder, 2018 UT 17, ¶ 4 n.1, 420 P.3d 1064.
¶4 In December 2015, Bilek was sentenced to sixty months of probation after pleading guilty to felony kidnapping. As a condition of probation, Bilek agreed that no women would stay overnight with him without his probation officer's approval and that he would abstain from illegal use or possession of drugs or drug paraphernalia. voyeurism charges, the court ruled that providing "a controlled substance that would render a person unaware as to what's going on" was sufficient evidence of "concealment or disguise to secretly or surreptitiously videotape, film, photograph or record." The district court also found that E.C.'s testimony along with the drugs and paraphernalia discovered in Bilek's motel room provided sufficient evidence of forcible sexual abuse and distribution of a controlled substance. ¶17 The jury convicted Bilek of two counts of voyeurism, one count of distribution of a controlled substance, and one count of possession of drug paraphernalia. The jury acquitted him of forcible sexual abuse. Bilek appeals.
In that case, the State alleged that Bilek "lured women to his apartment, detained them for several days, and assaulted them." State v. Bilek, 2017 UT App 37, ¶ 3, 392 P.3d 990 (per curiam).
Utah Code section 76-9-702.7(1) has been amended since Bilek's arrest, eliminating the language at issue in this case. See Utah Code Ann. § 76-9-702.7 (LexisNexis 2017).
In addition to the charges the State filed in this case, Adult Probation and Parole filed violations in Bilek's 2015 case. The district court found by a preponderance of the evidence that Bilek violated the terms of his probation by purchasing and using illegal drugs, possessing drugs and drug paraphernalia, and allowing a woman to stay overnight in his motel room without permission. Bilek challenged the district court's findings on appeal and this court affirmed. See Bilek, 2017 UT App 37, ¶ 12.
ISSUES AND STANDARDS OF REVIEW
¶18 Bilek raises three issues on appeal. First, he contends that the State presented insufficient evidence to support his convictions for class A misdemeanor voyeurism. Specifically, Bilek contends that the State's evidence that E.C. was unconscious when he used his phone to take photographs and videos of her was insufficient to prove that he "concealed or disguised" his phone while doing so. To assess claims of insufficient 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. Robertson, 2018 UT App 91, ¶ 20, 427 P.3d 361 (quotation simplified). "We will reverse the jury's verdict only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted." Mackin v. State, 2016 UT 47, ¶ 20, 387 P.3d 986 (quotation simplified). ¶19 Second, Bilek contends that the district court erred when it allowed the officers to testify that he was on probation. We recognize that "[t]he trial judge is in a better position than we are to assess the avowed basis for evidence of prior misconduct." State v. Thornton, 2017 UT 9, ¶ 56, 391 P.3d 1016. As such, we review the question of "whether the prior misconduct evidence at issue was properly admitted at trial" for an abuse of discretion. Id. Even if the evidence was improperly admitted, we will not overturn a conviction unless a "reasonable likelihood exists that the error affected the outcome of the proceedings." State v. Calvert, 2017 UT App 212, ¶ 38, 407 P.3d 1098 (quotation simplified). ¶20 Finally, Bilek contends that the district court erred when it denied his request for self-representation after the State rested. "When [a] defendant does not assert [the right to self-representation] before trial, we review the district court's decision whether to allow defendant to proceed pro se for an abuse of discretion." United States v. Beers, 189 F.3d 1297, 1303 (10th Cir. 1999).
ANALYSIS
I. Sufficiency of the Evidence Supporting Class A
Misdemeanor Voyeurism
¶21 Bilek contends that we should reverse his conviction for voyeurism because the "State never proved that [he] used a 'concealed or disguised' camera, a requirement under the [voyeurism] statute." The State disagrees but argues in the alternative that, if we determine that the evidence was insufficient to support Bilek's class A misdemeanor voyeurism convictions, we should order the district court to enter convictions for class B misdemeanor voyeurism. We first address whether the State presented sufficient evidence to satisfy the elements of class A misdemeanor voyeurism. We conclude that it did not and then turn to the appropriate remedy. A. Evidence Supporting the "Concealed or Disguised" Element ¶22 When Bilek committed the acts charged, a person committed class A misdemeanor voyeurism by
(1) intentionally us[ing] a camcorder, motion picture camera, photographic camera of any type, or other equipment
that is concealed or disguised to secretly or surreptitiously videotape, film, photograph, record, or view by electronic means an individual:
(a) for the purpose of viewing any portion of the individual's body regarding which the individual has a reasonable expectation of privacy, whether or not that portion of the body is covered with clothing;
(b) without the knowledge or consent of the individual; and
(c) under circumstances in which the individual has a reasonable expectation of privacy.
Utah Code Ann. § 76-9-702.7(1), (2) (LexisNexis 2014) (emphasis added). The State contends, as it argued at trial, that Bilek's actions met the "concealed or disguised" element of the voyeurism statute because he "concealed his phone when he used it to take nude photographs and videos of his victim after the drugs he gave her left her unconscious or otherwise unaware." The State's argument relies on the photographs and videos the officers discovered on Bilek's phone, including a video that seems to depict Bilek hiding his phone when E.C. begins to stir from her unconscious state. The State also relies on
¶27 Such an interpretation does not produce unintended absurd results.
See Bagley v.
Bagley, 2016 UT 48, ¶ 28,
387 P.3d 1000 (explaining that the absurdity doctrine allows a court to read a statute contrary to its plain language only if the legislature could not have reasonably intended the statute to operate in such a manner). Voyeuristic conduct that fails to meet the elements set forth in subsection (1) may still be subject to criminal penalty under subsection (4), which proscribes viewing or attempting "to view an individual, with or without the use of any instrumentality . . . under circumstances not amounting to a violation of Subsection (1)." Utah Code Ann. § 76-9-702.7(4). Under this statutory scheme, perpetrators who do not use concealed or disguised equipment do not necessarily escape criminal liability, but are subject to a lesser penalty under subsection (4). The legislature could have reasonably intended the statute to operate in this manner, punishing the use of concealed or disguised equipment more severely than other voyeuristic conduct. ¶28 Accordingly, the evidence the State presented at trial was insufficient to prove beyond a reasonable doubt that Bilek concealed or disguised his phone camera to photograph and record E.C. as Utah Code section 76-9-702.7(1) requires. B. The Remedy ¶29 Because we have determined that the State's evidence was insufficient to sustain a conviction under subsection (1) of Utah Code section 76-9-702.7, we address the State's contention that we should direct the district court to enter convictions for class B misdemeanor voyeurism pursuant to subsection (4) of that statute. At the time of Bilek's conviction, subsection (4) provided:
(4) A person is guilty of voyeurism who, under circumstances not amounting to a violation of
Subsection (1), views or attempts to view an individual, with or without the use of any instrumentality:
(a) with the intent of viewing any portion of the individual's body regarding which the individual has a reasonable expectation of privacy, whether or not that portion of the body is covered with clothing;
(b) without the knowledge or consent of the individual; and
(c) under circumstances in which the individual has a reasonable expectation of privacy.
Utah Code Ann. § 76-9-702.7(4) (LexisNexis 2014). ¶30 If a defendant's conviction must be vacated because of an error that occurred in the district court, "we have the power to enter judgment for a lesser included offense if (i) the trier of fact necessarily found facts sufficient to constitute the lesser offense, and (ii) the error did not affect these findings."
State v.
Bair, 2012 UT App 106, ¶ 65,
275 P.3d 1050 (quotation simplified);
see also State v.
Dunn, 850 P.2d 1201, 1209-10 (Utah 1993) ("Numerous state and federal courts have concluded that . . . a court has the power to enter judgment for a lesser included offense [and] . . . [w]e conclude that we have the same power."). To determine whether it is appropriate to enter convictions for a lesser included offense, we "compar[e] the elements" of the crime of conviction and the lesser included offense.
Dunn, 850 P.2d at 1211. We may direct the district court to enter judgment for a lesser offense only if we determine that the jury necessarily found each element of the lesser included offense and "the record shows [that the defendant] would not be unfairly
assistance of equipment.
See State v.
Baker, 671 P.2d 152, 156 (Utah 1983) (holding that a defendant has a "constitutional right to protection from instructions to the jury which might subject him to a conviction of a crime against which he has had no opportunity to defend" (quotation simplified)). ¶33 Under the facts of this case, Bilek would be unfairly prejudiced by entry of class B misdemeanor convictions. We therefore vacate Bilek's convictions for class A misdemeanor voyeurism and remand to the district court for further proceedings.
II. Bilek's Other Claims of Error
¶34 Although we have already determined that we must vacate Bilek's voyeurism convictions for lack of sufficient evidence, we now address Bilek's additional claims of error because they potentially affect the validity of his convictions for distribution of a controlled substance and possession of drug paraphernalia. A. Admissibility of the Rule 404(b) Evidence ¶35 First, Bilek contends the district court erred when it allowed the State to admit testimony that Bilek was on probation when he committed the offenses. Rule 404(b)(1) of the Utah defense counsel's argument on Bilek's motion for a directed verdict, Bilek interjected that he was "firing [defense counsel] right now." The district court clarified that Bilek was requesting to represent himself and Bilek confirmed that he was. The court ruled it was "not going to allow that to happen at [that] point." ¶42 The constitutional "right to self-representation is unqualified only if demanded before trial." United States v. Beers, 189 F.3d 1297, 1303 (10th Cir. 1999) (quotation simplified). When a defendant fails to assert this right in a timely manner, the district court has discretion to deny his or her request. See id. Because Bilek waited until midtrial to invoke his right to self-representation, the court acted within its discretion in denying his request at that time. ¶43 Having determined that Bilek was not prejudiced by the admission of evidence of his probation status at trial and that the district court did not err in denying Bilek's mid-trial request to proceed pro se, we affirm his convictions for possession of drug paraphernalia and distribution of a controlled substance.
In response to this argument, the State contends that Bilek invited error at trial when defense counsel responded to the district court's request for argument on Bilek's motion in limine to exclude evidence of his probation status by stating: "I certainly sympathize with the State's conundrum if nothing is admitted about the role of the probation officer, so with that in mind I would submit on the brief." Recognizing that application of the doctrine of "invited error precludes appellate review of an issue," we decline to apply the doctrine here. State v. Oliver, 2018 UT App 101, ¶ 27, 427 P.3d 495 (quotation simplified). Far from inviting error, defense counsel's statement at the hearing on Bilek's motion in limine reinforced the position advocated for in his briefing on the motion, which in itself was a properly made objection to the evidence at issue. Furthermore, after the district court ruled on the motion, it noted that Bilek objected to the ruling and stated that his objection had been preserved.
Bilek contends that his motion was timely because he filed two pro se letters with the district court before his mid-trial request in which he claimed that defense counsel was "ineffective" and requested "substitution of ineffective counsel." We are not persuaded by this argument, because an invocation of the right to self-representation must be clear and unequivocal. See State v. Bakalov, 1999 UT 45, ¶ 16, 979 P.2d 799. None of the letters Bilek filed with the court contain such an invocation. --------
CONCLUSION
¶44 We conclude that the State presented insufficient evidence to prove beyond a reasonable doubt that Bilek concealed or disguised his phone when he photographed and recorded E.C. nude, and we therefore vacate Bilek's convictions for class A misdemeanor voyeurism and remand for further proceedings. 20 With respect to the remaining counts, we conclude that Bilek was not prejudiced by the admission of testimony regarding his probation status and that the district court acted within its discretion by denying Bilek's untimely request for self-representation. Accordingly, we affirm Bilek's convictions for distribution of a controlled substance and possession of drug paraphernalia.