ARREST JUDGMENT FOR HIS HUMAN TRAFFICKING CONVICTION,
BUT PROPERLY DENIED THE MOTION AS TO THE SEXUAL
EXPLOITATION CONVICTION
¶59 In addition to his challenges to the denial of his motion to suppress, Andrus challenges the trial court's denial of his motion to arrest judgment on his convictions for human trafficking and sexual exploitation. In reviewing a trial court's ruling on a motion to arrest judgment, "[w]e review the evidence presented at trial in __________________________________________________________
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a light most favorable to the verdict."76We reverse a jury verdict
"only if the evidence presented at trial is so insufficient that reasonable minds could not have reached the verdict."77But when a fact finder could reasonably find "all required elements of the crime . . . from the evidence, including the reasonable inferences that can be drawn from it, we stop our inquiry and sustain the verdict."78We conclude that the trial court erred in denying Andrus's motion as to the human trafficking charge, but affirm his conviction for sexual exploitation of a child. A. The Evidence Was Insufficient to Sustain Andrus's Conviction for Human Trafficking of a Child
¶60 We first consider whether the evidence was so insufficient that the jury could not have found Andrus guilty of human trafficking of a child. At the time of Andrus's offenses, a person who "recruit[ed], harbor[ed], transport[ed], obtain[ed], patronize[d], or solicit[ed] a child for sexual exploitation or forced labor" committed human trafficking of a child.79"[S]exual exploitation" included "all forms of commercial sexual activity with a child," in turn defined as "any sexual act with a child, on account of which anything of value is given to or received by any person."80
¶61 Andrus primarily argues that the evidence here failed to show that "anything of value was given [to] or received by" Laura. Instead, he points out that Laura testified only that Andrus offered her things—including money, a car, and a place to live—but not that she ever received those benefits. He asserts that the marijuana he gave Laura at their first meeting, after Laura touched him sexually, did not qualify as anything of value. And, he claims, the __________________________________________________________
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State failed to prove that the marijuana she did receive was in return for the sexual act.
¶62 The State points out that under the statute, a person may be found guilty for "solicit[ing]" a child for sexual exploitation, not merely "obtain[ing]" or "patroniz[ing]" the child for commercial sexual activity.81The State argues that the inclusion of "solicit" in the statute means that "[t]here is no statutory requirement that child sexual exploitation actually occur." Thus, the State asserts, the statute requires no actual transfer of value—a mere offer is enough. ¶63 Neither this provision nor chapter 5 of title 76 define
"solicit."82For an ordinary criminal solicitation conviction, to
"[s]olicit" is "to ask, command, encourage, importune, offer to hire, or request."83But relying on the statutory actus reus of solicitation, as the State suggests, does not answer whether something of value must in fact be given or received. Stringing together the various provisions in section 76-5-308.5, the plain language permits a conviction for asking, commanding, or requesting "any sexual act with a child, on account of which anything of value is given to or received by any person."84The dictionary definition does not tell us whether "solicit" extends to only the first element—the sexual act—or also reaches the second element—the exchange of value. In other words, knowing the meaning of "solicit" does not tell us whether a mere offer to give or receive something of value is enough for a conviction. To clarify the meaning of this language, we must turn to other tools of statutory interpretation. ¶64 When we construe a statute, "our overarching goal is to implement the intent of the legislature."85"Our first undertaking in this regard is to assess the language and structure of the __________________________________________________________
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statute."86In doing so, "we read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters, avoiding any interpretation which renders parts or words in a statute inoperative or superfluous."87
¶65 Reading the human trafficking of a child provision alongside the statute defining sexual solicitation, section 76-10-1313, persuades us that something of value actually must have been exchanged for the State to secure a conviction for human trafficking of a child. At the time of the offenses, section 76-10-1313 prohibited "offer[ing] or agree[ing] to commit any sexual activity with another individual for a fee, or the functional equivalent of a fee."88Subsection (5) of the statute elevated the offense to a third-degree felony when the solicitation involved a child—unless the solicitation rose to the level of seriousness defined in the adult human trafficking or aggravated human trafficking statutes.89 Unlike the sexual solicitation statute, a conviction under the adult human trafficking statute requires proof of force, fraud, or coercion—a much higher burden to secure a conviction.90This suggests that the legislature intended most cases involving an offer of payment for sexual activity with a child to be prosecuted as sexual solicitation, a third-degree felony, rather than as human trafficking.
¶66 Subsequent legislative changes reinforce our conclusion. In 2022, the legislature amended subsection 76-10-1313(5)(a) to specify that sexual solicitation of a child "is a second degree felony if the solicitation does not amount to a violation of" the human __________________________________________________________
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trafficking of a child statute, section 76-5-308.5.91This distinction between second-degree felony solicitation and first-degree felony human trafficking of a child suggests that the legislature meant for the two crimes to be treated differently.92
¶67 Interpreting the human trafficking of a child statute to apply to mere offers of value would blur the line between the two offenses, rendering the sexual solicitation of a child statute superfluous. To preserve the distinction, we conclude that a conviction for human trafficking of a child requires proof that something of value has actually been given or received, not merely offered.
¶68 Here, the evidence showed that while Andrus offered Laura lavish gifts in exchange for various sexual acts, he only gave her marijuana.93Laura testified that he brought marijuana to their first meeting, which she smoked following their first sexual encounter. She also mentioned that he brought marijuana on at least one other occasion when they met up in the same parking lot. We need not decide whether the marijuana had value, because the evidence was insufficient to permit a jury to conclude that he gave her the marijuana "on account of" any sexual act—in other words, in exchange for or because of a sexual favor.
¶69 While Andrus gave Laura marijuana after she touched his
"groin," which she then smoked, nothing indicates that Andrus promised Laura marijuana either before or during their meeting or that her smoking was more than incidental. Laura testified that Andrus did not say anything about what the marijuana was for, __________________________________________________________
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and that she did not recall whether she had talked with Andrus about marijuana before they met up. Similarly, Laura testified that Andrus brought her marijuana on another occasion, but she did not recall whether he told her ahead of time that he planned to bring it or provide any testimony that the marijuana was given in exchange for the sexual activity. In the absence of any credible evidence suggesting a relationship between the sexual acts and the marijuana, no reasonable jury could conclude beyond a reasonable doubt that the marijuana was given or received on account of a sexual act.94Thus, the trial court erred when it denied Andrus's motion to arrest judgment on this charge, and we vacate his conviction.
B. A Reasonable Jury Could Find that Andrus Committed Sexual Exploitation of a Child
¶70 Andrus also claims that the trial court erred in declining to arrest judgment on his conviction for sexual exploitation of a minor. At the time of the offenses, a person committed sexual exploitation of a minor "when the person . . . knowingly produce[d] . . . child pornography."95"Produce" means
"photographing, filming, taping, directing, producing, creating, designing, or composing . . . ; [or] the securing or hiring of persons __________________________________________________________
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to engage in the photographing, filming, taping, directing, producing, creating, designing, or composing."96And "[c]hild pornography" includes "any visual depiction, including any live performance, photograph, film, video, picture, or computer or computer-generated image or picture, . . . of sexually explicit conduct, where . . . the production of the visual depiction involves the use of a minor engaging in sexually explicit conduct" or "the visual depiction is of a minor engaging in sexually explicit conduct."97"Sexually explicit conduct" includes both "actual or simulated . . . lascivious exhibition of the genitals, pubic region, buttocks, or female breast of any person" and "actual or simulated
. . . masturbation."98The jury was instructed on these statutory definitions and, in addition, was given a stipulated instruction to find Andrus guilty if he did "[k]nowingly produce child pornography"; "[t]o wit: [he] directed [Laura] to create sexually explicit images of herself."
¶71 The State argues the evidence was sufficient to convict Andrus of sexual exploitation of a child based on both the nude still photographs that Laura sent to Andrus and the live-streamed video encounters in which Andrus directed Laura to masturbate for him. Andrus argues that the State cannot rest the conviction on the videos because, based on jury unanimity principles, the State elected to rely on the still photos alone. Assuming without deciding that the jury based Andrus's conviction solely on the still photographs, and viewing the evidence in the light most favorable to the verdict, we determine that a reasonable jury could have concluded that Andrus committed sexual exploitation of a minor.99 ¶72 Laura testified that during their relationship, she and Andrus had conversations over Snapchat about "sexual stuff."
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ejaculate to them." Laura then testified that she sent him nude photos in response to his requests.
¶73 Andrus argues that the State failed to prove that Laura created the explicit photos at his direction, rather than merely sending him pictures she already had on hand. Though Laura did not testify directly about creating the photographs, a reasonable jury could infer from the evidence that she took nude photographs to send to Andrus, per his request, as opposed to merely sending him nude photographs that she had already independently taken and kept on hand. That inference is supported by the text messages that Andrus sent to Laura after their relationship had ended, which Vance screenshotted during an interview with Laura. In the texts, Andrus made several explicit references to sexual acts. Andrus also asked Laura for "some sexy pics." When Laura said she was at school—suggesting she could not take a new photo—he asked if she had "[a]ny saved," adding that "[n]ot even nude is ok." After Laura replied that she had deleted her photos because she "got [her] phone checked," Andrus persisted, asking for another picture, "like a snap of you today." These messages support a reasonable inference that in asking for explicit photos, Andrus was directing Laura to create new pictures for him, not just asking her to send him pictures that she already had on hand. And the jury could reasonably conclude that when Laura had complied with Andrus's earlier requests for nude photos, she had created those photos for him.
¶74 Andrus also asserts that the State's evidence did not prove that he played an "active role" in producing the photographs as he claims is required by the statute. But the evidence was sufficient to qualify this as "production" under the statute and the jury instructions. Andrus contacted Laura, a minor, online, established a sexual relationship with her, and then asked her for nude photographs to which he could masturbate. That conduct certainly qualifies as "securing" Laura to create the nude photographs—one of the listed statutory means of "produc[ing]" child pornography.100Thus, the trial court did not err in denying Andrus's motion to arrest judgment on the sexual exploitation of a child count.
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III. THE TRIAL COURT PROPERLY DENIED ANDRUS'S MOTION FOR A
DIRECTED VERDICT ON THE DISTRIBUTION OF MARIJUANA CHARGE
¶75 Andrus next challenges the trial court's denial of his motion for a directed verdict on the distribution of a controlled substance charge. He argues that a conviction cannot rest solely on Laura's lay testimony that he gave her marijuana without either scientific evidence identifying the substance or an independent foundation about Laura's knowledge of marijuana. ¶76 In late 2019, Utah Code section 58-37-8 made it "unlawful for a person to knowingly and intentionally . . . distribute a controlled or counterfeit substance, or to . . . offer . . . to distribute a controlled or counterfeit substance."101Marijuana is one such controlled substance.102
¶77 Here, Laura testified that at her first encounter with Andrus, he gave her marijuana, and she smoked it. The State provided no physical evidence or scientific testing to show that the substance she received was in fact marijuana. Elsewhere in her testimony, she described smoking marijuana at a friend's house. And on cross-examination, Vance agreed with counsel's description that Laura was at a friend's house and was "high" on marijuana at the time she first contacted Andrus. Laura also testified that Andrus offered her marijuana on other, unspecified occasions, and that she smoked marijuana with Andrus at his house in Summit County.
¶78 The State asserts that the testimony proves that Laura recognized marijuana's appearance and effects, and thus a reasonable jury could rely on her testimony to find that Andrus gave her marijuana. Andrus argues that Laura's lay testimony alone could not prove the identity of the substance she received. A trial court may grant "a directed verdict only if, examining all evidence in a light most favorable to the non-moving party, . . . no competent evidence . . . would support a verdict in the non-moving party's favor."103
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¶79 Andrus points us to two court of appeals decisions, which, he suggests, show that the trial court erred in denying his motion for a directed verdict.104In both cases, the court of appeals considered the minimum amount of evidence necessary to affirm a jury verdict for possession of a controlled substance without chemical testing to prove the substance's identity.105We need not establish today a holistic framework for evaluating such cases. Rather, we consider only whether any competent evidence supports the jury's guilty verdict.106
¶80 Laura testified that she had used marijuana before, and she told police officers that she had been "high," supporting a reasonable inference that she was familiar with marijuana's appearance and effects. She then testified to receiving marijuana from Andrus on the day they first met and again later in their relationship. Though she identified the marijuana by name, she provided no detail about how she knew it was marijuana—not what it looked like, how it smelled, how Andrus referred to it, nor how it made her feel when she used it. But under the exacting standard of review for a jury verdict, we cannot conclude that "no competent evidence" in the record showed that the substance was marijuana.107While the State carries a heavy burden of proof at trial to prove every element—and ideally would have further questioned Laura here—reasonable jurors could use their common sense to infer that Laura had enough experience to recognize marijuana when she saw and smoked it. Accordingly, we affirm the trial court's decision to deny the motion for a directed verdict.
IV. T HE TRIAL COURT DID NOT ERR IN ADMITTING THE SUMMIT
COUNTY EVIDENCE, OR ITS ADMISSION WAS HARMLESS
¶81 Finally, we turn to Andrus's challenges to the admission of evidence about his uncharged activity in Summit County. Specifically, Andrus challenges the admission of "evidence that Laura had sex with [him] in his Summit County house," evidence that he "gave her alcohol and marijuana," and "evidence of the __________________________________________________________
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search of [Andrus]'s house that occurred one year after the Summit County incident, where police found Laura's underwear, an alcohol flask, cartridges for an electronic cigarette, and a substance that the police believed was marijuana." Andrus asserts that the trial court should have excluded this evidence under rule 404(b) of the Utah Rules of Evidence.
¶82 In reviewing the admission of evidence under rule 404(b), we defer to the judgment of the trial court unless it has abused its discretion.108
¶83 Rule 404(b) states that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in conformity with the character."109Even so, this other-acts evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident."110
¶84 The State asserts the challenged evidence was admissible without undergoing a rule 404(b) analysis because it was intrinsic to the charged crimes and was not evidence of "other acts."111In the alternative, the State asserts the evidence was "introduced for a legitimate, noncharacter purpose" under rule 404(b).112 ¶85 Here, upon reviewing each piece of evidence to which Andrus objected, we conclude that the trial court did not abuse its discretion in admitting the evidence, or that its admission, if erroneous, did not prejudice Andrus. We first consider Laura's testimony about sexual activity in Summit County along with the physical evidence of her underwear, which police officers discovered in their search of Andrus's house. Then, we analyze Laura's testimony that Andrus provided her alcohol and marijuana __________________________________________________________
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at his house, and the evidence that the officers discovered alcohol, marijuana, and electronic cigarette cartridges there a year later. A. The Trial Court Properly Admitted Laura's Testimony About Sexual Activity in Summit County and the Location of Her Underwear
¶86 We first evaluate whether the trial court properly admitted Laura's testimony that at the end of their relationship, Andrus invited her to his house in Summit County, where they had sex. Laura testified that following that encounter, she unintentionally left behind a pair of underwear. Investigators found the underwear while searching Andrus's Summit County home.
¶87 Assuming without deciding that the evidence was extrinsic, we conclude the trial court did not abuse its discretion in admitting the evidence. The underwear linked Andrus to Timothy, the only physical evidence connecting him to his online alias. That evidence had direct bearing on Andrus's identity, a permissible purpose under rule 404(b).113And the jury needed to hear Laura's testimony to understand how the underwear ended up at Andrus's house in the first place. Because the evidence served "a legitimate, non-character purpose," the trial court did not abuse its discretion in admitting it.114
B. The Trial Court's Admission of Evidence About Drugs and Alcohol Used and Found in Summit County Was Harmless ¶88 We now turn to the evidence related to alcohol and marijuana—both Laura's testimony that Andrus provided her alcohol and marijuana when she visited his Summit County home, and the physical evidence of alcohol, marijuana, and electronic cigarette cartridges discovered in his home in the search a year later. Laura testified that when she met Andrus at his house, he gave her marijuana and alcohol. Vance testified that Laura told police officers that "she had been provided with alcohol and described the bottle as a flask shape with a red cap." Laura also said the alcohol was eighty-proof vodka. Then, upon a search of Andrus's home about a year later, the officers found eighty-proof
"vodka that was flask shaped, and had a red label and a white cap."
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They also found marijuana and electronic cigarette cartridges that Laura said looked like the ones Andrus had given her. ¶89 We assume without deciding that the court erred in admitting this evidence, because we conclude that any such error did not prejudice Andrus. "An error is harmful if it is reasonably likely that the error affected the outcome of the proceedings. In other words, for an error to require reversal, the likelihood of a different outcome must be sufficiently high to undermine confidence in the verdict."115We are not convinced that any alleged error here rose to that level.
¶90 As an initial matter, the jury was instructed that "[w]hile [it could] consider evidence from [Summit County] to support the charged offenses, the acts charged must be found to have occurred in Davis County." "[W]e presume that a jury follows the instructions given . . . ."116As Andrus has not pointed to evidence to the contrary, we presume that the jury used the Summit County evidence only for corroboration, and did not rely on Laura's testimony that Andrus gave her marijuana at his home as proving an element of the distribution of a controlled substance charge. ¶91 The challenged evidence here may have bolstered Laura's credibility by corroborating details in Laura's testimony. But Laura's testimony about her ongoing relationship with Andrus was already strongly corroborated by the sexual text messages Andrus sent her and the underwear found in Andrus's home. Her testimony about receiving marijuana from Andrus was also corroborated by Andrus's later text messages asking if she "still use[d] puff bars" and if they could "hang out sometime and smoke." In light of this other evidence, the additional corroboration provided by the challenged Summit County evidence had no reasonable likelihood of influencing the jury's verdict.117 ¶92 The challenged evidence also had some bearing on the question of Andrus's identity. But that evidence of identity was cumulative after Laura identified Andrus in court as Timothy and police officers described their methodical process to track him __________________________________________________________
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down electronically. Given that other evidence tying Andrus to the offenses, it is highly unlikely that the challenged evidence affected the jury's verdict.118
¶93 Finally, any improper character inference the jury could have made from the acts of possessing alcohol, marijuana, and electronic cigarette cartridges likely did not impact the jury's judgment of Andrus given that it had already heard Laura's testimony about their ongoing illicit relationship and seen the explicit text messages Andrus sent her. Even assuming the court erred in admitting this evidence, it is not reasonably likely that it caused the jury to reach a different verdict. We conclude that any error did not affect the outcome of the proceedings and does not undermine our confidence in the jury's verdict.119
CONCLUSION
¶94 Andrus raises several challenges to his convictions arising from his sexual relationship with an underage girl. First, he asserts that EIDPA and the Utah Constitution required suppression of electronic records about him. But because we determine that federal officers obtained those records based on lawful federal subpoenas, and then shared the records with state officers, we conclude that EIDPA did not require suppression of the records or any derivative evidence. Nor has Andrus persuaded us that the Utah Constitution was violated here.
¶95 We also reject most, but not all, of Andrus's assertions that the evidence was insufficient to support his convictions. We hold that the human trafficking of a child statute requires the State to prove that something of value was given or received in exchange for a sexual act, not merely that something of value was offered. Accordingly, we vacate Andrus's conviction for human trafficking of a child. But the evidence is sufficient to affirm his convictions for sexual exploitation of a minor and distribution of a controlled substance.
¶96 Finally, we reject Andrus's challenge under rule 404(b) of the Utah Rules of Evidence to the admission of evidence related to his uncharged conduct in a different county. We conclude that the __________________________________________________________
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court properly admitted some of the challenged evidence and that admission of the remainder was harmless.
¶97 We therefore vacate Andrus's conviction for human trafficking of a child and affirm his remaining convictions. J USTICE POHLMAN, concurring in part and dissenting in part from the Opinion of the Court:
¶98 I agree with and concur in the majority's analysis on all issues but one. I respectfully disagree with its interpretation of EIDPA in Part I.A. of the opinion. In my view, Andrus's subscriber records should have been suppressed by the trial court because the State violated EIDPA when Carlson obtained those records without following the procedures laid out in Utah's Subpoena Powers Statute.
¶99 As framed by the majority, the relevant question is this:
"[W]hen Carlson, a state officer, requested that federal officers use their federal authority to obtain subscriber records and then share the records with him, did EIDPA require that those records be excluded in a subsequent state trial?" Supra ¶ 33. ¶100 To answer that question, I begin where my colleagues began—with EIDPA's statutory language. After all, in interpreting statutes, our goal "is to ascertain the intent of the legislature, the best evidence of which is the plain language of the statute itself."
State v. Miller, 2023 UT 3, ¶ 65, 527 P.3d 1087 (cleaned up). And I think the relevant language of EIDPA—in both sections 77-23c-104 and -105—is clear.
¶101 First, section 77-23c-104. This section of EIDPA protects, among other things, the privacy of a person's subscriber record, which includes a person's name, address, and telephone number. U TAH CODE § 77-23c-104(1) (2019).120And subsection 104(2) speaks in direct terms. It states: "Except as provided in Chapter 22, Subpoena Powers for Aid of Criminal Investigation and Grants of Immunity, a law enforcement agency may not obtain, use, copy, or disclose a subscriber record." Id. § 77-23c-104(2) (2019). __________________________________________________________
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¶102 Thus, as relevant here, a law enforcement agency may obtain a subscriber record as part of a criminal investigation, but law enforcement must comply with the Subpoena Powers Statute, which requires that the agency make the necessary showing—that is, a reasonable suspicion—to obtain a court-issued subpoena compelling the record's production.121See id. § 77-22-2.5(2) (2019). ¶103 Subsection 104(3) is equally direct. It establishes the procedure for obtaining a third-party electronic record other than a subscriber record. See id. § 77-23c-104(3) (2019). But it imposes a higher burden on law enforcement to obtain this type of record, stating that "[a] law enforcement agency may not obtain" the record "without a warrant." Id. And to obtain a warrant, law enforcement must show probable cause. State v. Evans, 2021 UT 63, ¶ 26, 500 P.3d 811.
¶104 But these paths are not the only ways law enforcement may obtain subscriber or other electronic records. Section 104 of EIDPA also contains exceptions to its general rules. In 2019, subsection 104(4) stated that "[n]otwithstanding Subsections (2) and (3), a law enforcement agency may obtain . . . a subscriber record, or other record or information related to a subscriber or customer, without a warrant" in specific, enumerated circumstances. U TAH CODE § 77-23c-104(4) (2019). For example, law enforcement could obtain the records with the informed consent of the subscriber or if the electronic communication service provider __________________________________________________________
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voluntarily disclosed the record under certain conditions. Id. § 77- 23c-104(4)(a), (d) (2019).122
¶105 Thus, taken together, subsections 104(2) through (4) dictate how law enforcement agencies may obtain subscriber and other electronic records as part of their criminal investigations. Depending on the type of records sought, subsections (2) and (3) require a subpoena issued by court order or a warrant. And, as shown, subsection (4) delineates specific exceptions to those __________________________________________________________
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mandates. If law enforcement obtains the records without complying with subsections (2) and (3), or without falling within the exceptions in subsection (4), law enforcement violates EIDPA. ¶106 Applying the plain language of these statutory provisions to the facts of this case, I conclude that in obtaining Andrus's subscriber records, the State did not comply with the requirements of subsections 104(2) or (4). Carlson did not obtain a court-issued subpoena as required by subsection 104(2). And no one contends that an exception to those requirements, as set forth in subsection 104(4), applies. Thus, in obtaining Andrus's subscriber records, the State violated the act.
¶107 Having concluded that the State violated EIDPA, I must next resolve whether Andrus has a remedy for that violation. Section 77-23c-105 contains the answer. It states:
All electronic information or data and records of a provider of an electronic communications service or remote computing service pertaining to a subscriber or customer that are obtained in violation of the provisions of this chapter shall be subject to the rules governing exclusion as if the records were obtained in violation of the Fourth Amendment to the United States Constitution and Utah Constitution, Article I, Section 14.
Id. § 77-23c-105 (2019). In other words, if a subscriber record is obtained in violation of EIDPA, it is subject to exclusion. ¶108 Here, because Carlson obtained Andrus's subscriber records without a court-issued subpoena and without falling within one of subsection 104(4)'s exceptions, see supra ¶ 106, I have no trouble concluding that the records are subject to the exclusionary rule the legislature built into EIDPA. Andrus's subscriber records are "records of a provider of an electronic communications service . . . pertaining to a subscriber," and Carlson "obtained [them] in violation of" section 77-23c-104. See U TAH CODE § 77-23c-105 (2019). Thus, I would conclude that the trial court erred in denying Andrus's motion to suppress. ¶109 The majority, of course, reaches a different conclusion, reasoning that EIDPA's exclusionary rule does not apply. The majority relies on what it views as two ambiguities in EIDPA to arrive at that result. But I believe any potential ambiguity is resolved by considering EIDPA as a whole. See Thompson v. State,
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2024 UT 27, ¶ 31, 554 P.3d 988 (explaining that we "determine the meaning of the text given the relevant context of the statute (including, particularly, the structure and language of the statutory scheme)" (cleaned up)).
¶110 First, the majority reads section 104 as suggesting law enforcement may obtain subscriber records through means not identified in the statute. See supra ¶¶ 45-48. Specifically, the majority concludes that subsection 104 is "ambiguous about whether its procedure is exclusive," supra ¶ 48, because, in identifying the exceptions that apply to its general rules, subsection 104(4) states that "[n]otwithstanding Subsections (2) and (3), a law enforcement agency may obtain" these records "without a warrant" under the enumerated circumstances, U TAH CODE § 77- 23c-104(4) (2019).
¶111 The provision's reference to a warrant in its introductory language leads the majority to conclude that the statute suggests
"state officers may also obtain subscriber records with a warrant— a path not contemplated anywhere in EIDPA or the Subpoena Powers Statute." Supra ¶ 45. And that conclusion provides the foundation for the majority's conclusion that the remedy laid out in EIDPA's exclusionary rule was not intended to apply to subscriber records that state law enforcement obtains from federal law enforcement. See supra ¶¶ 45-51.
¶112 To begin, I readily acknowledge that there is some latent ambiguity in the 2019 version of subsection 104(4) and its reference in the introductory language to a warrant. Because subsection 104(4) purports to identify exceptions to the requirements of subsections 104(2) and 104(3), it presumably should have referred to both subpoenas (as referenced in subsection 104(2)) and warrants (as referenced in subsection 104(3)). But, considering this provision in context, I don't read the inclusion of the word "warrant" in the introductory language of subsection 104(4) as implicitly opening the door to additional, unenumerated exceptions to the requirements of subsection 104(2). See Thompson, 2024 UT 27, ¶ 31; Oliver v. Utah Lab. Comm'n, 2017 UT 39, ¶ 20, 424 P.3d 22 ("[T]he fact that the statutory language may be susceptible of multiple meanings does not render it ambiguous; all but one of the meanings is ordinarily eliminated by context." (cleaned up)). ¶113 As shown, the statutory scheme is clear: In subsection 104(2), the legislature instructed that law enforcement may not obtain a subscriber record without a court-issued subpoena; in
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subsection 104(3), the legislature instructed that law enforcement may not obtain records other than subscriber records without a warrant; and in subsection 104(4), the legislature identified several exceptions to those two requirements. With the legislature having articulated requirements and specific, enumerated exceptions to those requirements, I cannot conclude its use of the word
"warrant" in the introductory language of subsection 104(4) is a signal that the legislature intended to allow additional unspoken exceptions to subsection 104(2).
¶114 Instead, I understand subsection 104(4)'s reference to a
"warrant" to be referring to the warrant requirement for obtaining records other than subscriber records as set forth in subsection 104(3). While perhaps it would have been more complete for the legislature to also have referred to subpoenas in the introductory language of subsection 104(4), I don't believe its absence undermines the provisions' express mandates.123The legislature spoke plainly when it dictated that law enforcement may not obtain a subscriber record without a court-issued subpoena. And it spoke plainly when it identified specific exceptions to that requirement. I simply cannot read the statutory scheme as a whole and conclude that the use of the word "warrant" in the introductory language of 104(4) reflects a legislative intent to allow law enforcement to obtain a subscriber record through other methods not identified in subsections 104(2) or (4).
¶115 But even interpreting the inclusion of "warrant" in subsection 104(4) as reflecting legislative intent to introduce an additional exception beyond those specifically identified, I still would read that introductory language as allowing law enforcement to obtain a subscriber record by warrant.124That is, __________________________________________________________
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however, as far as I think that language can go. I see no support in the statutory text for the conclusion that the legislature intended to allow law enforcement to obtain a subscriber record by means not mentioned in EIDPA, and particularly by means that lend less privacy protection than the means laid out in subsection 104(2). ¶116 Next, I also depart from the majority's interpretation of the exclusionary rule in section 77-23c-105. See supra ¶¶ 41-43. Once again, the majority sees ambiguity where I do not. ¶117 The majority suggests that EIDPA is ambiguous as to whether its exclusionary rule applies to all subscriber records obtained by law enforcement in violation of EIDPA or to only those subscriber records obtained directly from service providers. See supra ¶¶ 40-43. Pointing to the exclusionary rule's application to
"electronic records 'of a [service provider] . . . that are obtained in violation of' EIDPA," supra ¶ 41 (emphasis added), the majority opines that the word "of" could be interpreted to indicate a possessive relationship, such that the exclusionary rule only applies "when state officers gain access to subscriber records possessed by service providers," supra ¶ 42.
¶118 But I am wary of resorting to relying on the meaning of
"of" to find ambiguity in the statute. That is because "of" is a broad preposition with many meanings, the construction of which is heavily dependent on context.125And although you could construe
"of" to mean "possessed by," I don't think that construction is supported by the overall statutory scheme. See Thompson, 2024 UT 27, ¶ 31.
¶119 Namely, if we construe "of" in section 105 as meaning
"possessed by," I think we must construe "of" as used in a similar clause in subsection 104(1) in the same way. See State v. Harker, 2010 UT 56, ¶ 12, 240 P.3d 780 ("[W]e read the plain language of a statute as a whole and interpret its provisions in harmony with other statutes in the same chapter and related chapters." (cleaned up)). The provisions are obviously related. Section 105 provides the __________________________________________________________ recognizing such an exception would not undermine the protections the legislature provides under subsection 104(2).
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remedy for the violation section 104 describes. UTAH CODE § 77-23c- 105 (2019) (providing for exclusion of records "obtained in violation of the provisions of this chapter"). And the language in the exclusionary rule closely mirrors the language in section 104. As relevant here, the records subject to the exclusionary rule in section 105 are the "records of a provider of an electronic communications service . . . pertaining to a subscriber." Id. (emphasis added). Similarly, in section 104, a "subscriber record" is defined as "a record . . . of a provider of an electronic communication service . . . that reveals the subscriber's . . . name; . . . telephone number"; and other related information.126Id. § 77-23c-104(1) (2019) (emphasis added).
¶120 So, if we construe "of" to mean "possessed by" in subsection 104(1), that means a "subscriber record" is defined for purposes of that section as "a record or information [possessed by] a provider of an electronic communication service . . . that reveals the subscriber's" identifying information. Id. In other words, under the majority's interpretation, a person's records revealing the person's name, telephone number, and other related information is only a
"subscriber record" if the record is in the electronic communication service's possession. But if we try to insert that definition into other parts of section 104, it doesn't comfortably fit.
¶121 For example, subsection 104(2) states that "a law enforcement agency may not . . . disclose a subscriber record." Id. § 77-23c-104(2) (2019). But it's difficult to imagine how law __________________________________________________________
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enforcement would disclose a record if that record is in another's possession. Thus, it's unclear what work "disclose" is doing in this context if we define "subscriber record" as only those records in the possession of the electronic communication service. Another example is in subsection 104(4)(c). It allows law enforcement to obtain a subscriber record without complying with subsection 104(2) "if the subscriber . . . voluntarily discloses the record in a manner that is publicly accessible." Id. § 77-23c-104(4)(c) (2019). But if we define "subscriber record" as meaning only those records in the possession of the electronic communication service, subsection 104(4)(c) loses meaning. If the record has been voluntarily disclosed by the subscriber in a publicly accessible way, the record is no longer a subscriber record within the meaning of the section and would fall outside of the section's prohibitions. ¶122 Given these incongruities, I cannot agree with the majority that a "subscriber record" refers only to a record that is possessed by an electronic communication service provider. See State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92 ("[W]e read the plain language of the statute as a whole . . . avoiding any interpretation which renders parts or words in a statute inoperative or superfluous in order to give effect to every word in the statute."
(cleaned up)). Instead, I conclude that the phrase "records of a provider of an electronic communications service" as used in sections 104 and 105 means an electronic communication service provider's records. Most often, law enforcement presumably will obtain these records directly from the service provider. But if law enforcement obtains them from another source, like the federal government, those records don't become "records of the federal officers." See supra ¶ 42. Rather, the records are still records of the electronic communication service and law enforcement still must comply with the terms of subsection 104(2) unless an exception in subsection 104(4) applies.
¶123 In addition to believing that this result is compelled by the plain language chosen by the legislature, I also believe it's compelled by statutory design. With several exceptions, the legislature has prohibited law enforcement from obtaining subscriber records without seeking a court-issued subpoena. Had the legislature intended to excuse law enforcement from compliance if the documents were received from other government agencies, I don't believe it would have hidden that intent in the use of the word "of." Instead, I believe we would have seen that
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exception included with the other exceptions identified in subsection 104(4).127
¶124 Finally, the majority turns to legislative history to resolve the ambiguities it sees in EIDPA. Because I believe the statutory context resolves any potential ambiguity in sections 104 and 105, I find the legislative history to be unnecessary. See Belnap v. Howard, 2019 UT 9, ¶ 13, 437 P.3d 355 ("[W]hen the language of a rule or statute is clear, we do not look to other sources, such as legislative history, for interpretive guidance. Instead, only when we find ambiguity do we turn to additional tools to help us understand the rule." (cleaned up)). But even if the legislative history were relevant, I don't believe it expressly answers the question posed by this case. During the committee hearings, there was no discussion about how state and federal agencies work together and how this statute might affect their sharing of information. As a result, it's difficult to draw any meaning from the history about the statutory ambiguities the majority identifies.
¶125 But to the extent the history provides any illuminating content, I believe it supports my interpretation of the statute's plain language. For example, in describing the bill's reach, a supporter __________________________________________________________
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speaking at the sponsor's request affirmed what the statute's language already reflects—that "all of the exceptions" to the statute's requirements are found in subsection 104(4), including an exception that matches a federal law allowing for voluntary production of records under certain circumstances. House Jud. Comm., H.B. 57, 2019 Leg., Gen. Sess. (Feb. 12, 2019), https://le.utah.gov/av/committeeArchive.jsp?timelineID=13179 4; see also U TAH CODE § 77-23c-104(4)(d)(iii) (2019) (citing 18 U.S.C. § 2702). This history suggests that the legislature intended to capture the exceptions to its general rules in subsection 104(4), including any exceptions that would have allowed law enforcement to obtain subscriber records under federal law. ¶126 In sum, I conclude that Carlson violated EIDPA when he obtained Andrus's subscriber records without complying with subsections 77-23c-104(2) or 104(4). I also conclude that that violation triggered the exclusionary rule in section 77-23c-105 and that the trial court erred in denying Andrus's motion to suppress. Although I appreciate my colleagues' concern about the possibility that my interpretation of the statute might have some effect on the cooperation of different law enforcement agencies, see supra ¶ 46- 47, I believe the plain language of the statute compels a different result from theirs. "Where the statute's language marks its reach in clear and unambiguous terms, it is our role to enforce a legislative purpose that matches those terms, not to supplant it with a narrower or broader one . . . ." Hooban v. Unicity Int'l, Inc., 2012 UT 40, ¶ 17, 285 P.3d 766. For these reasons, I dissent.
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